2017 Law Day Luncheon Announcement and Registration P

IN THIS ISSUE

2017 Law Day Luncheon Announcement and Registration P. 2

Report on the Mid-Year Meeting of the ABA House of Delegates P. 16

2016 Combined Campaign for Justice Contribution List P. 28 THE DELAWARE STATE BAR ASSOCIATION PRESENTS LAW DAY LUNCHEON 2017 MONDAY, MAY 1, 2017 • 12:00 NOON HOTEL DU PONT • WILMINGTON, DELAWARE

The Honorable Collins J. Seitz, Jr. was sworn in as Justice of the Supreme Court of Delaware on April 14, 2015. Prior to his appointment, Justice Seitz was a founding partner of Seitz Ross Aronstam & Moritz LLP, a boutique corporate advisory and litigation firm in Wilmington, Delaware representing clients in high-profile corporate and trust disputes in the Delaware Court of Chancery. Before founding Seitz Ross, Justice Seitz was a partner of Connolly Bove Lodge & Hutz LLP in Wilmington Delaware, where he litigated corporate and intellectual property disputes.

A member of the Delaware Bar since 1983, Justice Seitz served as a board member and chair of the Board of Bar Examiners, and a board member of the Board on Professional Responsibility. Both federal and state courts often appointed Keynote Address by Justice Seitz as a Master and Trustee to oversee complex corporate, commercial and intellectual property cases. He is The Honorable a Fellow of the American College of Trial Lawyers. Collins J. Seitz, Jr. Justice, Supreme Court of Delaware Justice Seitz received his undergraduate degree from the University of Delaware and his law degree from the Villanova University School of Law.

Law Day Luncheon 2017 • Monday, May 1, 2017 • 12:00 noon Please reserve ______place(s) for me at the Monday, May 1, 2017 Law Day Luncheon to be held at 12:00 noon at the Hotel du Pont. $55/per person. Please include names and DE ID numbers of all attendees with response.

Name: ______DE ID No.: ______Firm: ______Phone: ______E-mail: ______Address: ______Check/Charge in the amount of $ ______enclosed. ($55/per person) Please make checks payable to DSBA.  MasterCard  Visa  Amex  Discover Expiration date: ______CVV: ______Card number: ______

Signature: ______(Required if card purchase) Billing Zip Code: ______Please fax to (302) 658-5212 or mail by April 24, 2017 to: Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE 19801 Refund Policy: Refunds will not be issued unless cancellation is received no later than one week prior to the luncheon. DSBA BAR JOURNAL MARCH 2017 | VOLUME 40 • NUMBER 8

PRESIDENT Miranda D. Clifton

EXECUTIVE DIRECTOR Mark S. Vavala

EDITORIAL BOARD Jason C. Powell Benjamin A. Schwartz Seth L. Thompson

EXECUTIVE COMMITTEE LIAISON David J. Ferry, Jr. FEATURES PUBLICATIONS EDITOR Rebecca Baird 2 2017 Law Day Luncheon Announcement and Registration PUBLICATION ASSISTANTS Janice Myrick Susan Simmons 16 Report: 2017 Mid-Year Meeting of the ABA House of Delegates BY WILLIAM D. JOHNSTON, ESQUIRE The Bar Journal is published and distributed by the Delaware State Bar Association

405 North King Street, Suite 100 20 The 2017 Blue-Gold High School All-Star Basketball Games Wilmington, DE 19801 BY LAWRANCE SPILLER KIMMEL, ESQUIRE P: 302-658-5279 F: 302-658-5212 www.dsba.org 28 2016 Combined Campaign for Justice Contribution List

The Bar Journal is the independent journal of the Delaware State Bar Association. It is a forum for the free expression of ideas on the law, the legal profession and the administration of justice. It may publish COLUMNS articles representing unpopular and controversial points of view. Publishing and editorial decisions are based on the 4 President's Corner 18 Access to Justice Spotlight quality of writing, the timeliness of the article, and the potential interest to readers, 6 Editor’s Perspective 22 DE-LAP Zone and all articles are subject to limitations of good taste. In every instance, the views 10 Tips on Technology 24 LOMAP for the Delaware Lawyer expressed are those of the authors, and no endorsement of those views should be 12 Ethically Speaking 26 Book Review inferred, unless specifically identified as the policy of the Delaware State Bar Association. 14 Highlights from the Courts 34 Judicial Palate

The Bar Journal is published monthly with a combined July/August issue.

All correspondence regarding circulation, subscriptions, or editorial matters should be mailed to: Editor, DSBA Bar Journal Delaware State Bar Association 405 North King Street, Suite 100 DEPARTMENTS Wilmington, DE 19801 or emailed to: [email protected] 7 Side Bar 9 Section & Committee Meetings Letters to the Editor should pertain to recent articles, columns, or other letters. Unsigned 7 Disciplinary Actions 31 In Memoriam letters are not published. All letters are subject to editing. Send letters to the address 7 Why I Belong 32 Bulletin Board above, Attention: Editor, Bar Journal. 8 Calendar of Events For Advertising Opportunities Call (302) 658-5279, ext. 102 Email: [email protected] Read The Bar Journal online at www.dsba.org Cover Photo Credit: © istockphoto.com/ ganchar

DSBA Bar Journal | March 2017 3 PRESIDENT'S CORNER

By Miranda D. Clifton, Esquire

A Legal Legacy

he practice of law lenge the new attorneys. is extremely gen- However, one speech I will erational. The law never forget was given by is living and con- Justice Randy Holland on stantly changing, potentially civility and ethics. This T year, I was encouraged to with every case that is filed. The law that I “inherited” has hear him get up and speak been carefully constructed by to the new admittees in the legislation and case law 2016 about the importance for several decades before of civility and ethics. my birth. Even during my Justice Randy Holland practice, the law in certain epitomizes civility and eth- areas has made some dramatic ics in Delaware. On a per- shifts. I have always tried to sonal level, you will never © istockphoto.com/ stevanovicigor istockphoto.com/ © be true to the vision of the meet more of a gentleman in forefathers whom I have studied and who have a responsibility to my profession to every sense of the word than Justice Hol- formulated the Constitution as they be- prepare and maintain the practice of law land. His soft-spoken, kind mannerisms gan a new world; however, the world has for the next generation of attorneys who are always a pleasure. I have observed and changed drastically since that time (as has will have challenges and obstacles that I interacted with him for several years and the Constitution). cannot even imagine. have never heard an unkind or offensive I recently was exposed to the follow- I have had the privilege to speak and word or tone come out of his mouth, even ing quote, “We do not inherit the earth interact on a couple of occasions with when well-deserved. Although he is quali- from our ancestors; we borrow it from our the 2016 newly admitted attorneys to the fied to do so, he has never been one to children.” This is a quote that was used Delaware Bar. My conclusion is that the grandstand or demand the spotlight for so often, no one really recalls whether it future of the Bar will be in good hands. himself. In fact, he only takes center stage originated with the Native Americans or These attorneys are bright, optimistic, when he has a message that needs to be the Amish. However, it is an extremely and have the capacity to uphold traditions heard or is bestowing honor on another. insightful perspective on our responsibil- while being innovative. I encourage you Justice Holland understands that ity on how to handle the world we have to welcome these new members of the although he has earned, through his been given. While this quote has been in- Delaware Bar, take them out to lunch gentle demeanor as well as his outstand- terpreted more environmentally, I would and make yourself available to them. All ing accomplishments, the right to “use” like to discuss it more in the context of of us are interested in making sure that the legal profession as his possession, that the legal profession. each new attorney succeeds in practicing it is merely on loan from the generations I have shifted my thinking about law in Delaware. of newer attorneys. In his roles within how I approach the law in the last few During some of these ceremonies, the legal community, most recently as years. While there is value in upholding my mind went back to when I sat in the Supreme Court Justice for over 30 years, the ideals of my ancestors, it is impera- same seat that they did and listened to he has portrayed excellence not only tive that I understand that I am merely Bill Johnston (then Delaware State Bar within Delaware, but globally represent- a bridge between generations. As such, I Association President) welcome and chal- ing Delaware.

4 DSBA Bar Journal | www.dsba.org The Delaware Bar applauds you, Jus- tice Holland. We are all better because we have known you and we wish you every aw ffices Of future success in whatever adventures lie L O beyond the Delaware Supreme Court. Thank you for leaving your fingerprint Dana L. ReynOLDs, LLc on the Delaware legal profession and being instrumental in the Delaware legal community remaining a vibrant, civil, FAMILY LAW Divorce and Separation and professional forum to practice law Adoption for generations to come. Custody/Guardianship Termination of Parental Rights Miranda “Mindy” Clifton has Embryo & Egg Donation graduated from every college and Gestational Surrogacy university beginning with a “W” Domestic Violence/PFAs including Wesley (BS), Widener (JD) and CRIMINAL DEFENSE Wilmington (MBA). She is the current President of the Delaware State Bar Drunk Driving/DUI Association. In her spare time, Mindy is Misdemeanors a Trial Attorney for Nationwide Mutual Felonies Insurance Company and represents its Expungements & Pardons Juvenile Offenses customers in almost every court in all Motor Vehicle Offenses three counties throughout the State. Post-Conviction Relief Mindy is also an adjunct professor for Dana L. ReynoLDs, esq. Appeals Wilmington University in their Graduate Business Studies. She can be reached at [email protected]. 30C Trolley Square • WilmingTon, De 19806 302.428.8900 • WWW.DanareynolDSlaW.Com

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DSBA Bar Journal | March 2017 5 EDITOR’S PERSPECTIVE

By Seth L. Thompson, Esquire

Tiger Looks at Forty

wo-on-one sideline drill. Remember: communicate and back the after Ty and the driver of the truck dove play,” the J.V. coach barked from under his visor. “On my whistle, into the ditch. More hours ticked by as the first group, go!” With a loud tweet, three of us ran from the front of police attempted to sort things out. Need- our respective lines of freshmen trying to make the cut. I trapped the ing to get back for a test the next morning “Tball, advanced toward the defender in an effort to force him to commit, gave a quick and facing at least ten hours of driving, head nod toward the left, and put a pass to that side of the defender, a moment after Tyson left his information with the other the forward stopped his run to the right and cut back left. “Well done. Next group, on drivers and hopped back on the road. Both my whistle.” Jogging to the back of the halfbacks’ line, I stopped to introduce myself regular-beam highlights were shattered, as to the forward. “What’s up. I’m Seth.” “Hey. Tyson.” was one of the high-beams. Fortunately, To know Ty is to like Ty, the lone caveat being if you are a sports opponent unfa- the other high-beam headlight had its miliar with his competitiveness, focus, and determination. These characteristics shone bulb — which pointed 45 degrees to the through immediately. During water breaks in those soccer try-outs, a few players Honda’s right, brightly illuminating the juggled soccer balls individually and then among each other, organically evolving into mile markers and any litter along the high- players competing to keep the ball from touching the grass, using their feet, thighs, way, but little of the actual road. After tak- heads and the occasional shoulder. Dragging the ball back with his foot, Tyson flipped ing the test and completing the semester, the ball up onto his thigh and then alternated left and right touches until all other Tyson drove to his parents’ house to start balls hit the ground, kids started counting then lost count, and finally the whistle the December break. His father stood on blew to re-start practice, at which point, he nonchalantly struck the ball with slightly the porch awaiting the arrival. When the more force, just enough to lift it overhead and strike it with his heel, sending the ball Honda appeared, smashed on three of its back overhead and toward midfield. four sides, he hopped down the steps and said in shock, “Tiger, what happened to Over the years, that nonchalance, coupled with a sense of adventure, led to some tales the car?!” Ty replied, “What, that? Pfft, that still come up at my family dinners. Ty and I, along with two other senior buddies, it’s been like that for a month.” set out one Saturday morning to scour garage sales for kitsch to decorate our awaiting dorm rooms. As I rummaged through VHS tapes near the top of the driveway, Tyson That sense of confident independence casually walked toward the garage, pointed to a polystyrene sailboat, no more than manifested itself again a couple years later. twelve feet in length, and asked the man reading the paper in his lawn chair, “How After taking the bar exam, I made plans to much for this?” “One sec. Let me check with my wife.” One hundred bucks later, the meet Tyson in Rehoboth. Ty lived in Park boat sat on top of Tyson’s Cherokee, four kids each sticking one arm out of the window City, Utah, for a few years after college, to hold the boat in place as we drove to the nearest lake that allowed watercraft.1 working for a wilderness therapy program for troubled teens, and then relocated to A few years after the impromptu sailing foray, less than three hours into the long the Appalachians in northern Georgia to drive back to Purdue the Sunday after Thanksgiving break of junior year, Ty came to a do the same. He mentioned working eight screeching halt on the interstate. His old Honda was the last to stop in time. The truck days “in the field,” followed by six days immediately behind him rear-ended Ty’s car, sending him into the SUV in front. About off, during which he would either travel, six other vehicles subsequently piled up. The drivers pulled their vehicles to the shoulder kayak, or guide groups on whitewater and waited for the trooper’s arrival. At that point, a semi with an unconscious driver rafting trips. drifted onto the shoulder, sideswiping the already damaged automobiles just seconds 1. Remarkably, the boat was not even the oddest part of that morning’s scavenging. At an earlier garage sale, an item In need of lodging, I arranged for us on the proverbial rack of old clothes caught Ty’s eye. After taking the red and white Hawaiian shirt from its hanger, to stay with an old summer housemate, Tyson held it up to himself, gauged the sleeve length, and then tried it on. To this day, I am uncertain if he intended any humor whatsoever, as he turned and asked the gentleman standing by the cash box, “Do you have this in blue?” Editor's Perspective (continued on page 11)

6 DSBA Bar Journal | www.dsba.org SIDE BAR WHY I BELONG

TOP` 5 REASONS TO TRY DSBA CLE ONLINE The Honorable Mary M. Johnston 1 While we prefer you come to a live seminar, we know you Superior Court of Delaware EXECUTIVE COMMITTEE sometimes have limited free time and this will help out. JUDICIAL MEMBER

2 The process is easy to use, just log in to the Members Area “Being a member of the Delaware Bar is an extraordinary honor and privilege. The of the DSBA website and select Online CLEs to choose from Delaware State Bar Association is the glue dozens of great courses. that holds us together, and takes us to the next level of professionalism, ethics, 3 Miss that Arbitration Training, but still want to be certified? collegiality, and social responsibility.” It’ll be online shortly; in fact, we can get you new courses faster than ever before. Charles B. Vincent 4 If you are dieting, you don’t get bagels and snacks like Innovincent LLC you do with live seminars…so, not as much fun, but good DSBA MEMBER for calorie counters.

“The DSBA is like the bar in Cheers — 5 Online CLE – Convenient Learning Environment. everyone is friendly, they know your name, and you are welcome to pop in to use one of their conference rooms to take a call or meet with a client.” DISCIPLINARY ACTIONS

DISBARMENT bank statements produced by Ramunno to Dawn L. Becker the original bank statements revealed they The Law Office of Dawn L. Becker In the Matter of Leo J. Ramunno, EXECUTIVE COMMITTEE No. 42, 2017. were altered prior to Ramunno producing MEMBER-AT-LARGE Effective Date: January 25, 2017 the records to the ODC. The monthly ending balances on Respondent’s bank “I belong to the Bar Association because I On January 25, 2017, the Delaware statements were altered to reflect higher truly believe that Delaware has the best Bar Supreme Court ordered the disbarment ending balances than indicated on the in the nation. I want to be a part of that, and of Delaware lawyer, Leo J. Ramunno, original bank statements. Additionally, being a member of the Association gives based upon his misappropriation of client during each month, several electronic me a place to share and listen to ideas and trust funds. transfers from the trust account to the plans to keep us the best!” In December 2016, the Office of Dis- operating account were missing from ciplinary Counsel (“ODC”) opened an Ramunno’s bank statements. Illustrations by Mark S. Vavala investigation into Ramunno’s handling of Ramunno and the ODC signed and Would you like to share why you belong his client trust funds after receiving a com- submitted for the Court’s approval a to DSBA? Please let us know what plaint from a client regarding Ramunno’s stipulation seeking Ramunno’s disbar- DSBA membership means to you! Email failure to disburse funds due to the client. ment without further proceedings. In the Rebecca Baird at [email protected]. During the course of its investigation Stipulation Ramunno admitted to the the ODC found several irregularities in Delaware Supreme Court that he misap- Ramunno’s client trust account. Pursu- propriated Delaware client trust funds. Your ant to the ODC’s request Ramunno Donna L. Culver, Esquire has been

IN THIS ISSUE produced a copy of his general ledger for 2017 Law Day Luncheon Announcement and Registration P. 2 Report on the Mid-Year Meeting of the ABA House of Delegates P. 16 appointed by the Court of Chancery as re- Name 2016 Combined Campaign for Justice Contribution List P. 28 his client trust account which reflected ceiver for Mr. Ramunno’s law practice. receipts, disbursements and balances for in Print three years. Although not requested by the For information on submitting articles ODC, Ramunno also produced copies of for publication in the Bar Journal, the bank statements for trust account for please contact Rebecca Baird at the same time period. A comparison of the [email protected].

DSBA Bar Journal | March 2017 7 CALENDAR OF EVENTS Professional Guidance Committee March 2017

This committee provides peer counseling Wednesday, March 15, 2017 and support to lawyers overburdened by Fundamentals of Criminal Law and Procedure 2017 personal or practice-related problems. It 6.0 hours CLE credit including 1.0 hour Enhanced Ethics credit offers help to lawyers who, during difficult Delaware State Bar Association, Wilmington, DE times, may need assistance in meeting law Webcast to Kent County Courthouse, Dover, DE practice demands. The members of this Webcast to Tunnell & Raysor, Georgetown, DE committee, individually or as a team, will help with the time and energy needed to Thursday, March 16, 2017 keep a law practice operating smoothly and Celebrating the Clover; Getting Pulled Over to protect clients. Call a member if you or 2.0 hours of CLE credit someone you know needs assistance. Delaware State Bar Association, Wilmington, DE Webcast to Tunnell & Raysor, Georgetown, DE New Castle County Friday, March 17, 2017 Karen Jacobs, Esquire, Co-Chair* Young Lawyers’ Judicial Roundtable for 2015 Admittees Victor F. Battaglia, Sr., Esquire Delaware State Bar Association, Wilmington, DE Dawn L. Becker, Esquire Tuesday, March 21, 2017 Mary C. Boudart, Esquire* Personal Privacy Protection 101: Security Tips for

Ben T. Castle, Esquire Individuals in the Professional World 2.0 hours CLE credit in Enhanced Ethics David J.J. Facciolo, Esquire Delaware State Bar Association, Wilmington, DE David J. Ferry, Jr., Esquire Webcast to Tunnell & Raysor, Georgetown, DE Robert D. Goldberg, Esquire Friday, March 24, 2017 Bayard Marin, Esquire Small Firms and Solo Practitioners Conference 2017 James K. Maron, Esquire 5.0 hours CLE credit including 3.0 hours Enhanced Ethics credit Wayne A. Marvel, Esquire The Atlantic Sands Hotel and Conference Center, Rehoboth Beach, DE Michael F. McTaggart, Esquire Tuesday, March 28, 2017 Denise D. Nordheimer, Esquire Labor and Employment Update 4.8 hours CLE credit (including 1.5 hours Enhanced Ethics credit) Elizabeth Y. Olsen, Esquire* Delaware State Bar Association, Wilmington, DE Kenneth M. Roseman, Esquire* Webcast to Kent County Courthouse, Dover, DE Thomas Doyle Runnels, Esquire Webcast to Tunnell & Raysor, Georgetown, DE Janine M. Salomone, Esquire Wednesday thru Friday, March 29-31, 2017 Yvonne Takvorian Saville, Esquire Superior Court Mediation Training at the DSBA R. Judson Scaggs, Esquire* 18.5 hours CLE credit including 1.0 hour Enhanced Ethics credit Delaware State Bar Association, Wilmington, DE David A. White, Esquire Gregory Brian Williams, Esquire Hon. William L. Witham, Jr. April 2017 Wednesday, April 12, 2017 Kent County Game of Drones, Autonomous Vehicles, and Other Connected Devices Crystal L. Carey, Esquire 3.0 hours CLE credit including 0.9 hour of Enhanced Ethics credit Delaware State Bar Association, Wilmington, DE Edward Curley, Esquire Webcast to Tunnell & Raysor, Georgetown, DE Clay T. Jester, Esquire Tuesday, April 18, 2017 Mary E. Sherlock, Esquire Fundamentals of Wills, Trusts, and Estates 6.0 hours CLE credit Sussex County Delaware State Bar Association, Wilmington, DE Larry W. Fifer, Esquire Webcast to Tunnell & Raysor, Georgetown, DE Eleanor M. Kiesel, Esquire Thursday, April 20, 2017 Dennis L. Schrader, Esquire Movie Night “Deliberate Intent” with Dean Smolla 1.0 hour CLE credit Carol P. Waldhauser, Executive Director Delaware State Bar Association, Wilmington, DE DSBA/DE-LAP Liaison

*Certified Practice Monitor Visit www.dsba.org/cle for a complete list of upcoming CLE Seminars.

8 DSBA Bar Journal | www.dsba.org SECTION & COMMITTEE MEETINGS EXECUTIVE COMMITTEE Miranda D. Clifton March 2017 President Monday, March 13, 2017 • 12:00 p.m. Michael Houghton Litigation Section Meeting President-Elect Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE David J. Ferry, Jr. Tuesday, March 14, 2017 • 4:00 p.m. Vice President-at-Large Small Firms & Solo Practitioners Section Meeting The Law Offices of Denise D. Nordheimer, Esquire, LLC, 2001 Baynard Boulevard, William Patrick Brady Wilmington, DE Vice President, New Castle County Thursday, March 16, 2017 • 12:00 p.m. Executive Committee Meeting Anthony V. Panicola Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Vice President, Kent County

Thursday, March 16, 2017 • 4:00 p.m. Mark H. Hudson Elder Law Section Meeting Vice President, Sussex County Reger Rizzo & Darnall LLP, Brandywine Plaza East, Wilmington, DE Friday, March 17, 2017 • 12:00 p.m. Samuel D. Pratcher III Workers’ Compensation Section Meeting Vice President, Solo & Small Firms, Marshall Dennehey Warner Coleman & Goggin,1007 North Orange Street, Suite 600, New Castle County Wilmington, DE Reneta L. Green-Streett Thursday, March 23, 2017 • 4:00 p.m. Vice President, Solo & Small Firms, Family Law Section Meeting Kent County Bayard, P.A., 222 Delaware Avenue, Suite 900, Wilmington, DE Monday, March 27, 2017 • 4:00 p.m. Michael W. Arrington Taxation Section Meeting Secretary Cooch and Taylor P.A., 3711 Kennett Pike Greenville, DE Kathleen M. Miller April 2017 Assistant Secretary

Monday, April 3, 2017 • 12:30 p.m. Michael F. McTaggart Senior Lawyers Committee Monthly Luncheon Meeting Treasurer Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Tuesday, April 4, 2017 • 3:30 p.m. Charles J. Durante Estates & Trusts Section Meeting Assistant Treasurer Connolly Gallagher LLP, The Brandywine Building, 1000 West Street, Wilmington, DE Richard A. Forsten Wednesday, April 5, 2017 • 12:30 p.m. Past President Women and the Law Section Meeting Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE The Honorable Mary M. Johnston Tuesday, April 11, 2017 • 4:00 p.m. Judicial Member Small Firms & Solo Practitioners Section Meeting The Law Offices of Denise D. Nordheimer, Esquire, LLC, 2001 Baynard Boulevard, Victoria Watson Counihan Wilmington, DE Assistant to President Wednesday, April 12, 2017 • 12:00 p.m. Thomas P. McGonigle E-Discovery and Technology Section Meeting Legislative Liaison Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Wednesday, April 12, 2017 • 4:00 p.m. Mary I. Akhimien ADR Section Meeting Dawn L. Becker Wilson Sonsini Goodrich & Rosati, 222 Delaware Avenue, Suite 800, Wilmington, DE Crystal L. Carey Wednesday,April 12, 2017 • 4:00 p.m. Jill Spevack Di Sciullo Real & Personal Property Section Meeting David A. Felice The Kirsh Law Firm, 910 South Chapel Street, Suite 202, Newark, DE Mary Kathryn Hodges Harmon Laina M. Herbert Thursday, April 20, 2017 • 12:00 p.m. Christofer C. Johnson Executive Committee Meeting James Darlington Taylor, Jr. Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Thomas A. Uebler Thursday, April 20, 2017 • 4:00 p.m. David A. White Elder Law Section Meeting Members-at-Large Doroshow Pasquale Krawitz & Bhaya, 1202 Kirkwood Highway, Wilmington, DE Mark S. Vavala Please contact Janice Myrick at [email protected] or (302) 658-5279 to have your Executive Director Section or Committee meetings listed each month in the Bar Journal.

DSBA Bar Journal | March 2017 9 TIPS ON TECHNOLOGY

By Kevin F. Brady, Esquire

2015 Changes to the Federal Rules Are They Making a Difference in eDiscovery?

n December 2015, the Federal Rules across the U.S. The results, which can be found at http://www.exterro.com/judges- of Civil Procedure were amended survey-17/, are both somewhat encouraging, and underwhelming. with a goal to reduce the burden The results show that while judges feel that attorney competence in eDiscov- and expense of electronic discovery. ery is improving, none of the respondents felt that the typical attorney appearing IThe changes emphasized three areas: before them had “the subject matter knowledge (legal and technical) required to (i) proportionality in the scope of dis- effectively counsel clients on e-discovery matters.” When asked about the general covery; (ii) cooperation among counsel; level of eDiscovery competence among the judiciary, the respondents noted that and (iii) early and active judicial case judges are doing better than lawyers in terms of technological competency — 5% of management. It has been over a year respondents described the judiciary as strong in terms of competency, 41% thought since the changes were implemented, the judiciary was “good” and 41% said the judiciary was “OK.” so what has been the impact of the According to the results of the survey, the common eDiscovery mistakes oc- changes? Are the amended rules making cur at the preservation and collection/processing stages, and the primary cause of a difference? Are attorneys doing better eDiscovery problems (by a wide margin (77%)), is poor or no cooperation between jobs of understanding the benefits and counsel and the parties. In fact, the only other cause that the judges identified as risks associated with electronic informa- contributing to the problem was a lack of education about eDiscovery. tion in litigation, and counseling their clients? Are judges more competent in One respondent summed up the two problems fairly succinctly — “lack of understanding technological issues that cooperation is the big problem in big cases, and lack of education is a big problem arise in discovery? in small cases.” Coincidentally, the judges overwhelming agreed (77%) that apply- ing the principles of cooperation and proportionality in litigating cases offered the In its 3rd Annual Federal Judges greatest potential for improvement. Greater emphasis on Rule 26(f) conferences Survey, Exterro, an electronic discovery came in a distant second (18%). The respondents did provide some suggestions for software development company, asked what parties could do better when making proportionality arguments: (i) suggest federal judges for feedback on how, if at alternative remedies (tiering or phasing discovery); (ii) use metrics; (iii) cooperate all, those rule changes were impacting with opposing counsel; and (iv) stop relying on boilerplate arguments about costs. the manner in which cases are being litigated, and whether attorneys are When asked if lawyers were taking advantage of the option under Rule 34 to demonstrating more competence when send document requests in advance of the Rule 26(f) conference, the results imply

it comes to technology. The survey was that many lawyers are still not familiar with that option under Rule 34. That completed by 22 federal judges from is not surprising given a number of recent decisions that have criticized lawyers

and even some judges for being slow to embrace the 2015 changes to the Federal Rules. In September 2016, Judge David G. Campbell, who chaired the Advisory It has been over “ a year Committee on the Federal Rules of Civil Procedure when the 2015 amendments since the changes were were developed, issued a decision in In re: Bard IVC Filters Products Liability Litigation, 2016 WL 4943393 (D. Az. Sept. 16, 2016), in which he criticized implemented, so what judges who were not following the language of amended Rule 26. The court “has been the impact of included a footnote in the decision that identified seven decisions (recent at that time) that relied on the “reasonably calculated” language to define the scope of the changes? permissible discovery as though it was still part of Rule 26(b)(1). A few days later,

10 DSBA Bar Journal | www.dsba.org in Cole’s Wexford Hotel, Inc. v. High- Editor's Perspective (continued from page 6) always seemed from the outside like his mark, Inc. 2016 WL 5025751 (W.D. perfect position: out in nature, with the Pa. Sept. 20, 2016), Chief Judge Conti by then a full-time Rehoboth resident. hope that the light might click for some of the Western District of Pennsylvania He knew Ty from the summer when he wayward youth; Shawnee as his constant criticized judges who were choosing to visited during his parents’ weeklong vaca- companion; free time to spend with his define “relevance” by referencing a 1978 tion in Rehoboth and just elected to stay wife and two kids, with some left for United States Supreme Court decision, with us for the remainder of the summer, kayaking and travel. using a windowsill as a bed and leaving the Oppenheimer Fund, Inc. v. Sanders, 437 “Time for a change. Might change Midwest’s birds to track their own feeding U.S. 340, 351 (1978). On the issue of fields entirely. Might open up my own and migrating patterns. relevance, the court in Oppenheimer had shop. At least I know some good lawyers.” stated, in dicta, that relevance should When Tyson pulled up in his packed- So this year, Clearwater may involve dis- be “construed broadly to encompass to-the-gills 4Runner, our host cautiously cussions of office administration and risk any matter that bears on, or that rea- asked, “Uh, how long are you planning management. Truly, I just hope to be as sonably could lead to other matters on staying, Tyson? Are you moving or good a friend. Communicate, and back that could bear on” any party's claim something?” Tyson hopped out, opened the play. or defense. Chief Judge Conti empha- the rear door on the driver’s side to let his sized that the correct construction of Golden Retriever, Shawnee, emerge from Bar Journal Editor Seth L. Thompson the term “relevant” for discovery under the piles of clothes surrounding his kayak, is a shareholder with Sergovic and said, “Yeah, I guess I’m like a turtle; Carmean Weidman McCartney & the 2015 amendments does not include Owens, P.A., 406 S. Bedford St., the broad reference to “subject matter” wherever I go is my home.” Suite 1, Georgetown, Delaware. in Oppenheimer — “discovery requests Last month, amid the countdown-to- He may be reached at seth@ are not relevant simply because there is Spring Training group texts,2 Ty sent a sussexattorney.com. a possibility that the information may message that he left his job of 15 years. It be relevant to the general subject mat- 2. Tyson started the annual trip 12 years ago. After a few ter of the action.” See, Cole’s Wexford years, I convinced two of our old summer housemates to go. They had not seen Tyson in a decade. Ty’s parting Hotel v. Highmark, 2016 WL 5025751, words were, “Well, see you in another 10 years.” The at *1(W.D. Pa. Sept. 20, 2016). two have made the trip at least every other year since, including one returning from Qatar. In terms of sanctions and new Rule 37(e), the respondents indicated that, SAVE THE DATE while Rule 37(e) gives the parties a blueprint for taking proactive steps to protect themselves from spoliation sanctions involving ESI, there are still open questions about how judges will interpret BENCH & BAR Rule 37(e) when it comes to remedying certain behavior, and about whether judges still have inherent authority to CONFERENCE issue sanctions for egregious behavior 1/6 Page Horizontal with respect to ESI. JUNE 9, 2017 WILMINGTON, DE In my opinion, the most important takeaway from the survey is that cooperation among counsel is a key to success, and, if it happens very early in the case, lawyers (and judges) will be better posi- George C. Govatos, PhD tioned to reduce the burden and expense of eDiscovery. Professional Engineer

Kevin F. Brady is Of Counsel at Redgrave LLP in Washington D.C. Accident Reconstruction Forensic Engineering and can be reached at kbrady@ redgravellp.com. Building Codes Animations

“Tips on Technology” is service of the E-Discovery and Technology Law Section of the Delaware State Bar 302-478-7000 Association. DSBA Bar Journal | March 2017 11 ETHICALLY SPEAKING

By Charles Slanina, Esquire

Recent and Noteworthy Ethics Advisory Opinions

n case you missed them, here are digests of note- in camera, under seal or some other procedure designed to minimize worthy advisory opinions issued in 2016 by the disclosure. Finally, if the court expressly orders the lawyer to make the ABA Standing Committee on Ethics and Profes- disclosures, the Committee found that the Rule 1.6(b)(6) exception ap- sional Responsibility, as well as a few state Bars. As plies permitting the attorney to make the disclosure. See also, Ethically Ia reminder, advisory opinions are generally not bind- Speaking, Nov. 2011, “Withdrawing as Counsel: How 'Noisy' Do the ing, but are almost always informative and persuasive. Professional Conduct Rules Permit You To Be.”

ABA Formal Opinion 476 (December 19, 2016): Noisy Withdrawal Lawyers were reminded that the Rule 1.6 duty to maintain a client’s confidences persists even when the attorney seeks leave of the court to withdraw from the client’s matter due to non-payment of fees in civil litigation. The Committee also urged judges to be sensitive to the delicate balance between the attorney’s duty to the client and the attorney’s duty to the court to provide the factual basis for the motion to withdraw. Citing Rule 1.6(b)(5), the ABA recommended that the moving attorney disclose only such confidential information as is reasonably necessary for the court to make an informed decision on the motion noting that neither the Rule nor the Comments expressly refer © istockphoto.com/ guljamas to motions to withdraw for unpaid fees. The Opin- ion suggested a formulaic reference to “professional ABA Formal Opinion 474 (April 21, 2016): Fee Division considerations” in the motion including: (1) initially Rule 1.5 allows lawyers who are not in the same firm to divide a fee submitting a motion providing no confidential client if the client is advised and does not object. The Opinion notes that such information apart from a reference to the client’s failure fee arrangements are subject to the Rule 1.7 ban on conflicts of interest. to meet his obligations to the attorney or some other Unless the client gives informed consent, confirmed in writing, a refer- local colloquialism; (2) if informed by the court that ring lawyer who would be precluded from handling the matter due to a further information is necessary, the attorney should conflict may not accept a fee if the referring lawyer either performs legal again attempt to persuade the court to rule on the services in connection with or assumes joint responsibility for the mat- motion without disclosing confidential information ter. In such cases, client consent must be completed before or within a by noting that there are confidentiality and privilege reasonable amount of time after the commencement of the representation. issues that hamper a further response; (3) thereafter, on direction of the court, it is recommended that the ABA Formal Opinion 473 (February 17, 2016): Responding attorney only submit such information as is reasonably to a Subpoena necessary to satisfy the court by requesting that the The Opinion recommends that upon receiving a subpoena or other confidential or privileged information be submitted compulsory process for information or documents relating to the rep-

12 DSBA Bar Journal | www.dsba.org resentation of a client (including requests remits the full fee to the lawyer after the New York City Bar Association for the client file), lawyers should do the services are completed. Lawyers then pay on Professional Ethics Op. following: if the client is available, the Avvo a “marketing fee” that is calculated 2015-8 (Dec. 2015): Fee Sharing lawyer must consult with the client. If as a percentage of the legal fee, typically with Non-Lawyers instructed to do so by the client or the between 20% and 30%. All three ethics Noting that other jurisdictions had client is unavailable, the lawyer must as- panels, South Carolina, Ohio, and now reached other conclusions, New York ad- sert all claims against disclosure and seek Pennsylvania, concluded that lawyers vised that a New York lawyer is “ethically to limit the subpoena or other demand who participate in such a program would permitted to share fees with a lawyer who on reasonable ground. (It should be violate the ban on fee sharing with non- practices in a law firm that allows non- noted that privilege belongs to the client lawyers, as well as a number of other lawyers to have a financial interest and/or and not the attorney). If disclosure is ethical considerations. managerial authority, where the law firm ordered and the client is unavailable for is located in a jurisdiction that permits consultation, the Committee concluded North Carolina State Bar Ethics such arrangements. They found that such that the lawyer is not ethically required Committee Formal Opinion fee sharing was permitted notwithstand- to appeal the order; nevertheless, the law- 2015-9 (July 22, 2015): Use of ing New York’s Professional Conduct yer is required to challenge the demand the Term “Partner” Rule 5.4 which prohibits lawyers from in the first instance even if the client The North Carolina Opinion con- dividing legal fees or forming partner- is unavailable for consultation. The at- cluded that firms can use the label “Part- ships with non-lawyers. Examples noted torney’s disclosure should be only to the ner” for a lawyer based on other criteria by the Committee of jurisdictions that extent reasonably necessary to comply than an equity interest in the firm. The permit non-lawyer owners included the with the order. Committee found that a professional District of Columbia and some foreign corporation with three shareholders law firms. Alaska Bar Association Ethics could call two other lawyers in the firm Committee Opinion 2016-1 “partners” even though the two do not Happy Spring! “Ethically Speaking” (October 26, 2016): Technology own any interest in the firm and do not will be offering beach reading before The Ethics Committee of the Alaska vote on corporate governance matters. you know it! Bar Association advises that a lawyer The Committee noted that even though Ethically Speaking” is intended to stimulate may not use a “web bug” in emails to “partner” technically refers to an owner, awareness of ethical issues. It is not intended as legal opposing counsel. Web bugs, also known the legal profession often uses the desig- advice nor does it necessarily represent the opinion as pixel trackers or web beacons, are in- nation more broadly including calling of the Delaware State Bar Association. ternet survival tools that tell the sender shareholders in a professional corpora- “Ethically Speaking” is available online. The when and how many times an email was tion “partners,” and that non-lawyers columns from the past three years are available on opened and for how long and if it was for- and lawyers alike equate that term with www.dsba.org. warded. The Committee concluded that a lawyer’s achievement with a certain such electronic tracking interferes with level of experience, status or authority Charles Slanina is a partner in the the lawyer-client relationship and the within a firm. But, see Rule 7.5(d) of the firm of Finger & Slanina, LLC. His practice areas include disciplinary defense preservation of confidences and secrets. Delaware Professional Conduct Rules and consultations on professional re- states, “Lawyers may state or imply that sponsibility issues. Additional informa- Pennsylvania Bar Association they practice in a partnership or other tion about the author is available at Committee on Legal Ethics and organization only when that is the fact.” www.delawgroup.com. Professional Responsibility Formal Opinion 2016-200 (September 2016): Marketing Fees Don’t let this happen to your life and career. Reach out to DE-LAP for help before you become a trainwreck or before you Pennsylvania became the third juris- are contacted by ODC. Confidential, free help is a call away at (302) 777-0124 or diction in a four-month period to warn e-mail [email protected]. attorneys against participating in an online client referral program which has been described as “the Uberization of legal services.” Although none of the opinions mention Avvo, Avvo Legal Services connects consumers seeking “limited scope” legal services with lawyers willing to do that work for a flat fee. Avvo sets and collects the fee in advance and

DSBA Bar Journal | March 2017 13 HIGHLIGHTS FROM THE COURTS

Superior Court Rules on Personal Jurisdictional Analysis and Jurisdictional Discovery By Antranig Garibian, Esquire

n a personal injury action filed Two-Step Personal Jurisdiction manufacturing agreement provided by against a Chinese medical device Analysis Allmed in its motion to dismiss. Allmed manufacturer, the Superior Court When deciding whether to exercise stated that it manufactured all of its recently explained the boundaries of personal jurisdiction over a nonresident products in China, had never done busi- personal jurisdiction over non-resident I defendant, a court first determines ness in Delaware and sold its product to companies. The Court further explained whether 10 Del. C. § 3014, Delaware’s Medline pursuant to a manufacturing the limitations of jurisdictional discov- long-arm statute, is applicable. Second, agreement and that Medline arranged ery. for shipment to several U.S. locations even if the long-arm statute applies, (not including Delaware). While Allmed In Christine Hedger, et al. v. Medline the Court must determine whether the put these facts forth to demonstrate no Industries, Inc., et al., plaintiff Brian exercise of jurisdiction would violate intent to serve the Delaware market or Wilhoite sued Allmed Medical Products due process. Co., Ltd. and Medline Industries, Inc., bring its product to Delaware, the Court alleging that his wife died as a result Delaware Long-Arm Statute found that it was arguable that Allmed of the failure of a tracheostomy care Under Delaware’s long-arm statute, had an intent to serve the U.S. market kit used at their home in Dover, DE. a court can either assert general juris- in general. Moreover, the Court cited Allmed, a Chinese corporation and diction over a defendant on the basis the Delaware District Court’s consistent the manufacturer of the product, filed of contacts unrelated to the action (the holdings that a non-resident firm’s intent a motion to dismiss, arguing that no relevant provision being § 3104(c)(4)) or to serve the U.S. market could establish section of Delaware’s long-arm statute specific jurisdiction when the suit arises an intent to serve the Delaware market conferred jurisdiction over it and that out of or relates to the corporation’s unless there was evidence of an intention “dual jurisdiction” was not viable. contact with the forum, as provided for to exclude Delaware. Plaintiff responded that the Complaint in §§ 3104(c)(1)-(3). sufficiently pled allegations to suggest Due Process general, specific, and dual jurisdiction The Delaware Supreme Court has Even if a court finds that there is a over Allmed. also adopted a “dual jurisdictional” statutory basis for jurisdiction, that exer- theory. Where no one subsection of the cise must comport with the Due Process Generally, when a defendant seeks long-arm statute is satisfied, personal Clause of the Fourteenth Amendment. dismissal for lack of personal jurisdic- jurisdiction exists where the plaintiff This is measured by whether there are tion, plaintiff must demonstrate that shows that: 1) there is an intent or there is a basis for the court to exercise minimum contacts between the defen- purpose on the part of the defendant to jurisdiction over that defendant. That dant and the forum state in order to serve the Delaware market; and 2) that burden, however, is lowered when a protect a defendant from the burdens intent/purpose results in the introduc- plaintiff has not had the benefit of an of litigating in a distant or inconvenient tion of the product to Delaware and evidentiary hearing or jurisdictional forum. If a defendant purposefully plaintiff’s cause of action arises from discovery. Since Plaintiffs do not have avails itself of the privilege of conduct- injuries caused by that product. to plead facts establishing personal ing activities within the forum state, it jurisdiction, where a complaint does In the instant matter, while Plaintiff is subject to personal jurisdiction there. not plead facts sufficient to establish had not pled facts to suggest that dual In the products liability context, personal jurisdiction, trial courts may jurisdiction is appropriate, the Court the Court explained “stream-of-com- allow jurisdictional discovery. found a basis in the declaration and merce” jurisdiction, which arises when

14 DSBA Bar Journal | www.dsba.org a corporation delivers its products into a serious attempt to lay out a plausible the stream of commerce with the ex- basis for personal jurisdiction, the Court Is there a major milestone pectation that they will be purchased limited the discovery, reminding the in your future, or the by consumers in the forum state. The parties that the Court would not permit Superior Court cited the United States a “fishing expedition” in search of a future of your law firm? Supreme Court plurality and concurring jurisdictional hook. opinions in J. McIntyre Machinery, Ltd. An anniversary, a v. Nicastro. The plurality opinion held Antranig Garibian is the owner of memorial or a celebration? that a defendant might be subject to the Garibian Law Offices, P.C. He maintains jurisdiction of the United States, but not an active litigation practice through- Consider a tax deductible of any particular state. The concurring out the state and federal courts of gift to the Delaware Bar Delaware, New Jersey, New York, and opinion, on the other hand, focused Pennsylvania. Mr. Garibian advises Foundation Endowment on the quantity, volume, and flow of a clients ranging from individually held Fund, a gift that will continue defendant’s products. businesses to international companies to give to those most in need. on issues such as commercial contract Limits on Jurisdictional disputes, liability claims, corporate gov- Discovery ernance, loss prevention and general business matters. He can be reached at Having found that Plaintiff could [email protected]. have articulated their theory of jurisdiction more clearly (and chose not to), the Court limited, but did not bar them from jurisdictional discovery. The Court allowed Plaintiff discovery on the dual jurisdiction theory, holding that plain- Melissa Flynn tiffs are entitled to discovery if their Executive Director assertion of jurisdiction is “minimally Phone: (302) 658-0773 www.delawarebarfoundation.org plausible.” Since Plaintiff had rested on their complaint, rather than make

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DSBA Bar Journal | March 2017 15 Report: 2017 Mid-Year Meeting of the ABA House of Delegates

By William D. Johnston, Esquire

he 2017 Mid-Year Meeting of the House of Delegates of the American Bar among others, the effect of which was to Association took place on February 6, 2017 in Miami, Florida. The House articulate ABA policy that can be advo- of Delegates, with over 500 members, is the principal policy-making body cated throughout the world: of the ABA. For the Miami meeting, the “Delaware Delegation” included ▪▪ Urging the Supreme Court of the TThe Honorable William C. Carpenter, Jr. (member of the ABA Board of Governors), United States to consider racial, ethnic, Benjamin Strauss (State Bar Delegate), Mary I. Akhimien (Young Lawyer State Bar disability, sexual orientation, gender Delegate), and yours truly (State Delegate). Judge Carpenter, Ben, and I were especially identity, and gender diversity in the pleased to welcome Mary to the Delegation. Mary is an associate with Connolly Gal- selection process for appointment of lagher LLP and concentrates her practice in corporate litigation, commercial litigation, amicus curiae, special masters, and corporate counseling, and business and employment law. Please see her (impressive) other counsel (10A); bio at www.connollygallagher.com/attorneys/mary-akhimien. ▪▪ Reaffirming and expanding existing policy regarding refugees in light of Remarks by the President of the The keynote speaker was Benjamin B. the January 27, 2017 Executive Order, ABA and Others Ferencz. Mr. Ferencz is 97 years old. His calling for increased funding and leg- As is typical during meetings of the family and he emigrated to the United States, his father working as a janitor. islation to process and handle refugee House, members heard from the Presi- applications, and urging Congress to dent of the ABA and others. Speakers in- With scholarship help, he graduated from Harvard Law School in 1943. After pass legislation that would provide for cluded Linda Klein (President), Deborah individualized assessments of refugee Enix-Ross (Chair of the House), Michelle graduating, he enlisted in the U.S. Army under General Patton. He came to serve in applications and that they be con- Behnke (Treasurer-Elect), President-Elect ducted expeditiously and justly (10B); Nominee Robert M. “Bob” Carlson, and the Army’s War Crimes Branch to gather ABA Executive Director Jack Rives. We evidence of Nazi brutality and to appre- ▪▪ Urging the President to withdraw also had the pleasure of hearing from The hend perpetrators. That led to him serving Executive Order 13769, and follow Honorable John D. Minton, Jr., Chief as the Chief Prosecutor for the United legal procedures and legal rights in Justice of the Kentucky Supreme Court States in the Nuremberg war crimes trials. the promulgation of future Executive and President of the Conference of Chief His efforts continue through today, as he Orders regarding border security, im- Justices. Chief Justice Minton addressed emphasizes “law, not war.” migration enforcement, and terrorism the status of state courts nationally and As an unabashed plug for involvement (10C); emphasized those courts’ focus on striv- in and support of the ABA Fund for Justice ▪▪ Urging Congress to enact legisla- ing to provide access to justice for all. and Education (which supports the Center tion to repeal the restrictions on fed- for Human Rights, the Working Group eral student aid eligibility contained A Moving Experience: on Unaccompanied Minor Immigrants, in Higher Education Act, 20 U.S.C. The Human Rights Luncheon the Standing Committee on Legal Aid § 1091(r), which affects eligibility for Hosted by the ABA Center and Indigent Defense, the Commission for Human Rights federal student aid based on certain on Homelessness and Poverty, the Justice drug convictions (100); I try to attend, if at all possible, the Defenders Program, the Human Traffick- ▪▪ Urging Congress to amend Title luncheon that the ABA Center for Hu- ing Project, and the Business and Human 28 of the United States Code to au- man Rights hosts during each meeting Rights Project), please see https://donate. thorize the appointment of additional of the House. The luncheons are always americanbar.org/ctrhumanrights. inspirational, and leaders of the ABA turn bankruptcy judges sufficient to meet out in support. Resolutions Adopted by the the demands within each district (101); The luncheon during this Mid-Year House as ABA Policy ▪▪ Urging all state courts to develop Meeting was no exception. Beyond that, During the Mid-Year Meeting, the and implement civil justice improve- it was one of the most incredible experi- House of Delegates adopted the following ment plan to improve the delivery of ences I have been privileged to encounter. resolutions (with numbers as indicated), civil justice guided by the Recom-

16 DSBA Bar Journal | www.dsba.org mendations of Call to Action: Achieving ▪▪ Urging law enforcement authorities coverage by allowing for coverage for Civil Justice for All as endorsed by the to develop and use, prior to custodial items and services that are reasonable Conference of Chief Justices and urg- interrogation of suspects, translations and necessary (116); ing bar associations to promote those of Miranda warnings in as many ▪▪ Approving the Uniform Family Law Recommendations (102); languages and dialects as necessary to Arbitration Act, promulgated by the ▪▪ Urging the United States to ratify accurately and fully inform individuals National Conference of Commissioners and implement the 2013 Arms Trade of their Miranda rights (112C); on Uniform State Laws, as an appropri- Treaty (104); ▪▪ Urging the Food and Drug Admin- ate Act for those states desiring to adopt ▪▪ Urging the United Nations, the istration to update its current policy the specific substantive law suggested United States and other governments requiring deferment of blood donations therein (117A); and relevant international actors to from men who have sex with men for ▪▪ Approving the Uniform Wage develop and implement methodologies one year after the donor’s most recent Garnishment Act, promulgated by the to measure and track the prevalence of sexual encounter with a man to a defer- National Conference of Commissioners sexual and gender-based violence (105); ral policy based on assessment of the on Uniform State Laws, as an appropri- risk posed by an individual based on ate Act for those states desiring to adopt ▪▪ Adopting the Model Rule for Mini- potential recent exposures rather than mum Continuing Legal Education the specific substantive law suggested on the individual’s sexual orientation therein (117C); (MCLE) and Comments dated Febru- (112D); ary 2017, to replace the Model Rule for ▪▪ Approving the Uniform Unsworn ▪▪ Urging the United States Depart- MCLE and Comments adopted by the Domestic Declarations Act, promul- ment of State to interpret the Immigra- American Bar Association in 1988 and gated by the National Conference of tion and Nationality Act, 8 U.S.C. § subsequently amended (106); Commissioners on Uniform State Laws, 1401, to recognize those children born ▪▪ Urging federal, state, local, territo- as an appropriate Act for those states de- to intended parents, even if those legally siring to adopt the specific substantive rial and tribal governments to adopt recognized parents do not have a bio- law suggested therein (117E); standards, guidance, best practices, logical (genetic or gestational) relation- programs, and regulatory systems that ship to the child, so long as at least one ▪▪ Approving the Uniform Unsworn make communities more resilient to of the intended parents is a U.S. citizen Declarations Act, promulgated by the loss and damage from foreseeable haz- who is legally recognized as the child’s National Conference of Commissioners ards and enhance the disaster resilience birth parent by the country of birth or on Uniform State Laws, as an appropri- of communities (108); the intended parent’s state of domicile ate Act for those states desiring to adopt the specific substantive law suggested ▪▪ Supporting the adoption of the and the relevant resident or physical therein (117F); nominative fair use doctrine as an affir- presence or requirements are met (113); mative defense to claims of trademark ▪▪ Urging governments to enact leg- ▪▪ Urging lawmakers at all levels infringement and unfair competition islation and implement public policy to work with the legal profession to (111); providing that custody, visitation, and collaborate in the identification and removal of legal barriers to veterans’ ▪▪ Urging the United States Depart- access shall not be denied or restricted, access to due and necessary assistance, ment of Justice to continue its accuracy nor shall a child be removed or parental including housing, education, employ- and quality assurance efforts in the area rights terminated, based on a parent’s ment, treatment, benefits, and services, of microscopic hair analysis and urging disability, absent a showing that the particularly those provided by the De- prosecutors, similarly, to commit to a disability is casually related to a harm partment of Veterans Affairs (118); timely review of all cases in which such or an imminent risk of harm to the erroneous expert testimony was used child (114); ▪▪ Urging states, governmental agen- and to consider adopting the Depart- ▪▪ Urging governments and relevant cies, territorial, tribal and legislative ment of Justice’s policy (112A); organizations to implement the recom- bodies to review their laws on luring, en- ticing, or intimidating minors for sexual ▪▪ Urging prosecutor’s offices to adopt mendations set forth in the policy brief, acts to ensure that such laws explicitly and implement internal conviction- Allies Against Atrocities: The Imperative address internet and other electronic integrity policies when an office sup- for Transatlantic Cooperation to Prevent means of communication (300); and ports a defendant’s motion to vacate a and Stop Mass Killings (May 2016) (115); conviction based on the office’s doubts ▪▪ Urging Congress to amend Sec- ▪▪ Urging Congress to preserve and about the defendant’s guilt of the crime tion 1862(a)(1) of the Social Security develop laws, regulations, policies, and for which the defendant was convicted, Act (42 U.S.C. 1395y) and urging the procedures that protect or increase due or about the lawfulness of the defen- Executive Branch to adopt regulations dant’s conviction (112B); that broaden the scope of Medicare ABA Mid-Year Meeting (continued on page 19)

DSBA Bar Journal | March 2017 17 ACCESS TO JUSTICE SPOTLIGHT

By Susan Simmons

Pro Bono and Networking

3. Be selective: You cannot go to everything. You need to have a reason for attending networking events and a strategy in going. Do a little research on the type of people who belong to the hosting organization and see where your research leads. This is the perfect time to put your fact-finding skills to work. 4. Remember to talk about business at least some of the time: Be sure that the people you are talking to know who you work for, what you do, and that you enjoy doing it. No one wants to give work to someone who will not enjoy doing it. Talk about your pro bono work. It is always a plus that you are taking the time to do good for others, and make sure that you give out business cards and get them from your new contacts.

© istockphoto.com/:Ridofranz © 5. Be memorable without being too familiar: There is nothing more annoying than someone you have just met acting like Your firm may put emphasis on pro bono work, which in your new best friend. Take time to help others have a good time Delaware is not required, but highly encouraged for all attorneys. by moving the conversation forward, inquiring about others, It is also a great way to get your feet wet as a young lawyer, get and being gracious. involved in the Bar, and give back, all at the same time. In this article from March 2014, I suggest ways to network that are still 6. Always follow up: Follow up with the people you meet by a great way to get involved. phone call or email. Tell them that you enjoyed the conversation and that you look forward to continuing it in the future. This often will require you to make notes on the business cards you here are a handful of essential factors to success in collect by the end of the evening and before you forget details. the law, and you probably should revisit them every year and perfect them. One of those is network- Think about where you want your career to be by the end of ing, and the value of that skill to the future of your the year and develop a specific plan to accomplish your goals. As practice cannot be overestimated. Pro bono work can lead to the year progresses, regularly take stock and make adjustments. T Reflecting on the past year’s successes should include pro bono networking, networking can lead to clients, clients can lead to upward mobility, and upward mobility can result in leadership work to help you plan for the future. The list of plan develop- positions. Determine to do better with your pro bono efforts ment questions should all be measured in the light of your pro and networking: bono development. To implement your career plan, focus first on changes you can make easily and the ones that will have 1. Develop a strategy: Include networking events and the greatest positive impact on your career, you should see how other get-togethers in your plans. Pro bono work gives you a pro bono will help you develop as a well-rounded and satisfied great opportunity to network with like-minded lawyers and lawyer. Networking and pro bono can be fun, especially when reflects well to your clients. you do your homework and have a plan. Good luck! 2. Reach out: Early in the year is a good time to do that because it is typically a slower time. People have recovered from Susan Simmons is the former Director of Development & Ac- the holidays and have spent the first part of the next months cess to Justice Coordination and the new Director of Continuing diving back in. By March, they are ready to meet you for lunch Legal Education at the Delaware State Bar Association and can or drinks and reconnect. be reached at [email protected].

18 DSBA Bar Journal | www.dsba.org ABA Mid-Year Meeting (continued from page 17) Hill. I respectfully ask that you contact empowering “homes” for law students, members of Delaware’s Congressional lawyers, and judge members throughout process and other safeguards for im- Delegation to urge their support of the the world. migrant and asylum-seeking children, amending legislation. For the complete list of offerings, please especially those who have entered the For the complete description of matters see www.americanbar.org. United States without a parent or legal that came before the House, please see guardian (301). www.americanbar.org. Next Meeting of the House of I was especially pleased to have the Delegates opportunity to speak in the House in Membership in the ABA The ABA House of Delegates will support of Resolution 101, a matter of As always, if you are not currently a next meet on August 14-15, 2017 dur- vital importance to Delaware. That Reso- member of the ABA, please consider joining the 2017 ABA Annual Meeting. In lution, as noted above, urges Congress ing (or re-joining). Through its Sections, the meantime, if you have any ques- to amend Title 28 of the United States Divisions, and Forums, the Association tions or concerns, please contact me at Code to authorize the appointment of provides valuable content, leadership op- [email protected] or (302) 571-6679. additional bankruptcy judges sufficient portunities, and networking. Most signifi- It continues to be my privilege and to meet the demands within each district. cantly, you will forge enjoyable, life-long pleasure to serve as State Delegate from More specifically, the Resolution urges relationships. Delaware. Congress, as recommended by the Judi- ABA members also can take advan- cial Conference of the United States, to tage of numerous product and services Bill Johnston is a partner with Young convert certain “temporary” bankruptcy discounts as well as other benefits. Conaway Stargatt & Taylor, LLP. He is judges to permanent bankruptcy judges in a Past President of the Delaware State Once you are a member of an ABA Sec- the District of Delaware, the Eastern Dis- Bar Association and serves in the ABA tion, Division, or Forum, you may join for trict of Michigan, the Southern District House of Delegates as State Delegate free one or more committees within these from Delaware, representing all of the of Florida, the District of Maryland, the groups and one or more subcommittees ABA members in Delaware. Also, as District of Nevada, the Eastern District within the committees. Those committees State Delegate, he is a member of the of North Carolina, the District of Puerto and subcommittees are welcoming and Nominating Committee of the American Rico, the Western District of Tennessee, Bar Association. and the Eastern District of Virginia and to authorize the appointment of additional bankruptcy judges in the District of Dela- ware, the Eastern District of Michigan, The Second Annual and the Middle District of Florida. In my remarks, I underscored the SMALL FIRMS and SOLO critical importance to Delaware of converting our temporary bankruptcy judges (the vast majority of the Court) PRACTITIONERS to permanent bankruptcy judges, noting that bankruptcy judges in Delaware carry some of the highest weighted caseloads CONFERENCE for bankruptcy judges in the country and Presented by the Law Office Management Assistance Program that, with the expiration of the temporary and Small Firms and Solo Practitioners Section bankruptcy judge positions as of May 25, of the Delaware State Bar Association 2017, if any of the temporary bankruptcy judges in Delaware leaves the bench, that Friday, March 24, 2017 position will not be filled and, ultimately, Delaware could be left with one bank- Atlantic Sands Hotel & Conference Center ruptcy judge. Rehoboth Beach, DE Ben Strauss also spoke in favor of the 5.0 hours CLE Credit including 3.0 hours of Enhanced Ethics Credit Resolution. (Mary Akhimien was pre- for Delaware and Pennsylvania Attorneys pared to speak in favor but, together with CONFERENCE SPONSOR other speakers, waived the opportunity to Delaware State Bar Insurance Services do so.) The Resolution passed on a voice Powered by USI vote, with no apparent opposition. Key now will be lobbying efforts on Capitol Look for more information on the DSBA website at www.dsba.org.

DSBA Bar Journal | March 2017 19 The 2017 Blue-Gold High School All-Star Basketball Games By Lawrance Spiller Kimmel, Esquire Chairman, Blue-Gold Board of Trustees

ow in its 19th year, the Blue- very happy to announce that NBC10 students who are Best Buddies participants Gold All-Star Basketball reporter Tim Furlong will be emceeing are also invited to attend all of the Blue- Games, which benefits Best again this year. Gold Basketball related events as honorary Buddies Delaware, will be Blue-Gold Basketball would not be “coaches,” and many more buddies enjoy Nheld at the University of Delaware’s Bob what it is today without support from attending and volunteering at the Games. Carpenter Center on March 18, 2017. the Delaware legal community. Through The Blue-Gold Basketball board is Best Buddies was founded in 1989 by An- sponsorships and donations, attorneys committed to ensuring that the Games are thony Kennedy Shriver to benefit children contribute extensively to the total amount an equally positive force for the Delaware with disabilities. Today, Best Buddies raised at the Games every year. Many high school basketball community. We programs are conducted internationally lawyers have also played on the sponsors’ invite a large number of college coaches and continue to positively impact the lives team in the annual Celebrity Sponsors to the Games each year partly because we of people with and without intellectual Game, including McCarter & English believe that Blue-Gold Basketball has the developmental disabilities (IDD). Best Chairman Mike Kelly, Young & McNelis potential to help the student athletes grow Buddies Delaware includes almost 1,000 founding partner Jeff Young, and Drew not only as players, but also as students participants in sixteen total chapters Dalton of Dalton & Associates. Superior and citizens. Unfortunately, in 2015, the throughout the state in middle schools, Court Judge Jane Brady has coached the NCAA instated a rule that prohibits Divi- high schools, and universities. sponsors’ team every year since the tradi- sion I coaches from attending high school The Games, which were founded in tion began. all-star games during the academic year. 1999 by my dad, Morton Kimmel, have Along with the tremendous support Although our players will not have the op- come a long way in the last two decades. we have received from the legal commu- portunity to be seen by Division I coaches, At the 2016 Blue-Gold Basketball Games, nity, my father and I are lucky to be joined we are fortunate to have many Division 60 of the best male and female high in our passion for Blue-Gold Basketball II and III coaches attend the games. We school basketball players in the state by a board that includes Former Vice are proud of the fact that over the years, competed before a crowd of more than President Joseph R. Biden, Jr., Governor a number of all-star team members have 4,000 at the University of Delaware’s Bob John Carney, Former Governor Jack received scholarships and have made the Carpenter Center. Several Streetballer Markell, Attorney General Matt Denn, decision to attend college specifically due legends, who are known for their amazing U.S. Senators Tom Carper and Chris to recruiting on game day. We would also tricks, slam dunks, and dribbling, signed Coons, and Delaware State University like to thank UD Men’s Basketball head autographs at a VIP Reception and played President Dr. Harry Lee Williams, among coach Martin Inglesby and UD Women’s in the Streetballers vs. Sponsors game. other prominent Delawareans. Blue-Gold Basketball head coach Tina Martin for the The event raised over $100,000 for Best Basketball also relies on the Best Buddies use of their facilities and their continued Buddies Delaware, bringing our total staff and more than 200 police officers, support of the Games. to over $2,000,000 raised for Delaware high school coaches, local business people, The student athletes and Best Buddies charities since the first Games. students, and Best Buddies participants coaches are invited to attend a series of The 19th annual Blue-Gold All-Star who volunteer their time every year to meetings with civic and business leaders Basketball Games promise to be just as make sure the Games run smoothly. in the week leading up to the Games. exciting. Scheduled for Saturday, March With so many people behind the On Wednesday, March 14, the students 18, 2017, the Games start with another Games, Blue-Gold Basketball has be- will attend a Superior Court presentation VIP Reception luncheon, followed by the come a vital source of annual funding for led by Judge Robert Young, followed Girls’ game tip-off at 1:00 p.m., then a Best Buddies Delaware, supporting the by a lunch with Attorney General Matt brand-new “Band-Fest” featuring four nonprofit’s mission to enhance the lives Denn, and introduce themselves during high school bands from across the state. of individuals with intellectual and devel- a live House of Representatives session The event will conclude with the Boys’ opmental disabilities through one-to-one at Legislative Hall. At the end of the day, game starting at 3:30 p.m. We are also friendships. Every year, four high school the group will meet and take individual

20 DSBA Bar Journal | www.dsba.org photographs with Governor Carney. More Delaware leaders will speak at the all-star game practices, including Superior Court Judge Vivian Medinilla, orthopaedic sur- The St. Thomas More Society geon Dr. Eric Johnson, cardiac surgeon Dr. of the Ray Blackwell, Wilmington City Treasurer Diocese of Wilmington Velda Jones-Potter, and others. The Blue- Gold Basketball banquet will take place on March 16 at Del Tech, where the student Will Celebrate its Annual Award Dinner athletes and Best Buddies participants will Honoring be honored in front of an expected crowd of more than 600 people. Francis J. Trzuskowski, Esq. The Blue-Gold Basketball Games are on always good basketball, but more impor- Sunday, May 21, 2017 tantly, they make a huge difference in the Cocktails at 5:00 P.M. (cash bar) lives of children and adults with intellec- Dinner at 6:00 P.M. tual and developmental disabilities, as well as the student athletes. Please feel free to join us at one or all of this year’s events — Location the full schedule and tickets are available The Wilmington Country Club at www.bestbuddiesdelaware.org. If you 4825 Kennett Pike would like to volunteer or make a contri- Wilmington, Delaware bution, please contact Best Buddies Area Director Tom Waite at (302) 691-3187 or Please E-mail [email protected] for registration at [email protected]. Together, information and sponsorship opportunities I know we can make 2017 the best year for Blue-Gold Basketball yet. ataxophobia n. fear of disorder or untidiness ELIMINATE THE FEAR

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DSBA Bar Journal | March 2017 21 DE-LAP ZONE

A Message from the Delaware Lawyers Assistance Program

By Carol P. Waldhauser, Executive Director

Stamina + Success = Wellness

oday, J. Doe, Esquire is a happy, time for a personal life. Long-term, this Therefore, wellness, or well-being, is successful lawyer. J. enjoys a is unhealthy. In fact, more popular than a dynamic process of becoming aware of modest income, spends time ever is the use of the catchphrase “body, and making conscious choices toward a with his friends, and enjoys mind, and spirit” to describe an integrated more balanced and healthy lifestyle. For Tgood food, music, and sports. Bottom mode for well-being: example, J. decided to look in the mirror line, J., the lawyer, is experiencing a bal- They suggest that each part needs and he saw a man that was a successful anced lifestyle. Not so long ago, however, to be individually nurtured, but not attorney; but in his personal life he ex- J. struggled with stress, anger, isolation, at the expense of any other part. If perienced isolation and loneliness. Yes, J. and negativity. He even questioned we neglect any aspect of this model, had an expensive house, expensive cars, whether or not the legal profession was the model itself becomes stunted. and collected “stuff” — but did not have a the profession for him. When the model is stunted, we often meaningful personal life. Wellness includes Lawyers are very busy people. For too experience that constriction as life be- learning new coping and communication many lawyers, working 24/7 is almost a ing out of balance. Over a prolonged skills that address both the positive and sense of self-importance or bragging rights. period of time, this imbalance shows negative aspects of your life. While for others, the time pressures, work up in our bodies as illness, and when Most of us strive for balance and total overload, and inadequate time for them- illness is sufficiently severe, we pay wellness in our life, but often fall short. selves, as well as their families and friends, attention. The quality of attention In fact, we want to take responsibility can lead to burnout or worse. It takes fit- we pay can have profound effect on and be good stewards — both personally ness and renewed stamina to be a happy, future health. 1 in regard to our own physical, emotional successful attorney and person. Fitness means not just fitness of legal and business expertise, but also those qualities of THE SEVEN DIMENSIONS OF WELLNESS physical, mental, and spiritual health that enables an individual to carry out his or ▪▪ Social wellness: Creating and maintaining healthy relationships. her responsibilities. Accordingly, stamina, ▪▪ Physical wellness: Having a fit body. as well as a healthy attitude, is not obtain- able by working 24/7 throughout one’s ▪▪ Emotional wellness: Creating and maintaining a positive realistic self- professional life. Conversely, a balanced, concept and enthusiasm about life. meaningful lifestyle is more conducive to ▪ long-term energy, wellness and ongoing ▪ Career wellness: Making choices that are meaningful and contribute to high performance and success. your personal growth as well as work. ▪▪ Intellectual wellness: Using your mind to create a greater understanding Why Wellness? of yourself and the universe. Evidence supports that hard work is good for the mind, body and soul. In the ▪▪ Environmental wellness: Making choices to create sustainable human and legal profession, however, the boundaries ecological communities, improving qualities in air, water, land, and space. separating one’s professional and personal ▪ life have changed drastically. Today, law- ▪ Spiritual wellness: Engaging in the process of “experiencing life” while yers contend with time pressures, work seeking meaning and purpose in human existence. Spirituality allows overload, billable hours, and inadequate one to have consistency between values and behaviors.

22 DSBA Bar Journal | www.dsba.org and mental well-being, as well as profes- ▪▪ You work too many hours; sionally. However, for some, we cannot ▪▪ You look in the mirror and be- EVERYDAY consistently implement the transforma- lieve that you could easily be cast WELLNESS tion steps alone. Plus, who wants to do for the movie “Zombies”; it alone? Wellness is a choice: A decision ▪▪ You believe that your most mean- you make to move toward optimal Why Group Support? ingful relationship is with the corner health. Many individuals, including lawyers deli restaurant; Wellness is a way of life: A life- and judges, turn to self-help groups while ▪▪ You wonder why certain hours facing life challenges and/or to imple- are called “rush hours” because you style you design to achieve your ment change in their life. In fact, most believe every hour is rush hour; highest potential for well-being. self-help groups can help people let go of ▪▪ You think people who do only Wellness is a process: A devel- the least effective characteristics of their three things at once are lazy; oping awareness that there is no personality and coping styles and make ▪▪ You love the weekends and holi- end point but that health and happi- room for more workable behaviors and days because you can work while no ness are possible in each moment, self-core techniques. one bothers you; or here and now. Self-help groups are a safe, welcome ▪▪ You are like J. and want a more place where an individual can find so- Wellness is the integration of the balanced life. cial support. Many people feel alone or body, mind, spirit: The apprecia- isolated in their attempts to confront Remember, a balanced life for any- tion that everything you do, think, problems or make changes in their lives. one, even lawyers, is possible. The book feel, and believe has an impact on A self-help group offers insight and sup- Lawyer Wellness Is NOT an Oxymoron: your state of health. port from others as to how you can ac- Why Tomorrow's Top Lawyers Must Wellness is the loving accep- cept and work through life challenges or Embrace Wellness Today — And What changes. In other words, as group mem- You Need To Do To Be One of Them by tance of yourself. bers share their stories, concerns, and Andy Clark will be one of the guides REFERENCES issues — others may gain a perspective in DE-LAP's workshops. Go to www. de-lap.org and sign up for upcoming 1. The Lawyer’s Guide to Balancing Life & Work, on their own problems. Group members Taking the Stress Out of Success. Chapter Nine, New may share new research articles, books, or information. Tools for Old Issues, George W. Kaufman, Law other developments with members. Also, And, if you want more information Practice Management Section ABA, second edition, p. 175. professionals may be invited to speak — on this topic, or other topics that affect 2. University of Wisconsin – Stevens Point offering new perspectives on managing your quality of life and/or quality of School of Health Promotion and Human Develop- a problem or changing. professionalism – go to www.de-lap.org ment. Created by R.A. Abbott, Ph.D. and J. Jones or call our confidential line (302) 777- Ph.D. for increasing awareness and use as an edu- Finding a Solution cational tool. 0124 or e-mail [email protected] Rather than just writing about well- 3. Clark, Andy. Lawyer Wellness Is Not an Oxy- Healthy and happy lawyers make for moron. Fredericton, N.B.: Andy Clark, 2013. ness, while using both the concept of a healthy and happy profession. We do wellness and that of a support group, the Carol P. Waldhauser is the Executive together what you need not do alone. Delaware Lawyers Assistance Program Director of the Delaware Lawyers As- DE-LAP is a free, confidential, non- sistance Program and can be reached has expanded to include the Wellness judgmental program for you! at [email protected]. Factor. This expansion, partnering with the DSBA, is developing supplemen- tal workshops such as an upcoming PRESCRIPTION DRUG ABUSE DOES NOT DISCRIMINATE Breakfast Mindfulness Club for lawyers and new wellness workshops on stress management and how to implement and LAWYERS CAN BE maintain a blueprint for your personal ADDICTED TOO wellness plan for renewed stamina and success. NOT GETTING HELP CAN SABOTAGE YOUR CLIENTS AND CAREER. So, pencil yourself in now — start DON’T SUFFER ALONE. designing, planning, and implementing DE-LAP AND DE-LAF IS YOUR your Wellness Plan. Attend our new CONFIDENTIAL LINE TO RECOVERY. workshops if you want coaching or as- CALL (302) 777-0124 OR EMAIL [email protected] sistance because:

DSBA Bar Journal | March 2017 23 LOMAP FOR THE DELAWARE LAWYER

By Alison W. Macindoe

Second Chances, Rejuvenation, and Lawyers

s a member of the baby boomer credentials are first-rate; they probably have great financial stability; and they offer generation, I am keenly aware valuable connections in the legal community. of the vitality of my generation Do you like to be intellectually challenged? If so, then starting a solo firm and the positive outlook most of after years of working for someone else, can be super intellectually challenging. Aus have about the many years ahead of us. I How many professions are there where you can learn something new every day? just read an article entitled, “More Women In law, you are constantly learning. The law also gives you a sense of purpose in Their 60s and 70s Are Having ‘Way Too which is important for a life well lived. And the business of starting a practice Much Fun’ to Retire” in The New York Times will most certainly add focus and interest to your life! about how the arc of women’s working lives is changing. It got me thinking about all I read a quote in an April 29, 2014 article, “This Lawyer Rediscovered the Delaware lawyers of a certain age, both Herself and Her Career at 60,” in The Huffington Post, about a lawyer who was men and women, who have approached me downsized by her employer, an insurance company. She discovered a satisfying lately to talk about the next step in their post- new career in a different kind of law. “The only life it changed was her own, middle age years of working as a lawyer. A but that’s the point: we don’t have to aim any higher than our own happiness, lot of these lawyers want to start their own our own equanimity, to be successful in the reinvention process that many of law firms. us are called to at this stage in our lives.” This quote says it all. You do not have to aim any higher than your own happiness. Find a niche that works for you The reasons for transitions such as these and build around it. are countless. Carol Waldhauser, Executive Director of the Delaware Lawyers Assistance Sure, solo practitioners, young and old, have many challenges, but the rewards Program, has been running monthly transi- are countless. For the vital older lawyer, one-on-one relationships offered in a tioning workshops for months. These work- solo or small practice can provide a kinship for lawyer and client. The solo and shops can have 40 in attendance and most of small firm practitioners in this small state provide a close, symbiotic community the attendees want to stay in the law. They of attorneys who enjoy each other’s company and who appreciate the eclectic di- just want a change. Some of the lawyers are mandated by retirement deadlines at their law firms to leave their current positions. Some are choosing to keep active in their later years, but not at the same frenetic pace — with fewer clients. Some are opening small offices for other firms here in Delaware. Some simply want to volunteer time to help those unable to afford legal help and also keep in touch with the law. A small practice is the way to go. The older new solo practitioner can bring wisdom and experience to the client as well as to his or her peers. These attorneys can afford to be optimistic about the future since they have such a great base of experience. Their Rawpixel istockphoto.com/ ©

24 DSBA Bar Journal | www.dsba.org There is unharnessed

potential in baby You May Call Your boomers and their

“older peers. The Best Witness field of law can only “ improve because of the enthusiasm, knowledge, and vitality of this generation. versity of that community. The members of this community rely on each other for referrals, information, and support. A lot of the above might be overgen- eralization. But, hey, life is change for everyone. It is not easy making changes, but it can be invigorating and exciting and satisfying. You graduated from high school, then college, then law school. Have kids? Married? Change can be thrust upon you. But for the older attorneys, this can be the time when you can make your own change and keep William A. Santora, CPA Stacey A. Powell, CPA, CFE, CICA your passion for the law. We are crea- Lori L. Stoughton, CPA Robert S. Smith, CPA tures of habit, so make this transition from middle age to senior the perfect opportunity to create another chapter in Delaware’s Premier your life. It is the same book, but you are moving forward. Litigation Support Team Make your own life. Aim for your own happiness! As Shel Silverstein wrote in Where the Sidewalk Ends, “But all the magic I have known, I've had to make myself.” The sidewalk does not have to end with complete retirement. It can Call 302-737-6200 or toll free 800-347-0116 open to fields of new opportunities in the law. There is unharnessed potential in baby boomers and their older peers. The field of law can only improve because of JUSTLEGALINC. the enthusiasm, knowledge, and vitality . . .continuing our commitment to excellence of this generation. And, remember that DSBA’s LOMAP 3 ATTORNEY PLACEMENT is here for you for many of your changes! CONTRACT, LATERALS, PERMANENT 3 LEGAL SUPPORT STAFFING Good luck! PARALEGALS, LEGAL SECRETARIES, OFFICE SUPPORT

Alison W. Macindoe is the Di- Proud to be celebrating over 10 years in business. rector of the Law Office Manage- ment Assistance Program for the JUST IN CASE • JUST IN TIME • JUST FOR YOU DSBA. She can be reached at [email protected] www.justlegalinc.com [email protected]. Delaware: (302) 239-5990 Southeastern PA: (610) 696-8787

DSBA Bar Journal | March 2017 25 BOOK REVIEW

Reviewed by Richard A. Forsten, Esquire

The Right Ideas Laws of Creation: Property Rights in the World of Ideas By Ronald A. Cass and Keith N. Hylton (Harvard Univ. Press, 2013)

deas are ephemeral things. They percent of the land used for agriculture to such relief. have no substance. Yet, we routinely — generated more than half the produce Thus, when use the term intellectual “property” consumed in the nation.” The experience Blackberry was when referring to patents, copyrights, of the Soviet Union proves Young’s point found to have Itrademarks, and trade secrets, even — give someone secure property rights infringed on though, unlike real and personal property, and they will produce goods. Give them certain pat- intellectual “property” is intangible. In insecure or non-existent property rights, ents, injunc- Laws of Creation: Property Rights in the and they will produce nothing (or nearly t i ve re l ie f World of Ideas, Dean Emeritus Ronald A. nothing). was granted Cass and Professor Keith N. Hylton write With the foregoing background in which would to defend intellectual property as a type mind, Cass and Hylton proceed with an have s hut of “property.” They fear that too many overview of patent, copyright, trademark, down all Blackberry usage. The injunc- in the academic world are attacking the and trade secret law. The law governing tion was stayed during settlement talks, concept of intellectual property rights, each regime is different, but as Cass and and the case ultimately settled, albeit with and so write in explanation and defense Hylton demonstrate, each regime is deal- Blackberry paying an amount almost of why a property rights approach makes ing with different concerns and trying to twenty times the amount determined by the most sense when it comes to these balance difference costs, incentives, and the judge to represent reasonable royalties. ephemeral things. benefits. For example, the protection Shortly after the Blackberry case, the Su- They begin their defense with a little afforded a patent is twenty years from preme Court eliminated the presumption known quote and a little known fact on the date of the patent application, while in favor of injunctive relief and held that the virtues of property. Arthur Young, an copyright offers protection for the life of successful patent plaintiffs would need to Englishman travelling through France in the author plus seventy-five years. Why meet the same standards for injunctive the 1780s, observed: this difference? In part, Cass and Hylton relief as other successful plaintiffs, rather Give a man the secure possession suggest that the ease of copying with than receive injunctive relief automati- of a bleak rock, and he will turn it today’s technology accounts for the ever- cally (or nearly so). into a garden; give him a nine years’ lengthening period of time for copyright The concept of fair use and copyrights lease of a garden, and he will convert protection, while, with patents, the ability is also discussed, as is the issue of deriva- it into a desert…The magic of prop- to copy is less of an issue as to term length. tive works. When the publisher of a book erty turns sand into gold. The authors also discuss injunctive on trivia about the TV show Seinfeld Messrs. Cass and Hylton also point relief, compulsory licensing, and other was sued for copyright infringement, the out that at the end of the Soviet Union, issues affecting modern intellectual prop- publisher claimed that the book simply “the small amount of land available for erty law. With respect to injunctive relief, took “facts” from the show and created individual farmers to produce goods for historically, if one proved patent infringe- a question-and-answer format, with no their own account — less than three ment, one was presumptively entitled copying from the show and therefore,

26 DSBA Bar Journal | www.dsba.org no infringement. The court was not impressed, observing that the “facts” were themselves fictional creations and part of what was protected by copyright. Art Connolly Conversely, when the copyright holder for Gone With the Wind sought to enjoin Race Judicata publication of The Wind Done Gone, a Proceeds will benefit the Delaware work which told the story of the Civil War Law Related Education Center and a plantation family through the eyes (DELREC) of the slaves, injunctive relief was denied and the appeals court held that the newer work was a fair use of elements of Gone 12th annual With the Wind. RUN Following their overview of the four main intellectual property right regimes, 2017 the authors turn to international considerations, treaties, and conventions. How and why do countries respect intellectual property rights arising in other parts of WALK the globe? Why should countries do so? 5K Saturday, April 1, 2017 The authors also examine antitrust !!NEW LOCATION!! issues arising in the intellectual property Logan House, Trolley Square (1701 Delaware Ave.) context. What happens when a patent holder, by virtue of the patent, obtains 9:00 am – Sign-in & Registration monopoly power in a market? Or, if the 10:00 am – Run/Walk Starts patent holder attempts to use the patent to obtain a monopoly in a related market, Prizes to be won by fastest runners by tying use of the patent to a require- Pre-Registration Fee if Registered by March 31: $25 ment to buy other goods? Day-of Registration Fee: $30 Finally, Messrs. Cass and Hylton address various criticisms levelled at cur- For more information and to register online, please vist: rent intellectual property structures and http://www.races2run.com/events/judicata-5k-run-walk/ suggest revisions and changes which the courts or Congress may wish to consider. **registration includes t-shirt & onsite water/refreshments Laws of Creation is not intended as a treatise or to provide answers to all of the various questions surrounding mod- Obviously, the existing rules are worthy goal, but making what others ern intellectual property law. Rather, it not perfect; the careful reader will create and nurture “free” can be the provides a basic overview of the law and note that we have been less than most expensive change. those issues; but, more importantly, it Panglossian in our outlook. But, ad- The authors begin their book with a is intended to defend the concept of mitting that the current framework quote about the magic of property turn- “property,” and, more specifically, the is imperfect still leaves us far away ing sand into gold. By the end of their concept of intellectual “property.” In from those engaged in a broad-based book, they have demonstrated the magic their concluding paragraphs, Messrs. assault on fundamental proposition of intellectual “property” and why mak- Case and Hylton explain: that support intellectual property…. ing something “free,” may instead make it much more expensive. In looking at the range of intel- Our intellectual property laws have helped to create a society that is lectual property rules currently in Richard “Shark” Forsten is a Part- place in advanced economies, and wealthier by virtually every conceiv- ner with Saul Ewing LLP, where he especially in the United States, we able measure than those of alterna- practices in the areas of commercial have made the case that a property- tive legal regimes. To maintain the real estate, land use, business transac- focused approach best addresses the benefits of our laws for future generations, and related litigation. He can be reached at [email protected]. trade-offs associated with any change tions, we should try to understand in the scope of protection…. why they have worked. Freedom is a

DSBA Bar Journal | March 2017 27 2016 COMBINED CAMPAIGN FOR JUSTICE Contributions Received through February 13, 2017 Thank you to the many contributors and volunteers who gave generously to the 2016 campaign to help ensure access to civil legal aid for the most vulnerable of Delaware’s population. CCJ benefits Community Legal Aid Society, Inc. (CLASI), Delaware Volunteer Legal Services, Inc. (DVLS) and Legal Services Corporation of Delaware, Inc. (LSCD). Total Contributions: $1,034,557

JUDGES Potter Anderson & Corroon LLP Donald A. Bussard Thomas J. Allingham, II Patricia Smink Rogowski The Honorable Richard G. Andrews Richards Layton & Finger, P.A. P. Clarkson, Jr. and Donna Collins Matthew J. Belger Joseph A. and Joan L. Rosenthal The Honorable Rosemary B. Skadden Arps Slate Meagher & John G. Day Don A. and Olga Beskrone David and Deborah Ross Beauregard Flom LLP David A. Jenkins Douglas B. Canfield and Mary Ann Thomas L. Sager Matuszewski The Honorable Andre G. and Young Conaway Stargatt & Taylor, LLP Stephen P. Lamb R. Judson, Jr. and Colette AnnElise Bouchard Mark S. Chehi Scaggs, Jr. SUSTAINER – $20,000 - $29,999 Paul J. Lockwood and Elise L. The Honorable Christopher Burke Anderson Anthony W. Clark Patricia Bartley and Eric D. The Honorable William C. Delaware State Bar Insurance Schwartz Services Thomas V. and Kathleen F. Colm F. Connolly Carpenter, Jr. McDonough John Seiberlich Morris James LLP Joan Connolly The Honorable Jeffrey J. Clark Thomas R. 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William J. Martin, III Ballard Spahr LLP Mary C. Boudart and The Honorable Collins J., Jr. and Michael P. Morton, P.A. Eric A. Mazie The Honorable Donald Callender Gail Seitz Barnes & Thornburg LLP Montgomery McCracken Walker & David C. McBride Bernstein Litowitz Berger & Curtis P. Bounds The Honorable Laurie Selber Rhoads LLP Charles S. and Mary Lou McDowell Silverstein Grossman LLP Donald J. Bowman, Jr. Next Generation Reporting Bonnie L. Metz The Honorable Joseph R. Slights, III Connolly Gallagher LLP Elisabeth S. Bradley Panitch Schwarze Belisario & Edward B. and Melissa Micheletti The Honorable Leonard P. Stark Elzufon Austin Tarlov & Mondell, P.A. Nadel LLP Stephen B. Brauerman Norman M. Monhait The Honorable Leo E. Strine, Jr. Estates & Trusts Section of DSBA Parcels, Inc Adrian Broderick Marcus E. Montejo The Honorable Karen Lynn Valihura Fish & Richardson, P.C. Parkowski, Guerke & Swayze, P.A. Don C. Brown and Lynne Howard Garrett Moritz The Honorable James T. Vaughn, Jr. Labaton Sucharow LLP PNC Bank Sean Brownridge Regina M. Mullen The Honorable Paul R. Wallace McCarter & English, LLP Polsinelli PC Sara Bussiere Schwartz & Schwartz, Attorneys at Proctor Heyman Enerio LLP Murphy & Landon John S. Campbell The Honorable Charles W. Welch, III L aw, P. A . Reed Smith LLP Francis J. Murphy, Jr. David W. Carickhoff The Honorable William L. Witham, Jr. Sussex County Bar Association Reliable Companies Elena C. Norman The Honorable William L. The Honorable Robert B. Young Weik Nitsche & Dougherty Chapman, Jr. The Yeager Law Firm Joshua Novak The Honorable William S. Young, III White and Williams LLP Evert Christensen Tybout, Redfearn & Pell The Honorable Donald F., Jr. and The Honorable Morgan Zurn Ethel Parsons M. Blake Cleary Individuals Veritext Legal Solutions James L. Patton, Jr. Joanna Cline TRAILBLAZER – $50,000 + Derek C. Abbott Womble Carlyle Sandridge & Rice Pamela D. Politis Howard Cohen and Evelyn J. 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28 DSBA Bar Journal | www.dsba.org Travis Crumley Edward M. and Janice McNally Claire Marie DeMatteis Richard L. Renck Diane M. Coffey Brian Cunningham Carolyn M. McNeice Christine K. Demsey Nicholas H. Rodriguez Wayne Kennedy Comer Brock Elliot Czeschin Bruce M. Monroe Sarah Diluzio David and Cecilia Roeberg Anne E. Connolly William & Sarah D'Alonzo Pauline K. Morgan Jill DiSciullo Jacqueline Rogers Kevin J. Connors Catherine Dearlove Richard H. Morse Rex A. Donnelly, IV Blake K. Rohrbacher Augusto Cordova William R. Denny John H. Newcomer, Jr. Keith Donovan Edward B. and Katherine G. Frederick L. Cottrell, III Rosenthal Arthur Dent Stephen C. Norman Michael F. Duggan Victoria W. Counihan Geoffrey Sawyer, III Donald Detweiler Marla Hirshman Norton William J. Dunne Scott Cousins Judy and Bill Schneider Eugene A. DiPrinzio Matthew J. O'Toole Richard P. Eckman Paul E. Crawford Joseph C. Schoell Melissa Ann DiVincenzo Susan F. and Alan Paikin Marla Eskin Dawn Kurtz Crompton Michael R. Seidl Eric M. Doroshow Norman L. Pernick Eric Feldman Lucinda Cole Cucuzzella Suzanne I. Seubert John T. Dorsey William G. Popeo Matthew Eric Fischer Michele Daly Brent C. Shaffer Timothy Ryan and Amy Q. L. Vincent Ramunno Todd Alan Flubacher Michael David DeBaecke Dudderar Michael K. Reilly Christopher Foulds Ralph N. Sianni Mary F. Dugan William A. Denman Robert H. Richter Alexander W. Funk Daniel M. Silver Charles J. Durante Cynthia L. DePue Kenneth M. Roseman James Gallagher, II Drew and Elizabeth Sloan Deborah K. Duskey Donn Devine Jeremy W. Ryan Catherine A. Gaul Bayard J. Snyder John Eakins Christine Di Guglielmo Yvonne Takvorian Saville Nancy and Thomas Gorman Timothy J. Snyder Patricia L. Enerio Margaret M. DiBianca William Schab Donald L. Gouge, Jr. David J. Soldo C. Barr Flinn David DiDonato Eileen B. Schmutz Gerry Gray A. Gilchrist Sparks, III Anthony G. Flynn Richard A. DiLiberto, Jr. Adam Schulman Sean T. Greecher Lawrence B. Steele, III Thomas A. Foley W. Harding, Jr. and Margriet K. John A. Sensing James S. Green, Sr. David S. Swayze Drane Anne Churchill Foster Mary E. Sherlock Edwin J. Harron Allen M. Terrell, Jr. In Honor of Marta Dybowski David M. Fournier Paul Calistro Henry H. Silliman, III J. Zachary Haupt Neith Ecker Anthony M. Frabizzio Seth Thompson The Honorable Myron T. Steele Laina M. Herbert Erin D. Edwards Richard E. Franta Bruce W. Tigani J. Kate Stickles Neilson C. Himelein and Susan R. Philip T. Edwards Frederick S. Freibott Weimer Jameson A. and Meredith Stewart Thomas P. Sweeney Tweedie John Ellis Michael Galbraith Samuel Taylor Hirzel, II David Teklits Michael Weiss Margaret Fleming England Patrick Gallagher Daniel K. Hogan Mary S. Thomas Sarah Ennis Mark J. Gentile Paul and Linda Welsh Jeremy Tigan Richard L. Horwitz Jeffrey M. Gentilotti Gregory W. Werkheiser Kenneth J. Enos Michael and Marilyn Uffner Roxanne Lee Houtman Robert G. Gibbs Patricia A. Widdoss A. Cathryn Evans Patricia Urban David R. and Lorin Hurst Jeffrey S. Goddess Beverly J. Wik Nicole Evans Patricia O. Vella Kenneth Jackman Andrew G. Golian Melvyn A. Woloshin Elwyn Evans, Jr. Susan Wood Waesco The Honorable Jack B. and M. Duncan Grant Marion Jacobs Aleph Ann Woolfolk Brett D. Fallon Christopher A. Ward John M. Fisher Gray Jennifer C. Jauffret Laura A. Yiengst Veronica O. Faust David A. White Andrea Green Clay T. and Ann Z. Jester Jennifer Ying Cara Grisin Fay David H. Williams James S. Green, Jr. Daniel Paul Johnson David A. Felice William A. Yemc DONOR – $100 - $249 Thomas C. Grimm Francis Pete Jones, Jr. Thomas F. Felton Lawrence I. Zutz Corporations / Law Firms Jerome K. Grossman Andrew C. Kassner Elizabeth Ferguson In Memory of Appraisal Associates Joseph T. Walsh Shauna T. Hagan SUPPORTER – $250 - $499 Leba Kaufmann Dover Downs, Inc. David J. Ferry, Jr. Sean Haney Corporations / Law Firms Joseph C. Kelly Henry J. Kaiser Family Larry W. Fifer Buzz Hannum Friedman Oster & Tejtel PLLC Lawrence Spiller Kimmel Foundation Erin K. Fitzgerald Ellie Corbett Hannum Grady & Hampton, LLC Daniel L. Klein Incorporating Services, Ltd. Angela Flaherty David A. Harris Superior Court of Delaware John C. Kuffel International Section of DSBA Israel J. Floyd Matthew Harvey Young Lawyers Section of DSBA Mark A. Kurtz Not Your Average Joes Ryan Ford Douglas Herrmann Individuals James Levine Scroll Deliveries, LLC Richard A. Forsten Richard K. Herrmann Anonymous Richard A. Levine S-E-A Ltd. Lori Forster David R. and Judy Oken Hodas Richard L. Abbott Gary C. Linarducci Steen Waehler & Schrider-Fox, LLC Stephanie A. Fox James L. Holzman Emery Abdel-Latif Joseph G. Lisicky Individuals The Honorable Alfred Fraczkowski Timothy Jay Houseal Peggy L. Ableman Ian Liston Anonymous Mark Freeman S. Mark Hurd Debra C. Aldrich Paul Loughman Meghan Adams Nakeesha Freeman Rudolf E. Hutz John C. Andrade Paul M. Lukoff Henry J. Jaffe Henry Alderfer James A. Fuqua, Jr. J. Clayton Athey Thomas G. Macauley Jonathan Jaffe Jeff A. Almeida Kevin M. Gallagher Victor F. Battaglia, Sr. and Toni Michael J. Malkiewicz Bruce E. Jameson Battaglia In Loving Memory of Joshua W., III and Cynthia M. Paul M. Altman William Gamgort R. Brandon Jones Christopher Battaglia Martin Ashley R. Altschuler Mary Gardner Cynthia D. Kaiser Christopher F. Baum Glenn McGillivray Michael W. Arrington Ronald S. Gellert Kathi A. Karsnitz Julian H. Baumann, Jr. Megan D. McIntyre Daniel G. Atkins The Honorable Melanie L. George Marcy McLaughlin Smith Bernard J. Kelley Sean M. Beach Thomas Ayala Ryan McLeod Gretchen Gilchrist Michael P. Kelly Alan W. Behringer William Robert Baker, Jr. Tammy L. Mercer Edward C. Gill Dimitri Kipa Neal C. Belgam Nathan Barnett Rolin P. Bissell Francis A. Monaco, Jr. Lisa Gilmer Richard D. Kirk Richard P. Beck Jeffrey B. Bove Eric J. and Dana Monzo William A. Gonser Gretchen S. Knight Sean J. Bellew Paul A. Bradley Michael J. Mullen Deborah I. Gottschalk Steven K. Kortanek Robert K. Beste, Jr. William Patrick Brady Regina Murphy Carolee M. Grillo Carl Norman, III and Carolee B. John M. Bloxom, IV Kunz, III Rebecca Byrd Anne L. Naczi Professor Eugene L. Grimm Karen S. Brehm Christopher J. Lamb Nicholas J. Caggiano, Jr. Katherine Neikirk Victoria Guilfoyle Charles J. Brown, III Thomas Paul Leff Megan Ward Cascio Jonathan P. Neipris Mirco Haag Emily V. Burton Timothy E. Lengkeek Jason A. Cincilla and Megan Michael R. Nestor Carolyn S. Hake Thomas Carney Martin S. Lessner Mahle Stephen P. Norman James J. Haley, Jr. Michael N. Castle James G. Leyden, Jr. Nancy Chrissinger Cobb Jenness Elizabeth Parker Lawrence A. and Marion Jacquelyn A. Chacona Hamermesh Jason M. Liberi Mark D. Collins John J. Paschetto Alberto Chavez Christine M. Hansen Claire M. Love Michael J. Custer Somers S. Price, Jr. Teresa A. Cheek Jeanne M. and Brian Hanson Albert Manwaring Kathleen Campbell Davis Jaclyn Quinn Edward T. Ciconte Joyce Koria Hayes David J. and Michelle Margules John P. Deckers Judith N. Renzulli and Curtis R. Kathaleen St. Jude McCormick Daniel J. DeFranceschi Reitz Ryan Cicoski Thomas Herlihy, III

DSBA Bar Journal | March 2017 29 Mary B. Hickok Ryan Patrick Newell The Honorable E. Norman and Cheryl Heiks Charles Sweedler Susan Veasey Roy A. Hilferty Maria Paris Newill Timothy L. Hitchings Peter M. Sweeney Wendy K. Voss Adam Hiller Jesse Noa Victoria J. Hoffman Kristen Swift Robert Vrana Glenn E. Hitchens Denise D. Nordheimer Sharyn Hollingsworth Amy M. Taylor William C. Wagner, II Sandy Holm Charles M. Oberly, III and The Janine N. Howard-O'Rangers Glenn Thompson Honorable Lynn M. Parker William J. Walls, Jr. Antoinette D. Hubbard Edmond M. Ianni Amanda Topor Mark D. Olson Megan Rush Walstrom Kelley M. Huff Judy Jones Francis J. and Ann F. Trzuskowski Jonathan B. O'Neill Matthew Paul Ward James P. Hughes, Jr. John C. Kairis Joshua Twilley Michael Owen Shannon Humiston James Welch Meghann Karasic Cynthia Vernon Bindu Palapura Jerry A. Hyman Rebecca Wilcox The Honorable Charles K. Keil Viola Vetter Christina Pappoulis Daniyal Iqbal Thomas Will Lawrence Kempner H. Kemp Vye F. Michael Parkowski Barbara M. James Laura and Lincoln D. Willis Keith Kleinman David I. Walsh Darryl A. Parson Carla Jones Lynn Wilson Angeline Kogut Robert Ward Karen L. Pascale Michael B. Joseph John Mark Zeberkiewicz Stephen Kraftschik Laura J. Waterland J. Weston Peterson Jason Jowers Sharon M. Zieg Nicolas Krawitz John Williams Dmitry Pilipis Eric Juray Alex Krischik Andrew Wilson Richard J.A. Popper FRIEND – $1 - $99 Brian Lucian Kasprzak Michael M. Ledyard Mackenzie Windfelder Laura M. Poppiti Individuals Susan E. Kaufman George Thomas Lees, III Jeffrey Wisler Richard Mark Radel Anonymous Brya Keilson Brian S. Legum Daniel F. Wolcott, Jr. Anthony Raucci Andrew G. Ahern, III William M. Kelleher Hayley Lenahan Alan S. and Johanna D. Yoffie Laura Readinger Justin R. Alberto Eleanor M. Kiesel Jaclyn Levy Thomas J. Reed Amanda Anker 2016 Combined Campaign Rosemary K. Killian Jeffrey C. 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30 DSBA Bar Journal | www.dsba.org IN MEMORIAM

The Honorable David P. Buckson 1920 - 2017 By Thomas D. Whittington Jr., Esquire

s I read through the newspa- My father purchased his parents' farm pers which had accumulated and Governor McMullen left the farm, at home during my stay in burdened with my grandfather’s right-of- Vermont, I came across a way to daughter Laura McMullen Whit- Asmall notice that Dave Buckson, a former field. The children did not get along as Delaware Attorney General, judge, and well as the parents and, at some point, a short-term Governor, had passed away at dispute arose between my parents and Mrs. 96. I was struck by the very little notice his Whitfield about what we thought of as our passing generated in the upstate press. My driveway — from the perspective of my 9 search for articles in the papers and online years of age I thought that Mrs. Whitfield generated an interesting burst of nostalgia was a not a nice person; however, I now sus- and caused me to reflect on the fact that pect that Dad contributed to the problem at 74, I would be one of the few folks who as over the years, he continually widened knew Dave from his time as a private at- and improved the drive. Mrs. Whitfield torney to his “retirement” as a judge. I was reasonably wanted him to put the drive admitted to the Bar in 1971 shortly after Photo Credit: Delaware Public Archives back to the original dimensions plus tried Dave finished his second term as Attorney to close it entirely because it was no longer General. This is a rework of a note I sent to legal and political a right-of-way by virtue of necessity through her property. Dave friends and is not written as an obituary or the story of Dave’s worked out the issues and the driveway is in place today. life; rather, it is a reflection on the man that I knew and how One of Dave's signature achievements was Dover Downs. he fit into my Delaware. For a more factual family-oriented Dave and Dad talked about Dad buying two of the farms on recitation of his accomplishments, I recommend the story in the or near where Dover Downs is located, but the business gurus January 18, 2017 edition of the Delaware State News. at Wilmington Trust thought that the location was poor and • • • discouraged Dad from getting involved. It is a credit to Dave’s My interest in politics and the law was in part instilled by personality and the merit of the idea that he was able to convince knowing Dave Buckson. Dave was perhaps the first attorney and a political crony, John Rollins, to bankroll the idea. politician whom I knew personally — which in part explains my Dave had the type of memory that Joe Biden does for names interesting slant on the legal profession and politicians. and faces. Dave literally seemed to know everyone in Delaware. I once asked him how he could remember the names of so many Dave, who my father thought of as a “War Hero” because he people and he responded that he would look at the person’s face survived the war in the Pacific and returned a Major, was our as he and the person were squaring up to shake hands and go family attorney. I first became aware of him in 1952 when I was through the alphabet until he came up with the correct name. nine and he represented my parents in a right-of-way dispute. During the Celebration of Dave’s Life, one of his law partners My grandparents owned a farm near Bear with a right-of-way confirmed that Dave told him the same story…and agreed that, through land owned by Richard Cann McMullen (An American like me, he could not make it work. manufacturer and politician from Wilmington, a member of the Democratic Party who served as Governor of Delaware, and Dave was the first person to serve two terms as Delaware’s founder of Allied Kid. McMullen died in 1944.) My grandfather Attorney General. He was in office when the Attorney General was active in the Democrat Party and I suspect that helped him became head of the "Department of Justice" in 1969. Little has get along with Governor McMullen. McMullen had three chil- been said of the difficulties in moving the Office to a Depart- dren, Laura, Richard, and Florence. It is my recollection that he ment and ending the practice of legal patronage. When Rich left each child a farm. In Memoriam (continued on page 33)

DSBA Bar Journal | March 2017 31 BULLETIN BOARD

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32 DSBA Bar Journal | www.dsba.org In Memoriam (continued from page 31) and said, “Not at all, I know these folks!” withstanding, was engaged in prohibited grabbed the form out of Dad’s hand political activity of a continuing nature. I Gebelein and I went to work for Laird and proceeded to go through the races, am not sure what they saw as “prohibited Stabler in 1971, the process of replacing commenting on the characteristics and status,” but it is my view that Dave was private attorneys was still ongoing. At- capabilities of every horse, every driver, engaged in political activity from about torney General in Delaware is a consti- and from time to time commenting on the first grade on. The Court removed tutional office, but it did not become a their equipment. Dad got him stopped him from his judicial office on April 30, significant force in the life of Delaware at about the end of the third race, but it 1992, but did not impose any forfeiture of until the Department was established was clear that Dave knew the strong and entitlements that existed prior to its order. during Dave’s tenure. weak points of every driver, every horse, Politics aside, he continued as a harness Dave was a great story teller, but also and understood how those characteristics racing driver until the age of 75 when he a great subject for stories. He was very would determine the winner. I was also gracefully retired. involved in, perhaps obsessed even, with left with the distinct impression that Dave Dave passed away on January 17, 2017, harness racing. On one occasion, my fa- liked the horses better than the drivers. and I suspect is currently in negotiation ther and I were at the races and ran into Dave was on a high in 1991, when at to commence harness racing between the Dave. Dad was always looking for “inside the age of 71 and while serving as a judge, underworld and the pearly gates. information” and asked Dave to tell him he won the prestigious Billings Classic what was the safest bet with the longest Amateur Driving Championship. Un- odds. Dave took Dad’s Racing Form and fortunately, but characteristically, Dave’s quickly marked a horse in almost every next public chapter was a run-in with the race. He said there was no guarantee, but Court on the Judiciary when he may have “these look good to me.” I expressed con- announced he was running for Governor cern that the races were fixed if he could after his term as a Family Court Judge so easily name a winner or near winner in was completed, but while he was still in almost every race. He then focused on me hold-over status. After an interesting and with that quizzical look he would shower vigorous contest, the Court found that on people that he thought were confused Judge Buckson, his hold-over status not-

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DSBA Bar Journal | March 2017 33 THE judicialP By Susan E. Poppiti, Esquire alate Buttermilk or Bust!

few weeks ago, I made a rare purchase — a quart of buttermilk for a batch of pancakes. What better way to escape the winter doldrums than with a short stack of pancakes? The tangy milk created a fluffy pancake when it interacted A with the baking soda, yet it left me wondering what to do with the rest of the quart. After some brainstorming and research, I came up with a meal that not only polished off the buttermilk, but also incorporated some March ingredients.

Tangy Roasted Chicken Potato Leek Soup

with an Early Spring Salad Ingredients: • 3 leeks, cleaned and sliced up to the dark green section For the Chicken: • 3 tablespoons salted butter • 4 skin-on and bone-in split chicken • 1 tablespoon dried rosemary vikif istockphoto.com/ © • 2 large Yukon gold potatoes, peeled and chopped breasts (try D’Artagnan’s air chilled • 1 tablespoon dried thyme chicken from Amish and Mennonite • 1 quart chicken stock farms) • 1 teaspoon Sumac • 2/3 cup whole milk • 1 1/2 cup buttermilk • Sea salt • 2/3 cup buttermilk • Fresh ground pepper • Fresh ground pepper • Sea salt • 1/2 cup panko bread crumbs • Fresh ground pepper Place the chicken in a large plastic food storage bag and add the buttermilk and • Fresh chives, chopped some fresh ground pepper. Move the chicken around to ensure that it is coated with buttermilk. Refrigerate for a couple of hours. Melt the butter in a large pot over medium low heat. When ready to cook, preheat the oven to 400 degrees. Mix the breadcrumbs Add the leeks and cook until tender, stirring occasionally. and dried herbs in a bowl. (I always prefer fresh herbs; however, in this case, This will take about 20 minutes. Add the potatoes and the dried herbs make for a better coating). Remove a piece of chicken from the chicken stock and bring to a boil. Then simmer until you bag and shake off the excess buttermilk. Dip the skin side of the chicken in the can put a fork through a piece of potato. bread crumb mixture and place it in a baking dish skin side up. Repeat with the Turn off the heat and let cool for a bit. Using a hand other pieces. blender, or what I call a “wand”, puree the chunky mix- Season the chicken with salt and pepper and sprinkle with sumac, the lovely ture until smooth. Stir in the milk and buttermilk and red spice that adds a subtle lemony flavor. Bake for about 40 minutes or until the season with salt and pepper. chicken is cooked. Serve alongside the salad below. Either put the soup back on the heat and serve hot, or chill and serve cold. Either way, sprinkle with chives before serving. For the Salad: By now, you should be at the bottom of your but- • 1 small fennel bulb, very thinly sliced • 1 teaspoon chives, finely chopped termilk…so, bon appetit! • 1/4 radicchio head, sliced in strips • 3 tablespoons extra virgin olive oil • 1/2 cup buttermilk • Sea salt • 2 teaspoons fresh lemon juice • Fresh ground pepper Susan E. Poppiti is a mathematics • 1 teaspoon grated lemon zest • Marcona almonds teacher and director of the legal shadowing • 1 teaspoon rice wine vinegar program at Padua Academy High School and managing member and cooking instruc- In a salad bowl, place the fennel slices and radicchio. In another bowl, whisk tor for La Cucina di Poppiti, LLC and can the buttermilk, lemon juice, lemon zest, rice wine vinegar, and chives. While be reached at [email protected]. Other recipes whisking, slowly pour in the olive oil. Then season with salt and pepper. Drizzle and cooking tips are available on Susan’s food blog over the greens and toss with Marcona almonds. at www.cucinadipoppiti.com.

34 DSBA Bar Journal | www.dsba.org DSBA Bar Journal | March 2017 35 Morris James LLP is pleased to announce Adam C. Gerber

has joined the firm as an associate in its Tax, Estates and Business Practice

Adam C. Gerber’s practice focuses primarily on estate planning and administration, elder law, and business matters. Practice chair, Bruce W. Tigani, notes “We are delighted to welcome Adam and his broad-based, state-wide practice to our group.” Prior to joining Morris James, Adam has practiced since 2005 in the areas of estate planning, real estate, and civil litigation including trust and estate litigation.

He began his career clerking in the Superior Court, Kent County, Delaware. Mr. Gerber graduated cum laude from Villanova University School of Law in 2004, and received his B.A. from Wheaton College in 2000. Mr. Gerber was admitted to practice law in Delaware in 2005 and the U.S. District Court, District of Delaware in 2006. He can be reached at 302-888-6870 or [email protected].

www.morrisjames.com 302.888.6800