September2018dsbabarjournal.Pdf

SEPTEMBER 2018 VOLUME 42 • NUMBER 2 Ballard Spahr Congratulates our Newly Elected partners in Delaware

Leslie C. Heilman Elizabeth A. Sloan

Leslie focuses on corporate restructuring, bankruptcy, Liz is an experienced Chancery Court litigator. and creditors’ rights. She helps clients navigate She represents corporations, directors, and and protect their rights in business insolvency and stockholders in breach of fiduciary duty litigation, bankruptcy matters, regularly representing creditors, shareholder and corporate governance disputes, creditor committees, debtors, commercial landlords, valuation issues, and other corporate and commercial and other key constituents in Chapter 11 proceedings litigation matters. In addition, she frequently advises and bankruptcy litigation in Delaware and nationally. clients on matters of Delaware corporate law.

919 N. Market Street | 11th Floor Wilmington, DE 19801-3034 302.252.4465

Ballard Spahr Congratulates our PRESIDENT David J. Ferry, Jr.

EXECUTIVE DIRECTOR Newly Elected partners in Delaware Mark S. Vavala EDITORIAL BOARD Laina M. Herbert Jason C. Powell FEATURES Benjamin A. Schwartz Seth L. Thompson The Women and the Law Issue EXECUTIVE COMMITTEE LIAISON Michael F. McTaggart 16 From 1923 to 2018: Women in the Delaware Bar PUBLICATIONS EDITOR BY KYLE EVANS GAY, ESQUIRE, AND KATHLEEN A. MURPHY, ESQUIRE Rebecca Baird PUBLICATION ASSISTANT 17 #MeToo in the States and the Delaware General Assembly Susan Simmons BY REBECCA L. BYRD, ESQUIRE The Bar Journal is published and distributed by the Delaware State Bar Association 20 A Year for the Record Books for Delaware Women 405 North King Street, Suite 100 BY MELANIE ROSS LEVIN Wilmington, DE 19801 P: 302-658-5279 F: 302-658-5212 www.dsba.org 22 Delaware Firsts for Women

Leslie C. Heilman Elizabeth A. Sloan © Copyright 2018 by the Delaware State 24 Celebration of 95 Years of Women in the Delaware Bar Bar Association. All Rights Reserved. Leslie focuses on corporate restructuring, bankruptcy, Liz is an experienced Chancery Court litigator. The Bar Journal is the independent journal 31 The 2018 Combined Campaign Cup Results of the Delaware State Bar Association. It BY KEVIN G. COLLINS, ESQUIRE, AND CHARLES B. VINCENT, ESQUIRE and creditors’ rights. She helps clients navigate She represents corporations, directors, and is a forum for the free expression of ideas on the law, the legal profession and the administration of justice. It may publish 34 Report: The 2018 Annual Meeting of the ABA House of Delegates and protect their rights in business insolvency and stockholders in breach of fiduciary duty litigation, articles representing unpopular and controversial points of view. Publishing BY WILLIAM D. JOHNSTON, ESQUIRE bankruptcy matters, regularly representing creditors, shareholder and corporate governance disputes, and editorial decisions are based on the quality of writing, the timeliness of the creditor committees, debtors, commercial landlords, valuation issues, and other corporate and commercial article, and the potential interest to readers, 37 Former Delaware Justice Forges Bridge with Leading and all articles are subject to limitations of and other key constituents in Chapter 11 proceedings litigation matters. In addition, she frequently advises good taste. In every instance, the views London Chambers expressed are those of the authors, and and bankruptcy litigation in Delaware and nationally. clients on matters of Delaware corporate law. no endorsement of those views should be : Sexual Orientation Discrimination Under Title VII inferred, unless specifically identified as the 38 policy of the Delaware State Bar Association. The Looming Supreme Court Battle

The Bar Journal is published monthly with a BY KATHERINE M. DEVANNEY, ESQUIRE combined July/August issue.

All correspondence regarding circulation, subscriptions, or editorial matters should be COLUMNS mailed to: 4 President's Corner 26 Ethically Speaking Editor, DSBA Bar Journal Delaware State Bar Association 6 Editor’s Perspective 28 DE-LAP Zone 405 North King Street, Suite 100 Wilmington, DE 19801 12 Tips on Technology 32 Book Review or emailed to: [email protected] 14 Commission on Law & Technology: 42 Judicial Palate Letters to the Editor should pertain to recent articles, columns, or other letters. Unsigned Leading Practices letters are not published. All letters are subject to editing. Send letters to the address above, Attention: Editor, Bar Journal. DEPARTMENTS 8 Of Note 11 Section & Committee Meetings 919 N. Market Street | 11th Floor For Advertising Opportunities Call (302) 658-5279, ext. 102 9 Side Bar 40 Bulletin Board Wilmington, DE 19801-3034 Email: [email protected] 9 Your Words 41 Disciplinary Actions 302.252.4465 Read The Bar Journal online at www.dsba.org 10 Calendar of Events Atlanta | Baltimore | Bethesda | Boulder | Delaware | Denver | Las Vegas | Los Angeles | Minneapolis | New Jersey | New York | Philadelphia | Phoenix | Salt Lake City | San Diego Cover Photo by Antonio Byrd. Details on pg. 24. Sioux Falls | Washington, DC | www.ballardspahr.com DSBA Bar Journal | September 2018 3 PRESIDENT'S CORNER

By David J. Ferry, Jr., Esquire

Supreme Court Work-Life Balance

y now, all members of the Delaware Bar should be aware When I was admitted to the Bar back in “ the of the Delaware Supreme 1980s, ambitious lawyers believed it was Court Order of July 18, 2018 necessary to work 60 to 80 hours per week to Bregarding work-life balance for legal “ professionals. This Order follows the climb the ladder and achieve their goals as initiative begun by Chief Justice Strine well as the objectives of their clients. to address work-life balance for attorneys when the Chief Justice issued his list of trial courts shall consider the remaining to respond to the filings that were made Judicial Branch priorities in 2014. recommendations in the report carefully while they were trying to enjoy their lives The Order, in simplified form, re- and adopt those and other practices that with family and friends. The report of quires three things. First, the courts shall will improve the quality of professional the Committee on Improving the Qual- amend their rules and e-filing policies to practice by and the quality of life of ity of Lawyering in Delaware made the require that e-filings in non-expedited Delaware legal professionals. recommendations for the Supreme Court matters, except for initial pleadings and This order is a result of Chief Justice Order. The Committee stated that their notices of appeal, must be completed by Strine’s Judicial Branch priorities and the recommendations or any combination 5:00 p.m. Eastern Time in order to be efforts of the Work-Life Balance Com- of the recommendations will not funda- considered timely filed that day. Initial mittee which was composed of members mentally change the practice of law or the pleadings and notices of appeal and elec- of the Supreme Court Rules Committee, expectation that the law is a 24/7 profes- tronic filings in expedited matters must the Court of Chancery Rules Committee, sion, but the Committee believes the be completed before midnight Eastern and the Superior Court Rules Commit- recommendations should contribute to a Time in order to be considered timely more balanced structure to the practice filed that day except for expedited mat- tee. The Committee was formed to ex- of law in Delaware, helping both lawyers ters where the parties have agreed upon, plore changes that the courts could make and their staff to enjoy their professional or the court has ordered, a different filing to create a more sensible structure for the and personal lives more. deadline. This 5:00 p.m. filing deadline practice of law that would improve the becomes effective September 14, 2018. quality of practice and the work-life bal- The Work-Life Balance Committee Second, the trial courts are directed to ance of legal professionals in Delaware. created in 2015 was divided on the issue consider adopting practices and policies When I was admitted to the Bar back and the results of a DSBA survey do not that disfavor filing due dates on Mondays in the 1980s, ambitious lawyers believed support the change of the current filing or the day after a holiday in non-expedit- it was necessary to work 60 to 80 hours time. The Committee thought it was ap- ed matters, the issuance of non-expedited per week to climb the ladder and achieve propriate for all views to be articulated to opinions addressing dispositive motions their goals as well as the objectives of their and considered by the judiciary and the or post-trial relief after 4:00 p.m. as a clients. The electronic filing system that Committee has attempted to address all general matter and after noon on Fridays came along many years later made it pos- of the concerns that were raised. A review and the scheduling of oral arguments and sible to work more late nights, weekends, of the Committee’s report, and the various trials in August, except in expedited mat- and holidays to meet filing deadlines statistics and comments is very helpful in ters or where there is an important reason of 11:59 p.m. Late filings then led to understanding the reasoning that led to for proceeding at that time. Lastly, the more pressure on the parties who had the Supreme Court Order of July 18, 2018.

4 DSBA Bar Journal | www.dsba.org It is particularly helpful to Committee of the Bar Association, review the Committee’s report, and other lawyers are discussing which explains the criticisms and and debating the Order and the responses to the criticisms about implementation of the Order by the various issues. The report the various courts. The reaction of explains why the 5:00 p.m. time members of the Bar is a mixed one. is important. Data demonstrates Many attorneys are not in favor of that this time is feasible and that the Order and believe that it may

© istockphoto.com/© JBrianAJackson this filing time facilitates the abil- be detrimental to their practices. ity of Court staff to accept the Many attorneys are concerned vast majority of filings during the that the 5:00 p.m. deadline will same work day. It is also critical impose more pressure on them to to understanding why 5:00 p.m. meet their obligations. Attorneys is important for most lawyers to arguments in non-expedited cases in July who work with out-of-state counsel pause to have dinner with their families, and August to accommodate vacation in other time zones in the country are work out, help with homework and activi- schedules and other changes are excellent concerned that they will have less time ties, and spend time with their spouses, ideas that the Committee and Supreme to receive pleadings from out-of-state children, friends, and loved ones. Fur- Court hope will reduce stress for every- counsel that need to be filed by 5:00 thermore, the Committee believes that one involved in the litigation process. I p.m. Some are concerned about needing filing motions or briefs in late evening recommend that all members of the Bar courier services to pick up and file plead- hours does not promote the submission review the full Committee report. ings on a deadline date for the Family of carefully considered and edited filings. So, the question is, “What can we Court that does not yet use electronic The Committee report also covers expect from this?” I am sure that there filing. what the Courts have done and can do are already strong feelings in favor of or There are supporters of the Order. to help members of the Bar. Changing not in favor of the Order. Section chairs Some believe that requiring out-of-state the times for the Court to issue decisions of various sections of the Delaware Bar in non-expedited cases, not scheduling Association, members of the Executive President’s Corner (continued on page 7) We believeWe believe in building in building relationships. relationships. KruzaKruza Legal Legal Search Search Specializing inSpecializing permanent attorney, in permanent paralegal attorney, and support paralegal staff and placement support services staff placement since 1980. services since 1980.

Kruza Legal SearchKruza Legal Search 1845 Walnut Street,1845 Walnut Suite 855 Street, Suite 855 Philadelphia, PAPhiladelphia, 19103 PA 19103 215.981.5455 /215.981.5455 phone / phone 215.981.0662 215.981.0662/ fax / fax www.kruza.com www.kruza.comPeggy Kruza Steven Kruza Steven Weiler Peggy Kruza Steven Kruza Steven Weiler

DSBA Bar Journal | September 2018 5 EDITOR’S PERSPECTIVE

By Benjamin A. Schwartz, Esquire

Signs of the Times

alfway down Clayton Street between Delaware Avenue and Gilpin Street accounts. This apparently was uncovered in Wilmington, you can make a left turn and drive up onto the second- by the receivers for Garrett’s law practice. floor parking deck of the Shops of Trolley Square. (I bet you did not know I do not want to get preachy in this that.) I have been kicking around that neighborhood for the better part of column, but Garrett’s case is illustrative Hthe last twenty years. I have lived in the Plaza Apartments (now the PARQ). I lived of several principals that should be kept in a one bedroom apartment at the Delf (at the corner of Clayton and Delaware). I in mind by Delaware attorneys: lived in a house at 1811 Delaware Avenue for about a dozen years. I had an office up on the second floor of the Trolley Square building, and now I have an office at 1525 First, if you steal client funds, expect Delaware Avenue. All this time, I have been driving past a sign for William L. Garrett, to be disbarred. That is the presumptive Jr., Attorney-at-Law hanging alongside the ramp up to the second-floor parking deck sanction. As the Supreme Court wrote in in the Shops of Trolley Square, and wondering why Garrett was allowed to keep his Garrett’s disbarment decision, “Although sign up for the last fifteen years. Garrett was suspended in 2003 and then disbarred we have not adopted a per se rule, this in 2006. His sign fell down naturally just the other day. Court has consistently imposed the sanction of disbarment in situations where The Delaware Digest of Lawyer Discipline contains a summary of his Disciplin- the conversion of clients’ funds has been ary Action in Board Case No. 32, 2002. According to that document, Garrett first established.” received a three-year suspension from the practice of law by Order of the Supreme Court dated October 23, 2003. There were nine separate violations, but interestingly Second, all money paid by clients no client was harmed. The case came about as the result of a random Lawyers’ Fund has to be held in escrow until you can for Client Protection audit. For those of you who do not know, the Lawyers’ Fund document that it has been earned, at is an arm of the Supreme Court and it conducts sixty random audits of law firms’ which point you can transfer it into your books and records each year. The Lawyers’ Fund auditor back in 2002 was a Certi- operating account. If you do not handle fied Public Accountant named Martin Zukoff. Zukoff contacted Garrett to line up client advance payments in this fashion, an appointment to review Garrett’s books and records, but apparently got the run it is considered comingling and that is a around for about six months. The Lawyers’ Fund turned the matter over to the Office violation of the ethics rules. of Disciplinary Counsel, which arranged for an expedited audit. That revealed a number of deficiencies in Garrett’s accounting practices, including commingling of funds. Garrett was depositing unearned fees into his operating account. He also failed to maintain his books and records for his escrow accounts and his operating account. He was not paying his taxes — he had not paid state or federal income taxes for 1994 through 2001. And, he filed annual Certificates of Compliance with the Supreme Court stating that he was keeping his records properly and paying his taxes, which itself is considered dishonesty, fraud, deceit, or misrepresentation. Three years later, in October 2006, Garrett was disbarred. Ac- cording to the summary of the Disbarment in the Digest of Lawyer Discipline, Garrett was found to have misappropriated client funds in an amount of almost one hundred twenty thousand dollars, and he was found to have concealed one of his law practice escrow

6 DSBA Bar Journal | www.dsba.org Third, you have to President’s Corner (continued from page 5) keep detailed records of all the money that counsel to be aware of the 5:00 p.m. comes in and all the deadline will require them to submit their money that goes out, pleadings a day or two before the deadline by client. If you are so that they can be reviewed, edited, and practicing law in Dela- filed by the deadline. Many members of ware, you are going to the Bar believe the Order is particularly be audited by the Law- helpful for working parents of young yers’ Fund. And, if you children. Still others believe that although do not have detailed this is an admirable goal, it is not a goal financial records, the that can be extrinsically enforced. Lawyers’ Fund cannot Attorneys will debate whether the Or- audit you. der will require more extension requests And finally, you to meet deadlines. Many will consider should never, ever, ever make a false of law. On June 5, the Supreme Court if they can find a way to plan to meet statement on your annual Certificate of issued an opinion stating that Beauregard their deadlines earlier. Many attorneys, Compliance. If you did not pay your taxes, failed to supervise non-lawyer employees of course, will feel that any change in the do not say you did. Whatever problem who handled his firm’s books and records, litigation process is difficult to implement existed before you filed your Certificate knew of books and records violations and and is likely to make their practice more, gets multiplied ten times when you lie failed to correct them, and improperly cer- rather than less, stressful. about it on your CoC. tified compliance to the Court. The Court Regardless of whether you agree or But, enough preaching — the point suspended Beauregard for six months disagree with the Committee and the Su- I am really interested in making here is effective July 2, but permitted him to preme Court Order, the new filing dead- that every time I walked or drove past continue to provide criminal defense lines will go into effect on September 14, that Garrett sign, I wondered to myself representation in court-appointed cases 2018. I am sure there will be problems and why the Supreme Court would permit through the Office of Conflicts Counsel. complaints and calls for changes in the a suspended, then disbarred attorney to After the Court issued its opinion, rule. My recommendation is that everyone keep his sign up. It is a pox on all our ODC filed a Motion for Clarification ask- involved in the litigation process accept houses to continue to advertise the services ing for imposition of additional sanctions and embrace the idea of change, accept the of a lawyer who has been disbarred for including an order requiring Beauregard goal of trying to provide a better work-life stealing from his clients. Thankfully, the take his name off his law firm’s sign. balance for legal professionals, and give the Order and new rules their best efforts. William L. Garrett, Jr. sign came down By Order of the Court dated July 2, My hope is that this Order will achieve the at some point in early July (quite possibly 2018, the Supreme Court ruled in Case goal of creating a better work-life balance July 2). It appears the bolts holding it to No. 477,2017 that Mr. Beauregard “shall for legal professionals and will show again the building must have rusted out. cause the removal of any indicia of his why Delaware is the leading state in the membership in the firm, including the Now, I wonder if the attorneys at nation for legal matters. the ODC have been kicking around removal of his name from the firm’s sig- the Trolley Square area, too. I wonder if nage, stationary, forms, website, and other David J. Ferry, Jr. is the current they too have been bristling when they advertising media during the six-month President of the Delaware State period of suspension.” Bar Association. He also serves as were walking home from happy hour at Chair of the Court of Chancery Rules Kelley’s Logan House and may just have I wonder if it is just a coincidence that Subcommittee for Guardianship, Trusts happened to catch sight of that William both Garrett’s and Beauregard’s signs and Estates, and is a member of the L. Garrett, Jr. sign. Did they glimpse the came down around the same time, or if Jurisdiction Improvement Committee, hand of Father Time knocking that old the former had something to do with the the Professional Guidance Committee, latter. the Board of Directors of Legal Services sign off the building? Did they get the Corporation of Delaware, Inc., and idea that rather than by operation of time, Bar Journal Editor Ben Schwartz the Estates & Trusts Section and the suspended attorneys’ signs should instead is Managing Partner of Schwartz & Elder Law Section of the DSBA. He be taken down by operation of law? Schwartz, where he helps people has been a member of the Delaware Bar since 1982, and has served on the I ask these questions because at the recover after catastrophic injuries and accidents. He is a frequent Executive Committee of the Delaware same time that Garrett sign was falling speaker, writer, and blogger. For more State Bar Association since 2010. He is off the Trolley Square building, Dover information, go to facebook.com/ a founding partner of the firm of Ferry attorney Andre M. Beauregard was get- schwartzandschwartz or email ben. Joseph, P.A. He can be reached at [email protected]. ting suspended from the private practice [email protected].

DSBA Bar Journal | September 2018 7 OF NOTE Announcing the New DSBA Condolences to the family of Charles Podcast: Open Bar T. Carr III, Esquire, who died on July 29, 2018. Pod∙cast / päd kast / a digital audio file made available on the Internet for Condolences to Steven R. Director, downloading to a computer or mobile device, typically available as a series. Esquire, on the death of his mother, Judith Corbin Director, who died on The Delaware State Bar Association In the first August 15, 2018. is excited to launch Open Bar, the orga- episode, avail- If you have an item you would like to sub- nization’s official podcast showcasing able now, Judge mit for the Of Note section, please contact members and other happenings in the Jane Roth of the Rebecca Baird at [email protected]. Delaware legal community. Open Bar Third Circuit will feature news and discussions rele- shares her re- INBOX vant to the practice of law in Delaware, flections on the as well as interviews with practitioners celebration of 95 years of women in the Let us hear from you! We welcome on industry trends and practice tips. Delaware Bar. Check out the interview letters to the editor on issues presented in with Judge Roth, and in the months The Bar Journal. Email letters to rbaird@ Open Bar is available to stream to come, stay tuned for more terrific dsba.org. We reserve the right to edit let- on demand at www.dsba.org. Listen- content from your DSBA. Have an idea ters for clarity and space. The Bar Journal ers can also subscribe via iTunes or a for the podcast or interested in being does not print anonymous letters or more favorite podcast app. Subscribe today than one submission per month from the to get notified when new episodes are interviewed? Please contact Rebecca same contributor. available! Baird at [email protected].

8 DSBA Bar Journal | www.dsba.org SIDE BAR YOUR WORDS

UNSUCCESSFUL NOMINATIONS TO THE How does the practice TOP 5 U.S. SUPREME COURT of law need to change As the Senate prepares for hearings and a vote on President in the next five years? Trump’s latest nominee, Brett Kavanaugh, to the U.S. Supreme Court, here are a few of the would-be justices who didn’t make it:

1 Alexander Wolcott / 1811 Wolcott was nominated by James Madison, but rejected by the Senate 9-24 due to a lack of judicial experience and his strict enforcement of the Embargo Act of 1807 which was ex- tremely unpopular.

2 Ebenezer Hoar / 1869 “In the next five years we need to dramati- An appointment of Ulysses Grant, Hoar was not confirmed by cally expand the number of attorneys who the Senate (24-33) due to his opposition to the impeachment are willing to represent criminal defen- of Andrew Johnson. dants. The need is significant and many who now perform this function are nearing 3 John J. Parker / 1930 retirement.” Appointed by Herbert Hoover, his nomination was defeated by The Honorable a slim margin 39-41 due to opposition by labor groups and the William C. Carpenter, Jr. Superior Court of the State of Delaware NAACP for saying “Participation of the Negro in politics is a DSBA MEMBER source of evil and danger.”

4 Clement Haynsworth / 1969 Nominated by Richard Nixon, Haynsworth was rejected 45-55 due to unproven rumors that he ruled in cases in which he had a financial interest and feelings that he was in favor of segre- gation.

5 Robert Bork / 1987 Nominated by Ronald Reagan, Bork was perceived as too “Lawyers need to step away from their conservative and that he interpreted the Constitution too rigid- devices and have more personal interac- tion with other lawyers. We also need more ly. He was voted down 42 – 58. His replacement Anthony Ken- diversity in our profession, especially in nedy (whose position may go to Kavanaugh) was confirmed leadership positions. ” 97-0. Kelley M. Huff Murphy & Landon LAWYERS REACHING OUT DSBA MEMBER The DSBA realizes that practicing law is just one of the many facets of Delaware lawyers. The majority of lawyers are also heavily involved in our Illustrations by Mark S. Vavala community making it a better place. We are interested in highlighting the community involvement of each lawyer. However, we need your help. Please take a minute to send an email to [email protected] describing OUR NEXT QUESTION how you are involved in your community, whether it be volunteering for a non-profit, church involvement, How does pro bono work coaching, or mentoring. Delaware lawyers are improve the profession? making a HUGE difference in our State Email Rebecca Baird at [email protected] and we want to acknowledge and and your response could be in the next Bar Journal. salute your effort. Thanks for responding.

DSBA Bar Journal | September 2018 9 CALENDAR OF EVENTS Professional Guidance Committee September 2018

This committee provides peer counseling September 11 and 18; October 18 and 31; November 13; and support to lawyers overburdened by and December 5, 2018 personal or practice-related problems. It Litigation Academy offers help to lawyers who, during difficult 3.0 hours CLE credit (per CLE / all sessions include Enhanced Ethics credit) times, may need assistance in meeting law practice demands. The members of this Delaware State Bar Association, Wilmington, DE committee, individually or as a team, will Webcast to Morris James, LLP, Dover, DE help with the time and energy needed to Webcast to Tunnell & Raysor, Georgetown, DE keep a law practice operating smoothly and to protect clients. Call a member if you or Wednesday, September 12, 2018 someone you know needs assistance. Fundamentals of Law Practice Management and Technology 6.0 hours CLE credit in Enhanced Ethics Delaware State Bar Association, Wilmington, DE New Castle County Webcast to Morris James, LLP, Dover, DE Karen Jacobs, Esquire, Co-Chair* Webcast to Tunnell & Raysor, Georgetown, DE Victor F. Battaglia, Sr., Esquire Thursday, September 13, 2018 Dawn L. Becker, Esquire Movie Night at DSBA: Confirmation Mary C. Boudart, Esquire* CLE: Understanding Duties and Rights Regarding Sexual Harassment: Ben T. Castle, Esquire Discussion of Film and Issues Presented John P. Deckers, Esquire 1.0 hour CLE credit David J.J. Facciolo, Esquire Delaware State Bar Association, Wilmington, DE David J. Ferry, Jr., Esquire Tuesday, September 18, 2018 Robert D. Goldberg, Esquire DE-LAP Behind the Cool Image: Lunch & Learn Bayard Marin, Esquire 1.0 hour CLE credit in Enhanced Ethics James K. Maron, Esquire Delaware State Bar Association, Wilmington, DE Wayne A. Marvel, Esquire Webcast to Morris James, LLP, Dover, DE Webcast to Tunnell & Raysor, Georgetown, DE Michael F. McTaggart, Esquire Denise D. Nordheimer, Esquire Wednesday, September 26, 2018 Elizabeth Y. Olsen, Esquire* The Opioid Epidemic and the Law Kenneth M. Roseman, Esquire* with guest speaker Attorney General Matt Denn 3.3 hours CLE credit Thomas Doyle Runnels, Esquire Delaware State Bar Association, Wilmington, DE Janine M. Salomone, Esquire Webcast to Morris James, LLP, Dover, DE Yvonne Takvorian Saville, Esquire Webcast to Tunnell & Raysor, Georgetown, DE R. Judson Scaggs, Esquire* Friday, September 28, 2018 David A. White, Esquire Supreme Court Review 2018: A Discussion of Decisions Gregory Brian Williams, Esquire at the Highest State and Federal Judicial Levels Hon. William L. Witham, Jr. 3.0 hours CLE credit Delaware State Bar Association, Wilmington, DE Webcast to Morris James, LLP, Dover, DE Kent County Webcast to Tunnell & Raysor, Georgetown, DE Crystal L. Carey, Esquire Edward Curley, Esquire October 2018 Clay T. Jester, Esquire Wednesday, October 3, 2018 Mary E. Sherlock, Esquire E-Discovery & Technology 3.0 hours CLE credit Sussex County Delaware State Bar Association, Wilmington, DE Webcast to Morris James, LLP, Dover, DE Larry W. Fifer, Esquire Webcast to Tunnell & Raysor, Georgetown, DE Dennis L. Schrader, Esquire Wednesday, October 10, 2018 Carol P. Waldhauser, Executive Director Recent Developments and Legislative Changes in Commercial Law DSBA/DE-LAP Liaison 3.0 hours CLE credits including 0.5 hour Enhanced Ethics credit Delaware State Bar Association, Wilmington, DE *Certified Practice Monitor Webcast to Morris James, LLP, Dover, DE Webcast to Tunnell & Raysor, Georgetown, DE

10 DSBA Bar Journal | www.dsba.org SECTION & COMMITTEE MEETINGS EXECUTIVE COMMITTEE David J. Ferry, Jr. September 2018 President Monday, September 10, 2018 • 12:30 p.m. William P. Brady Senior Lawyers Committee Monthly Luncheon Meeting President-Elect Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Michael F. McTaggart Wednesday, September 19, 2018 • 8:30 a.m. Vice President-at-Large ADR Section Meeting Young Conway Stargatt & Taylor, Rodney Square, 1000 North King Street, Michael W. Arrington Wilmington, DE Vice President, New Castle County Thursday, September 20, 2018 • 3:30 p.m. Jeffrey Alexander Young Executive Committee Meeting and Dinner Vice President, Kent County Brantywn, 600 Rockland Road, Wilmington, DE Stephen A. Spence Vice President, Sussex County October 2018 Samuel D. Pratcher III Monday, October 1, 2018 • 12:30 p.m. Vice President, Solo & Small Firms, Senior Lawyers Committee Monthly Luncheon Meeting New Castle County Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Thursday, October 18, 2018 • 12:00 p.m. Kashif I. Chowdhry Executive Committee Meeting Vice President, Solo & Small Firms, Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Kent County Tasha M. Stevens Vice President, Solo & Small Firms, Sussex County

Please contact LaTonya Tucker at [email protected] or (302) 658-5279 to have your Charles J. Durante Section or Committee meetings listed each month in the Bar Journal. Secretary Reneta L. Green-Streett Assistant Secretary Are you tired of reading a book and being unable Kate Harmon to share your feelings about what you’ve read? Treasurer

Ian Connor Bifferato Assistant Treasurer J Michael Houghton oinfor the us Past President The Honorable Abigail M. LeGrow Judicial Member

BAR BOOK CLUB Parker M. Justi Sponsored by DE-LAP/DSBA Assistant to President

Thomas P. McGonigle The next Coffee House book discussion Legislative Liaison will be Still Alice by Lisa Genova. Adrian Sarah Broderick WHEN: Wednesday, September 26th, 2018 Crystal L. Carey TIME: 5:15 p.m. - 7:00 p.m. (or when you need to leave) Mary Frances Dugan WHERE: DSBA, 405 N. King Street, 2nd floor Kaan Ekiner Brian J. Ferry Specialty coffees and teas, as well as Richard A. Forsten decadent and healthy munchies will be offered. Ian R. McConnel Kathleen M. Miller Francis J. Murphy, Jr. This is a new way to network, laugh Denise Del Giorno Nordheimer and talk. For more information James Darlington Taylor, Jr. and book selections contact Carol Members-at-Large Waldhauser at (302) 777-0124 or Mark S. Vavala e-mail [email protected]. Executive Director

DSBA Bar Journal | September 2018 11 TIPS ON TECHNOLOGY

By Kevin F. Brady, Esquire

Is Tracking Emails Ethically Permissible?

to the sender may include: when the email was opened; who opened the email; the type of device used to open the email; how long the email was open; whether and how long any attachments, or individual pages of an attachment, were opened; when and how often the email or any attachments, or individual pages of an attachment, were reopened; whether and what attachments were downloaded; whether and when the email or any attach-

ments were forwarded; the email address of istockphoto.com/© SunnyGraph any subsequent recipient; and the general geographic location of the device that received the forwarded message or attachment. At the sender’s option, tracking software can be used with or without notice to the recipient. There do not appear to be any generally available usinesses use “intelligence-driven messaging” such as email track- or consistently reliable devices or programs ing software and marketing applications that permit the sender of capable of detecting or blocking email track- an email message to monitor the receipt and subsequent handling ing software. Op. at 3. of the message. Email tracking software uses certain features, such Bas “web beacons,” “web bugs,” or “spymail” to collect analytics such as: was Should there be a Duty on Receiving the email opened (and if so what was the IP address), on what type of device Lawyer to Prevent Tracking Email? was it opened, how long was it opened before it was closed or deleted, and The Opinion also examines whether tracking was a link clicked from inside the e-mail? software should be considered “a common func- A question arose recently about whether a lawyer may use surrepti- tional aspect of electronic documents like meta- tious tracking software in emails or other electronic communications with data,” which ABA Formal Opinion 06-442 (August other lawyers or clients without running afoul of the Rules of Professional 5, 2006), noted “[i]t is appropriate and reasonable Responsibility. A January 2018 Opinion issued by the Illinois State Bar to expect lawyers to understand metadata and Association (Opinion No. 18-01) (following similar opinions from New other ubiquitous aspects of common information York, Pennsylvania, and Alaska) answered the question with a resounding technology.” The Opinion concludes that under- “No.” The Illinois Opinion explained: standing tracking software is not the same because [T]racking software inserts an invisible image or code into an email “metadata is embedded information that enables message that is automatically activated when the email is opened. Once word-processing software to manage documents activated, the software reports to the sender, without the knowledge and facilitates collaborative drafting among col- of the recipient, detailed information regarding the recipient’s use of leagues. Unlike tracking software, which must be the message. Depending on the vendor, the information reported back purposely, and usually surreptitiously, inserted into

12 DSBA Bar Journal | www.dsba.org an email, metadata is a universal feature associated with relevant technology, and by an attorney without the informed of every word-processed document…. ABA Model Rule 1.6(c) requires lawyers consent of the recipient, at a minimum, But, it would be neither appropriate nor to make reasonable efforts to prevent constitutes “dishonesty” and “deceit” reasonable to charge all lawyers with an inadvertent or unauthorized access to cli- within the meaning of Illinois Rule 8.4(c) understanding of the latest version of ent information, the Opinion notes that and … “if used in email correspondence tracking software that might be chosen, “requiring the receiving lawyer to first dis- with another lawyer in the course of and then employed without notice, at the cover and then defeat every undisclosed representing a client, covertly invades option of opposing counsel.” Op. at 6. use of tracking software would be unfair, the client-lawyer relationship between Even assuming that such software was unworkable, and unreasonable.” Id. the receiving lawyer and that lawyer’s readily available, the Opinion concludes Id. “Read-Receipt” Function is client.” at 3-4. While Delaware has that it would be unreasonable to force not issued any specific guidance on this Permissible every lawyer to be familiar with those topic, Delaware lawyers should be aware various tracking programs and imple- Many email programs offer a “read- of the existence of this technology and ment them into their practice. “Given receipt” function that gives a recipient the the non-binding Opinion from Illinois the typical rapid changes in technology, option to notify the sender that an email (which, like Delaware, follows the few, if any, solo or small firm lawyers was received. Because this function pro- Model Rules of Professional Conduct) could reasonably do so. Aside from vides only a confirmation of receipt rather creating sustained employment for IT than information concerning the subse- as well as the opinions from three other consultants and software vendors, that quent handling of an email, the Opinion jurisdictions on this topic. approach would only precipitate an “arms distinguished the “read-receipt” option race” in which the developers and users Kevin F. Brady is Of Counsel at from the email tracking software noting Redgrave LLP in Washington D.C. of tracking software would always be a that, “it does not appear to raise the client and can be reached at kbrady@ step ahead.” Id. protection concerns….” Op. at 3. redgravellp.com. Moreover, while Comment 8 to the “Tips on Technology” is a service of ABA Model Rules (adopted by the Dela- Conclusion the E-Discovery and Technology Law ware Supreme Court) requires lawyers The Opinion is clear that the un- Section of the Delaware State Bar to keep abreast of the benefits and risks disclosed use of email tracking software Association.

Expert Witness Firm Operated By Professors of Corporate Law, Economics, Accounting & Finance

WWW.VERITASANALYTICSLLC.COM Contact J.W. Verret at 337-280-8066

DSBA Bar Journal | September 2018 13 COMMISSION ON LAW & TECHNOLOGY: LEADING PRACTICES

Public “Exposure” (Pun Intended) of Lawyers: Responding to Online Criticism

By Bruce E. Jameson, Esquire

echnology is a double edge. On the disclosure is necessary to carry out Delaware lawyers’ rights to the one hand, it allows law- the representation, or in seven other respond to online criticism yers and law firms to market circumstances delineated in Rule 1.6(b). are circumscribed themselves broadly through Rule 1.6(b)(5) is the subsection most While I am not aware of any Dela- Twebsites, social media, and other online likely to be relevant here. It provides ware authorities addressing a lawyers’ venues at very reasonable cost. Lawyers’ that disclosure may occur to establish ability to respond to online criticism, ability to disseminate, easily and cheaply, a claim or defense in a controversy other states have issued decisions and information about themselves also ben- between the lawyer and client, or to opinions on this topic. Several lawyers efits the public by allowing prospective respond to allegations in any proceeding were publicly reprimanded for posting clients to obtain information about law- concerning the lawyer’s representation responses that contained personal and yers at unprecedented levels, including of the client. confidential information about their through online ratings and comments. Note that subsection (b)(5) speaks clients in response to the client’s negative When such ratings or comments are only to claims, defenses and proceed- social media reviews. negative, lawyers may want to respond ings. There is no express exception to and defend themselves through the same For example, in In re Tsamis, an Il- or other online venues. Before respond- respond to criticism in the absence of linois lawyer was reprimanded after re- ing to online criticism arising from specific legal claims or proceedings. sponding to a negative online review by a specific client representations, lawyers Further, Comment [3] to Rule 1.6 ex- former client because the lawyer revealed should consider whether their proposed plains that the Rule “applies not only client-confidential information in her response is consistent with the Rules of to matters communicated in confidence response. Several jurisdictions, including Professional Conduct (the “Rules”). by the client but also to all information the District of Columbia, Los Angeles relating to any representation, whatever County, Minnesota, San Francisco, and Rule 1.6 restrictions are its source.” (emphasis added). As noted Texas have issued advisory ethics opin- comprehensive in Molly DiBianca’s May article in the ions that caution lawyers about the risks Rule 1.6(a) prohibits disclosure of Bar Journal, even publicly available in- of violating Rule 1.6 when responding to information relating to a representation formation may be confidential within online reviews. unless the client gives informed consent, the meaning of Rule 1.6. Rule 1.6 in the District of Colum- bia contains an exception that appears

broader than that provided for in Dela- Several lawyers were publicly reprimanded for “ ware Rule 1.6(b)(5). It permits a lawyer to posting responses that contained personal and reveal client confidences “… to the extent reasonably necessary to respond to specific confidential information about their clients in “ allegations by the client concerning the response to the client’s negative social-media lawyer’s representation of the client …” reviews. Notwithstanding that the exception appears broader than Delaware’s, Opinion

14 DSBA Bar Journal | www.dsba.org 370 notes that the exception does not 2014). New York’s Rule 16(b)(5) permits Conclusion apply to “general criticisms of an at- use of client information to “defend the It is unrealistic, and probably undesir- torney” by a client and that under the lawyer or the lawyer’s employees and as- able, for lawyers to avoid all online com- exception, disclosures must be no greater sociates against an accusation of wrongful mentary about their services. Given that than necessary to respond to the specific conduct.” Again, Delaware’s rule appears Delaware lawyers are severely restricted allegations. to be more restrictive than New York’s by in their ability to respond factually to tying disclosure to “claims” or “defenses” Further, the District of Columbia negative comments, lawyers should think in “proceedings” as opposed to general exception does not allow an attorney to carefully about the use of web sites, blogs “accusations.” disclose client confidences “in response to and other online sites that encourage specific or general allegations regarding Consistent with the restrictions on reviews and ratings. The marketing expo- an attorney’s conduct contained in an on- a lawyers’ ability to respond to online sure that comes from utilizing such sites line review from a third party.” Because criticisms, courts have limited the right must be weighed against the reality that Delaware’s exception is narrower than the of lawyers to compel identification of the lawyer’s ability to respond to specific District of Columbia exception, lawyers anonymous online critics. In a 2015 accusations contained in negative online should expect that they have little leeway defamation suit brought by a lawyer in a reviews will be limited. Washington court, that court denied a re- to use information obtained in the course quest to compel disclosure of the identity Bruce E. Jameson is a Director at of a client representation to respond to of the anonymous poster holding that the Prickett Jones & Elliott, P.A. He can be online criticisms by former clients. reached at [email protected]. third-party website (Avvo.com) was not New York issued an opinion that required to reveal that person’s identity directly addressed the “self-defense” ex- absent evidence of defamation. Thomson ception of New York Rule 1.6(b)(5) and v. Doe, 356 P.3d 727 (Wash. Ct. App. opined that lawyers cannot rely on that 2015). The Washington court relied on exception when responding to a former similar precedents from, among others, client’s online criticism of the lawyer. the Delaware Supreme Court in John Doe New York State Opinion 1032 (Oct. 30, No. 1 v. Cahill, 884 A.2d 451 (2005).

Insurance Services for Delaware Attorneys

The Delaware State Bar Insurance Services (DSBIS) offers comprehensive, highly customized insurance solutions and risk control services to protect lawyers from professional exposures and provide enhanced member services.

Powered by USI, DSBIS brings decades of risk management experience, a proprietary risk analysis process and a local team supported by the expertise of more than 4,400 USI professionals nationwide to reduce cost and lower risk for your firm.

Since 1940, our Wilmington office has provided the insurance solutions and services that lawyers count on to protect their families, their firms and their employees. At DSBIS, we’ve got you covered.

302-658-8000 | www.dsbis.com

I AR NSU B R E A T N

A C T s s s s D S B I S E S

Employee Benefits | Property & Casualty V

E L

S E

DSBA Bar Journal | September 2018 15 From 1923 to 2018: Women in the Delaware Bar By Kyle Evans Gay, Esquire, and Kathleen A. Murphy, Esquire Co-Chairs of the Women and the Law Section

his year marks 95 years of women in the Delaware Bar. In 1923, the same Even today, 95 years after the first year the Delaware State Bar Association was founded, and three years after women were admitted to the Delaware the 19th Amendment granted women the right to vote nationwide, Evangelyn Bar, the Bar is still celebrating female Barsky and Sybil Ursula Ward became the first women to be admitted into firsts, like Kathleen Furey McDonough, Tthe Delaware Bar. Delaware was the last state to admit women to the Bar, and the act Esquire, who in 2018 became the first required an amendment to Delaware’s Constitution, which now reads: “No citizen woman to lead a major Delaware law firm. of the State of Delaware shall be disqualified to hold and enjoy any office, or public (For more Delaware “firsts,” see page 22.) 1 trust, under the laws of this State, by reason of sex.” Yet, despite the many accomplish- It was not until 54 years later, in 1977, that The Honorable Aida Waserstein and ments, challenges remain, as women con- Mary C. “Mimi” Boudart founded the Women’s Rights Committee, which would tinue to face barriers to professional success later become the Women and the Law Section of the Delaware State Bar Association.2 in Delaware and beyond. For example, The founding members included The Honorable Peggy L. Ableman, The Honorable studies still reflect that fewer women than Helen S. Balick, Christine McDermott, Marsha Kramarck, Nan Mullen Perillo, The men are equity partners, and that the pay Honorable Mary Pat Thynge, Fritz Haas, and Julianne Hammond. Last year, the gap continues to disadvantage female Women and the Law Section celebrated its 40th anniversary as well as the 25th an- attorneys. The experience of women in niversary of its annual retreat. the profession is no longer exclusively a Over the past 41 years, the Women and the Law Section has endeavored to carry out women’s issue. As younger generations its purpose to: (1) address the effect of laws upon women in Delaware and the delivery join the ranks of Delaware attorneys, of legal services to them and (2) further the role of women in the Delaware legal com- more attention is being paid to issues like munity. Mere months after the Section was established in early 1977, its members began family leave. And greater societal shifts lobbying for amendments to Delaware’s alimony laws, and in 1979, members drafted an reflected in movements like #MeToo have amicus curiae brief to the Delaware Supreme Court in support of the constitutionality caused both men and women to take a of the General Assembly ratifying the then-proposed Equal Rights Amendment. second look at how women are treated Flash forward to today, and the Women and the Law Section is true to its roots. in the workplace. (For insight into how This past legislative session, the Section supported two key pieces of legislation af- one workplace, the Delaware General As- fecting the lives of women in Delaware. The Section supported HB399, the first leg sembly, addressed the issue, see page 17.) of a constitutional amendment that would ensure equal rights regardless of sex, and So, as we celebrate 95 years of women SB139, which will mandate insurance coverage for fertility care services in Delaware. in the Delaware Bar, it is important to The Section worked closely with elected officials, community organizers, and patient look back at how far we have come, and advocates, as well as the newly constituted Office of Women’s Advancement & Ad- to celebrate those who have blazed the vocacy (“OWAA”), to bring attention to these important issues. (You can read more trail for others to follow. It is also critical about the OWAA and the work it is doing to advocate for the advancement of women to look to the future, to consider how the in Delaware on page 20.) legal profession will continue to grow and Today the Women and the Law Section continues as well to work to further women change, and to be deliberate in planning in the profession by connecting women to mentors and by providing training and CLE a way forward that continues to further opportunities. One of the most successful events in recent years was the “Path to the the role of women in the Delaware legal Judiciary” programming, a joint effort with the Multicultural Judges and Lawyers community. Section that worked to demystify the judicial application process. Perhaps one of Notes: the most important functions of the Section is to identify women for leadership and 1. Del. Const. art. XV, § 10. service awards. In this way the Section works to ensure that women in the Bar are 2. The authors are grateful for the excellent history of the Women and the Law Section compiled by Ellen recognized for their contributions within the profession and work on behalf of the Meyer, Esq. and published in the Fall 1993 Edition of greater Delaware community. the Delaware Lawyer.

16 DSBA Bar Journal | www.dsba.org #MeToo © istockphoto.com/ retrorocket istockphoto.com/ ©

in the States and the Delaware General Assembly

By Rebecca L. Byrd, Esquire

first heard about what would become the #metoo movement a few weeks before the first allegations against Harvey Weinstein were published. I was at a lobbyist conference for one of our national clients, and several lobbyists were discussing a young lobbyist from their state who had recently spoken out about sexual harassment in their capitol. At the time, I Ithought this would be an isolated event (not the harassment, but the speaking out about it). But as the allegations about Harvey Weinstein started to emerge, similar allegations came from state houses all across the country. In the past year, most state legislatures have addressed the issue of sexual harassment both for themselves by passing new rules and requiring training, and for the general business community by passing legislation. While I am not personally aware of any incidents of sexual harassment in the Delaware legislature, the General Assembly did take the initiative to address the issue both amongst themselves and for the Delaware business community. I have spent most of my life, in one way or another, in Delaware’s Legislative Hall. I have also known legislators and lobbyists in many other states. As a work environment, state capitals are unique places. For example, during the month of June in Delaware’s Legislative Hall, the

DSBA Bar Journal | September 2018 17 busiest time, there are legislators, legislative staff, Governor’s ▪▪ A clear statement prohibiting retaliation for the filing staff, staff from other State departments, college and high school of any claim. interns, lobbyists, and many citizens who are there to advocate ▪▪ A statement providing for confidentiality, to the extent for themselves. The work hours are long, and the nights are possible, for all parties involved. late. The power dynamics among those various groups are also frequently shifting, whether it is between a lobbyist who is trying ▪▪ Specific examples of potential discipline, if warranted. to count votes on an issue, a staff member working for a legisla- ▪▪ The possibility of involving parties outside the legislature tor, or a newer legislator who needs help on a bill from a more to assist in the investigation, if it is warranted or requested. seasoned legislator. And, while every workplace has social events, ▪▪ An appeal procedure. in state capitals socializing is its own form of work. There are ▪▪ A statement informing the complainant that she or he lunches, cocktail parties, fundraisers, and sometimes dinners. can also file a complaint to the Equal Employment Op- The socializing is a good thing. It is one way things get done; portunity Commission and/or the state’s Human Rights but it does provide more opportunities for harassment. Finally, Commission.5 if you are victim of sexual harassment you cannot work from another location or home. Working in or with the General As- Many states also either instituted or updated sexual harass- sembly happens at the capital. To be successful you have to be ment training for both members and staff. there on a regular basis. And, while there are lots of different In Delaware, leadership and upper level staff in both the kinds of people there, it is still a small community. So, avoid- House and Senate began discussing how to deal with the issue ing your harasser or a predator is impossible. This unique work in the late Fall in preparation for the 2018 legislative session. environment makes combatting the issue that much more difficult.

And, while every workplace has social events, in Over the last nine months sexual harass- state capitals socializing is its own form of work. ment allegations have been made in over a “ dozen state capitals.1 In some states the reports There are lunches, cocktail parties, fundraisers, have been of one or more women detailing “ specific instances, like in Rhode Island where and sometimes dinners. The socializing is a good a female Representative revealed that a gov- thing. It is one way things get done; but it does ernment official said her legislation would go provide more opportunities for harassment. further if she was willing to perform “sexual favors.” 2 But, in many other state capitals including California, Illinois, Massachusetts, and Ohio, women Unlike other States which have a non-partisan organization have come forward detailing thriving cultures of sexual harass- which deals with human resources and other functions, in ment.3 In Maryland, the Women’s Caucus of the Maryland Delaware they are handled by the majority caucus of each General Assembly issued a report detailing personal stories of chamber. Therefore, each chamber adopted a workplace ha- women from the capital and demanding a sexual-harassment- rassment policy (which includes sexual harassment). The two free workplace.4 policies, found in the rules for each chamber, are virtually 6 In the wake of these complaints, as well as the general identical. Employee handbooks which govern the staff of each #metoo movement, many legislatures have changed the way chamber were also updated to reflect the policy and process they deal with sexual harassment. Many state legislatures had outlined in the adopted rules. Additionally, in January, both some sort of sexual harassment policy prior to the Fall of 2017. members and staff attended an in-person training which will However, in the wake of these new complaints almost all states be presented yearly.7 have created or enhanced policies. The National Conference of The revised rules are clear and address most of the con- State Legislators (NCSL), developed a list of policy elements siderations listed by NCSL. They address a situation where a that legislatures should consider: member of the Delaware House or Senate is the harasser. The ▪▪ A clear definition of “sexual harassment.” policy clearly contemplates the victim being an “employee” ▪▪ Examples of what behaviors are considered inappropriate which is defined broadly including per-diem staff and unpaid in the workplace. interns. The policy is less clear for a victim who is outside of that employee scope, for example a lobbyist or vendor. How- ▪▪ A policy that applies to legislators and staff, as well as ever, the language in the policy states that “… members of the nonemployees, such as lobbyists and outside vendors. Senate [or House] are expected to conduct themselves in a ▪▪ A diversity of contacts within the legislature to whom manner that is free of harassment…” 8 This language indicates sexual harassment can be reported, allowing the complainant that the complaint process could be open to victims other than to bypass reporting to his or her direct supervisor. employees of the House or Senate.

18 DSBA Bar Journal | www.dsba.org The main difference between the poli- “ cies adopted in Delaware and the NCSL The stigma attached to talking about, reporting, suggestions is that they do not address and stopping sexual harassment allows a harasser who is a lobbyist or outside vendor. This was a consideration during “harassers to thrive. the discussions of the rules, but it was not addressed in part because it is a complex Delaware Department of Labor (DOL).9 The Delaware General Assembly’s problem. Anyone can hold themselves Additionally, all employers will be re- reaction to the #metoo movement was out as a lobbyist whether they ever come quired to distribute a DOL fact sheet on a good one that produced results in the to Legislative Hall or not. Legally, lobby- sexual harassment and employee protec- form of new rules and laws for themselves ists in Delaware are regulated under the tions under this bill to employees. It is and the entire State; but until all of us, Public Integrity Commission (PIC). The important to note that this requirement is victims or not, are willing to do something PIC has a very specific mandate in the made of all employers, regardless of size. about this issue these changes are insuf- Code: they register all lobbyists whether It also requires employers with 50 or more ficient. When I heard about the lobbyist paid or not. A lobbyist has to report all employees to provide training on sexual who had exposed the environment in legislative or administrative issues they harassment prevention and additional her state capital, my first thought was, are working on and file quarterly reports training to supervisors. These trainings “Well, I hope she knew it could affect her on their spending for legislators or other have to be completed on an on-going basis career.” I am ashamed of that response. governmental officials. The PIC ensures every two years. First, because I am sure she knew it could. the reports are filed and accurate. HS 1 for HB 360 is an important bill Second, because it is that thinking that While all lobbyists register with the and required a lot of hard work by Repre- kept her, other victims, and everyone else PIC, there are several kinds of lobbyists. sentative Helene Keeley, the bill’s primary who surely knew what was going on from There are contract lobbyists, like myself, sponsor, and Natalie Woloshin, the House speaking out. The stigma attached to talk- who have a firm, with generally fewer attorney who drafted the bill. As one can ing about, reporting, and stopping sexual than five employees that contracts with imagine, a bill creating a new prohibited harassment allows harassers to thrive. other businesses to provide government employment practice (even one already Unfortunately, a change in culture cannot affairs services. There are in-house lob- illegal) and adding requirements for em- be legislated or court-ordered. Instead, we byists who work for one specific client, ployers was not popular among some in all have to step up when we see something generally a major corporation. Many the business community. But, those stake- inappropriate or illegal regardless of the smaller companies or non-profits may holders were able to work through issues consequence. have a person who works on govern- and to streamline the requirements for Notes: ment affairs as part of their job, usually employers, while still creating important 1. Adam K. Raymond, Sexual-Harassment Scandals Rock More Than a Dozen State Capitols, New York an executive director, V.P. of External protections for Delaware employees. The Magazine (Nov. 10, 2017 at 6:22pm),http://nymag. Affairs, or similar title. There are also bill in its final version easily passed both com/daily/intelligencer/2017/11/sexual-harassment- scandals-rock-state-capitals.html. many volunteers who lobby on behalf chambers and is expected to be signed by 2. Id. the Governor. The bill will take effect on 3. Id. of non-profits or personal causes. Some 4. Sexual Harassment Policy Recommendations, of these lobbyists are probably covered January 1, 2019. Women’s Caucus of the Md. Gen. Assemb. (2018). 5. Sexual Harassment Policies in State Legislatures, by a workplace policy regarding sexual One of the main goals of HS 1 for HB Nat’l Conf. of State Legs. http://www.ncsl.org/re- or workplace harassment and may have search/about-state-legislatures/sexual-harassment- 360 is to provide a common knowledge policies-in-state-legislatures.aspx. (last visited Aug. participated in training. But, knowledge base for all employees in Delaware. The 3, 2018). 6. S.R. 17, 149th Gen. Assemb., Reg. Sess (Del. of that policy or procedure would be very fact sheet will teach employees that sexual 2018), H.R. 21, 149th Gen. Assemb., Reg. Sess limited for a victim in Legislative Hall. (Del. 2018). harassment is both illegal and can be 7. Matt Bittle, Legislature Updating Sexual Harass- Sexual harassment might also violate a investigated by the DOL. While employment Policies, Del. State News, Dec. 4, 2017. contract lobbyist’s contract. However, 8. S.R 17, H.R. 21. ers may have their own process in place, 9. H.S. 1 for H.B. 360, 149th Gen. Assemb., Reg. Ses- those contracts are not public knowledge. if there is not one or it is lacking, then a sion (Del. 2018) (will be placed in Del. Laws upon signature by the Governor). Part of the solution may be found in victim can still turn to the DOL. If the House Substitute 1 for House Bill 360 harasser and the victim are not employed passed at the end of legislative session. by the same organization as in the case Rebecca L. Byrd is a member of This is the second part of most states’ of a vendor, contractor, or lobbyist, the The Byrd Group, a full-service state response to the #metoo movement, victim still has some power to complain government affairs consulting firm. strengthening the law on sexual harass- to her superiors or to the DOL. With this She can be found in Legislative Hall in ment. This bill makes sexual harassment new legislation everyone in that situation Dover on any session day and can be an “unlawful employment practice” should be educated on what the law is in reached any time at rebecca.byrd@ byrdgroupllc.com. which would be investigated by the Delaware.

DSBA Bar Journal | September 2018 19 A Year for the retrorocket istockphoto.com/ © Record Books for Delaware Women By Melanie Ross Levin

ust one year ago this past July, Governor John Carney eliminating gender-based bias and discriminatory policies signed House Bill 4 of the 149th General Assembly, and practices, making legislative proposals, advising execu- creating the State of Delaware’s new Department tive and legislative bodies on the effect of proposed legisla- of Human Resources (DHR). Within DHR, the tion on women, and researching and reporting on the status JDivision of Diversity & Inclusion was established based on of women in the state. While OWAA is housed in the state’s the recommendations from an independent organization that Department of Human Resources, it is uniquely charged with provided an analysis of state government employment prac- advocating for all women in Delaware, not just those who are tices. But, House Bill 4 did not stop there — it went a step state employees. beyond the recommendations and also established the Office The Office of Women’s Advancement & Advocacy is taking of Women’s Advancement & Advocacy (OWAA). steps to engage and educate the public about the office’s work The need for an office that focused solely on women’s and about issues affecting gender equality. Through social advancement was evident; in legislative sessions prior to media channels including Facebook, Instagram, and Twitter OWAA’s founding, almost a dozen bills addressing equality for (@DelawareWomen), OWAA has launched a cost-effective women were introduced. Bills ranged from ensuring fair wage way of interacting with the public. This will increase educa- practices, to requiring sexual assault training for Delaware’s tional opportunities and civic participation in its work and law enforcement community and a sexual assault kit audit, in the work of three public bodies: an advisory council, the to expanding breastfeeding accommodations. It was clear Commission for Women, and two new groups, the Delaware there was real need for more consistent policymaking around Women’s Workforce Council and the Delaware Women’s Hall women’s advancement in Delaware. By establishing the Office of Fame Committee. of Women’s Advancement & Advocacy, lawmakers and Gov- Before hiring for the office was complete, work had already ernor Carney took a critical step in ensuring that the fight for begun. A mantra of the Department of Human Resources’ equality for women had a permanent place in the First State. cabinet secretary, Saundra Ross Johnson, is “we are building The office has a very clear responsibility of promoting the plane as we are flying it,” and that could not be more the equality of women in all areas of society. This includes true. Eager to make its mark on public policy for women,

20 DSBA Bar Journal | www.dsba.org OWA A worked diligently to meet with legislators to provide research and testi- The need for an office mony about legislation during the 2018 that focused solely on session, and to introduce the public to OWAA and its mission. “women’s advancement

OWAA hosted “Redefining Women was evident; in in the Workplace” to honor Senator legislative sessions Margaret Rose Henry for her years of prior to OWAA’s If you want to service in the Delaware State Senate and “ provide attendees with an understanding founding, almost a experience the of the importance of paid parental leave and equal rights in Delaware. OWAA’s dozen bills addressing joy of helping movie screening of RBG, a documen- equality for women tary about the trail-blazing life of U.S. your peers, were introduced. Supreme Court Justice Ruth Bader DE-LAP wants Ginsburg, and the panel discussion following, highlighted how Delaware’s legal more employees, provide sexual ha- you! community, including the Department of rassment training to their employees Justice, is advocating for women. and supervisors (HS 1 for HB 360). In less than six months, OWAA The positive impact of these bills on worked with legislators and supported Delaware women is already being real- several advancements for Delaware ized. There are many achievements to women this legislative session, including: celebrate this year, but there is still plenty of work to do in Delaware to support ▪▪ Providing full-time state employ- Call (302) 777-0124 or women. The next legislative session is ees 12 weeks of paid parental leave e-mail [email protected] only six months away. OWAA is eager (for mothers and fathers) for births to partner with organizations such as the to complete our Volunteer and adoptions (HB 3) Delaware State Bar Association, espe- Application and Agreement ▪▪ Passing the first leg of a constitu- cially the Women and the Law Section, or to learn more. tional amendment to ensure equal to combine areas of expertise to further rights regardless of sex (HB 399) advance gender equality in Delaware. ▪▪ Mandating insurance coverage of To learn more about the Office of a 12-month supply of birth control to Women’s Advancement & Advocacy visit reduce unintended pregnancies, and de.gov/women. codifying current federal birth control coverage requirements (SB 151) Melanie Ross Levin is the Director, ▪▪ Protecting children from forced Office of Women’s Advancement & child marriage by becoming the Advocacy, State of Delaware, Depart- ment of Human Resources and can FIRST STATE to ban marriage un- be reached at Melanie.RossLevin@ der 18 years of age — no exceptions state.de.us. (HB 337) ▪▪ Ensuring that women in detention facilities have access to free tampons (SB 166) ▪▪ Clarifying that a person cannot consent to sexual relations while in law enforcement custody (SS 1 for SB 169) ▪▪ Mandating insurance coverage of fertility care services (SB 139) ▪▪ Requiring that Delaware employers (public and private), with 50 or

DSBA Bar Journal | September 2018 21 “The most heartening thing about seeing women rise in the power structure is not

DELAWARE FIRSTS FOR WOMEN 1984 Justice Carolyn Berger 1973 becomes the first woman Judge Jane Richards Roth to serve as vice-chancellor becomes the first woman to on the Delaware Court of 1925 Chancery. Sybil Ursula Ward is the be named partner at a major first female elected to Delaware law firm (Richards, Wilmington City Council. She Layton & Finger). is also the first female lawyer 1883 at Ward and Gray, now Potter 1979 1988 Anderson & Corroon. Judge Susan C. Del Pesco Mary Ann Shadd Cary, Judge Peggy L. Ableman becomes the first woman becomes the first female a Delaware native, to sit on the Superior Court Assistant U.S. Attorney for becomes the second of Delaware. African American the District of Delaware. woman in the United States to attend law school (Howard 1974 University). 1933 Judge Helen S. Balick Marguerite Hopkins Bodziak becomes the first becomes the first female woman to sit on the prosecutor in Delaware when U.S. Bankruptcy Court she was appointed Assistant for the District of City Solicitor in charge of Delaware. prosecution.

1985 Judge Jane Richards Roth becomes the first woman to sit on the District Court for 1971 the District of Delaware. Battle R. Robinson becomes the first female attorney in Sussex County. After she had her first child, 1977 the Delaware State Bar Paulette Sullivan Moore 1962 Association sent roses and becomes the first African Ruth Farrell becomes the a card stating, “To the first American woman admitted first woman appointed as lawyer in Sussex to ever to the Delaware Bar. Deputy Attorney General have a baby.” of Delaware. 1987 Judge Susan C. Del Pesco becomes the first woman 1976 president of the Delaware Judge Aida Waserstein State Bar Association. 1971 becomes the first Hispanic Judge Roxanna C. Arsht woman to be admitted becomes Delaware’s first female 1923 to the Delaware Bar. Evangelyn Barsky and judge when she was appointed Sybil Ursula Ward become by Governor Peterson to the first women to be admitted Delaware’s Family Court. into the Delaware Bar.

22 DSBA Bar Journal | www.dsba.org seeing them perform like powerful men, but like powerful women.” – Deborah Blum

2018 Kathleen Furey McDonough becomes the first woman in Delaware to lead a major law firm. She is the first 2004 woman to be elected Chair of Mary M. McDonough Potter Anderson’s executive becomes the first female committee in the law firm’s Commissioner of Delaware’s 192-year-old history. 2000 Court of Common Pleas. Judge Sue L. Robinson becomes the first woman in Delaware history to serve as a chief judge in the United States 2015 1991 Vice Chancellor Tamika Judge Jane District Court for Delaware. R. Montgomery-Reeves Richards Roth becomes the first becomes the first African American woman woman to be named appointed to the Delaware a judge on the Court of Chancery. United States Court of Appeals for the 2015 2001 President Judge Third Circuit. Ruth Ann Minner 1994 becomes the first Jan R. Jurden becomes the first Margaret Rose Henry female governor becomes the first 2006 female President of Delaware. Linda L. Ammons becomes African American the first female and first Judge of the woman to serve in the African American dean of Delaware Superior Delaware State Senate. Widener Law School. Court. 1994 Justice Carolyn Berger becomes the first woman to serve on the Delaware Supreme Court. 2017 Lisa Blunt Rochester becomes the first 2002 African American and Melanie George Smith 2003 first woman to represent becomes the first female Judge Chandlee Johnson Delaware in Congress. attorney in Delaware to be Kuhn becomes the first 1995 elected to the Delaware female Chief Judge of the Judge M. Jane Brady House of Representatives. becomes the first woman Family Court of Delaware. to serve as Delaware 2013 Attorney General. Judge Vivian L. Medinilla 1999 becomes the first Hispanic 1992 Rosemary Betts Beauregard woman to sit on the Delaware Judge Haile L. Alford becomes the first woman Superior Court. becomes the first appointed to the Delaware African American Court of Common Pleas. 2003 Judge Arlene M. Coppadge woman to be appointed becomes the first African American to the Delaware woman to serve on Delaware Superior Court. Family Court. 1999 Doneene Keemer Damon becomes the 1993 first African American woman to make Master Patricia W. Griffin partner at a major Delaware law firm. becomes the first woman to lead a statewide court in Delaware (Justice of the Peace Court).

DSBA Bar Journal | September 2018 23 Celebration of 95 Years of Women in the Delaware Bar with special guest The Honorable Ruth Bader Ginsburg

1. The Honorable Ruth Bader Ginsburg speaking 1 2 before a full house of mostly women judges and lawyers at the Hyatt Regency in DC on August 23, commemorating 95 years of women in the Delaware Bar. 2. One highlight of the event was a question and answer session between Justice Ginsburg, Vice Chancellor Tamika R. Montgomery-Reeves and President Judge Jan R. Jurden. 3. Delaware Firsts with Justice Ginsburg: Front Row L to R: The Honorable Aida Waserstein, first Hispanic female judge; The Honorable Arlene Minus Coppadge, first African American woman to serve on the Family Court; Justice Ginsburg, The Honorable Jan R. Jurden, first female President 3 4 Judge of the Superior Court; The Honorable Vivian L. Medinilla, first Hispanic female judge of the Superior Court; The Honorable Peggy L. Ableman, first female assistant U.S. Attorney for the District of Delaware. Back Row L to R: The Honorable Jane R. Roth, first female partner of a major law firm and the first woman to sit on the District Court of the District of Delaware; The Honorable Tamika R. Montgomery-Reeves, first African American female vice chancellor of the Court of Chancery; The Honorable Susan C. Del Pesco, first woman on the Superior Court and first female president of the DSBA; Kathleen Furey McDonough, Esquire, first managing partner of a major law firm; The Honorable Patricia W. Griffin, first female presiding judge of a court. 4. The Women and the Law Event Committee: L to R: The Honorable Natalie J. Haskins; Rebecca L. Byrd, Esquire; Kathleen A. Murphy, Esquire; 5 6 Justice Ginsburg; Kyle Evans Gay,Esquire; Kelley M. Huff, Esquire; and Kate Harmon, Esquire. 5. Justice Ginsburg poses among all the Delaware female judicial officers in attendance. Front Row L to R: The Honorable Peggy L. Ableman; The Honorable Andrea L. Rocanelli; The Honorable Aida Waserstein; The Honorable Arlene Minus Coppadge; Justice Ginsburg; The Honorable Natalie J. Haskins; The Honorable Mary M. Johnston; The Honorable Vivian L. Medinilla; and The Honorable Sherry R. Fallon. Back Row L to R: The Honorable Morgan T. Zurn; The Honorable Patricia W. Griffin; The Honorable Susan C. DelPesco; The Honorable Tamika R. Montgomery-Reeves; The Honorable Karen L. Valihura; The Honorable Jane R. Roth; The Honorable Jan R. Jurden; The Honorable Abigail M. LeGrow; The Honorable Samantha J. Lukoff; and The Honorable Barbara D. Crowell. 7 8 9 6. The Honorable Aida Waserstein and the Co-Chairs of the Women and the Law Section (Kathleen A. Murphy, Esquire, and Kyle Evans Gay, Esquire) present a certificate to Justice Ginsburg, making her a lifetime honorary member of the Women and the Law Section. 7. Mark S. Vavala, Esquire, DSBA Executive Director, presents a caricature to Justice Ginsburg. 8. The Honorable Susan C. Del Pesco and Justice Ginsburg during the presentation of gifts. 9. The Honorable Karen L. Valihura’s introductory remarks provided a background of Delaware history and the slow progress in advancing the rights of women in the first state.

24 DSBA Bar Journal | www.dsba.org Our Wilmington Ofﬁ ce Is Moving! Is there a major milestone in your future, or the future of your law firm?

An anniversary, a memorial or a celebration?

Consider a tax deductible gift to the Delaware Bar Foundation Endowment Fund, a gift that will continue To: Little Falls Centre One to give to those most in need. 2711 Centerville Road, Suite 401 Wilmington, DE 19808

Edward A. Tarlov, Esq. • Deborah J. Galonsky, Esq. Kevin A. Guerke, Esq. • Daniel F. McAllister, Esq. Roger L. Truemper, Esq. • Nicole M. Faries, Esq. Barbara Snapp Danberg, Esq. • Rebecca Y. Barrett, Esq.

like us on Melissa Flynn 302-327-1100 Executive Director Phone: (302) 658-0773 www.bmbde.com www.delawarebarfoundation.org

DSBA Bar Journal | September 2018 25 ETHICALLY SPEAKING

By Charles Slanina, Esquire

Is Discrimination Disciplinary?

fter two years of discus- classes of persons while engaged in the factors does not violate paragraph (d). sion, the American Bar As- practice of law either by rules or com- A trial judge’s finding that peremp- sociation amended Model ments to the rules. tory challenges were exercised on a Rule 8.4 on August 8, 2016 The attorneys general for both Loui- discriminatory basis does not alone Ato add subsection (g). That amendment siana and Texas issued opinions that the establish a violation of this rule. states that: rule is unconstitutional, a violation of Does that mean that discrimination it is professional misconduct for a the First Amendment. In Montana, the is not disciplinary? No. Case law already lawyer to engage in conduct that the state legislature passed a resolution stat- suggests that the existing rules can be suc- lawyer knows or reasonably should ing that the amendment violates both cessfully applied to discipline attorneys’ know is harassment or discrimina- the state and federal constitutions, and discriminatory behavior. Repeated “dis- tion on the basis of race, sex, religion, the rule would permit or require their paraging misconduct” got a Florida law- national origin, ethnicity, disability, Supreme Court to improperly regulate yer disbarred. Having previously received

age, sexual orientation, gender iden- free speech. While Illinois and Minnesota a sixty-day suspension, public reprimand

tity, marital status or socioeconomic also declined to adopt the amendment, and two years’ probation, attorney Robert status in conduct related to the prac- those states already have their own anti- Joseph Ratiner was found, among other tice of law. This paragraph does not discrimination rules. things,“ to have loudly called his female limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. Case law already suggests that the existing rules This paragraph does not preclude can be successfully applied to discipline attorneys’ legitimate advice or advocacy con- discriminatory behavior. sistent with these Rules. “ The response to the amendment has opposing counsel a “dominatrix” who been underwhelming. Vermont became In case you were wondering, Dela- the first state to adopt Rule 8.4(g) in ware has not adopted the amendment. “must enjoy dominating people.” The August 2017. Since then, Tennessee has However, Comment [3] to Delaware referee’s report found that Ratiner’s com- twice proposed adoption only to have it Professional Conduct Rule 8.4 already ments “whether knowingly or with callous denied both times. While no other state includes the language struck by the ABA indifference, did disparage, humiliate, has fully adopted the rule, in May 2018, Model amendment: and/or discriminate against another law- California adopted a version of the rule A lawyer who, in the course of yer” in violation of Florida Rules 3-4.3 which may be as strict. Several states representing a client, knowingly (actions unlawful or contrary to justice), are reported to be considering adoption, manifests by words or conduct, bias 4-4.4(a) (cannot embarrass third party), including Arizona, New Hampshire, or prejudice based upon race, sex, re- 4-8.4(a) (cannot violate ethics rules), Idaho, Pennsylvania, Illinois, Montana, ligion, national origin, disability, age, and 4-8.4(d) (conduct prejudicial to the New Jersey, and Utah. Other states have sexual orientation or socioeconomic administration of justice). Fla. Bar v. considered and rejected it, including status, violates paragraph (d) when Ratiner, 238 So.3d 117 (Fla. 2018). Louisiana, Nevada, and South Carolina, such actions are prejudicial to the Colorado attorney Robert Gilbert was while 36 jurisdictions prohibit lawyers administration of justice. Legitimate publicly censured for calling a female from discriminating against certain advocacy respecting the foregoing judge “an intrinsically degrading ‘highly

26 DSBA Bar Journal | www.dsba.org pejorative taboo’ term.” Colorado adopt- and 8.4(d) (conduct prejudicial to the Ending on a more positive note, in an ed its own version of Rule 8.4(g) which administration of justice) only with August 8, 2018 article in Texas Lawyer, states that it is professional misconduct regard to the offending correspondence John Council reported that Houston for a lawyer to engage in conduct, in the that was copied to the court. Matter of State District Judge Ravi Sandill issued a representation of a client, that exhibits Member of the Bar (name omitted), 2018 standing order granting expecting lawyers or is intended to appeal to or engender WL 1319010, reported at 183 A.3d 703 an automatic continuance of any trial in bias against a person on account of that (Del. 2018) (Table). his courtroom for up to 120 days before person’s race, gender, religion, national Statistics do not paint a very pretty or after the birth or adoption of a child. origin, disability, age, sexual orienta- picture with regard to attorney discrimi- Judge Sandill is reported to have come up tion, or socioeconomic status, whether nation either. The American Bar Associa- with the idea after reading about opposing that conduct is directed to other coun- tion’s Presidential Initiative on Achieving counsel objecting to a pregnant Florida lawyer’s motion for a continuance. The sel, court personnel, witnesses, parties, Long-Term Careers for Women in Law article went on to note that not all Texas judges, judicial officers, or any persons conducted a survey which found that judges have been as accommodating involved in the legal process…” Interest- while fifty percent of law students are to pregnant lawyers. In 2015, a Dallas ingly, Gilbert was found guilty of the women and forty-five percent of associ- County judge received a public reprimand Rule 8.4(a) violation but not guilty of vio- ates at law firms are female, less than after asking the bailiff to handcuff an lating Colorado’s Rules 4.4(a) (respect for twenty percent ever make partner. The eight-months pregnant prosecutor into rights of third parties), 3.5(d) (decorum of survey also found that forty-nine per- her chair to prevent her from leaving tribunal), and 8.4(d) (conduct prejudicial cent of the women surveyed reported the courtroom. And, an El Paso County to the administration of justice). People unwanted sexual contact during their judge received a public reprimand for is- v. Gilbert, Colo. No. 10PDJ067 (Colo. careers. Only six percent of men had the suing an arrest warrant for a lawyer who Jan. 14, 2011). same experience. More insidious possible failed to appear for jury duty while on An attorney in Puerto Rico received a discrimination was also reported. leave to give birth. public censure and $1,000 sanction after Civil cases for damages could also he remarked that the discomfort of his Non-discrimination (a.k.a. fairness be disciplinary matters if the ABA and respect for others) is not just the right opposing female counsel from the heat at amendment was widely adopted. Three a deposition might be due to her meno- thing — it is the rule(s) even if it is not former Chadbourne & Parke partners Model Rule 8.4(g). pause. The U.S. District Court for the settled a claim for more than $3 million “Ethically Speaking” is intended to stimulate District of Puerto Rico applied the ABA in damages after alleging that the firm Model Rule 4.4(a) (respect for rights of awareness of ethical issues. It is not intended as legal systematically paid female partners less third persons), finding that the discrimi- advice nor does it necessarily represent the opinion according to an article by Stephanie of the Delaware State Bar Association. natory behavior “tarnishes the image of Russell-Kraft in 34 Law. Man. Prof. “Ethically Speaking” is available online. Col- the entire legal profession and disgraces Conduct 164 (Mar. 21, 2018). umns from the past five years are available on www. our system of justice.” Cruz-Aponte dsba.org. v. Caribbean Petroleum Corp., 123 F. Morrison & Foerster was the subject Supp.3d 276 (D.P.R. 2015). of a class action by three associates alleg- Charles Slanina is a partner in the ing discriminatory retaliation for taking firm of Finger & Slanina, LLC. His prac- The Indiana Bar Association issued tice areas include disciplinary defense maternity leave as reported in another an advisory opinion which concluded and consultations on professional re- article by Stephanie Russell-Kraft in that a lawyer who occupies a leadership sponsibility issues. Additional informa- 34 Law. Man. Prof. Conduct 252 (May tion about the author is available at role in an organization that has a gen- 16, 2018). www.delawgroup.com. der, religious, or racial requirement for membership may be subject to discipline under Indiana’s version of Rule 8.4(g) which incorporates some but not all of CONNECT WITH DSBA the language of the ABA Model. Op. 1 of 2015. Finally, a Delaware criminal defense lawyer’s sexually provocative emails to female prosecutors and derogatory emails to male prosecutors, including facebook.com/DSBAorg @DelStateBar @DelStateBar Semitic references, was found to have violated Rules 4.4(a) (using means that have no substantial purpose other than #DSBA #WeAreRaisingTheBar to embarrass, delay or burden a person)

DSBA Bar Journal | September 2018 27 DE-LAP ZONE

A Message from the Delaware Lawyers Assistance Program

By Carol P. Waldhauser, Executive Director

Stay or Go?

Lawyer #1 is constantly miserable and stressed about his/her life no longer has meaning and you feel that it is a daily drain work and it is spilling into his/her life — personally and profes- on your emotional and physical wellbeing. sionally. A 2015 Gallup Poll found that 67 percent of Americans Lawyer #2 does not feel that he/she fits in the firm and repeat- come to work disengaged. And, research shows that when we edly procrastinates suiting up for the office. are checked out at work, we are more stressed, less productive, Lawyer #3 has experienced verbal abuse in the firm and is and less willing to offer an innovative idea. constantly humming the song: “Should I Stay or Should I go?” In his book Lawyer Wellness is not an Oxymoron, Andy Clark writes “If wanting or seriously considering a change in • • • careers is evidence that many lawyers are not fulfilled, then uch is written about lawyer wellbeing. All of this there is no dearth of evidence to be found. Here’s a sampler data makes the point that it is imperative for lawyers of statistics that point to a crisis of career fulfillment among to maintain their resilience and experience success. lawyers: Seven in ten lawyers responding to a California The Commission on Lawyer Assistance, along Lawyers magazine poll said they would change careers if Mwith other divisions within the ABA, have written a guide to the opportunity arose…. And, only half of lawyers are very implement a culture of wellness satisfied or satisfied with their within the law office called the work.”2 Wellbeing Toolkit for Lawyers Michael Carroll, a regular 1 and Legal Employers. This col- contributor to the magazine umn, however, is addressing a Mindful on work-life issues different issue and perhaps the states, “It’s understandable elephant in the room. Is being a how passion even for a career lawyer a good fit for you? that once felt exciting can Every morning most of us fade. The looming threat of wake up and head off to the downsizing that makes you office. We mentally imagine feel expendable; having too

the day, review our emails and much to do and not enough kmlmtz66 istockphoto.com/ © messages even before we get to time to do it; constant finan- the office, then start our com- cial pressure — the list goes mute. Day after day. Week after on.” 3 For lawyers, billable week. Year after year. We accept hours, deadlines, and perfec- these rituals as part of our life. tionism are known to drain One day, however, the the passion. schedule and the traffic is es- Lawyers might even ex- pecially bad. Your mind starts to race and ponder, “Why am perience verbal abuse, sexual harassment, or know of illegal I doing this?” Of course, the “why” is easy. For most of us we behavior or behavior in violation of the Rules of Professional need money to pay student loans, to pay bills, and to live. But, Conduct, in which case no amount of money is worth it. If you what happens when you are just not into it anymore? When are the victim of bullying, sexual harassment, or other egregious the fire in your belly has been extinguished, your professional behavior, you should address it. And, it is advisable to keep an

28 DSBA Bar Journal | www.dsba.org eye out for other positions — update your resume and seek career guidance. 14 SIGNS THAT YOUR JOB Transition and change is difficult for most of us. Once you realize it might be time to leave your job, you will first want to IS NO LONGER A GOOD FIT: think about baby action steps, as well as goals, in what I refer f to as a “blue-print for change.” In other words, and according fYou lack passion. to Ryan Kahn, a career coach cited in the Forbes article, “14 ffYou are miserable every morning and Signs It’s Time To Leave Your Job” by Jacqueline Smith: “Once dread going to work. you realize it might be time to leave your job, you’ll first want to set goals for yourself detailing what you are looking for in ffYour company (or firm/office) is sinking. terms of responsibilities, company (firm) culture, compensa- f tion and benefits.” 4 fYou really dislike the people you work with and/or your boss (some things do not Moreover, you will want to consider your options: Can you change). quit and then find a new job, or do you need to job search while you are still at your current job? Consider what a “better” or ffYou are consistently stressed, negative, “ideal” job would look like, and what factors are important and/or unhappy at work. in your next job. f Ask yourself whether you want to stay, or go, within your fYour work-related stress is affecting your current field or if you are interested in exploring a career physical health. change. Is being a lawyer a good fit for you? ffYou do not fit in with the corporate/office For more information on this, or other topics, call DE-LAP. culture and/or do not believe in it. This is your program and it is not only free; but it is confi- f dential. Call Carol Waldhauser at (302) 777-0124 or email fYour work performance is suffering. (You [email protected]. Also, visit our website at www.de-lap. no longer are productive at work even org and join us for our many upcoming events! though you are capable of performing the work). Notes: 1. Brafford, Anne M. Wellbeing Toolkit for Lawyers and Legal Employers. ABA. ffYou no longer have good work-life balance. August 2018. Accessed August 13, 2018. https://www.americanbar.org/content/ dam/aba/administrative/lawyer_assistance/ls_colap_well-being_toolkit_for_law- f yers_legal_employers.authcheckdam.pdf. (Also available on www.de-lap.org.). fYour skills are not being tapped. 2. Clark, Andy. Lawyer Wellness Is Not an Oxymoron: Why Tomorrows Top Lawyers Must Embrace Wellness Today and What You Need to Do to Be One of Them. ffYour pay or draw has not increased, or Fredericton, N.B.: Andy Clark, 2013. 3. Carroll, Michael. “When Work Is... Meh.” Mindful. February 2018. Accessed Au- maybe it has decreased. gust 13, 2018. https://www.mindful.org/when-work-is-meh/. 4. Smith, Jacquelyn. “14 Signs It’s Time To Leave Your Job.” Forbes. Sep- f tember 03, 2013. Accessed August 13, 2018. https://www.forbes.com/sites/ fYour ideas are not being heard. jacquelynsmith/2013/09/04/14-signs-its-time-to-leave-your-job/#6266e9c11da8. ffYou are bored and stagnating at your position/job. Carol P. Waldhauser is the Executive Director of the Dela- ware Lawyers Assistance Program and can be reached at Source: Smith, Jacquelyn. “14 Signs It’s Time To Leave Your Job.” Forbes. [email protected].

Make a motion for help. Asking for help can be difficult. Knowing help is available makes it a little easier. Don’t suffer silently. We do together what need not be done alone.

Free, confidential services for Judges and Lawyers start with DE-LAP. Call confidential private line: (302) 777-0124 or e-mail: [email protected].

DSBA Bar Journal | September 2018 29 Whether you are stressed out, fearful, or just need an infusion of new energy - Looking for legal help? DE-LAP is here for you! Coffee House Wednesday A legal aid agency Wellness Tuesday may be able to help! Move It Monday The fourth Wednes- The third Tuesday of every day of every month, a

BANKRUPTCY Move a Muscle Change a month, Behind the Cool Im- book discussion group Mood! Join us for a walk- age: Lawyering Skills Through with coffee, tea. and DISABILITY LAW ing partnership be- Wellness In the 21st Century. decadent munchies a tween DSBA/DE-LAP. Each session offers free lunch, partnership between DOMESTIC VIOLENCE Meet at noon each Mon- 1 ethics credit ($50.00), speak- the DSBA/DE-LAP. day at DSBA (weather er and discussion session. FAMILY LAW ISSUES permitting). Law Practice HOUSING Support Group Thursday Support Friday IMMIGRATION Each month, classes on DE-LAP presently offers the following lawyer ISSUES WITH AGING Procrastination Prevention; closed support groups: Thursday 12 step Group; support group reinstate- Lawyers Mental Health Support Group; Caregiv- PUBLIC BENEFITS ment support. ers Support Group — all groups closed public; confidential, free. For locations call or e-mail DELegalHelpLink.org [email protected] For more information contact Carol Waldhauser at (302)777-0124 or e-mail [email protected].

Providing Tax, Audit, Trust, Accounting, and Back Office Services for Attorneys and Law Firms throughout Delaware

Same great advice. Same great service. At a great new location.

Little Falls Centre One 2711 Centerville Road, Suite 100 Wilmington, DE 19808 Directors Peter Kennedy, Loretta Manning, Marie Holliday, Jennifer Pacilli and Eric Williams

Great advice. Great people. (302) 656-6632 /CoverRossiter @CoverRossiter www.CoverRossiter.com

30 DSBA Bar Journal | www.dsba.org The 2018 Combined Campaign Cup Results

By Kevin G. Collins, Esquire, and Charles B. Vincent, Esquire

hank you to all who con- The winners of the 2018 Combined tributed to the Sixth An- Campaign Cup competitions are: nual Combined Campaign DuPont Course Cup. Each year since its Team Parcels (Tim Kady, Tom Mendola, Tinception, net proceeds from the Cup Kevin Oakes, Joe Giannatassio) have increased. This trend continued Nemours Course in 2018, as proceeds from the Cup reached approximately $40,000 (after Team Greg Williams (Tyler Cragg, Chase expenses) to benefit the Combined Miller, Chris Lee) Campaign for Justice. More than 200 Tennis Tournament golfers, tennis players, attendees, John Balaguer Team Parcels and volunteers participated in the Hawaii Resort Raffle Winner golf & tennis tournaments, dinner, Richard Abrams and silent auction. We thank the many members of the Bar, volunteers, A big thank you to this year’s spon- and this year’s planning committee, sors, listed below. Pictures from the including co-chairs William Alleman, event are available on the Combined Kevin Collins, Shauna Hagan, Kelley Campaign for Justice website. If you Huff, Karla Levinson, Jaclyn Quinn, would like to help plan next year’s Jennifer Rutter, Charles Vincent, Ja- tournament, please contact Charlie son Warren, and Julie Yeager. We also Vincent at [email protected] recognize and thank Jerry Hyman, or Jason Stoehr at jstoehr@declasi. Esquire, for his support and donation org. Please save the date for next of two Hawaii resort weeks for our year’s Cup, which is scheduled for July

raffle and silent auction. 15, 2019 at DuPont County Club. Team Greg Williams

Ace Sponsor Beverage Sponsors Potter Anderson & Corroon LLP Just Legal Inc. Wilcox & Fetzer Gold Sponsors Morris Nichols, Arsht & Tunnell LLP Birdie Sponsors Gregory P. Williams, Esquire DLS Discovery Eckert Seamans Putting Contest Sponsor Veritext Legal Solutions The Law Office of Shauna T. Hagan McCann & Wall Eagle Sponsors McCarter & English, LLP Benesch Morris James LLP Dalton & Associates Murphy & Landon Diamond State Financial Group/Peter Reliable Companies Bradshaw, CPFA Spur Impact Association Parcels Tactix Pepper Hamilton LLP Yeager Law Firm Silver Sponsor Young Conaway Stargatt & Taylor, LLP Barnes & Thornburg LLP Bronze Sponsor Cart Sponsors Delaware Bar Foundation Harry Mentonis & Associates - Par Sponsor Northwestern Mutual Insurance Sergovic Carmean Weidman Hole-In-One Sponsors McCartney & Owens, P.A. The Levinson Firm Point Sponsor Ben Potts and John Balaguer Superior Court Judges Morris James LLP Photo Credit: Combined Campaign for Justice

DSBA Bar Journal | September 2018 31 BOOK REVIEW

Reviewed by Richard A. Forsten, Esquire

The Case for Consistency: The Case Against Impeaching Trump By Alan Dershowitz (Hot Books, 2018)

Reviewer’s Note: Ordinarily I would not title and focus because, as Dershowitz puts review a book as “political” as this. After all, it, he is a firm believer in the “shoe on the as President of the Bar Association I once wrote other foot” test. a column that we should all check our politics In his opening essay, Dershowitz observes: at the door and recognize that as an association “Had Hillary Clinton been elected we are made up of lawyers of all political stripes. president, Republican partisans would be But, there are exceptions to every rule, and, as doing and saying about President Clinton the following review demonstrates (I hope), Mr. what Democrat partisans are now saying Dershowitz’s new book is not so much about about Trump. … There would be ef- politics as it is about civility and consistency. forts to reopen the email investigation… • • • There would be demands to appoint a special counsel. There would be claims lan Dershowitz has been and is that foreign contributions to the Clinton many things. Harvard law pro- foundation and other entities were ‘emolu- fessor. Criminal defense attorney. ments.’… If President Hillary Clinton had Outspoken civil libertarian. A fired FBI director James Comey — as she Adevout Democrat who has voted for every might well have done — there would have Democrat candidate for president since he was old enough to been allegations of a cover-up. There would be calls for her vote. And yet, despite all his liberal credentials, Dershowitz has impeachment and prosecution. been under attack by those on the left who should ostensibly be “My partisan Democrat friends would be appalled at his friends. Friends now refuse to speak to him and attack him these efforts to undo the election of their candidate. They in print. would be railing against expanding the criminal law to target And what, you may ask, is Dershowitz’s crime? Simple. He has a political opponent. They would be dismissing the emolu- argued against the appointment of a special counsel to investigate ments argument as the stretch that it is. . . . Russian collusion, arguing instead that a bipartisan commission “In other words, Democratic partisans would be making should have been created along the lines of what was done for exactly the same arguments in relation to a President Clinton 9/11. Worse still, he has argued that, based on the evidence to that I am now making in relation to President Trump. date, there is no basis to impeach Donald Trump. In his short, “I would be joining them in making these arguments, timely book The Case Against Impeaching Trump, following an because they are the right arguments for any civil libertarian introductory chapter on impeachment, Dershowitz collects a to make regardless of which foot the shoe is on. But for par- number of columns he has written over the last year or so on the tisans on both sides, everything depends on which foot the subject, as well as transcripts from a number of media appearances. shoe is on. They remind me of my immigrant grandmother. Dershowitz’s book is titled The Case Against Impeaching When I would excitedly announce that the Brooklyn Dodg- Trump, but that is the title and focus of the book not because ers had won a ballgame, she would ask rhetorically, ‘Yeah, Dershowitz is a fan or supporter of Trump; rather, it is the but is it good or bad for the Jews?’

32 DSBA Bar Journal | www.dsba.org “For her, everything was measured by its influence on cause my wife and I are no longer invited to dinner parties, the Jews. Similarly, today, partisans measure everything by but my being shunned for expressing politically incorrect whether it’s good or bad for the Democrats or Republicans legal opinions is a dangerous sign of our increasingly intol- — for Clinton or Trump. erant times. It may be understandable, if still wrong, when “Now that it is President Trump who is being targeted, my immature college students demand ‘safe spaces’ to protect partisan Democratic friends are vociferously rejecting these them from views that offend them, but more is expected of neutral civil liberties arguments, because they do not serve mature adults who should be willing to engage with those their partisan political interests. Nor do they seem embar- who express principled positions with which they strongly rassed by their apparent hypocrisy and double standards. Hy- disagree. I can understand the fear that some people experi- pocrisy is a small price to pay for partisan political victories. ence from the policies and actions of the Trump administration — some of which I also disapprove of. But the answer to “For me, the primary test for whether an argument is fear should never be repression of unpopular ideas or denial principled or partisan is ‘the shoe on the other foot’ test. . . . of due process of law. “The time has come for all Americans who believe in “I hope this short book will provoke debate, not name- enduring principles of morality and justice to insist on con- calling. The issues I raise are serious and their discussion is sistency. . . . essential to democratic discourse. So please respond to my “Consistency of principles is neither foolish nor small- positions. Disagree with me; propose better arguments; defeat

minded. It is the essence of any moral system. Principled me, if you can, in the marketplace of ideas.

consistency may be difficult to achieve, especially in our “So let the debate continue. I am ready to respond to current hyper-partisan atmosphere. But if we are ever to end my critics in print, in the media, and in the courts of public the partisan bickering and name-calling that is coarsening opinion. But let’s keep the debate“ civil and on the merits.” dialogue and making reasoned compromise impossible, we must insist on a single standard of legality and morality that applies equally to Democrats and Republicans. We are far Not everyone will agree with all of from that in the current shouting match in which each side Dershowitz’s arguments, but that calls the other ‘criminal,’ ‘racist,’ or worse. is not the point. “We must declare an armistice in this divisive war of “ words and agree to do unto your political opponents what And so, Dershowitz closes his case against impeaching Trump. you would have your political opponents do unto you. That Whatever one may think of its arguments, however, Dershowitz’s golden rule of consistency should be as applicable to political book is important more for what it says at its beginning and end. debate as it is to personal morality.” The “shoe on the other foot” test is important and so is civility. From this opening statement explaining his “shoe on the other We in Delaware, and especially those of us at the Bar, are able to foot” theory, Dershowitz goes on to look at the various arguments practice these two principles because we are so small in number that have been made to impeach Trump, as well as the various that we have to be civil and consistent in order to prosper. But, twists and turns of the Mueller investigation. Not everyone will Delaware is not immune to the national trends, and with the agree with all of Dershowitz’s arguments, but that is not the point ever-increasing nationalization of our day-to-day lives and our as he explains in his final few paragraphs: politics, sometimes a reminder on the importance of civility and consistency is a helpful thing. “I welcome criticism of my views on their merits and demerits, but I am appalled at the personal ad hominem at- • • • tacks that have often substituted for critical analysis of my Reviewer’s End Note: As should be evident, my purpose in positions. The emails that I receive hourly from cranks and reviewing this book was not to argue the merits of impeachment extremists don’t surprise me. What does surprise me is that itself, but to focus on the need for civility and consistency in any so many serious academics and pundits prefer to attack my discourse on that subject, and in our politics in general. In this age motives than to criticize my analysis in a reasoned way. of the internet and 24/7 news, events are always moving faster than “What also upsets me is that old friends — in New York the printed word. This review is being written roughly a month in and Martha’s Vineyard — have written to me saying that I advance of seeing print, and so some facts may change before it does have ‘crossed a line’ and they can no longer speak to me. Oth- see print — but the message of civility and consistency is timeless, ers have threatened to walk out if I am given a platform from regardless of when this review sees print. which to express my constitutional views. These fair-weather civil libertarians — who defend only the civil liberties of those Richard “Shark” Forsten is a Partner with Saul Ewing LLP, whose ideology they favor — are intolerant of nonpartisan where he practices in the areas of commercial real estate, defenders of the civil liberties of their ideological opponents. land use, business transactions, and related litigation. He can I joke that I have lost seven pounds on the Trump diet be- be reached at [email protected].

DSBA Bar Journal | September 2018 33 Report: The 2018 Annual Meeting of the ABA House of Delegates By William D. Johnston, Esquire

he 2018 Annual Meeting of the American Bar Association’s Stevenson for his lifetime of excellence in House of Delegates took place August 6 and 7 in Chicago, Illinois the cause of justice. during the 2018 ABA Annual Meeting. The highlight of the ABA Annual Resolutions Adopted by the Meeting, from my perspective, was remarks from Milton, Delaware native House Bryan Stevenson as he accepted the highest award of the ABA, the ABA Medal. T The House adopted the following resolutions (with numbers as indicated), Martinez, ABA Executive Director Jack The Delaware Delegation and in so doing articulated as ABA policy Rives, and Legal Services Corporation As I have noted in previous reports, the the substance of each resolution: House of Delegates is the principal policy- Chairman John Levi. Also, during the ▪▪ Urging Congress to enact legis- making body of the ABA. For the most ABA Annual Meeting, in addition to lation to provide a permanent ex- recent meeting, the Delaware Delegation numerous CLE presentations, speakers emption for the Commonwealth of again included The Honorable William included Deputy Attorney General of the Puerto Rico from the requirements C. Carpenter, Jr., member of the ABA United States Rod Rosenstein, Chicago of the Jones Act, 46 U.S.C. §§55101 Board of Governors; Ben Strauss, DSBA Mayor Rahm Emanuel, Illinois Attor- et seq. (10B); Bar Delegate; Mary I. Akhimien, DSBA ney General Lisa Madigan, and Illinois Young Lawyer Bar Delegate; and yours Supreme Court Justice Anne M. Burke. ▪▪ Urging Congress to enact immi- truly, State Delegate. At the conclusion of Bryan Stevenson, Founder and Executive gration reform addressing children the meeting, Judge Carpenter completed Director of the Equal Justice Initiative separated from their parents at the three years of distinguished service on the and a Professor at New York University United States border (10C); Board of Governors, a seat that rotates School of Law, received the ABA Medal. ▪▪ Urging bar associations, law amongst Delaware and three other states. Eric H. Holder, Jr. was honored at the schools, and other stakeholders to Also at the conclusion of the meeting, Thurgood Marshall Award Dinner. Five develop and increase curricular of- The Honorable Calvin L. Scott, Jr. com- women lawyers were recognized with ferings through which law students pleted three years of distinguished service the Margaret Brent Women Lawyers provide pro bono representation of as Chair of the National Conference of of Achievement Award: Patricia Kruse incarcerated individuals and those Trial Judges of the ABA Judicial Divi- Gillette, Eileen M. Letts, The Honorable re-entering society (100A); Consuelo B. Marshall, Cynthia E. Nance, sion (a position previously held by Judge ▪▪ Urging Louisiana and Oregon to and Tina Tchen. Carpenter). Judge Carpenter will continue require unanimous juries to deter- to serve in the House of Delegates as an As I noted at the start of this Report, mine guilt in felony criminal cases elected At-Large Delegate. Please join me Bryan Stevenson’s remarks in accepting and reject the use of non-unanimous in congratulating and thanking Judge the ABA Medal were for me the highlight juries where currently allowed in Carpenter and Judge Scott for their service of the ABA Annual Meeting. I had heard felony cases (100B); him previously in Delaware during a visit and for making Delaware proud! ▪▪ Amending Model Rules 7.1 to his home state. In Chicago, what he had through 7.5 and their related Com- Remarks from ABA Officers and to say was again moving and memorable. ments of the ABA Model Rules of Others The author of New York Times bestseller Professional Conduct regarding lawyer During the session of the House, we Just Mercy recounted his career-long mis- advertising (101); heard from ABA officers and others. sion of helping the poor, the incarcerated, Speakers included Chair of the House and the condemned. He shared stories of ▪▪ Urging tax code provisions that al- Deborah Enix-Ross, ABA President winning historic court rulings and of call- low the alimony deduction for payors Hilarie Bass, ABA Treasurer Michelle ing his Death Row client to tell him that and treat alimony as taxable income Behnke, ABA Secretary Mary Smith, the final stay application had been denied to payees (102A); ABA President-Elect Bob Carlson, ABA by the United States Supreme Court. ▪▪ Supporting an interpretation of President-Elect Nominee Judy Perry Fittingly, the ABA has recognized Bryan Section 1557 of the Affordable Care

34 DSBA Bar Journal | www.dsba.org Act, 42 U.S.C. § 18116(a), that its training to staff and volunteers to ▪▪ Urging the federal government prohibition on sex discrimination by respond to unique needs of intimate to recognize that service by persons covered health programs or activities partner violence and sexual violence who otherwise meet the standards includes but is not limited to dis- victims during and after a disaster for accession or retention, as appli- crimination on the basis of sexual ori- (107A); cable, in the United States Armed entation and gender identity (104C); ▪▪ Amending the ABA Guidelines Forces should not be restricted, and ▪▪ Urging governments to enact for Approval of Paralegal Education transgender persons should not be discriminated against, based solely legislation providing employees Programs, dated August 2018 (110B); on gender identity (118); with job-guaranteed paid sick days ▪▪ Supporting in principle the Inter- ▪▪ Adopting the 2018 ABA Standards and job-guaranteed paid family and American Convention on Protecting for the Custody, Placement and Care; medical leave (104D); the Human Rights of Older Persons, Legal Representation; and Adjudica- ▪▪ Urging governments and inter- and encouraging the United Nations tion of Unaccompanied Alien Children national institutions to adopt and to draft a convention on the rights of in the United States, to replace the implement legislation and regulations older persons (112); to eliminate, prevent and provide 2004 Standards (119); ▪▪ Adopting the ABA Model Code of remedies for gender-based violence ▪▪ Amending the dues structure for Judicial Conduct for State Administra- in the workplace, including sexual the American Bar Association ef- tive Law Judges, dated August 2018, harassment, based on their actual or fective with FY2020 and each year and urging governments to enact and perceived sex (including pregnancy), thereafter (177); and adopt the Model Code (113); family responsibilities, sexual orienta- ▪▪ Urging legal employers not to re- tion, gender identity, gender expres- ▪▪ Adopting the black letter and com- quire mandatory arbitration of claims sion, the intersectionality between mentary to the ABA Ten Guidelines of sexual harassment (300). on Court Fines and Fees, dated Au- race and sex or status as a victim of For a detailed description of each gust 2018, and urging governmental domestic or sexual violence (104E); resolution (and of other resolutions con- agencies to promulgate law and policy ▪▪ Urging providers of domestic and sidered by the House or withdrawn from consistent with the Guidelines (114); international dispute resolution to consideration at the Annual Meeting), expand their rosters with minorities, ▪▪ Urging governments to: 1) enact please see www.americanbar.org. women, persons with disabilities, and laws and adopt policies that prohibit As I have noted previously, the prac- persons of differing sexual orienta- the use of out-of-school suspension tical effect of the House of Delegates tions and gender identities (“diverse and expulsion of pre-kindergarten adopting policy, as reflected in the above neutrals”), and to encourage the selec- through second grade students; 2) resolutions, is that elected officers of the tion of diverse neutrals (105); require ongoing training of teachers, Association, staff, and volunteer leaders ▪▪ Reaffirming the ABA’s commit- administrators, and other school staff are then authorized to advocate those ment to advance the rule of law and on alternatives to school exclusion; policy positions — whether with legisla- condemning the harassment, arbi- and, 3) provide sufficient funding and tors, courts, or others. This, importantly, trary arrest and detention, arbitrary resources to ensure the provision of al- can translate into grassroots advocacy in disbarment, denial of due process, ternatives to school exclusion (116B); Washington (such as the annual ABA Day other ill-treatment, and killings of ▪▪ Urging all courts and other ap- on Capitol Hill) and in state legislatures judges, lawyers, other members of the propriate government entities to to urge, for example, increased funding legal profession, and their extended interpret Titles II and III of the of legal services for the poor. families throughout the world for Americans with Disabilities Act to Membership serving in their designated capacities apply to technology, and goods and (106A); services delivered thereby, regardless Resolution 177, described above, was proposed by the Standing Committee ▪▪ Recognizing the important role of whether it exists solely in virtual on Membership (“SCOM”). SCOM led that non-lawyer human rights de- space or has a nexus to a physical a broad-based effort over the last two fenders, journalists and others play space (116C); years to study how best to deliver value in protecting justice and the rule of ▪▪ Urging Congress to approve ap- to ABA members. The thoughtful, result- law, and deploring attacks on those propriations to the Library of Con- ing recommendation, embraced by the professions, as well as on individuals, gress necessary to enable the United Board of Governors, included simplifying aimed at silencing or intimidating States Copyright Office to adequately dues-paying categories and reducing dues human rights voices (106B); staff, maintain, modernize, and en- effective 2020, and other benefits. ▪▪ Urging all emergency manage- hance its services, facilities, databases, ment agencies to provide proper studies, and digital projects (117); Annual Meeting (continued on page 36)

DSBA Bar Journal | September 2018 35 Annual Meeting (continued from page 35)

In particular, the new dues structure will have new admittees through fourth year attorneys paying $75, fifth through ninth year attorneys paying $150, tenth through fourteenth year attorneys paying $250, fifteenth through nineteenth year attorneys paying $350, and twenty-plus year attorneys paying $450. At the same ANNOUNCING time, government, solo, and small firm at- RICHARDS, LAYTON & FINGER IS PLEASED TO ANNOUNCE THAT torneys, as well as retirees, will pay $150. Paralegals will pay $75, affiliated professionals will pay $150, and international lawyer members will pay $150. I am hearing that I have been appointed by new ABA President Bob Carlson as a member of SCOM, which will be responsible for implementing the changes I have described. Needless to say, Robert L. Burns Travis S. Hunter Amanda R. Steele I welcome any and all suggestions on the Corporate Litigation Litigation Bankruptcy part of fellow ABA members in Delaware! As I have urged before, if you cur- HAVE BECOME DIRECTORS OF THE FIRM rently are an ABA member but are not and yet engaged in the work of sections, divisions, or forums (and their respective committees and subcommittees), please consider increased involvement. And, if you currently are not an ABA member, please consider joining as a complement to your DSBA membership. I and other members of the Delaware Delegation would be delighted to discuss with you all Drew G. Sloan of the opportunities that ABA member- Alternative Entities ship presents. • • • HAS BEEN NAMED AS COUNSEL It continues to be my privilege and pleasure to serve as State Delegate to the 920 N. KING STREET | WILMINGTON, DE 19801 | RLF.COM ABA House of Delegates. The House will next meet January 28 in Las Vegas, Nevada during the 2019 ABA Mid-year Meeting. If you have any questions or comments at any time, please let me Get Noticed! know at [email protected] or (302) 571-6679. Take advantage of the target audience of the DSBA Bar Journal and initiate new business through referrals Bill Johnston is a partner with Young and building your brand. Placing an ad is easy! Conaway Stargatt & Taylor, LLP. He is a Past President of the Delaware State Bar Association, serves in the ABA For more information, contact Rebecca Baird at (302) House of Delegates as State Delegate 658-5279 or [email protected]. from Delaware, and is Immediate Past Chair of the ABA Business Law Section.

36 DSBA Bar Journal | www.dsba.org Former Delaware Justice Forges Bridge LOOKING TO with Leading London GROW Chambers AND

ast month, 3 Hare Court BUILD (3HC) announced that a distinguished American YOUR was joining its ranks: for- Lmer Justice of the Delaware Supreme Court, Randy Holland became a CLIENT door tenant. To have international lawyers and former judges as door BASE? tenants is not unusual: Australian, Singaporean, South African, and In- dian nationals are common at many Join the online DSBA of the larger commercial sets. Not so Americans. Holland, therefore, is Lawyer Referral panel breaking fresh ground — something at www.dsba.org. he has a track record of doing. At the age of 39, Holland was appointed as the youngest ever Supreme Court Opting in is simple and Justice in Delaware, a position he free to all DSBA members. held for 31 years before retiring from the bench last year. A self-confessed anglophile and a huge admirer of the English Bar, he is an Honorary Bencher at Lincoln’s Inn — one of only three Americans. “The advantage of the split profes-

sion in England is the teamwork that Photo Credit: 3 Hare Court you see between barristers and solici- tors,” says Holland. “I have always been Bar, as well as special opportunities for impressed by it. What I like about it is the collaboration between a jurist of his broad litigation: how everyone tries their best to experience, and the skilled advocates and be helpful to the court, even though you’re experts here in Chambers.” an advocate in an adversarial system.” According to Joint Head of Chambers Joint Head of Chambers, Jeffrey Gold- Simon Davenport QC: “Having appeared en, adds: “I have known Randy Holland in Delaware myself, possibly the world’s for nearly two decades and have admired senior corporate and insolvency court, I him, his work and his tireless efforts to am delighted to welcome into our midst promote access to and public confidence this legendary judge and jurist. It is a sig- in the administration of justice for even nificant message of our intent and reach longer. We look forward to this new rela- at 3 Hare Court that we would attract tionship, which is certain to foster a wider someone of his calibre and standing to our appreciation internationally of the English Chambers.”

DSBA Bar Journal | September 2018 37 Sexual Orientation Discrimination Under Title VII: The Looming Supreme Court Battle

By Katherine M. Devanney, Esquire

n the fifteen years since the landmark The Zarda Decision In fact, Judge Lohier was the only 1 decision of Lawrence v. Texas, the After he was fired from his job as concurring judge not to join the asso- United States Supreme Court has a skydiving instructor, Donald Zarda ciational discrimination rationale, instead done much to improve the lives of (“Zarda”) brought state and federal em- resting his concurrence exclusively on the ILGBT Americans. First, it struck down ployment discrimination claims against plurality’s first holding: that there is “no the federal prohibition against gay mar- his employer, arguing that he was fired reasonable way to disentangle sex from 2 20 riage, and then invalidated the state 12 sexual orientation.” For Judge Lohier 3 because he was gay. The District Court bans, too. But, while marriage equality granted summary judgment against Zarda and the plurality, Title VII’s prohibition was climbing the appellate ladder, a new on his Title VII claim, but permitted the against discrimination “[b]ecause of… question arose: does Title VII of the state law claim to proceed to trial, where sex” necessarily includes sexual orientation Civil Rights Act (“Title VII”) prohibit discrimination because it is impossible to Zarda lost before a jury.13 Post-trial, Zarda sexual orientation discrimination? Until “fully define a person’s sexual orientation appealed the summary judgment ruling, last year, the answer was a resounding without identifying his or her sex.”21 and the Second Circuit “no.”4 But, in April 2017, the en banc convened en banc to con- Seventh Circuit reversed course in Hively

sider the case in light of Though Delawareans can be v. Comm. College of Indiana,5 holding for its previous rulings that

the first time that sexual orientation dis- proud that they live in a state Title VII does not pro- crimination is unlawful under Title VII.6 hibit sexual orientation that bans both sexual orientation“ Less than a year later, the Second Circuit 14 7 discrimination. “ decided Zarda v. Altitude Express, over- and gender identity employment turning its own precedent and agreeing The en banc court discrimination, leaving such a that discrimination on the basis of sexual overturned Simonton orientation violates Title VII. and Dawson, noting the critically important issue to the Judge Katzmann, writing for the five- myriad ways the legal states alone is not sufficient. judge plurality,8 held that sexual orienta- landscape had changed tion discrimination is a “subset” of sex since Simonton was de- 15 discrimination — and therefore prohib- cided in 2000. Among these changes No judge wrote to concur with the ited under Title VII — for three reasons: was the 2008 decision of Holcomb v. plurality’s “gender stereotyping” ratio- 16 (1) sexual orientation is a “function of Iona College, where the Second Circuit nale, which applied the Supreme Court’s 22 sex”; 9 (2) sexual orientation discrimi- held that when an employer takes action seminal holding in Price Waterhouse nation relies on impermissible gender against an employee because of his or to sexual orientation discrimination. stereotyping;10 and (3) sexual orientation her interracial association, the employee For the plurality, sexual orientation dis- discrimination is a form of associational “suffers discrimination because of the crimination is rooted in an employer’s discrimination.11 The remaining judges employee’s own race.”17 Noting the nu- stereotypical beliefs about the gender to filed an assortment of concurring, partial- merous cases that have expanded this which an employee should be attracted.23 ly concurring, and dissenting opinions. “associational discrimination” principle Therefore, just as an employer may not But when the dust settled, it was the final to all of Title VII’s protected classes, the take adverse employment actions “based rationale–associational discrimination — plurality analogized a gay relationship on the belief that a female…should walk, that garnered the most support from the to the interracial marriage in Holcomb.18 talk, and dress femininely,”24 they may Court. With two courts of appeal break- Three more judges joined in this holding, not so act on the basis of her attraction ing from the rest, the issue is now ripe for with Judge Jacobs colorfully describing — or relationship with — a member of review by the Supreme Court. the rest of the opinion as “woke dicta.”19 the same sex.25

38 DSBA Bar Journal | www.dsba.org Zarda’s Future at the Supreme Court Should Zarda reach the Supreme Court, Judge Lynch’s dissent will almost certainly take center stage. Drawing heavily from Judge Sykes’ dissenting opinion in Hively, the dissent focused on Title VII’s “central public meaning” at the time it was enacted.26 For Judge Lynch, it was “clear that the prohibition of discrimination ‘based on sex’ was intended to secure the rights of women to equal protection in employment.”27 While acknowledging that sexual harassment and hostile work environment claims have become common under Title VII, the dissent would have refused to “extend[] Title VII by judicial construction to protect an entirely different category of people.”28 Nevertheless, predicting how a hypo- thetical Supreme Court may rule is putting the cart before the horse. Indeed, just last December, the Supreme Court denied certiorari in a case where the Eleventh Circuit reached the opposite conclusion.29 And, while much has changed since then, it is entirely possible, perhaps even likely, that the high court will wait for another • Review and Analysis of Documents circuit — or two or three — before an- swering the question once and for all. • Damage CalculaƟon Though Delawareans can be proud that they live in a state that bans both • Detailed Expert Report PreparaƟon sexual orientation and gender identity employment discrimination,30 leaving such • DeposiƟon and Court TesƟmony a critically important issue to the states alone is not sufficient. A federal prohibi- • RebuƩal Reports tion against sexual orientation employ- • Forensic AccounƟng ment discrimination is the only way to ensure that all Americans, in Delaware and elsewhere, maintain their fundamental Call Bill Santora at 302-737-6200 right to earn a livelihood. The only question is whether such protections will come 5. 853 F.3d 339 (7th Cir. 2017). 22. 490 U.S. 228 (1989). from the Supreme Court or Congress. 6. Id. at 341. 23. Zarda, 883 F.3d at 123. 7. 883 F.3d 100 (2d Cir. 2018). 24. Id. at 120 (citing Price Waterhouse, 490 U.S. at 250- Notes: 8. Judges Hall, Chin, Carney, and Droney joined the 252). 1. 539 U.S. 558 (2003). plurality opinion. 25. Id. at 120-121. 2. United States v. Windsor, 570 U.S. 744 (2013). 9. Zarda, 883 F.3d at 113-19. 26. Id. at 144 (Lynch, J. dissenting). 3. Obergefell v. Hodges, 135 S.Ct. 2584 (2015); see 10. Id. at 119-123. 27. Id. also Hollingsworth v. Perry, 570 U.S. 693 (2013). 11. Id. at 124-28. 28. Id. at 145. 4. See, e.g., Higgins v. New Balance Athletic Shoes, 12. Id. at 109. 29. Evans v. Ga. Regional Hosp., 138 S.Ct. 557 (2017) Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. 13. Id. 30. 19 Del. C. § 711. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); 14. See Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 2000); Dawson v. Bumble, 398 F.3d 211, 217-23 (2d Katherine Devanney is an associate (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 Cir. 2005). at Cole Schotz P.C. and a member of F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 15. Zarda, 883 F.3d at 107-108. 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T 16. 521 F. 3d, 130 (2d Cir. 2008). the National LGBT Bar Association and Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Wil- 17. Id. at 139. the LGBT Section of the Delaware State liamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 18. Zarda, 883 F.3d at 124-125. 70 (8th Cir. 1989); Medina v. Income Support Div., 19. Zarda, 883 F.3d at 134 (Jacobs, J. concurring). Bar Association. She can be reached at 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP 20. Id. at 136. [email protected]. Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997). 21. Id. at 113.

DSBA Bar Journal | September 2018 39 BULLETIN BOARD

POSITIONS AVAILABLE GAWTHROP GREENWOOD, PC LARGE WILMINGTON LAW a mid-size regional law firm with offices FIRM is seeking a senior associate or in West Chester, PA and Wilmington, partner with 6+ years’ experience for its MCCOLLOM D’EMILIO SMITH DE is seeking a Litigation Attorney business planning and tax section. The UEBLER LLC (www.mdsulaw. (Fiduciary Trust and Estates Litigation ideal candidate will have substantial com) is seeking an attorney to join experience is preferred but not required) experience with the Delaware national its fiduciary and corporate litiga- with at least 3-years’ experience for trust practice as well as sophisticated tion practice. Candidates should our Delaware office location. Portable tax and estate planning. The attorney be licensed to practice in Delaware; business a plus. Must be admitted to would assist with the growth of the have at least 2 years of litigation ex- the Delaware Bar. Competitive com- firm’s Delaware national trust practice perience, preferably in the Delaware pensation and benefits package. Email and the representation of existing and Court of Chancery; and have strong resume c/o Lisa Powell, lpowell@ new estate planning clients. The firm writing and communication skills. gawthrop.com. offers competitive pay and benefits Please send resumes to jkeating@ commensurate with experience. Inter- mdsulaw.com. INSURANCE DEFENSE FIRM ested candidates should apply via email located in Center City Philadelphia is to Stacey Funk at [email protected]. ASSOCIATE ATTORNEY: The Law seeking an associate to work directly Offices of Doroshow, Pasquale, Krawitz with our Senior Partner in the general & Bhaya seeks an associate to handle liability department. One to two years plaintiff personal injury, workers’ com- of experience required. Applicants must POSITIONS WANTED pensation, and bankruptcy law out of have Pennsylvania and New Jersey license. RETIRED ATTORNEY with over 40 our downstate Delaware offices. An Delaware license preferred but not a re- years Family Court experience available to excellent opportunity to build a practice quirement. Firm offers competitive salary partner with working lawyer. Call (302) while living at the beach. Email resume and benefit package. Send resume to the 690-4653. to: [email protected] or call at office manager via email at EGagliano@ (302) 934-9400. naulty.com. ASSOCIATE ATTORNEY: Pinck- CONNOLLY GALLAGHER LLP is OFFICE SPACE ney, Weidinger, Urban & Joyce LLC seeking to hire a corporate and commer- is seeking a corporate and commercial cial litigation associate with at least 1-3 SHARE 1500 SF OF OFFICE SPACE litigation associate with 2-5 years of years of experience. The attorney should (mostly furnished); copiers, phone system; experience. Must be admitted to the be licensed in Delaware, have substan- personnel; decades of civil litigation re- Delaware bar. Excellent research, writ- tive writing experience (e.g., briefs, search, motions, briefs & forms. Contact ing and oral communication skills are memoranda, complaints/answers), and [email protected]. required. Please email a cover letter, possess a willingness and ability to play resume and writing sample to Julia a substantial role in litigations. Inter- Dean at [email protected]. ested applicants should submit their resume to Marie Petrucci (mpetrucci@ connollygallagher.com). FULL-TIME ATTORNEY wanted for Delaware Real Estate Title Com- pany in the Shore/Ocean side area BULLETIN BOARD ADVERTISING INFORMATION of Sussex County. We will consider BULLETIN BOARD ADVERTISING INFORMATION a newly admitted attorney, or some- Bulletin board rates are $50 for the first 25 words, $1 each additional one looking to re-enter the full time word. Additional features may be added to any Bulletin Board ad for work force. This is a career opportunity to affiliate with a multi-state $10 per feature. The deadline to place a Bulletin Board ad is the 15th organization committed to high of the month prior to the month of publication. quality client service. Experience in Real Estate Law is helpful, how- All Bulletin Board ads must be received electronically and prepayment ever, we will provide professional is required. Submit the text of the Bulletin Board ad and payment to training and support. Respond to: [email protected]. For more information, contact Rebecca Baird at [email protected]. (302) 658-5279.

40 DSBA Bar Journal | www.dsba.org DISCIPLINARY ACTIONS Open Call PRIVATE PROBATION sanction of a one-year private probation for Articles! ODC File No. 113609-B with conditions to which the attorney Effective Date: July 18, 2018 consented. In determining a one-year Do you have private probation with the condition of An attorney received a sanction of a reimbursement of costs to the Office a great idea? one-year private probation with condi- of Disciplinary Counsel (“ODC”) was tions for violation of Rules 1.3 (dili- For information on submitting appropriate, the PRC considered the gence), 5.3 (supervision of non-lawyer articles for publication in the Bar lawyer’s lack of prior disciplinary history, staff) and 8.4(d) (conduct prejudicial Journal, please contact Rebecca lack of dishonest or selfish motive and to the administration of justice) of the Baird at [email protected]. cooperation with ODC. Delaware Lawyers’ Rules of Professional Conduct. The attorney was the managing partner of a firm and responsible for office DELAWARE’S management, including the filing and service of complaints. The attorney SOLACE delegated responsibility for the filing and service of complaints to a paralegal COMMITTEE acting under the attorney’s direction. Immediate The attorney failed to adequately super- Emergency Assistance vise the paralegal resulting in dismissal of a complaint for failing to serve the For more information defendant with the time prescribed by a contact Carol Waldhauser at (302) 777-0124 or e-mail Court Rule. A panel of the Preliminary [email protected]. Review Committee (“PRC”) offered the National Pro Bono Celebration October 21 - 27, 2018

FRIDAY Free Wills Training by DVLS OCT19 Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE WEDNESDAY 2018 Christopher W. White Distinguished Access to Justice Awards Breakfast OCT24 Chase Center on the Riverfront, Wilmington, DE THURSDAY Access to Justice Summit OCT25 Delaware State Bar Association, 405 N. King St., Suite 100, Wilmington, DE

SATURDAY Pro Bono Celebration 5K Run/Walk 27 Rockford Park, Wilmington, DE OCT SUNDAY DSBA’s Wills For Seniors OCT28 Elsmere Fire Hall, 1107 Kirkwood Highway, Elsmere, DE

DSBA Bar Journal | September 2018 41 THE judicialP By Susan E. Poppiti, Esquire alate September: A Summer and Autumn Sandwich

ow that school is back in session, I anticipate seeing a sandwich — the ultimate mobile meal — at every turn. All of N the clues to this crossword describe sandwiches. Some require you to think outside the lunch box. The first reader to email me with the correct answers will receive a bottle of wine to pair with their favorite sandwich from this puzzle. I’ll give you a hint — one clue pays homage to the women of the Delaware Bench and Bar.

1 2 ACROSS

3 5. Charlie is getting warm!

4 6. Modest mollusk 5 7. A youngster’s favorite 6 8. Pickle inside, not alongside 7 9. Philly sub 8 11. Mister, may I have an egg? 9 10

11 12 13. Presented on a pita 13 16. Maine mainstay 14

15 16 17. Cheddar, Provolone, Swiss? 17 18. “Take Me Out to the Ball Game” 18 19 19. One of the best things about leftover sauce (or gravy) 20 20. Best with beefsteak

21 21. Cute and crustless

DOWN 1. Sicilians love their olives 7. Classic of Kosher delis Susan E. Poppiti is a math- 2. Served in quarters 10. Mister Softee specialty ematics teacher and director of the legal shadowing pro- 3. Fast food fave 12. Packed with protein gram at Padua Academy High School. She is also the “head 4. Russian or Thousand Island? 14. Pat’s or Geno’s chef” of the school’s culinary club “The Hungry Pandas.” Susan can be reached 6. Stressed swine 15. NYC sub at [email protected].

42 DSBA Bar Journal | www.dsba.org

We are

Inside and Out.

Comprehensive Whether being named a Go-To Law Firm for the country’s top 500 companies,or Business & Personal serving as trusted personal counsel for many of Delaware’s leading individuals, Representation no one knows the legal landscape in Delaware the way we do.

Corporate Litigation Business Transactions We look forward to serving you in one of our six offices. Bankruptcy & Creditors’ Rights Intellectual Property Litigation Learn more: www.morrisjames.com Employment Law Call us: 302.888.6800 Education Law Professional Liability Litigation Government Relations Healthcare Industry