SeptemberSeptember 2011 2011 • •Volume Volume 35,35, NumberNumber 2
James G. McGiffin, Jr. Delaware State Bar Association President, 2011-2012
September 2011 • The Journal of The Delaware State Bar Association 1 EGA L L E G D IN U U C
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D • S •CLEB • A Seminars
Social Security Disability EGAL 2.0 hours CLE credit L E Wednesday, September 14, 2011 • Noon – 2:00 p.m. G D Delaware State Bar Association, 301 N. Market St., Wilmington, DE N Also broadcast to Dover and Georgetown I U Topics include: Supplemental Security Income and Social Security Disability Insurance; How benefi ts can impact personal injury awards and workers’ C compensation benefi ts; What happens when unique medical factors or unforeseen details are encountered; The RulesU of Professional Conduct and Social Security claims; The attorney’s duty to advise clients on the impact a claim can have on other pending legal matters. N A
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Delaware State Bar Association, 301 N. Market St., Wilmington, DE N
Also broadcast to Dover and Georgetown O See ad on page 11 for more information. C
Closing and Retiring from a Law Practice 3.0 hours CLE credit Thursday, September 22, 2011 • 9:00 a.m. – 12:15 p.m. D • • • Delaware State Bar Association, 301 N. Market St., Wilmington, DE S B A Also broadcast to Dover and Georgetown The ODC, members of the Bench and Bar, the Delaware Lawyers’ Assistance Program, and a representative from the insurance industry will discuss: (a) different categories of Bar membership, (b) a checklist for transitioning out of private practice, (c) the ethical implications of retiring or closing a law practice, and (d) observations of issues that arise with senior members of the Bar.
Pro Bono CLE: Reaching Out to Provide Access to Justice 6.5 hours CLE credit Wednesday, October 5, 2011 • 8:30 a.m. – 4:15 p.m. Delaware State Bar Association, 301 N. Market St., Wilmington, DE Also broadcast to Dover and Georgetown EGA See ad on page 14 for more information. L L E G DHot Topics on Delaware Limited Liability Companies N and Limited Partnerships I U 3.5 hours CLE credit Tuesday, October 11, 2011 • 8:30 a.m. – 12:15 p.m. U C Delaware State Bar Association, 301 N. Market St., Wilmington, DE
N Issues Relating to Series LPs and LLCs; TriBarA LLC Interest Opinion Report; Fiduciary Duties and the Implied Contractual Covenant of Good Faith and Fair
Dealing in LPs and LLCs. I T
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O Delaware State Bar Association, 301 N. Market St., Wilmington, DE C The goal of this seminar is to provide participants with a solid, intuitive understanding of the basics of fi nance. It is not a seminar on accounting or book- keeping. There are no “debits and credits”” or complex fi nancial or mathematical formulas. We discuss the current topics of the day and cover all the issues including fraud and investment risks.
Visit the DSBA website for additional information about these and other DSBA CLE seminars. D • S • B • A The Journal of the Delaware State Bar Association is published monthly with a combined July/August issue by Delaware State Bar Association 301 North Market Street Wilmington, DE 19801 September 2011 Volume 35 • Number 2 302-658-5279 (From Kent and Sussex Counties) 800-292-7869 FEATURES FAX: 302-658-5212 www.dsba.org 2 Upcoming CLE Seminars President James G. McGiffin Jr. 7 Nominations Sought for 2011 Awards Executive Director Rina Marks 10 Letting Go (or De-cluttering Your Life) Editorial Board By Susan Simmons David W. deBruin Michael L. Sensor 13 An American Tragedy: A Comedy Seth L. Thompson By The Honorable Robert B. Young Executive Committee Liaison Gregory Brian Williams 14 Celebrate the Spirit of Giving and Contribute to a Worthwhile Cause Vice President-at-Large By Laina M. Herbert, Esquire Publications Editor Rebecca Baird 18 Incoming State Bar Head Enjoys Helping Others By Chris Flood © Copyright 2011 by the Delaware State Bar Association. All Rights Reserved. 19 Nominations Sought for the Christopher W. White Distinguished The Bar Journal is the independent journal Access to Justice Awards of the Delaware State Bar Association. It is a forum for the free expression of ideas 26 Report: Annual Meeting of the ABA House of Delegates on the law, the legal profession and the administration of justice. It may publish By William D. Johnston, Esquire articles representing unpopular and controversial points of view. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers, and all articles COLUMNS are subject to limitations of good taste. In every instance, the views expressed are those of the authors, and no endorsement of those 4 President’s Corner 22 Book Review A Profile in Balance Editor’s Perspective 24 views should be inferred, unless specifically 6 identified as the policy of the Delaware State Bar Association. 12 Ethically Speaking 30 Judicial Palate 16 Access to Justice Spotlight All correspondence regarding circulation, subscriptions, or editorial matters 20 DE-LAP Zone should be mailed to: Editor, DSBA Bar Journal Delaware State Bar Association 301 North Market Street Wilmington, DE 19801 DEPARTMENTS or e-mailed to: [email protected] All inquiries regarding advertising should be directed to the address above, 8 Calendar of Events Attention: Advertising, Bar Journal. 9 Section & Committee Meetings 15 Section News Letters to the Editor should pertain to recent articles, columns, or other letters. Please limit to 25 Disciplinary Actions 250 words. Unsigned letters are not published. All 28 Bulletin Board letters are subject to editing. Send letters to 301 North Market Street, Wilmington, DE, 19801, Attention: Editor, Bar Journal. Cover Photo Credit: © istockphoto.com/Courtney Keating
3 The Journal of The Delaware State Bar Association • September 2011 President's Corner
By James G. McGiffin, Jr., Esquire
ssuming the mantel of the that I can give back something to DSBA tors of these organizations are Delaware Delaware State Bar Associa- during this year. lawyers. In recent years, the largest tion presidency is a humbling A brief review of the history of DSBA single source of financial support for Aexperience for me. My photo on the the work of these organizations, besides demonstrates that other presidents have cover of this issue of The Journal is had substantial CLASI connections. the federal government, is the Delaware one, but not the only, inspiration for Clarence Sutherland (DSBA President, Bar. We lead the nation in our financial self-reflection. (Am I hiding something 1934-36) was the chair of a DSBA com- support of access to justice for people of with the beard? Is the bow tie merely an mittee appointed by William Prickett very modest means with civil legal needs. affectation? I must admit I really have (DSBA President, 1944-45) formed to DSBA and the poverty law agencies do gone gray.) I find myself in a position organize legal services for poor people this together. formerly occupied by people of enormous in Delaware. Joseph H. Flanzer (DSBA Not only have I reaped the benefits talent, limitless generosity, of CLASI’s relationship Solomonic wisdom, and with DSBA, but also have dazzling intellect. Many of I quickly learned when I arrived in I found practicing law with the legendary figures of the Delaware that there would be no Delaware lawyers to be Delaware Bar have served opportunity to practice poverty a great gift. In my own as President. And now, me. law but for the Delaware State Bar professional development, Why would I subject myself I have found mentors in to the comparison? Association and the generosity of several members of the Sixty-three people have the members of the Delaware Bar. I Delaware Bench and Bar held this job before me. I hope that I can give back something who have made available to have been fortunate to serve to DSBA during this year. me their time and expertise on the DSBA Executive as I learned (and continue Committee with a dozen to learn) how to be an ef- of those presidents. I count among my President, 1967-69) was also a mem- fective Delaware lawyer. I have a long friends three other past presidents, and ber of that committee. William Poole list of lawyers to whom I may turn with I know (or knew) twenty-three others. (DSBA President, 1972-73) was one of a technical, practical, or philosophical It is my relationships with these people the three incorporators of the original question and expect a reasoned and rea- that has inspired me to Bar Association Legal Aid Society in 1946, and Aubrey sonable response. In this community of service. Lank (DSBA President, 1976-77) was professionals, I am never alone. I came to Delaware from law school employed as an attorney with the or- The commitment of DSBA to the in Boston; and I came because Com- ganization in the 1950s. Since the term goal of equal justice under the law is munity Legal Aid Society, Inc. hired of President Donald Parsons, Jr. (1999- sincere, serious, and substantial. For me with some of the first IOLTA dollars 2000), DSBA presidents have acted as that, I am proud and grateful. The gen- CLASI received. I was lucky enough to leaders in the annual Combined Cam- erosity of individual Delaware lawyers, know then, as I have known since, that paign for Justice fundraising effort that with respect to their time, talent, and poverty law was my calling. I knew that supports CLASI, Delaware Volunteer treasure, is genuine, considerable, and my best chance for happiness required Legal Services, and the Legal Services inspirational. For that, I am equally me to do this work. I quickly learned Corporation of Delaware. proud and grateful. I hope my service when I arrived in Delaware that there CLASI, DVLS, and LSCD are all to DSBA and to Delaware lawyers will would be no opportunity to practice born of the DSBA. Each of these orga- honor these magnificent traits. poverty law but for the Delaware State nizations was the answer to a particular Bar Association and the generosity of the challenge DSBA hoped to address. Most members of the Delaware Bar. I hope of the members of the boards of direc-
September 2011 • The Journal of The Delaware State Bar Association 4 We believe in building relationships. Kruza Legal Search Specializing in permanent attorney, paralegal and support staff placement services since 1980.
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5 The Journal of The Delaware State Bar Association • September 2011 Editor’s Perspective
By David W. deBruin, Esquire
The Summer Wind
est is not idleness, and to lie mertime work challenges. If properly As summer comes to a close, most sometimes on the grass on a sum- handled, that will ensure that we have lawyers shift their practice back into mer day listening to the murmur an enjoyable summer and still meet our high gear. The “Ides of March” have Rof water, or watching the clouds float across work goals. One of the keys to summer nothing on the unspoken, but nonethe- the sky, is hardly a waste of time. survival is to carve out some time in less widespread battle cry, a combina- - John Lubbock the schedule for a well-deserved break, tion of aroused aggression and esprit regardless of age; a chance to put away de corps, which sounds in the month Something happens to the practice pens, phones, and laptops, and plant of September. It seems that once Labor of law during the months of summer. our feet in some sand. Like most people, Day comes and goes and children head It is almost as if all sides agree to put attorneys function at a much more ef- back to school, the collective gloves the most important work on the shelf fective rate when refreshed and focused. drop (to use a hockey term). I do not to a certain extent and have the hard numbers, to slow things down in but there simply has to be order to actually allow As children, the summer was a marked increase in the for some individual vaca- ours; we took full ownership of it number of cases that go to tion time as well as fam- with both hands. Now that we are trial in September versus ily or non-work related June-August. By the time commitments. During adults, the grip begins to loosen this article is published, the summer, the time- and eventually relinquishes to most litigators will either sensitive nature of some forces beyond our control. already be in the throes legal matters can often of battle or at least hard be more readily expanded at work sharpening their without major incident. If you have children who are of respective “weaponry” in preparation. That being said, legal work does not school age (but, importantly are NOT We can always keep the picture from generally allow for extended holidays. in school), the summer represents some that beautiful day at the beach as a For several years after I first became an of the best and some of the most chal- screensaver to remind us of summer. attorney, I was convinced that a vaca- lenging times as parents. While our tion was typically a three-day weekend. kids are relishing the long stretch of Four-day weekends were exceptional unbridled freedom, getting into every- (and usually over-lapped with a govern- thing and nothing all at once, most of ment holiday—when courts are closed); us are trying to find a balance between and one whole week off was the stuff summer activities and the office. We of legend! must endure long, hot swim meets, Visit the Summertime is fraught with chal- baseball games, etc., and still manage lenges for lawyers. The last thing you to meet our deadlines. As children, the Delaware State want to have happen (especially as a summer was ours; we took full owner- young associate) is to impugn your rep- ship of it with both hands. Now that we Bar Association utation by failing to meet an expected are adults, the grip begins to loosen and goal or deadline. Working with other eventually relinquishes to forces beyond website at attorneys (if possible) and clients to our control. Hopefully, we can guard clearly communicate what is expected against exasperation when confronted www.dsba.org should allow for planning some time with deadlines at work and boundless off and preparing to overcome sum- youthful exuberance at home.
September 2011 • The Journal of The Delaware State Bar Association 6 Nominations Sought for 2011 Awards The Delaware State Bar Association and the Awards Committee are seeking nominations for the following four awards* **: Daniel L. Herrmann Professional Conduct Award Outstanding Service to the Courts and Bar Award Distinguished Mentoring Award Government Service Award These and other awards will be presented in a special Awards Luncheon. Awards Description Daniel L. Herrmann Professional Conduct Award Awarded to a member of the Delaware Bar who, over the course of time, has demonstrated those qualities of courtesy and civility which, together with high ability and distinguished service, exemplifies the Delaware lawyer. Outstanding Service to the Courts and Bar Award Awarded to a Delaware lawyer or judge who, by exemplary service to the Delaware courts and the Delaware Bar, has substantially assisted the courts and the Bar and has strengthened public trust and confidence in the State’s court system and the administration of justice. Distinguished Mentoring Award Awarded to a Delaware lawyer or judge who, by distinguished mentoring of other Delaware lawyers (or future lawyers) over a period of many years, has served as an inspiration to and a model for those lawyers in striving for and maintaining the highest standards in their professional careers and in their community involvement. Government Service Award Awarded to a government employee in recognition of dedicated and distinguished contribution to the Administration of Justice. * These are not necessarily annual awards. All or some of these awards will be presented only upon the recommendation of the Awards Committee and approval by the Executive Committee of the DSBA. ** Please note that previous nominations must be renewed to be considered.
Delaware State Bar Association Awards Nomination Form Name of Candidate: ______Title/Occupation of Candidate :______Award: ______Date: ______Nominator: ______Phone: ______Fax:______E-Mail: ______Firm: ______
Address: ______Brief statement of reasons that candidate is deserving of Award (see above Award criteria). Please attach sheet if necessary. ______Nominations should be submitted by October 3, 2011 to Rina Marks, Executive Director, e-mail [email protected] or fax to (302) 658-5212.
7 The Journal of The Delaware State Bar Association • September 2011 Calendar of Events
Executive September 2011 Committee Wednesday, September 14, 2011 Social Security Disability 2.0 hours CLE credit Members Live: Delaware State Bar Association, Wilmington, DE
Broadcast to: CLASI, Dover, DE and Tunnell & Raysor, Georgetown, DE James G. McGiffin, Jr. President Tuesday, September 20, 2011 How to Avoid Being Intimidated by the Law Theresa V. Brown-Edwards 3.0 hours CLE credit President-Elect Live: Delaware State Bar Association, Wilmington, DE Gregory Brian Williams Broadcast to: CLASI, Dover, DE and Tunnell & Raysor, Georgetown, DE Vice President-at-Large Yvonne Takvorian Saville Thursday, September 22, 2011 Vice President, Closing and Retiring from a Law Practice New Castle County 3.0 hours CLE credit Gregory A. Morris Live: Delaware State Bar Association, Wilmington, DE Vice President, Broadcast to: CLASI, Dover, DE and Tunnell & Raysor, Georgetown, DE Kent County
Seth Lewis Thompson October 2011 Vice President, Sussex County Wednesday, October 5, 2011 Pro Bono CLE: Reaching Out to Provide Access to Justice Karen Jacobs Louden 6.5 hours CLE credit Secretary Live: Delaware State Bar Association, Wilmington, DE Robert J. Krapf Broadcast to: CLASI, Dover, DE and Tunnell & Raysor, Georgetown, DE Assistant Secretary Richard A. Forsten Tuesday, October 11, 2011 Treasurer Hot Topics on Delaware Limited Liability Companies and Limited Partnerships Miranda D. Clifton 3.5 hours CLE credit Assistant Treasurer Delaware State Bar Association, Wilmington, DE Matthew M. Greenberg Thursday, October 13, 2011 Past President
Silent Auction benefitting the Roxana C. Arsht Fellowship The Honorable Hotel du Pont, Wilmington, DE Michael K. Newell Judicial Member Wednesday, October 19, 2011 Santino Ceccotti Finance for Lawyers Assistant to President 5.5 hours CLE credit Delaware State Bar Association, Wilmington, DE Michael Houghton Legislative Liaison
Tuesday, October 25, 2011 William Patrick Brady The Christopher W. White Distinguished Access to Justice Awards Ceremony Crystal L. Carey Hotel du Pont, Wilmington, DE Jill Spevack Di Sciullo David A. Felice David J. Ferry, Jr. November 2011 Shauna T. Hagan Stephen A. Hampton Wednesday, November 9, 2011 Timothy L. Hitchings Albert H. Manwaring IV Trial Practice Tips from Delaware’s Experienced Civil Practice Lawyers Michael F. McTaggart sponsored by the DSBA and ABOTA Tasha Marie Stevens 5.0 hours CLE credit Members-at-Large
Delaware State Bar Association, Wilmington, DE Rina Marks Executive Director Tuesday, November 15, 2011 Office and Trial Practice 2011 6.5 hours CLE credit Chase Center on the Riverfront, Wilmington, DE Friday, November 18, 2011 Family Law Update 6.0 hours CLE credit Christiana Hilton, Newark, DE
September 2011 • The Journal of The Delaware State Bar Association 8 Professional Section & Committee Meetings Guidance Committee This committee provides peer counseling and support to lawyers overburdened by September 2011 personal or practice-related problems. It Monday, September 12, 2011 • 12:30 p.m. offers help to lawyers who, during difficult Senior Lawyers Committee Monthly Luncheon Meeting times, may need assistance in meeting law practice demands. The members of this Delaware State Bar Association, 301 North Market Street, Wilmington committee, individually or as a team, will Monday, September 12, 2011 • 4:30 p.m. help with the time and energy needed to Worker’s Compensation Section Meeting keep a law practice operating smoothly and Heckler & Frabizzio, P.A., 800 Delaware Avenue, Suite 200, Wilmington to protect clients. Call a member if you or someone you know needs assistance. Tuesday, September 13, 2011 • 3:30 p.m. Estates & Trusts Section Meeting Karen Jacobs Louden, Co-Chair Morris Nichols Arsht & Tunnell LLP, 1201 North Market Street, Wilmington I. Barry Guerke, Co-Chair Dennis L. Schrader, Co-Chair Thursday, September 15, 2011 • 8:00 a.m. Sidney Balick Section Chair Meeting R. Franklin Balotti Delaware State Bar Association, 301 North Market Street, Wilmington Victor F. Battaglia, Sr. Dawn L. Becker Thursday, September 15, 2011 • 3:00 p.m. Robert K. Beste, Jr. Executive Committee Retreat Vincent A. Bifferato, Sr. Amy K. Butler Thursday, September 15, 2011 • 4:00 p.m. Mary C. Boudart Law and the Elderly Committee Meeting Crystal L. Carey Law Office of William W. Erhart, P.A.,1011 Centre Road, Suite 117, Wilmington Michael D. Carr Ben T. Castle Friday, September 16, 2011 • 12:00 p.m. Thomas P. Conaty IV Health Law Section Meeting Curtis J. Crowther Location TBD Edward Curley Hon. Matthew Denn Tuesday, September 20, 2011 • 12:30 p.m. Gary R. Dodge Labor & Employment Law Section Meeting Shawn Dougherty Potter Anderson & Corroon LLP, 1313 North Market Street, 6th Floor, Wilmington Mark F. Dunkle David J. Ferry, Jr. Thursday, September 22, 2011 • 12:15 p.m. David C. Gagne International Law Section Meeting Robert D. Goldberg Elliott Greenleaf, 1105 North Market Street, Suite 1700, Wilmington James D. Griffin Thomas Herlihy III Monday, September 26, 2011 • 4:00 p.m. Glenn E. Hitchens Taxation Section Meeting Clay T. Jester Cooch and Taylor P.A.,1000 West Street, 10th Floor, Wilmington Hon. Peter B. Jones Richard I. G. Jones, Jr. Rebecca Batson Kidner October 2011 Bayard Marin Monday, October 3, 2011 • 12:30 p.m. James J. Maron Wayne A. Marvel Senior Lawyers Committee Monthly Luncheon Meeting James G. McMillan III Delaware State Bar Association, 301 North Market Street, Wilmington Omar Y. McNeill Tuesday, October 4, 2011 • 3:30 p.m. Michael F. McTaggart Francis E. Mieczkowski, Jr. Estates & Trusts Section Meeting Paulette Sullivan Moore Morris Nichols Arsht & Tunnell LLP, 1201 North Market Street, Wilmington Michele L. Muldoon Wednesday, October 5, 2011 • 12:30 p.m. Frank E. Noyes II Elizabeth Y. Olsen Women and the Law Section Meeting Donald E. Reid Prickett Jones & Elliott, P.A., 1310 North King Street, Wilmington David B. Ripsom Thursday, October 6, 2011 • 4:00 p.m. Kenneth M. Roseman Thomas D. Runnels Real & Personal Property Section Meeting H. Murray Sawyer, Jr. Young Conaway Stargatt & Taylor LLP, 1000 West Street, Wilmington R. Judson Scaggs, Jr. Monday, October 10, 2011 • 4:30 p.m. Mary E. Sherlock Gordon W. Stewart Worker’s Compensation Section Meeting Edward A. Tarlov Heckler & Frabizzio, P.A., 800 Delaware Avenue, Suite 200, Wilmington Hon. Charles Toliver Tuesday, October 18, 2011 • 12:30 p.m. Karen L. Valihura Piet H. van Ogtrop Labor & Employment Law Section Meeting Kevin E. Walsh Potter Anderson & Corroon LLP, 1313 North Market Street, 6th Floor, Wilmington David A. White Thursday, October 20, 2011 • 12:00 p.m. David N. Williams Helen L. Winslow Executive Committee Meeting Hon. William L. Witham, Jr. Delaware State Bar Association, 301 North Market Street, Wilmington Psychiatrist - Dr. Carol Tavani
9 The Journal of The Delaware State Bar Association • September 2011 Letting Go (or De-cluttering Your Life)
By Susan Simmons Director of Development & Access to Justice Coordination
ecently, I was nearly trauma- down everything that was bothering Fear of being judged by others is tized by those TV shows that me and try to understand where it was often what causes us to stew in nega- are popping up everywhere coming from. tive emotions like guilt. If family and Rwhich document hoarders whose behavior Perhaps you want to leave a situation friends criticize, do not react instantly does not allow them to get rid of things for something totally different, but can- with anger or worse yet, capitulation! that have diminished value in their lives. not imagine what else you would be good Lee Horton, Ph.D., is a psychologist While I do not have this compulsive doing. Think about how your abilities who recommends the following ways need to not throw anything away and might be useful in another position; talk to deal with guilt: my home was never in a state where the to friends about making the change and • Stop telling yourself that giving authorities would take my pets away, I find out if they know anyone who could in is no big thing. recognized that I, like many others, did help direct you. I learned that once you • Stop believing that what you not “let go” easily. Now, Im no psychia- learn to trust yourself to handle a situ- trist (I do not even play one on TV), but want is bad or wrong. ation and not be afraid, it turns off the even I recognized that I needed to let go • Stop believing that you do not stress response system and allows the “let of many things in my life ranging from have a right to an opinion, or that your go” response to take over. bad-for-me personal and business rela- point of view is less legitimate than tionships to knick-knacks and clutter, The same scenario works for leaving someone else’s. destructive relationships. Are you in all weighing on my mind and health. • Stop trying to please the guilt an unhealthy relationship? You prob- So, I made a concerted effort to recog- manipulator. nize and affect all the areas of my life ably know, deep down, if you are—but • Stop giving away your power. that needed decluttering and just “Let denial is a powerful thing. You think Go.” I am happy to say I am leading a that there is one special person who will • Stop letting the guilt inducer healthier, more independent, peaceful, make you happy, but you must realize dictate who you are and how you should and smarter life—and loving my job! that no one can make you happy except feel. yourself. You may really just be afraid of Stress Do not Try to Change the World the unknown and letting go, even if you Letting go not only helps you move are unhappy in the current relationship. Anger is a feeling, or more of a de- closer to change, it also has a positive structive emotion, that can, and will, Draining Emotions impact on your health. When you are take over without warning. Maybe holding onto something or stuck in a Say you are angry with someone you have struggled for years, trying to situation, your body holds onto that whose behavior annoys you or you feel break (because you just cannot ignore) worry and is in a perpetual state of ap- you are not getting where you want in the little habits of friends or family prehension, which can do serious dam- your job. Realize that you are putting that drive you CRAZY. Do not try to age to your health. Constant anxiety yourself in the position of being an- reform them, but let go of (and control) ups your heart rate and blood pressure noyed. Take yourself out of the situation the anger and frustration you feel about (increasing your risk of a heart attack) and stop fixating on the resentment you it. Perhaps a better way to channel this and even the production of stomach feel. This will allow you to come to a type of anger is to get mad at things acid. When the anxiety dissolves, your place where you can let go of your nega- that do not exactly affect you personally heart rate drops, as does your blood tive emotions and make a clear-headed instead, like the news. Many experts pressure; every system of your body that decision about what to do. suggest that we channel anger into was reacting to the overproduction of Guilt creative motivation like art, writing, stress hormones relaxes. manual labor, or sports. We all have emotions and mental Fear habits that stop us from letting go. Guilt De-cluttering To let go of fear, you have to identify is a biggy. We are expected to always Stop and look at what you have what is compelling it. Often people be taking care of (and worrying about) accumulated in your life. Have you do not make the association and walk everyone else. If we focus on ourselves, moved several times and keep bring- around wondering why they feel dis- we often feel guilty. After a certain point ing those boxes with you that you have couraged. You should make a catalog of you need to move on if you have not re- never opened? Who does not have a few stress to pinpoint what is causing your solved the situation—without guilt. You pairs of jeans and other outfits in the fear. What worked for me was to write tried your best and that is all you can do! closet they will never fit into again or
September 2011 • The Journal of The Delaware State Bar Association 10 have lost their trendiness (and will just tackle. Remember, the more time you look ridiculous if worn now)? Maybe the take in making that decision to let go, mail and newspapers are piling up on the the more time you will lose and never get counter or corners of the office. Maybe back. It means you will never know what that “friend” at work or that “special you were capable of contributing to the person” in your life is continually de- world during the time you were stuck in meaning or undermining you, making a cluttered life. CLE you feel bad about yourself, or leaving When you embark upon the journey you feeling like you are never listened to of de-cluttering, the mind is usually the and you are getting more criticism than most cluttered place of all. Instead of Videos praise. If so, it is time to let go. “doing,” focus on “being” and let go of Do it before it becomes overwhelm- what you do not need in your life any ing and more and more difficult to more. In addition to live sem- inars, the Delaware How to Avoid Being State Bar Association presents accredited Intimidated by the Law Continuing Legal Edu- Sponsored by the Delaware State Bar Association cation videos every weekday. Tuesday, September 20, 2011 • 9:00 a.m. - 12:15 p.m.
Live in New Castle County at Delaware State Bar Association Call the DSBA at 301 N. Market St., Wilmington, DE (302) 658-5279 for an Live webcast in Kent County at Community Legal Aid Society, Inc. appointment to view 840 Walker Road, Dover, DE one of the many re- Live webcast in Sussex County at Tunnell & Raysor corded DSBA seminars. 30 E. Pine St., Georgetown, DE A complete list of all 3.0 hours CLE credit for Delaware and Pennsylvania attorneys CLE videos is avail- able on our website at: This seminar, based on the book, The Rape Case by Irving Morris, explores the importance of www.dsba.org perseverance, the duty to prevent injustice, the present status of the law, and how to avoid being intimidated by the law. The book is provided to each registrant. Visit the DSBA website at www.dsba.org for registration information. Interview Spotlight An interview with Irving Morris, author of the The Rape Case, is available to view on the DSBA website. Please visit www.dsba.org to view the interview.
Use your QR code reader to link directly to the Delaware State Bar Association online interview 301 N. Market Street Wilmington, DE 19801 with Irving Morris.
11 The Journal of The Delaware State Bar Association • September 2011 Ethically Speaking
By Charles Slanina, Esquire
Can You Trust Your Trust Account?
ou carefully reviewed Delaware to the ABA Journal, the indicted man was back or collect funds disbursed by their own Professional Conduct Rules 1.15 part of a ring that collected $31M while error. Despite your bank’s assurance to you and 1.15A. You read, clipped, unsuccessfully attempting to defraud 300 that the check is good, banks can return an Yand saved all of the “Ethically Speaking” other lawyers and firms out of $100M. Ac- insufficient funds check days later and take columns dealing with escrow account cording to the indictment, victims included months to charge back a counterfeit check. compliance and non-compliance. The several Pennsylvania law firms, a Canadian When the bank eventually determines trust accounts were properly opened and and an Alabama law firm. To get an idea that the settlement check was counterfeit, titled with an institution participating in how widespread and prevalent this scam is, they can immediately freeze and seize your overdraft notification and, now, the new go to www.lawpro.ca, the website for the escrow and other accounts. This typically IOLTA provisions. Your fee agreements Canadian malpractice carrier which posts results in an overdraft, notification to the contain the magic language of “refundable alerts, as well as helpful hints for detecting Lawyers’ Fund (and then the Office of if not earned” required by Rule 1.5(f). You and avoiding these scams which are becom- Disciplinary Counsel) and the potential employ an independent CPA to pre-certify ing much more sophisticated. for liability of the attorney or firm which your compliance before certifying that The problem is that the Rule 1.15(k) may or may not be covered by malpractice compliance to the Delaware Supreme Court definition of good funds does not match insurance. (See, Nordella Chong, P.A. v. each year. The firm employs measures and the banks’ definition and does not take into Medmark Casualty Insurance Company, 2011 counter-measures to guard against internal account the ability of the banks to charge WL 208394 (11th Cir., May 27, 2011); and theft. Home free? Not necessarily. Even if you have done everything right and met your professional obligations with aw ffices Of regard to the holding of fiduciary funds, L O external threats remain. Your escrow ac- count may still fall victim to clawbacks and Dana L. ReynOLDs, LLc chargebacks. Previous columns dealt with the threat Dana L. ReynoLDs, esq that debt collection scams pose to attorney 2 MiLL RoaD, suite 202 escrow accounts. Typically, a business or WiLMington, De 19806 individual will contact an attorney or firm with a purported legal matter. After an 302.428.8900 attorney-client relationship is formed, usu- WWW.DanaReynoLDsLaW.coM ally on suspiciously generous terms to the attorney, a person posing as the debtor sends FAMILY LAW a fake check to the firm to satisfy the obliga- tion. The attorney is instructed to take his fee Divorce • ADoption • custoDy/GuArDiAnship • terminAtion of pArentAl riGhts from the check before sending the remainder embryo & eGG DonAtion • GestAtionAl surroGAcy • Domestic violence/pfAs to the sham client. The client receives the check or wire transfer before the attorney discovers that the settlement check is fake. Lest you think that this is rare or un- CRIMINAL DEFENSE likely, Nigeria recently extradited a man Drunk DrivinG/Dui • misDemeAnors • DruGs/Guns accused of scamming more than eighty law firms and lawyers out of $31M dollars expunGements • Juvenile Delinquency using this debt collection ruse. According
September 2011 • The Journal of The Delaware State Bar Association 12 Lombardi Walsh v. American Guaranty and Liability Insurance Co., 2011 WL 2150181 An American Tragedy: A Comedy (NY App. Div., June 2, 2011)). By The Honorable Robert B. Young Assaults on your escrow account need not come from overseas scams. Delaware State s most of you, I presume, have movie insisted upon killing off the heroine Bar Association Committee on Professional been on pins and needles await- and convicting the hero of her murder. We Ethics Opinion 1992-6 (9/4/1992) opined ing the next Bar Association consider that cheerless effort at entertain- Aproduction for the benefit of The Com- ment to be utterly unacceptable. that an attorney may accept credit card pay- ments for legal services. To the extent that the bined Campaign for Justice, here is the Hence, with our production, you credit card payment is a retainer of advance good news! will find the troupe and band you have fees, that payment must be placed in escrow On Friday, November 18 and Satur- surely come to know and love turning and the Rule 1.5(f) writing would have to day, November 19 at 7:00 p.m. in Wilm- this around completely. With 26 high be provided. ington, and Sunday, November 20 at 2:00 octane songs and great performances by The advisory opinion does not discuss p.m. in Dover, we will be presenting: An this energetic gang, the show will give you the potential risks that the acceptance of American Tragedy: A Comedy. an evening (or afternoon) of delight. All credit card payments poses to escrow ac- As has been our wont, we have taken the while, of course, you will be provid- count compliance. Firms accepting credit a perfectly dreary classic with a dismal ing critical support for the Combined card payments need to have an arrangement conclusion, and turned it into an evening Campaign, the highest level commitment where the bank fees are collected from the of song and high spirits—just as the that we, as lawyers, all have. operating account. In the alternative, the original author would have done, if he’d So, round up those flapper dresses firm needs to track those fees and deposit had the slightest sense of humor or even and zoot suits if you like, and, one way or firm funds into the escrow account to cover a modicum of empathy for the audience. another, make certain you do not miss the those costs (keeping in mind the $1,000 limit This time, it is Theodore Dreisser’s 2011 production of An American Tragedy: for personal fund deposits) in order to prevent 1923 tome, redone in the 50s as A Place A Comedy. See you there! the costs from causing an overdraft. in the Sun with Elizabeth Taylor and Attorneys must also be mindful of the Montgomery Clift. Both the book and the fact that if the client subsequently disputes the payment to the firm, the credit card com- pany can impose a chargeback up to sixty days later. Such chargebacks can also cause overdrafts. Similarly, bankruptcy trustees can claw back debtor payments as far as ninety days prior to the filing of a bankruptcy peti- tion. The Delaware Rules do not specifically cover either situation. Arizona’s new version of Rule 1.15 spe- cifically permits a lawyer to deposit funds to cover chargebacks and clawbacks. Other jurisdictions may soon follow suit. Delaware’s rules do not provide for the reimbursement of chargebacks to the escrow account, and tech- nically, such reimbursements could be viewed as commingling of firm and client funds. New in 2011-2012: Vigilance and common sense remain the • Chinese Mandarin language and culture program watchwords. • Malone Scholars, funded by national foundation (only DE school) *“Ethically Speaking” is intended to stimulate awareness of ethical issues. It is not intended as legal • 858-panel solar PV system (both campuses) advice nor does it necessarily represent the opinion of the Delaware State Bar Association. Additional “Meet us on Mondays,” 5:00-6:30pm information about the author is available at www.delawgroup.com. **“Ethically Speaking” is available online. The columns of approximately the past three years are 302.576.2930 • www.wilmingtonfriends.org available on www.dsba.org.
13 The Journal of The Delaware State Bar Association • September 2011 Celebrate the Spirit of Giving and Contribute to a Worthwhile Cause
By Laina M. Herbert, Esquire
Pro Bono CLE: reat yourself to an evening out this and the Delaware State Bar Association, the Reaching Out to Provide Fall while supporting attorneys Fellowship encourages attorneys to pursue a working in the non-profit sector. non-profit career in Delaware by lessening Access to Justice TThe silent auction benefitting the Roxana C. the burden of financial considerations. Fel- Arsht Fellowship will be held on Thursday, lowship awards provide financial assistance Sponsored by the October 13, 2011 in the Gold Ballroom of for three years. The annual amount awarded Delaware State Bar Association the Hotel du Pont. Bidding, hors d’oeurves, is based on the annual amount of interest earned by the Fellowship. Your attendance at Wednesday, October 5, 2011 and cocktails will be available starting at the auction on October 13 is crucial to allow- 8:30 a.m. - 4:15 p.m. 6:00 p.m. and the evening will conclude at 8:30 p.m. Past successful bidders have ing the Fellowship to provide a meaningful Total of 6.5 hours CLE credit enjoyed week-long stays in beautiful vaca- financial award to next year’s Fellowship including 1.0 hour Enhanced Ethics for DE and PA attorneys tion homes, photography sessions with recipient. Little Nest Portraits and Ruthie Kleinman Invitations will be sent to all members Photography, and tickets to the Grand of the Delaware Bar by Listserv. Look for Morning Session: Opera House and Flyers games. Other win- your invitation in September! Donations 8:30 a.m. - 11:45 a.m. ners have delighted family and friends with 3.0 hours CLE credit for auction items are welcome. For ad- including 1.0 hour Enhanced Ethics holiday gifts of vintage wines, seasonal gift ditional information, or to make a dona- baskets, and hand-knitted accessories. Afternoon Session: tion, please contact Laina M. Herbert at 12:30 p.m. - 4:15 p.m. As has been the tradition since 1999, [email protected]. For additional 3.5 hours CLE credit for Delaware and the auction is the primary fundraiser for the information about the Fellowship, please see Pennsylvania attorneys Roxana C. Arsht Fellowship. Founded in this month’s Section News or contact Jessica 1998 by the Women and the Law Section Zeldin at [email protected]. Live in New Castle County at Delaware State Bar Association 301 N. Market St., Wilmington, DE Live webcast in Kent County at Community Legal Aid Society, Inc., 840 Walker Road, Dover, DE Live webcast in Sussex County at Tunnell & Raysor 30 E. Pine St., Georgetown, DE
PROGRAM Ensuring That Poverty Is Not a Barrier to Justice Ethics and Pro Bono: Remaining Ethical While Doing Good Pro Bono Roundtable: Pro Bono Best Practices Wills For Seniors Veterans Law Clinic Training Wills for Heroes Preparation
Visit the DSBA website at www.dsba.org for more information
Access to Justice For the Public Good
September 2011 • The Journal of The Delaware State Bar Association 14 Section News
THE ROXANA C. ARSHT FEL- or indigent persons in Delaware. A si- THE FAMILY LAW SECTION LOWSHIP IS SOLICITING ELI- lent auction, which has been held every VOLUNTEERED AT THE RONALD GIBLE CANDIDATES FOR THREE- other year since 1999, is the primary MCDONALD HOUSE YEAR FINANCIAL STIPEND fundraiser for the Fellowship and this On July 5, 2011, the Family Law year will be held on October 13, 2011 Section volunteered at the Ronald Mc- The Women and the Law Section at the Hotel du Pont. For the year Donald House by preparing dinner for and the Delaware State Bar Association 2012, the Fellowship Committee will the families there as part of their com- founded the Roxana C. Arsht Fellow- accept applications from September 1 munity outreach efforts. ship in November 1998 to encourage through October 15, 2011. A decision law students, recent law school gradu- will be announced by December 15, ates, and attorneys newly admitted to 2011 with one award being approved. the Delaware Bar to pursue careers If you have any questions regard- in the non-profit sector in Delaware. ing the Fellowship, please contact In an effort to encourage attorneys to Jessica Zeldin at (302) 656-4433 or work in non-profit positions, regardless [email protected]. of financial considerations, the Fellow- ship offers financial assistance for three years to each recipient selected. Appli- cants must be within three years of law school graduation and working with a 1st Row L-R: Steph C., Mimi Boudart, Esquire; Kathy Laffey, non-profit organization that provides Esquire 2nd Row L-R: Kelly Breen (law student); Eric D.; Brandon B. 3rd Row L-R: Bonnie Copeland, Esquire; Shauna legal services that benefit the Delaware Hagan, Esquire; Jen Mensinger, Esquire community, underrepresented groups, Three large watermelon fountains were also donated by Carolyn McNeice, Esquire.
Is there a major milestone in your future, or the People Who future of your law firm?
An anniversary, a memorial or a celebration? Care About ten years ago, Doris and Carl Schnee started a private foundation in their name. Consider a tax deductible Creating the foundation enabled them to gift to the Delaware Bar focus their giving and to record of all of the gifts they Foundation Endowment made throughout the year as well as their holiday year-end donations. Fund, a gift that will continue This past year, the Schnees moved the management of their private foundation to the to give to those most in need. Delaware Community Foundation.
“It just made sense for us. We want to support the work of the DCF,” Carl noted. “It won’t change what we are already doing, just where it comes from.”
To learn how your clients can create a lasting legacy, please contact Mary Hopkins, JD, Senior Vice President for Development at 302.504.5224 or visit our website, Jacqueline Paradee Mette www.delcf.org. Executive Director Phone: (302) 658-0773
15 The Journal of The Delaware State Bar Association • September 2011 Access to Justice Spotlight By Susan Simmons Access to Director of Development & Access to Justice Coordination Justice For the Public Good Yes, A Small or Solo Law Firm Can Have a Successful Pro Bono Program!
ome lawyers believe their firm relationships with a small non-profit that provide free legal services to the poor, of- is too small to have a formal pro helps underserved populations. ten it comes through friends, family, and bono program. In addition, a few Solo and small firm lawyers share existing clients. In most cases, no one vets Slegal service providers may think the firms these cases for them before they take them common concerns about bringing in new in their service area do not have enough business and being able to service their on. We certainly recognize that since attorneys to make a meaningful pro bono clients’ matters diligently and competently. their compensation is very directly tied commitment. Both are wrong! In fact, Cash flow is also a constant concern, and to what they earn on an hourly or flat fee these attorneys can take advantage of the can make it difficult for these lawyers to basis, every hour they spend performing resources and support (not to mention the hire as much administrative support as pro bono work directly affects the small benefits) available for providing pro bono they need. These factors can raise special or solo practitioner, yet these very same services. With limited time and resources, challenges when they contemplate taking attorneys express great pride and a sense lack of expertise and support staff, and on pro bono work. of community when deciding to take on sometimes no malpractice insurance, how pro bono efforts. The marketing budget is one expense do these practitioners realistically fit pro many law firms will consider reducing or Every lawyer’s obligation to provide bono into their career and practice? eliminating entirely in the time of cut- pro bono legal services should be fulfilled For starters, most pro bono and legal backs. But, studies have shown that this and can be employed strategically to service organizations provide free train- is the wrong move. An economic decline handle cases likely to generate a high, ing sessions and the State of Delaware actually offers new opportunities and positive profile, or to further the interests provides CLE credit for an assignment of advantages for firms that embrace smart of clients. For example, pro bono repre- a matter to the attorney by Delaware Vol- marketing opportunities. Rather than sentation of indigent plaintiffs having unteer Legal Services, Inc., Community cutting their marketing budget, proac- received public recognition of egregious Legal Aid Society of Delaware, Inc., the tive law firms will carefully consider their harm, or of trade or community associa- Office of the Child Advocate, or Legal marketing activities and redirect resources tions in which clients are members, can Services Corporation of Delaware, Inc. toward the marketing efforts that yield be effective in this regard. Credit may be earned at a rate of one hour the best returns. Pro bono activities are an In “Ten Keys to Success in a Small of CLE credit for every six hours of un- excellent marketing opportunity for small Law Practice” by Ward Bower (February compensated legal services performed. In and solo practitioners. In an article in the 2004) he states, “Especially in a smaller addition, most programs offer malpractice Albany Chamber of Commerce newsletter, community, each lawyer should select coverage, reliable pre-screening of client “Marketing a Small or Solo Law Practice” one or two activities or organizations to financial eligibility, and mentoring and by Denise Horan, Principal, Integrated join and contribute actively, preferably co-counseling opportunities. Management & Sales Consulting, Ms. achieving leadership status. Furthermore, Most legal service and pro bono pro- Horan writes: “Often the solo practitioner the commitment to the community orga- grams offer a wide range of volunteer op- or small firm chooses to focus on indi- nization should be genuine—overt selling portunities. For the time-pressed attorney, vidual attorneys ‘marketing themselves.’ A is never necessary.” programs may offer discrete legal tasks few tips to successful individual marketing Helping a pro bono client can not only such as initial consultation or limited rep- include: visibility in your market, activity provide you practical skills and help in- resentation. For lawyers who do not want in community events, serving on a board crease access to justice, it will make you to go to court, there are transactional or an association, volunteering pro bono feel good about being a lawyer. Be an asset projects such as assisting non-profits that services, and getting involved with specific to your community, both the legal com- help underserved populations or micro fundraisers.” munity and where you live, contribute entrepreneurs who qualify for service Although some of the pro bono work back to your profession. Stay active in or are developing a needed business in a performed by solo and small firm prac- local, county, and state matters. You can distressed area. Similarly, small or solo titioners is received from referrals by make a difference in the life of someone attorneys can cultivate general counsel organized pro bono programs designed to who desperately needs your help.
September 2011 • The Journal of The Delaware State Bar Association 16 Resource: www.abaprobono.org If your small firm or solo practice is interested in or already participates in pro bono, let us know: Susan Simmons Director of Development & Access to Justice Coordination Delaware State Bar Association 301 North Market Street Wilmington, DE 19801 [email protected] is pleased to announce the election of 302-658-5279 ext. 101 Michael Houghton Access to Justice as President of Survey The National Conference of Commissioners on Uniform State Laws A brief, 10-question survey has been designed as part of the Delaware State Bar Association’s www.MorrisNichols.com efforts to increase access to
justice for persons of limited 1201 North Market Street, Wilmington, Delaware 19801 - (302) 658-9200 means. The Bar Association will use this data to form strategies for increasing pro bono work in the future. Please respond to the survey, at the link below, no later than September 16, 2011. Thank you for your participation in Providing Arbitration this very important information gathering. and Mediation Services in Delaware Please visit the link below to complete the survey: William T. Quillen www.surveymonkey.com/s/V2NN25K Retired Delaware State Judge Former Justice of the Delaware Supreme Court Former Chancellor of the Delaware Court of Chancery Former Judge of the Delaware Superior Court Former Delaware Secretary of the State Former Administrative Assistant to the Governor of Delaware
3,500 (302) 467-4219 1100 N. Market St. (302) 467-4201 fax Wilmington, DE 19801-1254 [email protected] LAWYERS drinkerbiddle.com/wquillen SEE THIS AD! For current advertising rates, www.drinkerbiddle.com CALIFORNIA | DELAWARE | ILLINOIS | NEW JERSEY contact Rebecca Baird NEW YORK | PENNSYLVANIA | WASHINGTON DC | WISCONSIN at (302) 658-5279, ext. 113 Drinker Biddle & Reath LLP | A Delaware limited liability partnership or [email protected].
17 The Journal of The Delaware State Bar Association • September 2011 Incoming State Bar Head Enjoys Helping Others
By Chris Flood Delaware State News
ames G. McGiffin, Jr., president-elect on the association’s executive committee bass in a traditional Irish music band of the Delaware State Bar Association for 12 years. called Celtic Harvest. He finds time to J (DSBA), has spent his career molding The DSBA is a professional association stop and relax—when the “Lord of the a positive image of helping people in the open to all Delaware lawyers. While it’s not Rings” movies came out, he was in the community. mandatory to join, as it is in some states, theaters for the very first showings. A practicing attorney since 1985, Mr. nearly 90 percent of all state lawyers are He’s such a big fan of “Lord of the McGiffin has worked the entire time for members. Rings” that a former co-worker from the Community Legal Aid Society, Inc. Mr. McGiffin will be the first nonprofit CLASI gave him a life-sized replica of (CLASI), a non-profit law firm dedicated president of the association and only the Anduril, the sword of Aragon. He keeps to equal justice for all in Delaware. fifth lawyer from south of the Chesapeake it hanging behind his desk in his office “We provide access to the system to & Delaware Canal in the last 30 years. He and it’s the first thing one notices when folks who otherwise wouldn’t have it,” said attributes this to the numbers. walking in. Mr. McGiffin, a former Dover council “There are just way more lawyers in Another issue Mr. McGiffin would member who stepped down in May after New Castle County. There are a couple of like to improve as president is the way a three-term run as the 3rd District rep- thousand, but there are only a few hundred the state serves lawyers with disabilities. resentative because of his impending Bar down here” he said. He said in recent years, with improve- Association presidency. ments in technology, people who didn’t The DSBA has been around more than have the opportunity to become lawyers Mr. McGiffin developed his desire to 85 years and consists of more than 4,000 before now can. help the people who need it the most while members. in law school at Boston College. The school He will continue the work started “We exist to help lawyers do their jobs has a three-year program that gives credit by current DSBA president Matthew better,” he said. “We facilitate and help for classroom time and for time spent in a Greenberg on the issue of the Associa- them in whatever way we can.” local clinic doing essentially the same thing tion’s location. The DSBA helps in a number of dif- he does for CLASI. Currently, the DSBA is in a build- ferent ways, from keeping an eye on pro- “I was not a big fan of the law school ing in Wilmington on Market Street, posed legislation to the General Assembly classroom. I spent most of my second year but the area hasn’t developed as the to helping lawyers new to the state figure at the clinic. That’s where I found my call- Association thought it might and they out the ropes; from providing continuing ing,” he said. are looking at whether or not that is the education programs to providing help with best place for them to be. Mr. McGiffin spent seven years, stress-related issues and office management. 1998-2005, as CLASI executive director, Mr. McGiffin said the DSBA is “It’s easy to get overwhelmed,” said Mr. where he supervised fundraising, fiscal going to stay in Wilmington because McGiffin. “There are very strict rules on management, and strategic planning of the a large majority of the state’s attorneys accounting and then there’s the whole code statewide firm. are north of the C&D Canal. of conduct.” While he was successful running the He said he hopes to convince other Mr. McGiffin believes the best way for organization, helping turn a $2 million downstate attorneys that the Associa- a lawyer, or anyone, to not become over- annual budget into $4.8 million a year, he tion is an organization worth being a whelmed is to lead a balanced life, and not decided the act of practicing law and help- part of and is a valuable tool to have. to let their job consume everything. ing the underprivileged was what suited “The Bar Association can be a very The wellness of members will be one of him best. relevant tool,” he said. the issues he works on as president. “Working with clients who can’t solve Mr. McGiffin is going to be con- “You have to keep a balance. You can’t their problems themselves is what really tinuing to find ways to strengthen feeds my soul,” he said. “It’s intensely grati- be just a lawyer. You have to be a person CLASI’s relationship with the state’s fying. I can’t say I’ve done anything better who is also a lawyer,” he said. other lawyers. than that.” Mr. McGiffin practices what he “That way when I speak to them I’m Mr. McGiffin hopes to turn that energy preaches by maintaining his own bal- more than just a legal aid lawyer asking into his new role, as he will take over as ance. There’s family, as he and his wife, them for money,” he said. president of the Delaware State Bar Associa- Kathy Doyle, have two children in col- tion July 1, on a one-year term. He’s been lege, Conor and Bridget. He plays the Incoming (continued on page 21)
September 2011 • The Journal of The Delaware State Bar Association 18 Nominations Wanted for the Delaware State Bar Association’s 2011 Christopher W. White Distinguished Access to Justice Awards Revised Nomination Deadline: September 6, 2011 The DSBA and the Awards Committee are seeking nominations for the 2011 Distinguished Access to Justice Awards formerly known as the Distinguished Pro Bono Service Awards. The change in name is based on a desire to be more inclusive in designating those deserving of recognition. The awardees will be announced during Celebrate Pro Bono Week. The Christopher W. White Distinguished Access to Justice Awards Ceremony Tuesday, October 25, 2011, Hotel du Pont
There are four categories for which individuals, firms, or organizations can be nominated. The Leadership Award This award is presented to a legal organization (legal department or law office) that has demonstrated outstanding leadership in the field of pro bono service to Delaware’s indigent population based on the following criterion: • The number of pro bono hours the organization contributes to the direct representation of indigent clients. • The number of cases the organization accepts for pro bono representation. • Flexibility and accessibility in accepting cases. • The organization’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need. • Financial support to agencies providing legal services to Delaware’s indigent population. • The percentage of attorneys in the organization who accept pro bono cases. • Fostering a culture, which recognizes the value of pro bono service. The Commitment Award This award is presented to a member of the Bar who has demonstrated a sterling commitment to pro bono work throughout his or her career by dedicating time and energy to the support and provision of legal services. The criterion includes, but is not limited to: • The number of pro bono hours devoted to legal representation of indigent clients over the lawyer’s career. • The number of cases accepted for pro bono representation over the lawyer’s career. • The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need over the lawyer’s career. The Achievement Award This award is presented to a member of the Bar who has shown an exemplary recent contribution to pro bono services (generally in the past one to three years) and stands as a role model to other attorneys. The criterion includes, but is not limited to: • The number of pro bono hours recently devoted to legal representation of indigent clients. • The number of cases accepted for pro bono representation. • Consistency, flexibility, and accessibility in accepting cases. • The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need. The Service to Children Award Awarded to an individual lawyer, legal professional, or organization principally including lawyers, which demonstrates outstanding commitment to, and work for, children in the provision of legal or community services. It may be given to volunteers or those employed in the provision of legal services for children. This award is given as warranted, not necessarily annually. Delaware State Bar Association Awards Nomination Form Name of Candidate: ______Title/Occupation of Candidate : ______Award: ______Date: ______Nominator: ______Phone: ______Fax: ______E-Mail: ______Firm: ______Address: ______Brief statement of reasons that candidate is deserving of Award (see above Award criteria). Please attach sheet if necessary. ______Nominations should be submitted to Susan Simmons, Pro Bono Coordinator, e-mail [email protected] or fax to (302) 658-5212. The revised deadline for nominations is September 6, 2011.
19 The Journal of The Delaware State Bar Association • September 2011 DE-LAP Zone A Message from the Delaware Lawyers Assistance Program
By Carol P. Waldhauser, Executive Director
Take the Time to Reflect & Prepare Now
s John Doe checked into the practices because of senior years would be lawyers very active at 75 and practicing hotel where the Solo and Small equivalent to giving up their lives. Needless better than those in their 40s. But, then Firms’ conference was taking to say, this is a multi-dimensional topic again, there are some in their 50s who are Aplace, the hotel clerk inquired, “Do you with many steps to be taken and pitfalls burned out.” intend to use your senior discounts today?” to avoid. As lawyers, however, we must In researching this topic, one law Momentarily, John was startled and re- remember that practicing law is a privilege, student, who prefers not to be named, fused to acknowledge the question. In fact, not a right. still wishes more information were avail- John thought to himself: “Should I sue the To Practice Law Is a Privilege able when the solo-practitioner for whom hotel for having their employees even ask Not a Right... she worked became chronically ill at age such a question?” Within a minute, John Bottomline, most lawyers want to live 70 and subsequently died at age 72. The quickly decided against a suit and instead, long, live well, and even continue to work law student stated that: “The lawyer was his next reaction was to look to his left, at their profession; but, lawyers must real- healthy all of his life and thought that he then to his right and finally turn-around ize that practicing law is a privilege, not would practice until he was 90.” Ironically, to see if others were in line. Realizing that a right. To retain that privilege, lawyers, the law student added that she found the he was the only individual in line, John especially those entrepreneurs who prac- courage to tell the attorney to stop trying sharply replied to the hotel clerk, “No!” tice solo, have the responsibility to plan to cases and even to stop driving to the of- Once John entered his room, still protect clients’ interests in the event of their fice, but so many other problems might agitated, he sat on the bed and looked death, disability, impairment, or incapac- have been avoided had detailed planning carefully into the mirror. Undoubtedly to ity. This is a difficult topic to approach, been done ahead of time. In fact, the law the young hotel clerk, John could under- particularly if the older person does not student emphasized that the entire experi- stand that he might look middle age at the see the need to plan. ence drastically changed the lives of the very least—but senior? Of course, we all parties involved both prior to and after the Clifton Barnes, in his article “Time to change, and suddenly, and without warn- Go: Helping Lawyers Retire with Dignity” attorney’s death. ing John’s denial melted and he accepted writes: “An experienced, well-regarded at- Of course, we do not live in a perfect that he had become one of them—a senior. torney has given his heart and soul to the world and there are many lawyers who In fact, as he looked at his reflection in profession and his clients—and served do not plan ahead; and for some, it is the mirror, John wondered, “When did I them well. He’s not yet ready to retire. too late to do so. In many instances, the become my father?” But, due to aging, his hearing is going, lawyer continues to attract clients, but is And so, it comes to all of us in a va- his memory is spotty, and he’s no longer unable to keep up with the pace of his/her riety of ways—for each of us at different serving his clients well.” practice. Moreover, whether because of times—our senior years. Generally, denial Is that a fictional tale? A rare occur- illness or senility, the lawyer may forget to is commonplace. Most of us feel it; but, we rence? No, not at all says John T. Berry, appear in court, miss meetings, and fail to don’t want to accept it. Plus, as Americans, who is Legal Division Director at the respond to pleadings, letters, e-mails and/ we are living longer, healthier lives and Florida Bar and chairs a committee study- or voice-mails. Then, when and if death many of us are choosing to work well past ing the issue of aging lawyers. Mr. Berry occurs, the lawyer may leave behind stacks the traditional age of retirement. Moreover, explains further that: “Bar counsel in every of files and boxes without any semblance for many, the economy is dictating when, state I’ve talked to have at least one, and of organization or information as to where if ever, we will retire. usually many more, such stories about files may be found. Lawyers are no exception. Some stay on a very experienced attorney with a great Therefore, realistically the most impor- for purely financial reasons, but a growing reputation who has been put in a situation tant gift we can give ourselves relative to number of lawyers continue to work be- where he/she has harmed the public.” He retirement is the gift of “being prepared.” cause it is their lifeline and their identity. elaborates: “You certainly have to look at Unfortunately, while natural aging dic- For them, being forced to give up their it on a case-by-case basis. There are some tates that at some point the deterioration
September 2011 • The Journal of The Delaware State Bar Association 20 of mind and body may require a lawyer to eventually say good-bye to the practice Incoming (continued from page 18) to call it quits; a lawyer may also become of law with dignity. Other strategies John chronically ill or disabled. Often this hap- decided on: The goals he’d like to accomplish pens before he or she is otherwise ready • He would start some volunteer work are many, but Mr. McGiffin is looking —financially or mentally—to stop prac- with pro bono. forward to the coming year as presi- ticing. Subsequently, a peer or friend may dent, where he’ll get a chance to effect • He would meet with a financial be left with closing a law practice due to the DSBA on a small scale, a global planner to form realistic expectations an untimely health problem or unplanned scale and all the bases in between. about income, expenses, and lifestyles. retirement. Or worse, disciplinary counsel “They all have to be harmonious,” may have no alternative but to file Court • He would build up his social net- he said. “It’s all about advocating law- papers for a conservator to be appointed to work prior to retiring, e.g. by joining yers to be better lawyers.” an organization or group of people with protect the clients when a lawyer dies or is This article originally appeared in incapacitated. similar interests or even mentor younger attorneys. the June 27, 2011 issue of the Delaware Plan to Say Good-Bye State News. Copyright © Delaware While You Are Able… • He would develop a repertoire of State News 2011. All rights reserved. ways to spend his time (hobbies, interests, Reprinted with permission. Unfortunately, anxiety and avoidance accomplishments, etc.) for if and when he are among the primary reasons that many does retire. attorneys fail to plan for retirement. For- tunately however, for the astute attorney, For more information, I encourage there is ample information and support you to use DE-LAP’s confidential, free available for you to take time now and services. Call (302) 777-0124 or email prepare for the future while you are able. [email protected]. Remember, DE-LAP is here to provide you, the In fact, the Delaware State Bar As- lawyers in Delaware, and the profession sociation and the Office of Disciplinary in general, with whatever support and Counsel is holding a seminar: Closing and education we can. Retiring from a Law Practice on September 22, 2011 from 9:00 a.m. - 12:15 p.m. From that seminar, a guide and checklist, specific to Delaware, compiled by the Delaware Office of Disciplinary Counsel will be available. Also, listed below are some basic generic forms that are available through the DE-LAP either in hard-copy or on the website (go to www.de-lap.org and click on Law Office Management “Transition”): • Checklist for Lawyers Planning to Protect Clients Interest in the Event of the Lawyers Death, Disability, Impairment or Incapacity • Checklist for Closing Another At- torney’s Office • Checklist for Closing Your Own Office • Sample Forms • Articles, Rules, Formal Opinions, links, and other resources Remember John? As soon as he re- turned from the conference, planning and implementation was on his mind. Although John was not ready to retire, he put into motion plans that would not only protect his clients, but would allow him
21 The Journal of The Delaware State Bar Association • September 2011 Book Review
Reviewed by Richard A. Forsten, Esquire
The Education of a Young Lawyer: The Rape Case By Irving Morris (Univ. of Delaware Press, 2011)
n the fall of 1947, three men were ering Avenue, near the B&O Railroad Jones and two others had raped her in arrested for rape in Wilmington, Bridge, before continuing on. One of the park. In 1947, the penalty for rape tried the following February, the players wanted to smoke, but no one was death by hanging; although, if the Iand spent some 11 years in jail, before had a match. As the sedan passed the jury recommended mercy and the three- being released as the result of a habeas corner of Fourth and Bancroft Parkway, judge panel which tried the case ac- corpus petition filed in Delaware’s Fed- twenty year-old “Bud” Curran called cepted the recommendation (Delaware eral District Court. At the time of the for the car to stop because he thought law then mandated that a three-judge trial, it was front page news, but the he saw someone in the doorway of a panel preside over capital cases), the case is little remembered today, if at small general store and he wanted to punishment was life in prison. all. In The Rape Case, author and at- ask that person for a match. As it turns Curran, Maguire, and Jones were torney Irving Morris, who, as a young out, the person in the doorway was a all taken in for questioning in the early attorney represented the prisoners in young woman waiting for a bus. Curran hours of October 30. The Miranda their post-conviction efforts, takes us offered to walk her home and things case having not yet been decided, the through the entire case, from the night would never be the same again. suspects were not read their rights. They of the alleged rape, through the police Curran and the woman started were questioned and each signed a state- investigation, the trial, and ultimately, walking in the opposite direction from ment handwritten by one of the officers. through the years-long post-conviction her home, and they entered Woodlawn Later in the afternoon, the suspects all process. He provides a fascinating and Park. The remaining guys in the car signed typewritten versions of their in-depth, behind-the-scenes look at the initially drove off, but curiosity got the earlier statements. They were told the facts, the legal strategies, all of the vari- better of them and they returned to the second statements were typed verbatim ous players involved, and of course, the park, where they could see Curran and from the original statements for neat- law itself, which was changing even as the woman leaning up against a tree. ness and clarity, and the suspects all the case progressed. Spying them, Curran yelled for them signed the typed statements without The Rape Case reads like something to all leave, which they all did. “Reds” reading them. akin to a legal thriller at times, but Maguire and “Sonny” Jones, though, The trial itself was a classic case perhaps even more interesting than returned again shortly thereafter. Cur- of “he said/she said.” As might be ex- the case itself is the sense of history. As ran, Maguire, and Jones all later stated pected, there were inconsistencies in might be expected, Wilmington was a under oath that they had tried to have all the witnesses’ testimony, including different place sixty years ago. The legal sex with her, but did not. They also all the alleged victim’s testimony. Sorting community was different. The practice stated there was full consent for what out who was telling the truth was obvi- of law was different. The state of the did occur. ously important. During the course of law was different as well. As Morris Precisely what happened in the the trial, all three defendants testified recounts his incredible story, he also is park will never be known. Afterward, that they had signed two statements, describing this quite different era. though, Curran and Maguire left. Jones one handwritten and then later a typed It all started on the night of Octo- stayed behind, helped the woman get version. However, the police only ever ber 29, 1947, for want of a match. The dressed, and the two started walking provided the typed statements, and the Lorraine Baseball Team was having a —this time towards her home. A police police denied that there had ever been party to celebrate the end of the semi- patrol car stopped them, explaining handwritten statements (a later police pro baseball season. Afterward, some of there had been a report of a woman investigation confirmed that there had the players piled into a 1937 Plymouth screaming. Jones and the woman both been handwritten statements, but they two-door sedan for a ride home. They denied any trouble, but when the police had been destroyed). Curran, Maguire, stopped briefly at another bar on Lov- separated the two, the woman said that and Jones were all convicted, the jury
September 2011 • The Journal of The Delaware State Bar Association 22 recommended mercy, and they were $5000 bail each (a not insignificant history, showing how the law, and sentenced to life in prison. sum in 1958) on October 9. Finally, the practice of law, has changed over Irving Morris was not admitted on February 25, 1959, eleven years and the course of sixty years. Ultimately, to the bar until 1951, and it was not one week after the original conviction, though, it is a story of perseverance until 1952, approximately four years the defendants and the State appeared and determination, and the story of after the trial, that he would become in Court, where the State announced the education of a young lawyer that involved in the case. Initially, he it would not retry the case due to the is well worth reading. was retained as local counsel for the passage of time. Judge James B. Carey, (Editor’s Note: As further described Philadelphia lawyer handling the post- one of the three judges who sat on the on page 11, the DSBA will be hosting a conviction efforts, but eventually he original panel, presided over this final seminar on September 20th entitled “How took over the case on his own. During proceeding in the case. to Avoid Being Intimidated by the Law” the course of the next five years, he The Rape Case is a compelling story, which will feature The Rape Case as a would suffer six defeats in his efforts but it is also more than that. It is legal springboard for discussion.) for post-conviction relief for his clients. Finally, on August 15, 1957, Federal District Court Judge Caleb Wright would grant the writ of habeas corpus. Save the Date In doing so, the Court observed that the issue was not guilt or innocence, The Christopher W. White but one of due process and that false Distinguished Access to Justice Awards Ceremony testimony concerning the handwrit- ten statements not only denied the defendants possible evidence to use Tuesday, October 25, 2011 at trial, but went to the issue of the du Barry Room, Hotel du Pont defendants’ credibility. The Third Cir- cuit affirmed on September 29, 1958, Invitation to Follow and the defendants were released on
23 The Journal of The Delaware State Bar Association • September 2011 A Profile inBalance
By James G. McGiffin, Jr., Esquire
The Best Job in the World: Edmond Falgowski By James G. McGiffin, Jr., Esquire and Mark H. Smith
f I aspire to be the best lawyer I can in April of 1980, he quit teaching to So how does a star federal prosecu- be, I must first try to be the best per- pursue a career in the law. He took tor make time to devote to his close- son I can be. I am fortunate to know and passed the bar exam in 1980, and knit, very active family? He compart- Imany lawyers who have succeeded in their the following year he was sworn in mentalizes. When he is at work, he is work, in part, because they are excellent and started his professional career at all about work. He starts at 6:30 a.m. people. During the course of the next year, the Delaware Attorney General’s of- (or as early as 4:30 a.m. if he has catch- The Bar Journal will feature an article on fice. Corky remembered the favorable up work to do), gets his work done ef- one such lawyer. Each featured lawyer will impression then Delaware Attorney ficiently, and leaves on time. When he exemplify the art of balance in life. I have General Richard R. Wier, Jr. made leaves work, he shifts gears completely. learned much from these people. Perhaps when he spoke to his high school class, He does not work late, and he does not readers will also benefit. and thought working as a prosecutor take work home to do at night or on - Jim McGiffin weekends. He does not wear a watch. • • • He has no cell phone. Edmond (Corky) Falgowski works In Lewes, he has ten boats, includ- hard as a criminal prosecutor with the ing a fishing boat from which he runs United States Department of Justice 35 crab pots. He drives up from Lewes … and still manages to find time to at the end of the weekend dressed in dedicate to his large and growing shorts and sandals, changing at the family. office into the work clothes he leaves there. The walls of his office are cov- After graduating from the Univer- ered with photographs of his beautiful sity of Delaware, he taught history at family, and gazing at them during the his alma mater, St. Elizabeth’s High day helps Corky relax. Talking about School in Wilmington. He supple- his family lights up his Harrison Ford mented his meager parochial school handsome face. teaching income by coaching baseball and football. Looking forward to rais- When we asked, Corky how he ing a family, he attended the night liked being a prosecutor, he said, “I have the best job in the world.” program at the Delaware Law School. was the direction for him. Three years He married his high school prom date, later, he was offered a job by then United and by the time he received his law States Attorney Joseph J. Farnan, Jr., degree, they had two children. where he has been a criminal prosecutor For a respite from the frenetic pace ever since. of the school year, he and his wife When Corky started at DOJ, his started summering in Lewes, in a single children numbered four. He and his wife room attached to a garage, which they bought the one-room and its attached rented for $300.00 a season. The sum- garage in Lewes for a summer home. The mer he graduated from law school, he happy … and busy … couple continue to studied for the bar exam in Lewes. summer there, now with their eight chil- After seven years at St. Elizabeth’s, dren, spouses, and three grandchildren.
September 2011 • The Journal of The Delaware State Bar Association 24 Disciplinary Actions
SUPREME COURT SUSPENDS factor O’Brien’s prior disciplinary his- public and to the orderly administration ATTORNEY. IN RE JOHN E. tory of two public reprimands in 1989 of justice. O’BRIEN, NO. 139, 2011 (JULY and again in 2005. The Court of Chancery appointed 20, 2011) The Delaware Court of Chan- Robert D. Goldberg, Esquire, (302) On July 20, 2011, the Delaware cery has appointed Constantine F. 655-9677, Receiver of Mr. Stull’s law Supreme Court suspended John E. Malmberg, III, Esquire as Receiver of practice. O’Brien from the practice of law in O’Brien’s law practice. Delaware for three months starting August 1, 2011 and thereafter placed INTERIM SUSPENSION— on probation for 18 months starting JOHN M. STULL. SUPREME November 2, 2011 for violations of the COURT NO. 330, 2011. EFFEC- Delaware Lawyers’ Rules of Professional TIVE DATE: JULY 25, 2011 The History Conduct. The Court approved the find- By Order of the Supreme Court of ings made by the Board on Professional Delaware, dated July 25, 2011, John of the Delaware Bar Responsibility that in connection with M. Stull, a Delaware lawyer who was from 1995 through 2010 a representation of two clients during a admitted to the Delaware Bar in 1967, published by the real estate transaction O’Brien failed to was immediately suspended from the Delaware State Bar Association obtain informed consent of the clients, practice of law in Delaware, pending failed to safeguard a client’s funds, A Supplement to The Delaware Bar in the final disposition of all attorney disci- Twentieth Century, published in 1994 failed to provide a client statement of plinary proceedings. In its Order, the fees charged and failed to protect the Court concluded that Mr. Stull, a solo Complimentary copies available client’s interest at termination of rep- practitioner, had engaged in misconduct for DSBA Members at the DSBA Offices 301 North Market Street resentation. In imposing the sanction, which demonstrates he poses a signifi- Wilmington, DE 19801 the Court considered as an aggravating cant threat of substantial harm to the
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25 The Journal of The Delaware State Bar Association • September 2011 Report: Annual Meeting of the ABA House of Delegates By William D. Johnston, Esquire
his is to report on the meeting • Alternative litigation financing; associates may serve as officers of the of the American Bar Asso- and Section of Business Law (11-4); ciation’s House of Delegates, • Alternative law practice structures. • Amended § 32.1(d) of the ABA Twhich took place August 8-9 in Toronto, With regard to alternative law practice Bylaws to provide that non-U.S. lawyer Ontario Canada. structures, the members of the Commis- associates may serve on the Governing As before, the “Delaware Delega- sion reported that they preliminarily had Committee of the Forum on Construc- tion” comprised Justice Henry duPont concluded there should not be publicly- tion Law (11-5); Ridgely (Delegate from the Appellate owned law firms, there should be no • Adopted the Model Act Governing Judges Conference of the ABA’s Judicial outside passive investors in law firms; the Representation of Children in Abuse, Division), Harvey Bernard Rubenstein and law firms should not reflect “multi- Neglect, and Dependency Proceedings, (State Delegate), and yours truly (State disciplinary practice.” The Commission dated August 2011 (101A); Bar Delegate). members also said that they preliminar- • Adopted as best practices the Pro- And, as before, the session of the ily had concluded nothing need be done tocol on Court-to-Court Communications House—the policy-making body of the about lawyer rankings. in Canada-U.S. Cross-Border Class Ac- ABA—included various presentations as The Commission members said they tions and Notice Protocol: Coordinating well as the consideration of numerous will be releasing draft proposals this Sep- Notice(s) to the Class(es) in Multijurisdic- proposals. tember and that they will welcome any tional Class Proceedings, dated August Presentations and all comments. Please see the Com- 2011 and urged courts and counsel in Presentations during the session in- mission’s website at www.americanbar.org cross-border class action cases involving cluded the usual informational reports for additional details and further updates. the United States and Canada to adopt from the ABA’s Treasurer (Alice E. Proposals Adopted by the House the Protocols (101C); Richmond) and the organization’s Ex- Members of the House of Delegates • Urged the Law School Admissions ecutive Director (Jack L. Rives), as well considered and adopted numerous pro- Council and ABA-approved law schools as remarks by the Chair of the House posals (“resolutions with reports”). The to require additional information, includ- (Linda A. Klein), the outgoing President proposals, with their respective numbers, ing Tribal citizenship, Tribal affiliation (Stephen N. Zack), the incoming Presi- indicated in parentheses, included those or enrollment number, and/or a “heritage dent (William T. Robinson, III), and the that: statement,” from individuals who indicate President-Elect (Laurel G. Bellows). In • Urged applicable governmental on their applications for testing or admis- addition, the ABA Medal was awarded to entities to take all appropriate measures to sion that they are Native American (102); David Boies and Theodore Olson. ensure that the National Criminal Instant • Urged state legislatures to enact The ABA Commission on Ethics Background Check System (“NICS”) is as laws that effectively aid minors who are 20/20 provided an update. Members of complete and accurate as possible, so that victims of human trafficking (103A); the Commission reported that their inten- all persons properly categorized as pro- tion is to present recommendations to the • Urged Congress to modify im- hibited persons under 18 U.S.C. §922(g) migration laws to take into account the House in August 2012 during the Annual are included in the NICS system (10A); Meeting in Chicago. They said that, in best interests of minor children who may • Amended § 2.2 and § 6.2 of the the meantime, early indications are that be affected by a parent, legal guardian, or ABA Constitution and various other sec- the recommendations likely will address: primary caregiver’s immigration deten- tions of the Constitution and the House tion or removal (103B); • Certain clarifying amendments to Rules of Procedure, to provide that each • Urged the Department of Home- the Model Rules of Professional Conduct territory, as defined, shall have a seat in land Security to revise its policies so and related comments, especially to those the House of Delegates (11-2); that address a lawyer’s confidentiality that detained parents, legal guardians, • Amended § 7.2 of the ABA Con- obligations when using technology and and primary caregivers of children have stitution and various other sections of to those that define terms such as “so- meaningful participation with their at- the Bylaws to change the Law Student licitation”; torneys at judicial proceedings involving member-at-large from a non-voting mem- their children; and that those involved in • Outsourcing of legal work; ber of the ABA Board of Governors to a family and juvenile courts be educated • “Lawyer-mobility” (multi-jurisdic- voting member (11-3); regarding the connection between state tional practice); • Amended § 30.5 of the ABA child welfare laws and immigration laws • “In-bound” foreign lawyers; Bylaws to provide that non-U.S. lawyer (103C);
September 2011 • The Journal of The Delaware State Bar Association 26 • Urged that unaccompanied and • Urged governments to adopt dis- rape kits collected from crime scenes and undocumented immigrant children closure rules in courts requiring the convicted offenders (109); in the United States, upon their ap- prosecution to obtain from its agents and • Approved the Revised Uniform prehension by immigration authorities, to make timely disclosure to the defense Law on Notarial Acts, promulgated by the be screened by independent experts to before the commencement of trial or National Conference of Commissioners on determine if they are eligible for immi- a guilty plea all information known to Uniform State Laws in 2010, as appropriate gration relief (103D); the prosecution that tends to negate the legislation for those states desiring to adopt • Supported application of the Im- guilt of the accused, mitigate the offense the specific substantive law suggested migration and Nationality Act to allow charged or sentence, or impeach the therein (110A); prosecution’s witnesses or evidence, except persons outside the United States to • Urged Congress to enact legislation when relieved of this responsibility by a pursue motions to reopen or motions to that assists individuals who are experienc- protective order (105D); reconsider removal (deportation) pro- ing financial hardship due to excessive ceedings on the same basis and subject • Urged the President and the United levels of student loan debt, but are not to the same restrictions that apply to States Department of Defense to assure covered by the provisions of the student persons who file such petitions from that there is an opportunity for public loan overhaul passed into law on March within the United States (104A); notice and comment with respect to 30, 2010 (111A); the issuance of the rules for the periodic • Urged Congress to update and • Urged all ABA-approved Law review of continued law of war detention strengthen federal lobbying laws by Schools to report employment data that cases required by the President’s Executive requiring fuller reporting of lobbying identifies whether graduates have obtained Order No. 13567, 76 Fed. Reg. 13277 activities, forbidding certain conflicts of full-time or part-time employment within (2011) (105E); interest, and providing for more effective the legal profession, whether in the private enforcement of the Lobbying Disclosure • Urged Congress, and all federal, or public sector, or whether in alternative Act of 1995 (104B); state and territorial administrative bodies professions and whether such employment • Urged the U.S. Sentencing Com- to continue efforts to expand the avail- is permanent or temporary (111B); ability of home and community based ser- mission to complete a comprehensive • Urged the United States Govern- vices as a viable long term option (106A); assessment of the guidelines for child ment to ensure that federally-recognized pornography offenses, to ensure that • Encouraged the United States Indian tribes listed pursuant to the Feder- those guidelines are proportional to of- Department of State and the United Na- ally Recognized Indian Tribe List Act of fense severity, and adequately take into tions and its member states to support the 1994, 25 U.S.C. 479a, may participate consideration individual culpability and ongoing processes at the United Nations fully in policy discussions on the issue of circumstances (105A); and the Organization of American States climate change domestically and in inter- • Adopted the Key Requirements for to strengthen protection of the rights of national fora (112); the Certification of Correctional Accred- older persons, including the efforts and • Opposed federal or state laws that iting Entities, dated August 2011, and consultations towards an international impose blanket prohibitions on consider- urged governments to require that public and regional human rights instrument on ation of use of foreign or international law and private facilities in which adults or the rights of older persons (106C); and opposed federal or state laws that im- juveniles are confined for violations or • Urged states to establish clearly pose blanket prohibitions on consideration alleged violations of criminal, juvenile, articulated procedures for judicial dis- or use of the entire body of law or doctrine or immigration laws be accredited by one qualification determinations and prompt of a particular religion (113A); or more federally-certified accrediting review of denials of requests to disqualify • Urged Congress to fund U.S. entities (105B); a judge (107); participation in capital increases and • Urged the Bureau of Prisons, the • Affirmed the principle of civility as replenishments for the World Bank, the U.S. Marshals Service, Immigration and a foundation for democracy and the rule Inter-American Development Bank, the Customs Enforcement, and state, tribal of law and urged lawyers, ABA member African Development Bank, and the and local correctional authorities to de- entities and other bar associations to European Bank for Reconstruction and velop and implement gender-responsive take meaningful steps to enhance the Development (113B); needs assessments that account for wom- constructive role of lawyers in promot- • Urged states and territories to en’s specific needs, including parenting ing a more civil and deliberative public provide that predictive and diagnostic responsibilities, the importance of their discourse (108); medical genetic testing provided on- relationships, their histories of domestic • Urged governments to enact legis- line, via the telephone, or by any other violence and abuse, and their distinctive lation and provide appropriate funds to direct-to-consumer means constitutes patterns and prevalence of mental health protect sexual crime victims’ rights by issues (105C); eliminating the substantial backlog of ABA Annual Meeting (continued on page 29)
27 The Journal of The Delaware State Bar Association • September 2011 Bulletin Board
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September 2011 • The Journal of The Delaware State Bar Association 28 ABA Annual Meeting (continued from page 27) • Urged state, territorial, and local bar have taken an important lead in providing associations to document the impact of for interpreters where appropriate, and I the practice of medicine and are held to the funding cutbacks to the judicial systems in hope that we will see enhanced budgetary same standards of care as that provided in their jurisdictions, to publicize the effects support from the Delaware General Assem- traditional medical settings (114); of those cutbacks, and to create coalitions bly and the Governor’s Office so that the • Supported federal, state, territorial to address and respond to the ramifica- courts can continue to provide interpreter and local laws that give law enforcement tions of funding shortages to their justice assistance and thus further promote access authorities broad discretion to determine systems (302); to justice for all. whether a permit or license to engage in • Urged Congress to reject any reso- For further information regarding the concealed carry should be issued in jurisdic- lution proposing an amendment to the most recent session of the House, please see tions that allow the carrying of concealed United States Constitution that would www.americanbar.org. weapons, and opposed laws that limit such alter, in any way, the granting of United * * * discretion by mandating the issuance of a States citizenship under the Fourteenth The next meeting of the House of Del- concealed carry permit or license to persons Amendment to any persons born in the egates will be February 6-7, 2012 in New simply because they satisfy minimum pre- United States (including territories, pos- Orleans. Please contact me at (302) 571-6679 scribed requirements (115); sessions and commonwealths) based upon or [email protected] if you have any • Urged all lawyers to regularly assess the citizenship or immigration status of one questions or concerns in the meantime. It their practice environment to identify and or both parents at the time of the person’s continues to be my privilege to represent address risks that arise from any natural or birth (303); the Delaware State Bar Association and its manmade disaster that may compromise • Adopted policy relating to the right members. their ability to diligently and competently of a patent applicant to obtain judicial re- Bill Johnston serves as State Bar Delegate protect their clients’ interests and maintain lief after being denied a patent by the U.S. to the ABA House of Delegates, elected by the security of their clients’ property (116); Patent and Trademark Office (304A); and members of the Delaware State Bar Associa- • Supported the continued application • Adopted policy supporting the tion. Bill is a partner with Young Conaway by courts of the legal principles to determine principle that laws of nature, physical phe- Stargatt & Taylor, LLP, and is a past presi- if an issued patent claim meets the definite- nomena, and abstract ideas are not eligible dent of the DSBA. ness requirement under 35 U.S.C. Section for patenting under 35 U.S.C. §101 (304B). 112 (117); I was proud that the Delaware State • Supported measures to improve ac- Bar Association co-sponsored two of the cess to counsel for individuals in immigra- proposals, 108 and 116. Co-sponsorship of HIRING A tion removal proceedings (118); Report 108, urging civility and civil public PARALEGAL? • Urged Congress to amend the Uni- discourse, was a natural for the Delaware formed Services Employment and Reem- Bar. Likewise, co-sponsorship of Report Log on to ployment Rights Act of 1994, 38 U.S.C. §§ 116 was fitting, since ten years ago, the www.deparalegals.org 4301-4335, by adding provisions to require DSBA was a pioneer in urging disaster- employers to provide certain reasonable preparedness. For more information accommodations for returning veterans Other resolutions either were tabled about posting jobs on with combat injuries that may not manifest or were considered on the merits, but not DPA’s website, themselves until after a return to work (120); adopted. I was especially pleased that Re- contact the • Supported efforts to improve voter port 122 was tabled. That proposal would Job Bank Director, registration practices and urged federal have had the House adopt proposed ABA Sharyn C. Hallman, DCP, legislation or administrative action creating Standards for Language Access in Courts, at (302) 984-3882. incentives to encourage election jurisdic- urging courts and other tribunals to give tions to adopt such improvements (121); high priority to the prompt implementa- • Supported development and harmo- tion of the standards. The draft standards nization of international trade and com- present numerous legal and practical issues, merce and the establishment of predictable as identified by the Conference of Chief systems of secured lending through the Justices and the Conference of State Court adoption of secured transactions reform Administrators. Most significantly, adop- in developing countries and encouraged tion of the standards by the House would lawyers to support and participate in efforts have set up courts (especially grossly under- to have secured transactions reform adopted funded state courts) for failure and unwar- in developing countries (301); ranted criticism. Delaware courts, for years,
29 The Journal of The Delaware State Bar Association • September 2011 The Judicial Palate By Alex J. Mili, Jr., Esquire
A Little Tuscan Palate from a Big Chef
an Butler (a.k.a. the “Big began with a “kitchen salad” that between tiramisu and biscotti. This Chef Guy”) is an exceptional included shredded, hand-crafted Par- choice was pleasantly more challenging chef and restaurateur. In migiano-Reggiano cheese atop crisp when I saw the on-site bakery’s display Dfact, Delaware Today magazine named mixed greens, grilled zucchini and red of the in-house pastry chef’s creations him the “best chef” in our state for 2011. peppers, cherry tomatoes, olives, and of the day, including banana cream His “culinary conglomerate”, as my col- prosciutto. For such an unassuming tart, spiced panna cotta, and chocolate league Alex Mili refers to below, includes name (“kitchen salad”), it had an appe- mousse. Rumor also has it that the Deep Blue, a power-lunch locale in tizing gourmet flair, most notably with pumpkin beignets with caramel dipping downtown Wilmington for attorneys and its sliced chicken marinated in balsamic sauce are popular among the desert-only bankers. Butler is best-known for his first vinaigrette. The penultimate finishing customers (regrettably, these treats are restaurant, Toscana, whose menu and touch was salad dressing of roasted only served during the winter months). name was restyled last year into Piccolina shallots soaked in a white wine sauce. After resisting the above-mentioned Toscana. Through his insightful review, Although the salad’s ultimate finish- deserts and a half-dozen tempting fla- Mili indicates that Toscana remains every ing touch was the shredded Parmigiano- vors of homemade gelati and sorbeti, bit(e) as good as you remember. Reggiano cheese, the menu featured an I selected the peach dumplings with -Ciro entire section dedicated exclusively to vanilla gelato, topped with warm cara- artisanal cheeses, including aged Pecori- mel sauce and a light sprinkle of brown Piccolina Toscana, located in the no (Tuscan sheep’s milk) and Gorgon- sugar. The peaches were warm, while Rockford Shops of Trolley Square, zola dolce (semi-sweet blue-veined), just the dumplings were lightly toasted and Wilmington, is one of five restaurants to name a few. Among these artisanal not too doughy. The sprinkle of brown within the local culinary conglomerate cheeses, Parmigiano-Reggiano is aptly sugar (light though it was) proved to be known as “Big Chef Guy.” The Ital- extolled as the “king of cheese,” which too much, as the caramel sauce was al- ian “piccolina” translates to “little” in makes an authentic Tuscan salad (in ready sweet enough. This desert paired English, which dovetails with the Big sharp contrast to the Americanized well with a freshly brewed cup of decaf- Chef Guy’s focus on little portions of accoutrement of “Parmesan cheese”). feinated coffee (just plain old American authentically Tuscan cuisine at Picco- For the main entrée, I ventured west coffee to bring me back to reality after lina Toscana. It is the small size of each of Emilia-Romagna to Liguria, where I my vicarious tour of Tuscany and its portion that invites the dining guest to selected the Cacciucco, which is a sea- outskirts). experience an array of authentic ingre- food stew simmered in saffron broth. I look forward to my next visit to dients and flavors from various regions Hoping to preserve a residual appetite Piccolina Toscana, where I may travel to in and around Tuscany, all within a for desert, I selected only the smaller other regions in and around Tuscany at single meal. The menu is imaginatively (or “picollina”) size of this entrée. The the whim of the culinary geniuses and designed to take its guests through a “piccolina” label was delightfully mis- in-house pastry chefs who will season- vicarious gourmet tour of Tuscany. leading because my entrée was heartier ally re-design the menu yet again. My Tuscan journey began northwest than I expected—a bottomless chasm of Siena in the town of San Gimignano, of generous portions of salmon and where I selected a glass of Vernaccia. fresh clams, slow-cooked in a thick This white wine has a sharp nutty flavor stew sauce with a powerful and lasting and a subtle hint of dry melon, which aroma of garlic aioli, all of which were paired well with the salad and entrée complemented with crostini olives and described below. artichokes. Continuing northward past the When choosing a desert in an Italian Emilia-Romagna border, my meal restaurant, I often flip a coin to choose
September 2011 • The Journal of The Delaware State Bar Association 30 31 The Journal of The Delaware State Bar Association • September 2011 Is Pleased To Announce Katherine J. Neikirk
Has Been Promoted To
Senior Counsel In The Firm’s Corporate And Fiduciary Litigation Group
Katherine J. Neikirk focuses her practice on corporate, alternative entity and commercial litigation including expe- dited matters, derivative actions and class actions. Her areas of experience include duciary duties of directors and o cers in a variety of settings, including mergers and asset sales; disputes involving managers and members of Delaware alternative entities; temporary restraining orders and preliminary injunctions; breach of contract actions in Delaware Superior Court, Delaware Court of Chancery and U.S. District Court, District of Delaware; inspection of books and records and e-discovery. Ms. Neikirk joined Morris James after receiving her Juris Doctor, summa cum laude, from Villanova University School of Law in 2001. While in law school, Ms Neikirk was the Managing Editor of Student Works for the Villanova Law Review and a member of the Order of the Coif. She received a B.A. from Oberlin College in 1996. Ms. Neikirk has volunteered for The O ce of the Child Advocate as a Guardian ad litem on behalf of abused and neglected children and she was on the Delaware Volunteer Legal Services Pro Bono Honor Roll in 2009. Ms. Neikirk is admitted to practice in Delaware and is admitted in the U.S. District Court, District of Delaware and the U.S. Court of Appeals,Third Circuit. Ms. Neikirk can be reached at 302.888.6808 or [email protected].
500 Delaware Avenue Suite 1500 Wilmington, DE 19801 T 302.888.6800 F 302.571.1750 www.morrisjames.com