JANUARY 2021 VOLUME 44 • NUMBER 6

Congratulations TO DELAWARE STATE BAR ASSOCIATION MEMBER PRESIDENT-ELECT JOE BIDEN GET INVOLVED IN DSBA LEADERSHIP!

The Delaware State Bar Association is looking The Nominating Committee for a number of talented members to join the consists of:

2021-2022 Executive Committee and lead the David J. Ferry, Jr., Chair DSBA to continued success. William P. Brady, Vice-Chair

New Castle County Timothy S. Ferry (2021) The following positions on the Executive Committee of the Peter S. Kirsh (2021) Association must be filled for the year 2021-2022: N. Christopher Griffiths (2021) Vice President-at-Large; Vice President, New Castle County; Donald L. Gouge, Jr. (2021) Secretary; Assistant Secretary; Treasurer; Assistant Treasurer; Kathleen M. Vavala (2021) Shakuntla L. Bhaya (2021) Six Members-at-Large Patricia L. Enerio (2021) Note: The Vice President, Kent County and the Vice President, Sussex County will P. Clarkson Collins, Jr. (2022) be those persons selected by, respectively, the Kent County Bar Association and Kyle Evans Gay (2022) the Sussex County Bar Association. Jeffrey S. Goddess (2022) Loren Holland (2022) The following position must be filled for the term as noted: Shannon D. Humiston (2022) Julia B. Klein (2022) One (1) DSBA Representative to the Delaware Bar Foundation Board: Antoinette D. Hubbard (2022) Four-year term Aaron R. Goldstein (2023) Achille C. Scache (2023) One (1) DSBA Young Lawyer Delegate to the ABA House of Kelley M. Huff (2023) Delegates: Two-year term Wilson A. Gualpa (2023) Christofer C. Johnson (2023) Brenda James-Roberts (2023) The Nominating Committee wants to consider all interested candidates. If you are interested in serving on the Executive Committee or would like to Kent County recommend a candidate, please send your name or the candidate’s name Alexander W. Funk (2021) along with a CV and at least one letter of nomination to Mark S. Vavala, Laura A. Yiengst (2022) Executive Director, by email at: [email protected] or by mail at: Delaware Melissa L. Dill (2023) State Bar Association, 405 North King Street, Suite 100, Wilmington, DE 19801 by February 12, 2021. Sussex County Christophe Clark Emmert (2021) Chase T. Brockstedt (2022) WE NEED YOUR HELP TO FIND Theresa McQuaid Hayes (2023) STRONG LEADERS FOR THE FUTURE!

Delaware State Bar Association 405 N. King Street, Suite 100 Wilmington, Delaware 19801 (302) 658-5279 DSBA BAR JOURNAL JANUARY 2021 | VOLUME 44 • NUMBER 6

PRESIDENT Michael F. McTaggart

EXECUTIVE DIRECTOR Mark S. Vavala

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

EXECUTIVE COMMITTEE LIAISON Charles J. Durante FEATURES EDITORIAL ADVISORY COMMITTEE Valerie A. Caras Denise Del Giorno Nordheimer 2 Call for Executive Committee Nominations Katherine M. Devanney Adria B. Martinelli Jennifer L. Smuts Victoria R. Sweeney 9 Dr. Martin Luther King, Jr. Statewide Day of Service Information Holly O. Vaughn Wagner

PUBLICATIONS EDITOR Rebecca Baird 11 Nominations Sought for First State Distinguished Service Award

PUBLICATION ASSISTANT Susan Simmons 19 Nominations Sought for Law Day Awards The Bar Journal is published and distributed by the Delaware State Bar Association 405 North King Street, Suite 100 26 Delaware’s Joe Biden Wilmington, DE 19801 P: 302-658-5279 F: 302-658-5212 31 2021 Fiction Writing Competition www.dsba.org

© Copyright 2021 by the Delaware State Bar Association. All Rights Reserved.

The Bar Journal is the independent journal of the Delaware State Bar Association. It is a forum for the free expression of ideas on the law, the legal profession and the administration of justice. It may publish COLUMNS articles representing unpopular and controversial points of view. Publishing President’s Corner 20 DE-LAP Zone and editorial decisions are based on the 4 quality of writing, the timeliness of the Editor’s Perspective 24 Bankruptcy Update article, and the potential interest to readers, 6 and all articles are subject to limitations of Tips on Technology 32 Book Review good taste. In every instance, the views 14 expressed are those of the authors, and Ethically Speaking The Judicial Palate no endorsement of those views should be 16 34 The Last Word Office of Disciplinary Counsel inferred, unless specifically identified as the policy of the Delaware State Bar Association. 18 38 Update The Bar Journal is published monthly with a combined July/August issue.

All correspondence regarding circulation, subscriptions, or editorial matters should be mailed to: Editor, DSBA Bar Journal Delaware State Bar Association 405 North King Street, Suite 100 DEPARTMENTS Wilmington, DE 19801 or emailed to: [email protected]

Letters to the Editor should pertain to recent 10 Side Bar 13 Section & Committee Meetings articles, columns, or other letters. Unsigned letters are not published. All letters are 12 Calendar of Events 36 Bulletin Board subject to editing. Send letters to the address above, Attention: Editor, Bar Journal.

For Advertising Opportunities Call (302) 658-5279, ext. 102 Email: [email protected] Cover Photo: Official portrait of Vice President Joe Biden in his West Wing office at the White House Read The Bar Journal online at Official White House photo by David Lienemann www.dsba.org Photo © Library of Congress. Prints & Photographs Division, Washington, D.C. 20540.

DSBA Bar Journal | January 2021 3 PRESIDENT’S CORNER | BY MICHAEL F. MCTAGGART, ESQUIRE

t the beginning of my term as President last July, I The Warehouse is a non-profit facility that is part of a col- asked each of our DSBA sections to organize and laboration with Kingswood Community Center and REACH complete one community service project during Riverside. The collective mission of the three groups is “to this Bar year. I also made the same request of the empower the community to reach its full potential by eliminat- DSBA Executive Committee who is working on a separate ing the barriers of structural racism and revolutionizing teen project.A Given our current pandemic times, I know that many engagement.” While Kingswood Community Center provides in our community are struggling and I felt that the request after-school programs for children 12 and under, for many for action by the DSBA was more than appropriate. At the years there have been no such after-school programming for time of this article, the impact of the COVID pandemic is local teens. The Warehouse was created to provide a home at an all-time high in Delaware and across the country.1 away from home for teens aged 13-19. I am pleased to report that the DSBA Multicultural Judges The facility is funded through a combination of govern- & Lawyers Section (MJL) (chaired by Wilson Gualpa) and ment and private funding from about 140 different partners. the Young Lawyers Section (chaired by Brandon Harper) have It is a unique facility which has been heavily designed by the reached out to provide volunteer help to a local non-profit in very teens who participate in the teen programs. The three Wilmington called the Warehouse.2 The Warehouse is intended major goals of the Warehouse are: 1) Safety, a safe haven for to be an energetic new space in Northeast Wilmington to any interested teen; 2) Support, focusing on educational and provide tools and opportunities to the youth in the city. The emotional support; and 3) Work Force Readiness, focusing on Warehouse’s website can be found at www.teenwarehouse.org. training teens to be ready to learn and use employable skills. Many of us have probably driven by the Warehouse without The five core elements of the programs are: recreation, health, even knowing it. The Warehouse is located in the building arts, careers, and education. formerly occupied by the Prestige Academy charter school, CEO Logan Herring has advised that many of these pro- located at 1121 Thatcher Street, in Wilmington. grams are currently being provided virtually due to the cur-

4 DSBA Bar Journal | www.dsba.org rent pandemic. However, there are approximately 100 teens 1920 on the history of the Delaware Bar. I recently learned registered and participating in the Zoom programs, including that the New Castle Historical Society has published a new teens as far away as Georgia. book titled The History of New Castle Delaware, authored by It is refreshing to learn of this unique and valuable pro- the same Alexander Cooper mentioned in my earlier article. gram for the youth in our community, which is not too far The new book, which runs about 400 pages, is an impressive from our downtown courthouses and law offices. The MJL collection of 45 newspaper articles (yes, 45 newspaper articles) and Young Lawyers Section are planning to provide a regular that Cooper published in The Sunday Star from 1906-1908. schedule of volunteers to tutor and mentor the teens enrolled The book, distributed by Oak Knoll Books, also contains in the Warehouse programs. Some of these tutoring efforts amazing photos and maps of New Castle dating back to the are expected to be involve assistance with English homework days of the old Fort Casimir in 1651. The forward to the book, or college essays. Young Lawyers Section Chair Brandon which took 33 years to bring to publication, is written by The Harper has stated that “this initiative presents the DSBA with Honorable Richard R. Cooch.3 a real opportunity to impart some of our knowledge to help Notes: the students hone their writing skills, and hopefully do our 1. I am encouraged by the home page of the DSBA website which states, “Every- small part to combat the systemic racism they’re up against.” thing is going to be alright, maybe not today but eventually.” 2. Part of the Mission Statement of the MJL section states a goal to encourage I wanted to commend these DSBA sections for their efforts public service by its Members. to volunteer at a worthy facility such as the Warehouse and 3. The statements expressed in this article are solely those of the author and are to make a difference in our community. I look forward to not to be attributable in any way to his employer. working with the MJL, Young Lawyers, and all of our sections in pursuing community service contributions by the DSBA. Michael McTaggart is the current President of the Dela- • • • ware State Bar Association. He is a Special Assistant United States Attorney in the U.S. Attorney’s Office in Wilming- I did want to update my article written back in November ton. In 2019, he retired from the Delaware Department on the city of New Castle. I briefly made mention in that article of Justice after 31 years of service. He can be reached at about a book written by Alexander Cooper, Esquire, around [email protected].

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DSBA Bar Journal | January 2021 5 EDITOR’S PERSPECTIVE | BY LAINA M. HERBERT, ESQUIRE

Staying Connected With Our Colleagues

s we welcome in 2021, I would like to highlight the creative ways law firms have found to stay connected and maintain a sense of community over the past year.1 As we return to our traditional workplaces and begin the next phase of our new normal, I encourage you to not abandon some of these initiatives and the sense of community building they were designed toA foster. I am certain many of you have developed creative ways to maintain personal connections and build unity within your firm during these unique times, and invite you to share these ideas.

According to Beth E. Moskow-Schnoll, According to Kathleen Furey McDonough, Esquire, Part- Esquire, Managing Partner of Ballard ner and Chair of the Firm, Potter Anderson & Corroon LLP: Spahr LLP’s Delaware office, since March Like everyone, we’re doing a lot more videoconferences 2020, Ballard has sponsored several well- and teleconferences than ever before. Those of us with ness initiatives, including at the outset of local clients, who are accustomed to seeing our clients in the pandemic, COVID-19 Weekly Wellness Resource Guides, which featured free employee person regularly, have had to adjust to video meetings. resources related to physical and mental health, work-life But this adjustment pales in comparison to not seeing our balance, learning and family; a five-week firm-wide walking colleagues every day, and the loss of the countless interac- challenge, through its partnership with Walker Tracker; a CO- tions that help build community. To counter this, we’ve VID-19 & Our Mental Health Webinar in partnership with implemented several new initiatives to enhance commu- Pennsylvania nonprofit, Minding Your Mind; and a virtual nication. The three most notable are a series of firmwide Mindfulness Meditation Series. Ballard participated in the conference calls that I host, an upgraded intranet where American Bar Association’s “Lawyer Well-Being Week” by everyone can access information 24/7, and a new daily in- holding virtual spin and cardio classes led by one of its own, ternal newsletter. We’ve used these platforms to celebrate a virtual firm-wide trivia night, and a virtual gratitude wall, client victories, share photos of our work-from-home which was shared firm-wide. During the summer, Ballard held setups, and provide suggestions for creative solutions to a 4-week superfood cooking challenge resulting in a 128-page living in the reality that is 2020. Now more than ever, e-cookbook. Ballard also held a “Let’s Talk Therapy” panel we believe it is essential to stay informed, but more event with Ballard lawyers, staff, and alumni, joined by a li- importantly, to connect with our colleagues and foster censed clinician, which discussed the role therapy has played community. On a more personal level, groups within the in both their lives and their careers. This panel was designed firm, such as our Women’s Initiative, hold virtual happy to destigmatize the conversation around mental health and hours and “brown bag” lunches, to maintain seeking therapy. In addition, Ballard celebrated World Mental and foster personal connections. We’re Health Day by sharing mental health statistics and highlighting also staying connected to the wider available firm resources. Ballard also recognizes that hundreds community by finding virtual op- of its firm members are impacted by the school and childcare tions for our charitable efforts such crisis, and eldercare issues created by the pandemic and issued as our annual holiday gift drive for a contingency plan for flexible workplace arrangements.2 the Boys and Girls Clubs of Delaware.

6 DSBA Bar Journal | www.dsba.org Richards, Layton & Finger, P.A. has conversations. Sometimes people Zoom in and they are also instituted several initiatives to quiet, but just want to be part of the group. maintain a sense of community while I have had regular one-on-one coffees with staff. At working remotely. For example, ac- the beginning of the pandemic when we went remote, cording to Doneene Keemer Damon, I offered to have virtual coffee with anyone who just Esquire, Director and President of Rich- wanted to talk. I have had many people take me up on ards, Layton & Finger, P.A.: that offer. It has been a wonderful opportunity to get Each department and practice group has met regu- to know people on a much deeper level. larly — many weekly. The meetings are all virtual over We conducted an online summer program where we Zoom. We tried to replicate as much as possible what we engaged with our summer associates through virtual would have done had we been in person. This includes dinners, Uber eats lunches, painting, and a virtual mix- having lunch together virtually. ology class. We had weekly meetings and happy hours We continued with our Women’s Initiative. We with the summer associates to allow them to get to know have our regularly scheduled monthly meetings. In us and allow us an opportunity to get to know them. addition, we implemented weekly catch up meetings We have enjoyed each other’s company through which alternate between coffee and happy hour. This virtual on-line games. We have played Bingo, Scavenger has been very well received. Hunt, and Trivia. We did these firmwide and also in We expanded our Wellness Initiative. We engaged different practice groups. a consultant to meet with us virtually to discuss topics We on-boarded 18 new associates in September. such as how to convert COVID-19 stress into personal We have provided virtual orientation and training for growth, parenting and homeschooling during quaran- the firm as a whole and for each practice group. We tine, time mastery in a virtual world, and mastering also have virtual happy hours and coffees to provide your mind. opportunities for meaningful engagement.

We have several online workout groups. Some of In addition to these activities, Richards held a Halloween them do yoga together, while others engage in boot Costume Contest and gave prizes for various categories; cre- camp-type workouts. ated a page on its intranet for everyone to share pictures of We have “coffee and conversations” every other what they are thankful for; hosted an online Holiday Craft month where we focus on different topics and allow Fair where employees could sell their crafts through the firm;3 everyone to engage. Topics are submitted for an open and celebrated birthdays and other milestones through Zoom conversation. I have had the pleasure of leading those celebrations.

According to Jennifer Ying, Esquire, Partner, Morris Like many of our Delaware colleagues, Nichols Arsht & Tunnell LLP: we are all becoming Zoom and WebEx masters as depositions, court hearings, Despite the challenges of COVID-19, Morris Nich- and board meetings are held virtually. ols has been able to maintain our sense of community. This year, we also hosted our summer Over the last nine months, we have come together in a variety of ways from contributing to the inaugural (and associate program virtually, which hopefully only) edition of the “Hugh Morris Quarantine featured a number of creative ways to Cookbook” to supporting a firmwide food drive for the connect, including a mentor/mentee vir- Delaware Food Bank to celebrating our 90th anniversary tual escape room and virtual trivia night. We have also with a slideshow featuring contributions from current held virtual “coffee breaks” to stay in touch with each and former lawyers and staff. The firm also made a other and welcomed our 2020 class of new law clerks $50,000 donation to the Delaware Community Founda- in the fall with virtual training and programming. To tion’s COVID Response Fund, which was established celebrate the holidays, our practice groups are having to make grants to various organizations throughout the virtual holiday get-togethers, including have a virtual state that have been adversely impacted by COVID-19. “Ugly Christmas Sweater” contest.

CONTINUED >

DSBA Bar Journal | January 2021 7 Similarly, Connolly Gallagher LLP has adapted to our new reality. According to Karen C. Bifferato, Esquire, Partner, Connolly Gallagher LLP: On Friday, June 26th the firm celebrated Connolly Gallagher Day. This is the anniversary of the opening of the firm. While we typically use the day to go out and volunteer in the community then celebrate with a family-style picnic — it was not possible to do this year! Instead we carved out time, invited the entire firm to connect via Zoom, and played (i.e. competed) trivia games then raised a toast to the firm’s commitment to work together. On a day-to-day basis we communicate with people working from home and people working at the office, and we try to keep in place regular activities, meetings, etc. (i.e., the Attorney Review committee met by Zoom with all the associ- ates in the summer as a mid-way check in, and more or less just conducted the attorney review process by Zoom). These things have to take place by Zoom rather than in person, but at least Zoom allows you to see people you may not have seen in a while, and keeping in place regular events helps people feel more normalized, even though the times we are in are anything but normal.

Morris James LLP has also found creative ways to stay ■■ Internal Social Events: We quickly transitioned our connected with each other and the community during these weekly yoga practice to a virtual yoga practice to help unique times. According to Reneta L. Green-Streett, Esquire, employees maintain connection and personal well-being. Partner, Morris James LLP: We also hosted a series of trivia nights where employees ■■ Updates from Management: From the onset of created teams and engaged in friendly competition for COVID, Morris James management provided consistent bragging rights, an Amazon gift card, and a small trophy. and timely communications from the Managing Part- Departments and practice groups engaged in virtual ner, Chief Operating Officer, and other administrative happy hours and our employees in the offices found directors with important updates regarding operations COVID-safe ways to spend time together and connect. and protocols as well as helpful tips and resources for ■■ Client Engagement: From a virtual pizza party and transitioning to remote working. All employees were cooking class to smaller activities like a Peloton challenge, kept up-to-date regarding changing conditions and our attorneys have found unique opportunities to remain given resources to help them adapt and stay connected. socially connected with clients and each other. ■■ Networking Portal: The firm created a private ■■ Community Support: When COVID hit, Morris Facebook group for employees to utilize to remain so- James made a commitment to philanthropy. In addition cially connected online and outside of the offices. This to our typical charitable giving, we raised over $10,000 was particularly impactful during the early days of our for the Food Bank of Delaware, donated $5,000 to Beebe COVID response when the majority of our workforce Medical’s COVID relief fund, and donated canned goods was remote. and made a charitable contribution of over $5,000 to ■■ Resilience Training: The firm offered all employees the Delaware Military Support. Addition- a seminar on resilience to help them adapt and build ally, Morris James donated $10,000 to the resilience through the extra pressures brought about Culture Restoration Project to reinforce its because of the pandemic. The training included infor- statement on racial injustice. Through mation about the positive impact of connecting with these efforts, we gave employees an op- colleagues, family, and friends, on well-being, as well portunity to connect with one another as productivity. and the Delaware community.

Notes: 1. I would like to thank everyone who provided thoughtful and valuable contributions to this article. 2. While these issues are not limited to women, Ballard recognizes the crisis has a greater impact on women and threatens to undo decades of progress for women in the workplace. Ballard’s contingency plan for flexible work arrangements adopts a broad view of a workday, to include split or shifted workdays, and less than a full time schedule. This plan does not put pressure on anyone to return to work in the office. All attorneys and staff at Ballard can request a flexible work arrangement without providing a reason for the request. 3. I am told the Holiday Craft Fair was set to holiday music and was a huge success!

Bar Journal Content Editor Laina M. Herbert is an associate at Grant & Eisenhofer P.A. in Wilmington, Delaware. She may be reached at [email protected] and additional information about the author is available at www.gelaw.com.

8 DSBA Bar Journal | www.dsba.org THE DELAWARE STATE BAR ASSOCIATION LOOKING TO DR. MARTIN LUTHER KING, JR. 2021 Statewide Day of Service GROW MONDAY, JANUARY 18, 2021 AND

The 2021 Dr. Martin Luther King, Jr. BUILD event will include the opportunity to YOUR participate in-person at Service Projects throughout the state CLIENT and by supporting the organizations BASE? listed below that have traditionally been part of the Dr. Martin Luther Join the online DSBA King, Jr. Day of Service. Lawyer Referral panel at www.dsba.org.

Opting in is simple and free to all DSBA members.

“The time is always right to do what is right.” - Dr. Martin Luther King, Jr.

SERVICE PROJECT ORGANIZATIONS

EMMANUEL DINING ROOM* FRIENDSHIP HOUSE

FOOD BANK OF DELAWARE* RONALD MCDONALD HOUSE

SUNDAY BREAKFAST MISSION*

*Limited in-person volunteer opportunities available.

Please direct all inquires regarding in-person participation in an Service Project (limited availability) or how to donate to an organi- zation listed to Event Co-Chair Reneta L. Green-Streett, Esquire, at [email protected].

DSBA Bar Journal | January 2021 9 SIDE BAR

MEMBER BENEFIT OF THE MONTH YOUR WORDS

SoFi Student Loan Refinancing WHAT IS THE BEST PIECE $300 WELCOME BONUS! OF ADVICE YOU COULD GIVE YOURSELF FOR 2021? Need to refinance your student loan? A leader in student loan refinancing, SoFi has partnered with DSBA to offer its members the opportunity to ease their student loan debt. SoFi consolidates and re- finances federal and private student loans to of- fer customized rates, creating meaningful savings. To qualify for a $300 welcome bonus through this “Take nothing for granted. Be grate- partnership and for more information, visit the Member Benefits ful for all that you have, and be sure page of www.dsba.org. to give back.”

WILLIAM M. LAFFERTY, ESQUIRE Morris Nichols Arsht & Tunnell LLP TOP 5 DSBA MEMBER FIVE WAYS LAWYERS CAN ENHANCE THEIR CVs

When filling out your “Interests” in applying for a legal job, it is best to leave this blank if you have none. However, before you apply, get some interests because these five are often the most attractive to a firm or government agency:

Volunteering and Pro Bono “Embrace the lessons learned — grati- 1 Aside from the appearance of caring tude, flexibility, and focus on family for one’s community and honoring the and friends!” profession, employers know that peo- ple who volunteer their legal services KAREN ANN JACOBS, ESQUIRE have been able to hone their skills and Morris Nichols Arsht & Tunnell LLP are dedicated and responsible. Any volunteering shows a commitment DSBA MEMBER to the community and may often co- incide with the employer’s interests.

Sports Write a Blog or a Vlog or any 2 Team-based sports can prove you 4 Internet-Based Informative work well with others and know how Piece to respond in a high-pressure and ac- “In my first job out of law school, a It is through this you can show not tive environment. Solo sports are also just your interest in a subject but your friend and mentor gave me a piece of worth mentioning to show your com- knowledge and commercial aware- advice that I have always found useful: mitment to regimens and your love for ness. Moreover, you can show off a challenge. While you do not want at the end of each workday, set up a that you can write and communicate. to write a whole lot in the “interests” task for yourself to start with the next section, you should include names of morning. This will help ensure that teams/clubs to spark conversation at you start the day off on the right foot.” the interview. Belong to a Club, Society or 5 an Association DANIEL R. STANEK, ESQUIRE Connolly Gallagher LLP Attend Seminars of Special Remember, you are asking to join a team. There is no better way to show DSBA MEMBER 3 Interest to You your interest in working with others Illustrations by Mark S. Vavala Better yet, teach one. This is consid- than belonging to the professional ered a brilliant way to show interest organization which is the guardian FOR NEXT MONTH... in a field and you should include any of your profession. An active role or What’s the greatest risk skills that you gained from the in- leadership will only give you more you’ve ever taken? struction. (Just a note: DSBA has a lot credibility. Joining DSBA can cer- Email Rebecca Baird at [email protected] and your

© istockphoto.com/ Abscent84 istockphoto.com/ © of seminars you can attend or teach!) tainly help with that! response could be in the next Bar Journal.

10 DSBA Bar Journal | www.dsba.org First State Distinguished Service AWARD SEEKING NOMINATIONS The Delaware State Bar Association and the Awards Committee are seeking nominations for the First State Distinguished Service Award to be presented at the 2021 Bench & Bar Conference. The award is described below: This award is given annually at the Bench & Bar Conference to a member of the Delaware Bar who, by exemplary leadership and service dedicated to the cause of good citizenship in civic and humanitarian service over a period of many years has maintained the integrity and honored recognition of the legal profession in community affairs and who, as an outstanding Delawarean, unceasingly advances the ideals of citizen participation and community accomplishment, thus reflecting high honor on both country and profession.

SUBMIT NOMINATIONS BY MARCH 5, 2021 TO: Mark S. Vavala, Executive Director Mail: DSBA, 405 N. King Street, Suite 100, Wilmington, DE 19801 or Email: [email protected] Please include: The name, firm, and title/occupation of the Candidate; name and contact information (firm, address, email, phone, and fax) of the individual nominating the Candidate; and a brief statement of the reasons the Candidate is deserving of the Award.

Step up to Get Published! the mic! The Editorial Board welcomes submissions from attorneys and other professionals who wish to share their expertise on law-related topics in the DSBA Bar Journal.

Organizing a program or a CLE Seminar is a great way to get exposure and engage with For information on submitting articles for the DSBA! Email your ideas to Bar Journal Susan Simmons at ssimmons@ publication in the , please contact dsba.org. Rebecca Baird at [email protected].

DSBA Bar Journal | January 2021 11 CALENDAR OF EVENTS Professional Guidance Committee January 2021 This committee provides peer counseling Tuesday, January 12, 2021 • 12:00 p.m. – 1:00 p.m. and support to lawyers overburdened by DE-LAP’s Behind the Cool Image Series: Lawyering in the 21st Century personal or practice-related problems. It Workshop Three: Take Charge: Navigating Work, Home, and Other offers help to lawyers who, during difficult times, may need assistance in meeting law Competing Priorities 1.0 hour CLE credit in Enhanced Ethics practice demands. The members of this Live Webinar via Zoom committee, individually or as a team, will help with the time and energy needed to Monday, January 18, 2021 keep a law practice operating smoothly and Dr. Martin Luther King, Jr. Annual Day of Service to protect clients. Call a member if you or Various locations someone you know needs assistance. Tuesday, January 19, 2021 • 8:30 a.m. – 12:00 p.m. Workers’ Compensation Winter Seminar New Castle County 3.3 hours CLE credit Karen Ann Jacobs, Esquire, Co-Chair* Live Webinar via Zoom Victor F. Battaglia, Sr., Esquire Tuesday, January 28, 2021 • 1:00 p.m. – 4:15 p.m. Dawn L. Becker, Esquire Business Divorce John P. Deckers, Esquire 3.0 hours CLE credit Live Webinar via Zoom David J.J. Facciolo, Esquire David J. Ferry, Jr., Esquire Robert D. Goldberg, Esquire February 2021 Bayard Marin, Esquire Friday, February 12, 2021 • 9:00 a.m. – 12:45 p.m. James K. Maron, Esquire Rubenstein Walsh Seminar on Ethics & Professionalism 2021 3.5 hours CLE credit in Enhanced Ethics Wayne A. Marvel, Esquire Live Webinar via Zoom Michael F. McTaggart, Esquire Denise D. Nordheimer, Esquire Tuesday, February 16, 2021 • 12:00 p.m. – 1:00 p.m. DE-LAP’s Behind the Cool Image Series: Lawyering in the 21st Century Elizabeth Y. Olsen, Esquire* Workshop Four: Power-Up: Practical Approaches for Accessing and Kenneth M. Roseman, Esquire* Maintaining Energy Hon. Janine M. Salomone 1.0 hour CLE credit in Enhanced Ethics Yvonne Takvorian Saville, Esquire Live Webinar via Zoom R. Judson Scaggs, Esquire* Tuesday, February 23, 2021 • 9:00 a.m. – 4:15 p.m. David A. White, Esquire Fundamentals of Family Law Gregory Brian Williams, Esquire 6.0 hours CLE credit Live Webinar via Zoom Hon. William L. Witham, Jr. Thursday, February 25, 2021 • 9:00 a.m. – 1:15 p.m.

Kent County Government & Consumer Law 2021 4.0 hours CLE credit Mary E. Sherlock, Esquire* Live Webinar via Zoom Crystal L. Carey, Esquire Date TBD, February 2021 • 9:00 a.m. – 1:15 p.m. Edward Curley, Esquire Risk of Third-Party Fraud CLE Elizabeth O. Groller, Esquire 4.0 hours CLE credit Clay T. Jester, Esquire Live Webinar via Zoom

Sussex County Dates, times, and locations of Events and CLEs may occasionally change after time of press. Please consult the DSBA website for the most up-to-date infor- Candace E. Holmes, Esquire, Co-Chair mation at www.dsba.org. Larry W. Fifer, Esquire Eleanor M. Kiesel, Esquire Dennis L. Schrader, Esquire*

Carol P. Waldhauser, Executive Director BECOME A DSBA SECTION MEMBER DSBA/DE-LAP Liaison

*Certified Practice Monitor To join a Section, visit www.dsba.org/about-the-dsba/membership.

12 DSBA Bar Journal | www.dsba.org SECTION & COMMITTEE MEETINGS EXECUTIVE COMMITTEE Michael F. McTaggart January 2021 President Tuesday, January 5, 2021 • 3:30 p.m. Kathleen M. Miller Estates and Trusts Section Meeting President-Elect TBD Charles J. Durante Wednesday, January 6, 2021 • 12:30 p.m. Vice President-at-Large Women & the Law Section Meeting Zoom Meeting, see Section listserv message for link and password Kate Harmon Vice President, New Castle County Tuesday, January 12, 2021 • 12:00 p.m. Litigation Section Meeting Anthony V. Panicola Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Vice President, Kent County Wednesday, January 13, 2021 • 4:00 p.m. Ashley M. Bickel Real and Personal Property Section Meeting Vice President, Sussex County Teleconference Meeting, see Section listserv message for call-in information Samuel D. Pratcher III Friday, January 15, 2021 • 12:30 p.m. Vice President, Solo & Small Firms, LGBTQ+ Section Meeting Teleconference Meeting, see Section listserv message for call-in information New Castle County Wednesday, January 20, 2021 • 9:00 a.m. Renee Duval ADR Section Meeting Vice President, Solo & Small Firms, Young Conaway Stargatt & Taylor, LLP, Rodney Square, 1000 North King Street, Kent County Wilmington, DE Stephen A. Spence Thursday, January 21, 2021 • 11:45 a.m. Vice President, Solo & Small Firms, Executive Committee Meeting Sussex County Zoom Meeting, link will be sent via email Mary Frances Dugan Thursday, January 21, 2021 • 12:15 p.m. Secretary Torts and Insurance Section Meeting Teleconference Meeting, see Section listserv message for call-in information Thomas P. McGonigle Thursday, January 21, 2021 • 4:00 p.m. Assistant Secretary Elder Law Section Meeting Francis J. Murphy, Jr. Teleconference Meeting, see Section listserv message for call-in information Treasurer Wednesday, January 27, 2021 • 12:00 p.m. Reneta L. Green-Streett E-Discovery and Technology Law Section Meeting Teleconference Meeting, see Section listserv message for call-in information Assistant Treasurer Wednesday, January 27, 2021 • 12:00 p.m. William Patrick Brady Government and Consumer Law Section Meeting Past President Teleconference Meeting, see Section listserv message for call-in information The Honorable Ferris W. Wharton Thursday, January 28, 2021 • 4:00 p.m. Judicial Member Government and Consumer Law Section Meeting Teleconference Meeting, see Section listserv message for call-in information Kaan Ekiner Assistant to President February 2021 James D. Nutter Tuesday, February 2, 2021 • 3:30 p.m. Special Assistant Estates and Trusts Section Meeting for Legislative Matters TBD Sonia Augusthy Wednesday, February 3, 2021 • 12:30 p.m. Loren R. Barron Women & the Law Section Meeting Ian Connor Bifferato Zoom Meeting, see Section listserv message for link and password Crystal L. Carey Tuesday, February 9, 2021 • 12:00 p.m. William L. Chapman, Jr. Litigation Section Meeting Richard A. Forsten Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE Denise Del Giorno Nordheimer Adam V. Orlacchio Wednesday, February 10, 2021 • 4:00 p.m. Victoria R. Sweeney Real and Personal Property Section Meeting Teleconference Meeting, see Section listserv message for call-in information David A. White Jennifer Ying Refer to the DSBA Section Listserv messages for the most up-to-date information Members-at-Large on Section Meetings. Please contact LaTonya Tucker at [email protected] or (302) Mark S. Vavala 658-5279 to have your Section or Committee meetings listed in the Bar Journal. Executive Director

DSBA Bar Journal | January 2021 13 TIPS ON TECHNOLOGY | BY RICHARD K. HERRMANN, ESQUIRE

Delaware Technology The Final Frontier

e have gone far together in Zoom technology during the 2020 COVID the last 50 years. In the early pandemic. 1970s we automated standard As we welcomed in the new Century, and document preparation with in anticipation of the erection of the New magnetic card typewriters (IBM mag card). Castle County Courthouse, the Superior AndW we moved from desktop manual calcu- Court opened Delaware’s first experimental lators to handheld electronics. By the late courtroom, dubbed the eCourtroom. Fitted 1970s, law offices embraced dedicated word with state of the art technology, the eCourt- processors and high speed printers churning room provided a live experimental laboratory, out briefs at 45 seconds a page. Copy machines contributing to the design of the technology were standard issue and fax machines were in the new Courthouse. In 2003, electronic able to transmit an order or opinion at three discovery began its evolution into its own minutes per page. body of law. Each of the Delaware Courts In 1980, the Delaware legal community developed rules relating to this game-changer received the first in-office fully computerized in the process of litigation. IBM time and billing machine using Manic As the use and abuse of the internet in- Software on a IBM System 34 minicomputer creased and law office technology became a (thanks to Bob Katzenstein’s efforts in the required need, the Delaware Supreme Court Olivetti litigation). realized the lawyer competency involved more In the late 1980s, Delaware was the chosen than a firm understanding of substantive law. venue for large insurance coverage litigation, It also required basic technology skills in the generating so many pleadings it paralyzed manner in which legal service are provided to the Office of the Prothonotary. By way of the client. This clear realization resulted in example, one insurance coverage case alone the 2013 amendment of the Rules of Profes- generated more than 10,000 pleadings, com- sional Responsibility and the creation of an pared with the average 25 filings in a typical additional Arm of the Court, The Commis- civil case. A Superior Court task force was sion on Law and Technology. created to resolve this issue, resulting in the creation of electronic filing as we know it In 2017, the Delaware Family Court, today. The first system of its kind was main- under the leadership of Chief Judge Michael tained by Lexus and called CLAD (Complex Newell, opened its first of seven eCourtrooms. Litigation Automated Docket. As these cases This paved the way for the use of efficient, went to trial in the 90s, the Delaware Court user friendly graphic technology in a court permitted the first video teleconference of a serving a large community of self represented live witness in a civil case. And, the Bank- litigants. ruptcy Court held its first international video Finally, in 2020 the Delaware Courts ef- hearing with the Insolvency Court in Canada. fectively embraced remote video technology This was 25 years before the Court’s use of in their efforts to continue providing the ef- istockphoto.com/© :Macrovector

14 DSBA Bar Journal | www.dsba.org ficient administration of justice to the citizens of the State of Delaware. I have been fortunate to be part of all of this. I was at the right place, at the right time. And all of you, the members of the Bench and Bar shared pieces of this with me along the way. I thank you for that. I became a member of the Dela- ware Bar in 1971, 50 years ago. In many It’s okay to respects we have gone where no Bar has gone before. And the next 50 years ask for help. will be even more exciting — artificial intelligence, autonomous vehicles, space law. It is now time to let someone else Asking for help can be difficult. take us there. This is my final column. Knowing help is available makes it a little easier. Thank you all. DE-LAP’S NEW DELAWARE’S PROFESSIONAL MENTAL HEALTH LAWYERS GUIDANCE CALL-IN SERVICE ASSISTANCE COMMITTEE Richard K. Herrmann is a Visiting Pro- COMMITTEE fessor at Delaware Law School. He can A free, confidential call-in be reached at [email protected]. Peer counseling for service with DE-LAP’s A peer-to-peer network lawyers needing core team of licensed “Tips on Technology” is a service of the of attorneys focusing on assistance in meeting law health-care professionals lawyer wellbeing practice demands E-Discovery and Technology Law Section during the COVID-19 crisis of the Delaware State Bar Association. For more information call DE-LAP’s confidential line at (302) 777-0124 or email [email protected].

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DSBA Bar Journal | January 2021 15 ETHICALLY SPEAKING | BY CHARLES SLANINA, ESQUIRE

Bona Fide Offices, the Unauthorized Practice of Law, and COVID-19

ue to pandemic-related shutdowns, many attorneys find themselves Ethics and Professional Responsibility working from home. Law offices are closed or left minimally staffed. offered Formal Opinion 495 entitled Nationally, firms are finding that they can function without brick- “Lawyers Working Remotely.” While and-mortar locations. It is reported that firms are renegotiating and it does not address Delaware’s bona fide Dbreaking leases to downsize their physical presence, leading to speculation that office requirements, it at least offers the post-pandemic practice of law may not look like the pre-pandemic norms. guidance to attorneys who live and find In addition to the logistical challenges that the COVID-related shutdowns themselves working outside the state to and social distancing created, professional responsibility issues also arise. As we which they are admitted to practice law. all know, Delaware has a bona fide office rule. Supreme Court Rule 12(a) requires The Committee concluded that law- that “all papers filed with the Court shall be signed by an attorney who is an active yers may remotely practice the law of the member of the Bar…who maintains an office in Delaware for the practice of law.” jurisdictions in which they are licensed Rule 12(d) goes on to define an office for the practice of law as: while physically present in a jurisdiction in which they are not admitted. How- a bona fide office maintained in this State for the practice of law in which ever, there are significant limitations on the attorney practices by being there a substantial and scheduled portion of such practice. Lawyers are prohibited time during ordinary business hours in the traditional work week. An at- from advertising or otherwise holding torney is deemed to be in an office even if temporarily absent from it if the themselves out as a having an office in duties of the law practice are actively conducted by the attorney from that the location in which they live or are office. An office must be a place where the attorney or a responsible person working. They are also prohibited from acting on the attorney’s behalf can be reached in person or by telephone offering to provide any legal services during normal business hours and which has the customary facilities for in the jurisdiction in which they reside engaging in the practice of law. A bona fide office is more than a mail drop, or are working. For example, provid- a summer home which is unattended during a substantial portion of the ing their local contact information on year, or an answering, telephone forwarding, secretarial or similar service. websites, letterhead, business cards, While, on its face, this Rule deals with the filing of pleadings and is not a advertising, etc. are impermissible. disciplinary or professional conduct rule, to not have a bona fide office has been Rule 5.5 provides both an exception treated as a disciplinary matter. Matter of Barakat, Del.Supr. 99 A.3d 639 (2013). and a complication to this advice. The An attorney without a bona fide office may be charged with violating Rule 3.4(c) multi-jurisdictional practice rule, where of the Professional Conduct Rules which prohibits disobeying an obligation to a adopted, permits an attorney to provide tribunal. What happens when a Delaware attorney chooses or is forced to work from home? What hap- pens if that home is not in Delaware? In addition, In addition to the logistical challenges to the issue as to whether the home office is a bona that the COVID-related shutdowns and fide office, there can be unauthorized practice of law questions. social distancing created, professional The ABA issued a timely advisory opinion on responsibility issues also arise. December 16, 2020. The Standing Committee on

16 DSBA Bar Journal | www.dsba.org legal services on a temporary basis in home in Utah? And the answer is the a jurisdiction to which they are not same — none.” Utah Op. 19-03 (2019). admitted if that practice is undertaken The safest course while working re- in association with a lawyer who is ad- motely from out of state would appear mitted to practice in that jurisdiction; to be to maintain a non-public profile who actively participates in the matter; while doing so and to make sure that you Looking for and the matter is reasonably related to a are only practicing law of the jurisdic- matter reasonably related to the lawyer’s tions to which you are admitted. Failure legal help? practice in the jurisdiction to which to meet the requirements of the bona fide A legal aid agency the lawyer is admitted. While Rule 5.5 office rule will probably be excused (or may be able to help! would appear to permit an attorney liv- overlooked) until this crisis ends. ing outside a jurisdiction which adopted Have a happy and healthy New Year! BANKRUPTCY Rule 5.5 to practice Delaware law in that foreign state, the Rule goes on to “Ethically Speaking” is intended to stimulate DISABILITY LAW awareness of ethical issues. It is not intended as legal prohibit the establishment of a regular DOMESTIC VIOLENCE advice nor does it necessarily represent the opinion and systematic presence for the practice of the Delaware State Bar Association. of law in the jurisdiction in which the at- FAMILY LAW ISSUES “Ethically Speaking” is available online. torney is not admitted. Certainly, work- Columns from the past five years are available on HOUSING ing from one’s home could be construed www.dsba.org. IMMIGRATION as a regular and systematic presence. ISSUES WITH AGING In reaching these conclusions, the Charles Slanina is a partner in the ABA cited a Utah Ethics Opinion which firm of Finger & Slanina, LLC. His prac- PUBLIC BENEFITS states, “What interest does the Utah tice areas include disciplinary defense State Bar have in regulating an out-of- and consultations on professional re- sponsibility issues. Additional informa- DELegalHelpLink.org state lawyer’s practice for out-of-state tion about the author is available at clients simply because he has a private www.delawgroup.com.

CONNECT WITH YOUR COLLEAGUES DSBA SECTION FORUMS

• SHARE NEWS AND BEST PRACTICES

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• EXPAND YOUR PROFESSIONAL NETWORK

To access the forums, log into www.dsba.org and click on Forums listed at the top of the Members Area page. From there, you will find the list of potential forums. Posting and responding is easy to do. Enjoy connecting!

DSBA Bar Journal | January 2021 17 OFFICE OF DISCIPLINARY COUNSEL UPDATE

ODC Update: Ethics Hotline, Ethics CLE Series, and Standing Committee on Rules

BY LUKE W. METTE, ESQUIRE

n this periodic column from the Office of Disciplinary ▪▪ the various Rules touching on candor, misrepresenta- Counsel (“ODC”), I wanted to: 1) provide an update tion, deceit and fraud; on the use of our Ethics Hotline; 2) summarize recent ▪▪ compliance with Rule 1.2(d) in the face of evolving ODC-sponsored, ethics CLE programs; and 3) focus on state and federal laws regarding marijuana; a specific rule that is being evaluated for possible amendment. I ▪▪ the duty of lawyers to supervise other lawyers and ODC Ethics Hotline non-lawyers; and Delaware lawyers are using ODC’s Ethics Hotline with ▪▪ the Rules regarding legal fees, including advance fees. increasing frequency. Through the Hotline, ODC lawyers Please let me know if you have any thoughts regarding provide confidential and timely guidance (not legal advice) these, or other topics, for inclusion in ODC’s ethics CLE regarding a lawyer’s prospective conduct in the context of series. the Delaware Lawyers’ Rules of Professional Conduct (the “Rules”). The feedback we have received regarding this initia- ODC also plans to use this column in the Bar Journal tive (both in general and from lawyers who have specifically to highlight some of the issues discussed in CLE programs availed themselves of it) has been overwhelmingly positive. already delivered — for the benefit of both those lawyers Lawyers can simply call the Office to request such guid- who attended the CLE presentations and those who did not. ance, and our website (courts.delaware.gov/odc) now also To kick things off, this article addresses some of the issues includes a dedicated Ethics Hotline email address (ARMS_ discussed in the October and November CLE programs [email protected]). mentioned above. On October 16, 2020, Justice Traynor addressed, among ODC’s Ethics CLE Programming other topics, the Delaware Supreme Court’s addendum to its ODC’s one-hour, ethics CLE programming has become opinion in In re Shorenstein Hays-Nederlander Theaters LLC increasingly popular since we switched to a live Zoom format Appeals, 213 A.3d 39 (Del. 2019), relating to the conduct of during the COVID-19 pandemic months. Over 500 lawyers a witness during a deposition and what the defending lawyer attended our October 16, 2020 program on civility and pro- may want to do to control such conduct. We also discussed fessionalism (featuring Justice Traynor), and approximately what lawyers and judges can do to improve trust and confi- 300 lawyers attended our November 9, 2020 program regard- dence in the legal profession. I referred to former Chancellor ing ethical issues facing in-house corporate and government Allen’s 1991 Law Day remarks, “Zealous Advocacy and a lawyers (featuring State Solicitor Aaron Goldstein). Given the Lawyer’s Duty to Justice: A Law Day Meditation,” and I used popularity of this series in this format, we plan to continue the Chancellor’s comments as a basis to discuss various Rules to offer ethics CLE programming via Zoom even after we that specifically address a lawyer’s independence from a client emerge from the pandemic. and lawyer’s duties to persons other than a client. Our ethics CLE programming in 2021 is likely to include On November 9, 2020, State Solicitor Aaron Goldstein one-hour Zoom presentations on many of the following topics discussed some of the unique ethical issues facing government (with invited guest presenters, as appropriate): lawyers and government law departments, including identify- ▪▪ succession planning; ing the client and managing possible conflict of interest situa- ▪▪ the effects of aging on the brain; tions. Aaron and I identified various Rules and Comments that

18 DSBA Bar Journal | www.dsba.org address these issues. We also addressed the question whether the ethical option (or requirement) of withdrawing from NOMINATIONS SOUGHT representation in certain circumstances is a viable option for in-house corporate or government lawyers whose only client FOR LAW DAY AWARDS is their employer. The Delaware State Bar Association and the Awards Standing Committee on Rules: Committee are seeking nominations for the Liberty Rule 1.13 Bell Award, the Community Service Award, and the Specifically with regard to the issues Myrna L. Rubenstein Professional Support Recognition inherent in an in-house lawyer’s decision whether to withdraw from representa- Award to be presented at the 2021 Law Day Luncheon. tion, and with the permission of the Below are the criteria for these awards. Delaware Supreme Court’s Standing Committee on the Rules of Professional Conduct (the “Rules Committee”), LIBERTY BELL AWARD I mentioned during the November 9 The Liberty Bell Award is given annually to an individual, CLE that one of the issues the Rules who is not a judge or lawyer, who has rendered outstanding Committee is evaluating is whether service to his or her community. The award is designed to Delaware’s Rule 1.13 (Organization as promote a better understanding of government, a greater Client) should track more closely the respect for the rule of law or a deeper sense of individual ABA’s Model Rule 1.13. Among other responsibility which contribute to the effective functioning things, ABA Model Rule 1.13(c) (which of our governmental institutions. many states have adopted in one form or another) provides that a lawyer for COMMUNITY SERVICE AWARD an organization may, in certain circum- The Community Service Award recognizes annually a stances, reveal information relating to the representation, even if not other- member of the judiciary or the Delaware Bar who has wise permitted by Rule 1.6. Delaware’s rendered meaningful service to the community and who corresponding Rule 1.13(c), however, has contributed significant time and effort to the greater provides that, in such circumstances, a Delaware community. Nominees should have demonstrated lawyer may “resign.” a commitment to leadership and service in activities that If you have views whether Delaware’s enrich and strengthen our community over a substantial Rule 1.13 should track ABA Model Rule period of time. 1.13 that you would like to share with the Rules Committee, please contact me MYRNA L. RUBENSTEIN PROFESSIONAL or another member of the Rules Com- SUPPORT RECOGNITION AWARD mittee. This Award recognizes long and dedicated service to the Bench and Bar of the State of Delaware, to the Bar Association, and to the Members thereof, which has Luke Mette has been a member of the Delaware Bar since 1988 and has held contributed in a significant way to them and to the high numerous positions in government and ideals of the legal profession. private firms. He was named Chief Dis- ciplinary Counsel for the Office of Disci- plinary Counsel by the Delaware Supreme Nominations should be submitted to Mark S. Vavala, Executive Court in January 2019. Director, DSBA at [email protected]. The deadline for nominations is February 5, 2021. Please include: The name, firm, and title/occupation of the Candidate; name and contact information (firm, address, email, phone, and fax) of the individual nominating the Candidate; and a brief statement of the reasons the Candidate is deserving of the Award.

DSBA Bar Journal | January 2021 19 DE-LAP ZONE | CAROL P. WALDHAUSER, EXECUTIVE DIRECTOR

Strategies to Improve Performance of Daily Activities and Reduce Pain BY GUEST COLUMNIST RACHEL GOTTESMAN, OTR/L

ing sleep, increasing concentration at No matter what age, finding new tools to foster well-being and self- work, and creating comfort in movement while exercising or performing sports care is imperative for both physical and mental health. More specifi- activities. cally, learning strategies to improve performance of daily activities and reduce pain. For that reason, I am pleased to welcome to the 1. Stretch Effectively DE-LAP Zone this month our guest columnist: Rachel Gottesman, We have all heard of the importance OTR/L of Body Ease Therapy. of stretching. However, the length of time a stretch is held is key to effective With over 20 years of experience, Rachel Gottesman is an occupational long-term pain relief. therapist who graduated from Boston University in 2000 with a BA in When we stretch, we are not only Occupational Therapy. Equally as important, Rachel had worked in a stretching the muscles, but the fascia, variety of settings, including but not limited to: acute rehab, acute or the soft connective tissue that sur- care, outpatient therapy, brain injury rehab, and skilled nursing facili- rounds and penetrates all the muscles in ties including over a dozen of years in the rehab group at Christiana the body. Fascia responds best to slow, Care Health System. Furthermore, in 2015, Ms. Gottesman opened a prolonged holds in order to release or open up. private practice in Delaware and Southern Pennsylvania, specializing in myofascial release therapy and pelvic floor therapy. Today, Rachel Think of a rubber band — you can change its length by pulling on it, but Gottesman lives and works in Delaware and Southern Pennsylvania what happens when you let go too quick- and has a special understanding of legal professionals. ly? It snaps back to its previous length. Stretching the fascia is very similar. Carol P. Waldhauser is the Executive Director of the Delaware Lawyers As- The second aspect of stretching is sistance Program and can be reached at [email protected]. holding the stretches for a minimum of 90-120 seconds. That is the amount of time it takes to get an initial release of he American Academy of Pain emotional stress, and repetitive strain. the fascia. Medicine reports that 100 Unfortunately, this type of discomfort This is a good start! can trigger a cycle in which exercise, million Americans and 1.5 bil- However, to keep the area open and lion people worldwide suffer work, sleep, or a balanced mental state loose after the stretch is over, you should from chronic pain, or pain that persists becomes difficult. hold the stretch an additional two to Twell beyond an initial insult or trigger, The following strategies can help to three minutes. Holding the stretch for sometimes for years. Chronic pain can decrease discomfort and tightness in a total of three to five minutes will start develop over time, especially from lack day-to-day activities. Applying some of to make lasting changes in the body. of activity, poor posture, physical or these principles can also help by improv- Of course, the longer you can hold, the

20 DSBA Bar Journal | www.dsba.org greater the chances that the fascia will stay open to its new length. It is important that you do not force anything. There will be a barrier that you will feel when you stretch, which feels like a stopping point. You must wait at the barrier until a softening or release is felt. As long as you do not force past that barrier you should be able to increase your flexibility gradually and without injury. You may feel a temporary soreness as the fascia adjusts to its new length. This type of soreness usually last for a few hours to a few days.

2. Focus on Feet Our feet are our “foundation.” They take much of the brunt of day to day life. Oftentimes, other areas of the body communicate discomfort and we attend to those areas first. However, the feet often get neglected. We want to care for our feet and make every step as easy on the rest of the body as possible. Proper foot care is essential! Here is a way to get started. © istockphoto.com/© AndreyPopov Sink into those soles! You can use a golf ball, a tennis ball, a should feel the sensation start to change to get a sense of how this position affects small reaction ball, or a tool called a nola during this time and you may feel sensa- your lower back and spine. rola (www.nolarola.com). Of course, feel tions in other areas of the body. That is Now place your weight in the middle free to be creative in what you use. not uncommon as the fascial system is of your foot, over your arches. Imagine Sit on the couch or any comfortable interwoven, like a spider web or sweater that you are “floating” over them. Notice surface and let gravity help your feet that stretches from head to toe. how it feels — your toes are still engaged mold into whatever device you choose. in the ground but not doing all the work. 3. Remember Your Arches Once you find a pressure spot you let You may feel some of the pressure taken your feet “melt” and “soften” into that Where is your weight distributed off your calves and lower back. spot for three to five minutes. You do when you stand? Most people typically place their weight too far back, putting You may need to explore this exercise not want to roll the device all around a few times to “find” and then “float” the bottom of your foot because you are undue pressure on the back of the body, including the lower back. over your arches. You may even feel like simply gliding along the surface and not you are leaning forward. Try this when creating any softening or length changes. To illustrate: Stand with your weight you are standing in line at the store or Another effective self-treatment back on your heels. If your balance is off, pumping your gas or at a social event strategy is to sit on the floor or bed with hold onto something for support as your talking to people. Practice keeping your your back against the wall. Place a ten- try this. What do you feel? weight over your arches and your back nis ball, golf ball or reaction ball under Now stand with your weight forward, will thank you! your calf and search for those pressures on your balls of your feet and toes. See spots. Once you find one, feel your leg if your body subconsciously adjusts, or 4. Find a Good Way to Sit sink into that spot for the three to five guards to keep you from falling forward. Do you sit a lot during the day? minutes (or as long as you can tolerate). It When your weight is back on your You can probably guess that getting is important to relax your body as much heels do you notice pressure up the back up at least 20-30 minutes to stretch and as possible and breathe as you do this to of your legs onto your lower back and encourage softening and change. You spine? Stand there for a minute and try CONTINUED >

DSBA Bar Journal | January 2021 21 DE-LAP ZONE CONTINUED >

move is a good idea. However, I would Give them a prolonged stretch! There like to add a way to effectively sit to are many ways to do this. avoid undue pressure on your lower For example, take a four-inch rubber back. ball and find a comfortable position on If you want to We went over strategies for standing the floor. Find a spot between your belly experience the and taking some pressure off your lower button and your hip bone. back. You can use similar strategies for Place the ball in an area that feels joy of helping sitting. “tight” or “tender” (Note: make sure you Find the bones you sit on; they are do not have any medical conditions such as your peers, called the ischial tuberosities. They pregnancy or aneurysms before doing this.) DE-LAP wants feel like points under the flesh of your Allow the ball to sink into that area buttocks. Stick your hands under your for a minimum of two to three minutes. ! buttocks and see if you can find these Feel for what other areas in your body you bones. Now lean forward slightly. Do are holding or tense. Send your breath you feel how the bones move backwards? to those areas and allow them to relax Picture your pelvis as a bowl and those or soften. bones as little feet at the bottom of the bowl. When they move backwards, the Repeat on both sides of your abdomi- bowl is tipping forward. Now try it nal area. again and see what parts of your body • • • Call (302) 777-0124 or are tensing. Do you notice how your legs In conclusion, these are suggestions e-mail [email protected] and front of your body are engaged or to help prevent pain from starting or to complete our Volunteer working extra hard? Now keeping your continuing. As pain decreases, activities Application and Agreement hands on your ischial tuberosities lean levels can increase. When the weather or to learn more. back. Imagine that pelvic bowl tipping gets warmer see if you can explore a backwards. Feel how that effects your local park or plan a weekend getaway. body? Do you notice more tension in Hiking does not have to be strenuous. the back of your body, especially lower Local parks usually have trails that fit back area? all abilities, from flat smooth surfaces Ideally while you are sitting you to more challenging terrain. Pick a time want your pelvic bowl to not tip over — of day that is cool enough to enjoy the forward or backwards. Keep your feet weather and remember to stay hydrated. engaged in the ground and make sure Come prepared with plenty of water and your chair is a comfortable height. This make sure you are wearing supportive will keep the strain off of your lower footwear. Make this a season of renewal back while you are sitting for work or by applying some of these techniques at watching TV. work or in your daily activities. Change your scenery by finding new places to 5. Take Care of the Front of explore in nature. Your body and mind Your Back will thank you. Tight psoas, or lower abdominal Questions/Comments? Please feel muscles, can contribute to lower back free to reach out. I read every email. pain. We sit a lot in our day-to-day tasks — riding in the car, sitting at a desk, sit- Rachel Gottesman has been an occu- ting on a couch to socialize or watch TV. pational therapist for over 19 years and specializes in the areas of myofascial re- All of these positions shorten the lower lease and pelvic floor therapy. She can be abdominal muscles, which can pull on reached at rgottesman@bodyeasetherapy. other areas of the body, including the com or (610) 314-0780. Her website is torso and lower back. www.bodyeasetherapy.com.

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DSBA Bar Journal | January 2021 23 BANKRUPTCY UPDATE

The Great Debate to Abate: Commercial Leases in Pandemic Bankruptcies

BY ERIN R. FAY, ESQUIRE

he pandemic has raised myriad To the extent the Bankruptcy Code drafters issues for commercial land- lords and tenants, resulting in intended to require debtors to timely pay their a significant uptick in retail, rent, the pandemic has highlighted loopholes restaurant, and other related bankruptcy Tfilings. Well-known brands — J.C. in the text. The skirmishes center both on Penney, Brooks Brothers, Anne Taylor, contractual disputes regarding the lease Pier 1, Ruby Tuesday’s (to name a few) provisions, as well as the limits of what the — entered bankruptcy in 2020. Year to date, more than 30 large retailers have Bankruptcy Code will allow for rent deferrals. filed for bankruptcy, compared to 17 in 2019, and 2021 is expected to be equally well as the limits of what the Bankruptcy and chapter 11 cases, which was essentially 1 grueling. Code will allow for rent deferrals. a freeze on certain payments (such as rent).5 Forced changes to the basic business The primary Bankruptcy Code provi- These courts found that landlords were models of these companies have funda- sion on these issues is section 365(d)(3), protected because post-petition rent is an administrative expense that must be paid mentally impacted the revenue assump- which provides that a debtor shall timely later in the case.6 This logic is cold com- tions underlying their brick-and-mortar pay rent arising in the period after the pe- fort to landlords who are well aware that operations, while lenders to these compa- tition date and until the lease is assumed even before the pandemic, chapter 11 cases or rejected.3 The section further clarifies nies have tightened budgets. Landlords, often concluded without the payment of that the obligation to pay rent is without for their part, rely on rent streams from such claims. the brick-and-mortar operations to pay regard to Bankruptcy Code section 503(b) As a part of this first round “moth- mortgages and maintain properties. (1), which otherwise engrafts a require- balling” strategy, many debtors were Unsurprisingly, rent payments have been ment that administrative expenses consist of “actual necessary costs and expenses of granted rent extensions for the 60-day a key issue in many pandemic retail period stated in section 365(d)(3).7 Some bankruptcies.2 preserving the estate.” This would seem to mean that the amount to be paid is the courts were willing to take these orders a step further and prohibit landlords from Interestingly, despite a Bankruptcy amount stated in the lease and a debtor seeking other relief that would arguably Code provision that appears to require should not be able to reduce its rent obli- undermine the 60-day breathing spell, such rent payments to be made when due gation as a corollary to the profitability of as stay relief to foreclose and to compel (especially after the initial 60 days of the leased premises.4 Finally, the section immediate assumption or rejection.8 As a chapter 11 case), debtor/tenants have provides that the bankruptcy court may the pandemic persisted, however, debtors been remarkably successful in delaying, extend the time to perform such obliga- were increasingly unable (or unwilling) reducing, or making no rent payments. tions that arise in the first 60 days of a to make the payments at the end of the To the extent the Bankruptcy Code case, but only for “cause.” 60-day period. Although it may seem drafters intended to require debtors to The pandemic has tested the boundar- clear that the Bankruptcy Code drafters timely pay their rent, the pandemic has ies of section 365(d)(3) and tenant/landlord intended for payment to be made on day 61, highlighted loopholes in the text. The relations across the board. At the beginning many pandemic courts have not required skirmishes center both on contractual of the pandemic, debtors were permitted by such payments, to the great frustration of disputes regarding the lease provisions, as some courts to “mothball” their operations landlords and the great relief of debtors.9

24 DSBA Bar Journal | www.dsba.org Instead, some courts have found that the performing while holding the other party of payment obligations that may or may not tech- nically be defined as rent. Bankruptcy Code does not require pay- to the contract? 3. 11 U.S.C. § 365(d)(3). ment at the end of the 60-day period or Abatement determinations pose 4. Third Circuit case law is in accord with this plain reading. See In re Goody’s Family Clothing Inc., mandate a remedy if the debtor/tenant practical challenges as well, especially 610 F.3d 812, 817 (3rd Cir. 2010). 10 fails to pay. in large chapter 11 cases. A debtor, such 5. See, e.g., In re Modell’s Sporting Goods, Case No. 20-14179 [Docket No. 166] (granting mothball With no end to the pandemic in as a retailer, may have a portfolio with motion) (Bankr. D.N.J. March 27, 2020). But see hundreds of different leases which require In re Forever 21 Inc., Case No. 19-12122 (Bankr. sight, debtors then began seeking to D. Del. Apr. 1, 2020) [Docket No. 1115]. (denying suspend or abate rent after the 60-day individualized analysis, and its landlords mothball motion by purchaser of debtors’ assets). may incur legal fees similar in amount to 6. See, e.g., In re Pier 1 Imports Inc., Case No. 20- period based on several theories, includ- 30805 (Bankr. E.D. Va. May 10, 2020) [Docket No. ing force majeure lease clauses and state the unpaid rent. Negotiated settlements 637]. can be time-consuming and difficult due 7. See, e.g., In re J.C. Penney Company, Inc., Case law doctrines of frustration of purpose No. 20-20182 (Bankr. S.D. Tex. June 11, 2020) and impossibility. Notably, subject to few to the debtor having numerous landlords [Docket No. 721]. and the dire straits of landlords who have 8. See, e.g., In re True Religion Apparel, Inc., Case exceptions, the Bankruptcy Code does No. 20-10941 (Bankr. D. Del. Apr. 13, 2020) [Dock- not vitiate underlying lease provisions not received rent for some time. Debtors et No. 349]. have significant bargaining power given 9. See, e.g., In re CEC Entertainment, Inc., Case No. or state landlord-tenant law. As such, if 20-33163 (Bankr. S.D. Tex. Aug. 31, 2020) [Docket there is a force majeure clause in a lease, their ability to reject leases and use that No. 782]. threat as a means of obtaining conces- 10. See id. section 365(d)(3) arguably does not alter 11. As this article was going to print, the United its effect. sions. Landlords, in turn, must be careful States Bankruptcy Court for the Southern District not to allow short-term considerations of Texas issued a Memorandum Opinion [Docket Yet, these defenses to payment each No. 1482], denying the debtors’ motion to abate affect long-term strategy. rents filed in the CEC Entertainment, Inc. cases as require highly fact intensive hearings on to several landlords. The opinion disagrees with a a lease-by-lease basis. For instance (and To date, there have been few ac- ruling by the United States Bankruptcy Court for the Eastern District of Virginia issued in the Pier as many of us have no doubt learned tual rulings related to rent abatement by 1 Imports, Inc. cases, which held that Bankruptcy 11 post-pandemic), force majeure clauses bankruptcy courts. Given the continued Code section 365(d)(3) does not compel a debtor to timely pay rent in accordance with a lease. The vary dramatically both in scope of cov- strain expected for 2021, bankruptcy CEC Entertainment, Inc. opinion further high- courts around the country will undoubt- lights the individualized nature of the abatement ered events and relief afforded. Frustra- inquiry, as it analyzed the force majeure and use tion of purpose and impossibility may edly continue to wrestle with these dif- clauses of the relevant leases and applicable state ficult issues. Unfortunately, without an law regarding frustration of purpose. The opinion require an understanding of the range also only ruled on the legal issues presented and of capacities at which a business can efficient and fair solution for both land- indicated that the effect of the ruling would be lords and tenants in these proceedings, determined in a subsequent remedy phase. operate or is operating under state law 12. The observations expressed in this article are the and the permitted uses under the lease. there may come a point where the courts author’s alone and should not be ascribed to Ba- yard, P.A. or any of its clients. There is also an interesting question of end up with debtors on both sides of the 12 whether these state law doctrines that are virtual podium. premised on the failure of the debtor/ten- Erin R. Fay is a director at Bayard, PA Notes: who focuses her practice on corporate ant to receive its bargained-for benefits bankruptcy and restructuring. She is the are at odds with section 365(d)(3) which 1. See The running list of 2020 retail bankruptcies (Nov. 25, 2020), https://www.retaildive.com/ Vice Chair (Commercial Bankruptcy) of the requires payment of rent as stated in the news/the-running-list-of-2020-retail-bankrupt- Bankruptcy Law Section of the Delaware lease without regard to the benefit to cies/571159 (listing 29 retail bankruptcies in 2020, State Bar Association and recently was in addition to Francesca’s which filed for bank- named a member of the 2020 Class of the the estate. Moreover, to the extent these ruptcy on December 3, 2020). 2. The term “rent” is used generally herein with re- American Bankruptcy Institute’s 40 Under state law doctrines apply, is their effect to gard to monetary obligations of a tenant under a 40 Program. She can be reached at efay@ permit rescission or to excuse a party from lease, despite the fact that leases contain a variety bayardlaw.com.

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DSBA Bar Journal | January 2021 25 FEATURE

DELAWARE’S

JOE BIDEN © istockphoto.com/ Oleksii Liskonih Anyone who has lived in Delaware for any amount of time knows that Joe Biden is often spotted around the State and is happy to take a photo and share friendly banter. To the rest of the country, he is now President-Elect Biden, but to many of us he is just “Joe.” Politics aside, most Delawareans are excited about the fact that one of our own will soon be in the White House, and Delaware Bar members are no exception. Here, we share a few Biden stories and photos from our members.

JOHN W. PARADEE, ESQUIRE, AND JACQUELINE PARADEE METTE, ESQUIRE John W. Paradee, Esquire, and Jacqueline Paradee Mette, Esquire, with then United States Senator Joseph R. Biden, Jr., in the Senate Cloak Room, Summer of 1984.

MONA A. PARIKH, ESQUIRE, AND MICHAEL B. GALBRAITH, ESQUIRE

Mona A. Parikh, Esquire, and Michael B. Galbraith, Es- quire, December 2013, at the Bidens’ annual holiday party at the Vice President’s resi- dence, Naval Observatory, BRIDGET A. BRAINARD, ESQUIRE Washington, DC. In Washington D.C. in July 2002 when I was 10 years old with then Senator Joe Biden.

26 DSBA Bar Journal | www.dsba.org BENJAMIN S. GIFFORD IV, THE HONORABLE ESQUIRE, AND KATHLEEN M. JENNINGS JENNA L. STAYTON, ESQUIRE

Benjamin S. Gifford IV, Esquire, JOSEPH M. BARRY, ESQUIRE Attorney General Jennings with and Jenna L. Stayton, Esquire, the President-Elect and Dr. Biden. (right bottom corner), and two We went to a fundraiser at the art museum and friends of the Bar, Kayleen then to Toscana for dinner. It was 2003. Joe Biden Dillon, Esquire, and Liya Mitchell, came in with his entourage toward the end of the Esquire, were able to grab a selfie dinner, recognized us from the fundraiser, paid with Joe Biden at Hollywood for our dinner and came over and talked with Grill on Route 202 during a lunch us for a while. Also pictured are Natalie Wolf, break in 2014. Esquire, Sharon Matava Zieg, Esquire, and Sean M. Beach, Esquire.

SARAH F. GONCHER, ESQUIRE The picture was taken in 2018 fol- KIADII S. HARMON, ESQUIRE, lowing the signing ceremony for AND KATE HARMON, ESQUIRE the Beau Biden Gun Violence Pre- vention Act. As a Deputy Attorney Kiadii S. Harmon, Esquire, and General I helped to draft the legis- Kate Harmon, Esquire, with Pres- lation and was invited to the signing ident-Elect Biden after the 5th ceremony. After Governor Carney Annual Delaware State Bar Asso- signed the legislation into law, I ciation Dr. Martin Luther King, Jr. introduced myself to Vice President Breakfast in 2018. (now President-Elect) Biden and shared with him that I had worked on the bill. He was lovely, thanked me for my work, and took some time to talk with me.

SHELDON N. SANDLER, ESQUIRE

Not long after Joe Biden was elected a Senator, he started having fundraisers called “The Biden Seminar.” He would bring up another Senator or another government official from D.C. and have an evening event with some wine and food. Joe would do an introduction, which usually took longer than the main speaker’s talk, and after both were done, they would answer questions. Susan and I attended regularly and were especially impressed with Joe’s foreign relations insights. When he decided to run for President in 1987, we were happy to support him, and that is when the photo was taken. It took many years, but we are enormously pleased that he has finally attained that pinnacle.

DSBA Bar Journal | January 2021 27 RICHARD A. DILIBERTO, JR., ESQUIRE, AMANDA D. BUCKWORTH, ESQUIRE, TANISHA L. MERCED, ESQUIRE AND MATTHEW C. BUCKWORTH, ESQUIRE

Left: Richard A. DiLiberto, Jr., Esquire, and then Senator Joe Biden holding Amanda J. DiLiberto in 1989 at Bellevue State Park. Amanda is now a Delaware lawyer at the Delaware Department of Justice, and practiced with Attorney General Beau Biden.

At the Louis L. Redding Benefit and Awards Gala Dinner on No- vember 8, 2013, put on by the Right: Twenty-eight years later, Richard A. DiLiberto, Delaware Barristers Associa- Jr., Esquire, and Amanda D. Buckworth, Esquire, are tion. Joe Biden was receiving an pictured with the President-Elect and Matthew C. award that night. Buckworth, Esquire, at the Beau Biden Foundation for the Protection of Children Fundraiser at Wilmington Country Club in September 2017.

ISLANDA L. FINAMORE, ESQUIRE

During Joe Biden’s time at Arch- mere Academy, he served as class president his junior and senior years. Here, Biden (second from left) is pictured with fellow Student Council Officers.

Courtesy of Archmere Academy.

Islanda L. Finamore, Esquire, and Joe Biden are all smiles!

BRADLEY S. EABY, ESQUIRE

MARY I. AKHIMIEN, ESQUIRE MARK S. VAVALA, ESQUIRE

Mary I. Akhimien, Esquire, with President- Mark S. Vavala, Esquire, with President- Bradley S. Eaby, Esquire, with Elect Biden after the 5th Annual Delaware Elect Biden at the Delaware State Bar Joe Biden at the Sussex County State Bar Association Dr. Martin Luther Association Law Day Luncheon in 2018. Democratic Jamboree in April King, Jr. Breakfast in 2018. 2015.

28 DSBA Bar Journal | www.dsba.org LISA B. GOODMAN, ESQUIRE

MARK L. REARDON, ESQUIRE As one of hundreds of examples in my own life, I recall one winter evening decades ago when I waited for two hours outside a local funeral home at the wake of a senior Delaware lawyer. In line with the rest of us was I’ve been honored to know President-Elect Joe Biden for years. As Joe Biden, at the time Chairman of the United States an LGBT person, I wept with joy in May 2012 when he endorsed Senate Judiciary Committee. At some point Biden marriage equality, but my best Joe Biden story is about how he was invited by the funeral home staff to enter through helped my grandparents. the side door and move to the front of the line. He quietly said, “No thanks. This is the most important Both of my paternal grandparents came to America (from Ukraine thing I could be doing.” He remained with friends, old and Lithuania) in the very early 1900s as children. My grandfather and new, to share stories of being a Delaware lawyer. may even have been born on the ship. While both had certificates naturalizing them as part of their families, they had no birth cer- Above: Mark L. Reardon, Esquire, pictured with Joe tificates or passports. If you’ve seen Fiddler on the Roof, you Biden in 2013 at an event at the President Elect’s home are familiar with the story of why they and many Jewish diaspora in the above photo. families fled to America.

After a lifetime of operating tiny one-room groceries in Wilming- A copy of a letter ton (and often living above them) they retired in the mid-1970s, from Senator Biden and had enough money to finally take a vacation and to fulfill a to Mark Reardon, a lifelong dream to go on a cruise. But, they had no passports, nor proud Salesianum the necessary documents to obtain them, even though they had grad, upon hearing been U.S. citizens for over half a century. Mark’s daughter Sara was enrolling, Desperate after exhausting other options, my father called U.S. in 2002, at his alma Senator Joe Biden’s office. My Dad didn’t have much hope — it mater. He writes, seemed a big ask that a U.S. Senator would help two retired grocers “Finally you saw the who had never been involved in politics. light.” Biden chides Mark for realizing Biden didn’t see it that way. My Dad always spoke with amazement what Mark “might about how Biden treated them like “first-class citizens.” Biden’s have become” had office worked with the State Department, and my grandparents he too gone to Arch- got their passports and took that cruise. mere.

LOREN HOLLAND, ESQUIRE

Loren Holland, Esquire, pictured with Joe Biden at the 2013 Dela- ware Barristers’ Annual Louis L. Redding Gala where the then Vice President was an honoree.

DSBA Bar Journal | January 2021 29 A WORLD OF DIFFERENCE

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30 DSBA Bar Journal | www.dsba.org THE DELAWARE STATE BAR ASSOCIATION ANNOUNCES THE A 2021 WORLD OF FICTION WRITING DIFFERENCE Competition

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1. The contest is open to all current Del- 6. All entries submitted will become the Full Court Press aware State Bar Association members. property of the DSBA and, by submit- Expert Treatises ting the article, the author warrants that 2. Authors may collaborate, but no more all people and events in the article are than one submission from each member fictitious and that any similarity to actual Docket Alarm will be considered. Pleadings + Analytics people or events is purely coincidental. 3. An impartial panel of lawyers will choose 7. The winning entries, if any, will be pub- the final three winners without knowl- lished in the Bar Journal. The Editorial edge of the identity of the authors. The Board of the Bar Journal reserves the decisions of the judges are final. NextChapter start your journey right to edit articles and to select no Bankruptcy Petitions + Filing 4. Your entry must be previously unpub- winner and to publish no article from Fastcase is one of the planet’s most lished and original. The short story may among those submitted if the submis- innovative legal research services, be on any fictional topic (humorous, sions are deemed by the Editorial Board and it’s available free to members of anecdotal, mystery, science fiction, etc.). and the judges not to be of notable the Delaware State Bar Association. Among the criteria considered in judg- quality. ing the articles are: quality of writing, 8. All entries must be received no later than LEARN MORE AT originality, and creativity. The judges March 1, 2021 in proper form. Submis- www.dsba.org/fastcase will not consider any article that, in the sions received after that time will not be sole judgment of the panel of judges, considered. Please direct all submission DOWNLOAD TODAY contains matter that is libelous or that to: Rebecca Baird at [email protected] (a violates accepted community standards confirmation email acknowledging your of good taste and decency. entry will be sent). Only the authors of 5. Entries must be 2,000 words or fewer the top three entries, as determined (entries over 2,000 words will not be by the judges, will be contacted by the considered) and must be submitted DSBA at the conclusion of the contest electronically. and before publication.

DSBA Bar Journal | January 2021 31 BOOK REVIEW | REVIEW BY RICHARD A. FORSTEN, ESQUIRE

The First “Trial of the Century”

he Twentieth Century saw many “trials of the century.” Sacco & Vanzetti. The Scopes Monkey Trial. The Lindbergh kidnapping. Julius & Ethel Rosenberg. Charles Manson. Ted Bundy. Rodney King. O.J. Simpson. The list of such trials, many now forgotten or barely remembered, is long, Talthough certainly all of the cases were famous in their day. One such trial, garnering constant front-page press coverage throughout the country in 1915, involved then-former President Theodore “Teddy” Roosevelt, who was sued for libel by the former head of the New York Republican Party William Barnes. And what was it that Roosevelt had said or done? In 1914, Roosevelt had en- dorsed a nonpartisan candidate for governor and, in the course of doing so, had railed against the rule of political bosses, claiming that Republican and Democratic political bosses had worked together to “secure the appointment to office of evil men whose activities so deeply taint and discredit our whole governmental system …that [it] is rotten throughout in almost all of its departments.” He went on to say that this “invisible government …is responsible for the maladministration and corrup- tion in the public offices” and that the public would never secure “economic, social and industrial reforms …until this invisible government of the party bosses working through the alliance between crooked business and crooked politics is rooted out of the government system.” Roosevelt had been a crusader for reform throughout Theodore Roosevelt his political career, so his remarks were, in many ways, just more of the same; but, for Republican party boss William Barnes, who had further political ambitions of for the Defense: his own (including, it was said, the New York Governorship), the remarks could The Courtroom Battle not be allowed to pass unchallenged. And so, Barnes sued Roosevelt for libel and demanded the then quite handsome sum of $50,000. to Save His Legacy When one thinks of legal thrillers, one thinks, generally, of murder mysteries By Dan Abrams and and other criminal cases. Libel is not a topic that comes quickly to mind, if at all. David Fisher And yet the case of Barnes v. Roosevelt, as told by Dan Abrams and David Fisher in Theodore Roosevelt For The Defense: The Courtroom Battle To Save His Legacy, Hanover Square Press, 2019 reads like the very best of legal thrillers. There is suspense, dramatic turns, and unexpected surprises. Just as the trial appears to be going well for Roosevelt, the momentum shifts and suddenly Roosevelt looks doomed. Only when the jury finally announces the verdict is there any certainty, and the jury’s verdict is in doubt up until the moment it is announced. In telling the tale of Barnes v. Roosevelt, the authors have plenty of material to work with. There are the trial transcripts, there are the newspaper accounts, and, of course, there is Theodore Roosevelt himself, a man larger than life then and still larger than life today. The trial lasted six weeks, and Roosevelt was called to the stand three times (once by plaintiff, once by the defense, and finally as a rebuttal witness to Barnes)

32 DSBA Bar Journal | www.dsba.org In telling the tale of Barnes v. Roosevelt, the authors have plenty of material to THE DSBA work with. There are the trial transcripts, LEGAL there are the newspaper accounts, and, of course, there is Theodore Roosevelt DIRECTORY himself, a man larger than life then and still larger than life today. APP testifying for roughly one week all told. damaging, the burden shifted to the And when “TR” spoke, people listened. defendant to prove the truth of the The courtroom was silent, hanging on statements. In Roosevelt’s case, the judge his every word; and his testimony was found the statements damaging and so often quite riveting, full of “behind the the burden was on the defense. Unless scenes” stories and anecdotes that did Roosevelt could convince the jury of not disappoint. In an effort to minimize the truth of his statements, he would be the damage from Roosevelt’s testimony, found liable for damages. the defense team objected frequently to Abrams and Fisher do an admirable the questions and sometimes to the an- job in presenting the case — indeed, swers themselves. They knew the dam- it is a page-turner in the finest sense. age Roosevelt’s testimony was doing. They provide the background on the But for all his principles, and his characters, on the state of the country, relentless push as a reformer, Roosevelt and on the law. But their focus is on the had been a politician himself, and as a trial itself. They are able to quote directly politician he sometimes had to negotiate from the court transcript and do so ef- and cut deals to get things done. And fectively in a way that enhances the story. he had sometimes said flattering things The early Twentieth Century does about the party bosses (at least the Re- not always get its historical due. And, publican party bosses) and worked with in the list of great presidents, Theo- the bosses (including Barnes) during this dore Roosevelt (he hated the nickname process. And Barnes was able to intro- “Teddy”) is often overlooked. But “the duce private letters and other documents Colonel,” as he was also called, had an Free for all DSBA members from Roosevelt’s career which suggested incredible and impactful career. Theo- that while Roosevelt talked the talk, he dore Roosevelt For The Defense offers a did not always walk the walk. Much of glimpse at one of the four presidents on this evidence contradicted Roosevelt’s Mount Rushmore and tells the story of public image of a crusading reformer a fascinating libel trial that gripped the who rejected politics as usual and was country in its day and was the first “trial Call or email right from the app quite surprising to the public. Some in of the century” in a century of amazing the press were only too happy to try and trials to come. It is a true courtroom cut Roosevelt down to size. thriller that is even more thrilling be- The law of libel was a bit different cause it is true. in 1915 as compared to modern times ALWAYS up-to-date! and still evolving. Today it is doubtful that Barnes could make out a case for Richard “Shark” Forsten is a Partner with libel, but in 1915, it was enough that Saul Ewing Arnstein & Lehr LLP, where he statements were damaging to reputation practices in the areas of commercial real estate, land use, business transactions, or livelihood, even for a public figure and related litigation. He can be reached SEARCH: DELAWARE LEGAL DIRECTORY like Barnes; and, if the statements were at [email protected].

DSBA Bar Journal | January 2021 33 THE JUDICIAL PALATE | BY SUSAN E. POPPITI, ESQUIRE © istockphoto.com/© nantonov TOCheers COQ AU CHAMPAGNE

any of us likely COQ AU CHAMPAGNE toasted 2021 with Ingredients: a flute of cham- • 8 skin-on, bone-in chicken thighs (or 4 legs • 3 large cippolini onions, peeled and Mpagne, Prosecco, or another with thigh and drumstick) quartered bubbly. As Winston Churchill • Sea salt • 2 tablespoons tomato paste said, “First things first. Get the • Fresh ground pepper • Fresh thyme champagne.” • 1 bottle Gruet Brut Rosé (or your sparkling • Fresh rosemary of choice) • Salted butter I could not agree more. In fact, • 3 cups chicken stock • 1 pound Baby Bella mushrooms, cleaned, when you cook with bubbly, an • Olive oil halved ordinary day can feel like New • ¾ cup diced pancetta • Flour for thickening Year’s Eve. With that in mind, • 6 carrots, cleaned and cut on the bias into my first recipe of 2021 is Coq Au 1-inch pieces (preferably an assortment of tricolored carrots) Champagne. Season the chicken with salt and pepper and place in a large bowl. Pour 2 cups of You are likely familiar with its Gruet and 1 cup of chicken stock atop the chicken pieces. Marinate in the refrigerator brother dish, Coq Au Vin. While for several hours. This is an important step in deepening the poultry’s flavor. this classic French stew is usu- Preheat the oven to 350 degrees. Remove the chicken from the marinade and pat it ally made with a red Burgundy dry. Reserve the marinade. Heat 2 tablespoons of olive oil in a Dutch oven over me- wine, for a festive flair, I recom- dium heat. Brown the chicken in batches, several minutes per side. Transfer to a plate. mend substituting your favorite Add the pancetta to the pot and cook until lightly browned and slightly crisp. Add sparkling. Previously, I wrote the carrots and cippolini, cooking until the onion is translucent. Add the tomato about one of my favorite spar- paste and stir in 2 cups of chicken stock. Simmer for a few minutes to thicken slightly. Then, add the marinade. Boil until the liquid is reduced by about one quarter. Place klings, Gruet Brut Rosé. This 100 the chicken back in the pot and nestle in several sprigs of thyme and rosemary. Add percent Pinor Noir crafted in another splash of sparkling if it appears you need more liquid to cover the chicken. Albuquerque, New Mexico, pos- Bring to a boil, then cover and transfer to the oven. While the chicken cooks for 1 hour, sesses floral and berry aromas enjoy the remaining Gruet as you continue your prep work or play a game of Scrabble. ideal for lightening up a hearty About 5 minutes before the chicken is cooked, heat two tablespoons of butter in a winter meal. non-stick sauté pan. Add the Baby Bellas and sauté, moving around with a wooden spoon, until slightly browned.

Susan E. Poppiti is an adjunct Remove the pot from the oven. Transfer the chicken to a warm plate and cover with faculty member in Mathemat- aluminum foil. The chicken will be very tender. Place the pot of sauce and vegetables ics at Immaculata University over medium heat and reduce by about a quarter. Also, stir about 3 tablespoons of and an AP Calculus instruc- flour into ¼ cup of water. Add this to the sauce, stir, and continue to simmer until the tor at Johns Hopkins Center for Talented sauce thickens to your desired consistency. Youth. To further her commitment to Return the chicken to the sauce and stir in the mushrooms. Simmer for another few mathematics education, she also serves as minutes. a math content expert for UPchieve, an ed- tech nonprofit providing free, online STEM Serve with ricotta gnocchi or polenta. Even better, let crusty bread be your starch. I tutoring to high school students. Susan like to pair with a Roussillon white or red or — let’s not lose sight of the theme here can be reached at [email protected]. — something that sparkles.

34 DSBA Bar Journal | www.dsba.org 2021 DELAWARE LEGAL DIRECTORY

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WWW.DSBA.ORG DSBA Bar Journal | January 2021 35 BULLETIN BOARD

SERGOVIC CARMEAN WEID- LANDIS RATH & COBB LLP POSITIONS AVAILABLE is MAN MCCARTNEY & OWENS, seeking attorneys to grow its dynamic THE LAW OFFICES OF DORO- P.A. Associate Attorney: Have you corporate restructuring team. We of- SHOW, PASQUALE, KRAWITZ & always wanted to live at the beach and fer sophisticated work in a boutique BHAYA has an opening for an attorney practice law? Busy law firm with general law firm setting with an emphasis on in its personal injury and worker’s com- civil practice including family law, real collaborative effort to best serve our pensation practices in the firm’s down- estate law, trusts and estates/ elder law clients. LRC’s restructuring practice in- state offices. An excellent opportunity and civil litigation seeking associate cludes challenging, first-chair chapter to practice and work near the beach. attorney. Experience preferred, but not 11 debtor and committee representa- Resumes can be emailed to Eric Doro- required. Opportunity for growth and tions, as well as representations of sig- show at: [email protected] or he can be to develop your own practice area. Full nificant stakeholders in the bankruptcy called at the office at (302) 998-0100. time position with competitive benefits process. All candidates should possess and salary. Please send your resume to excellent oral and written communica- COOCH AND TAYLOR, P.A.: [email protected]. tion skills, be self-motivated and able Team oriented litigation firm is to work comfortably in a fast-paced, seeking strategic growth with moti- PARKWAY LAW SEEKS A DELA- collegial environment. Relocation vated litigators in any civil litigation WARE LICENSED ATTORNEY to candidates, especially those with con- practice area with a modest book of join its growing firm. No minimum ex- nections to Delaware, are invited to portable business. Compensation perience required. The attorney would apply. Competitive salary and benefits structure and benefits are very com- work primarily at the firm’s New Castle offered. Please submit your resume, petitive. If you are looking for more County office but can work at the firm’s transcript and a writing sample to Mat- autonomy along with support and Kent and/or Sussex offices if preferred. thew McGuire at [email protected]. resources to grow your practice, this This is a great opportunity for an at- ATTORNEY: Legal Services Corpora- might be the opportunity for you. torney to add a practice area to the firm tion of Delaware, Inc. seeks an Attorney Send resume and cover letter to Ma- or to bring in business to an existing for its Wilmington office. Litigation ria Staci at [email protected]. practice area. The firm primarily prac- experience and Delaware Bar admission tices in real estate, business and estate MANNING GROSS + MASSEN- preferred. Please fax resume to (302) 575- planning. Experience with real estate BURG LLP (MG+M) is recruiting an 0478 or Email to [email protected]. EOE. transactional work and/or experience Associate with 0-5 years of experience in estate planning and administration DELAWARE CREDITORS’ for our Wilmington, Delaware office. experience is preferred but not required. RIGHTS LAW FIRM with offices This associate will be working primar- Looking for a candidate willing to make in multiple states seeks a full or part ily on Delaware litigation. Delaware strong ties to the community through time attorney admitted to practice in bar license or eligibility for the limited marketing efforts. The candidate must Delaware. The position affords an op- practice privilege is required. This is an be willing to originate work (at some portunity to gain invaluable in court excellent opportunity to join a nation- point) and, although not necessary, experience in a variety of Delaware ally recognized and growing defense portable business would be a plus. This courts and handle all phases of litiga- firm with opportunities to perform is a great opportunity to kick start your tion and review documents, pleadings, challenging legal work on day one. career! Pay will be commensurate with motions and correspondence for ac- Candidates should have strong work experience and performance bonuses curacy and compliance with appli- ethic, writing ability, and organizational are available. Please send resume with cable statutes, rules and regulations. skills. MG+M offers an excellent ben- cover letter and salary requirements to The associate must be detail oriented efits package. Please email resume to [email protected]. with effective time management and [email protected]. communication skills and possess the LICENSED DELAWARE BAR AT- WANT TO WORK AT THE exemplary professional judgment nec- TORNEY: Full Service Real Estate BEACH? Real Estate and Estate Plan- essary to independently evaluate cases Title Agency requires Delaware Bar ning Firm has a Part Time position upon placement with the practice and Attorney to perform Bar mandated available for their Millville (Bethany throughout all stages of litigation, in- services, related to purchase sale and re- Beach) location. No experience neces- cluding motions and trials. Interested finance of Residential and Commercial sary as we are willing to train! Please individuals should forward resume transactions. Email reply in confidence send your Resume in confidence to and salary requirements to SteveD@ to [email protected]. [email protected]. Ldvlaw.com.

36 DSBA Bar Journal | www.dsba.org BULLETIN BOARD ADVERTISING INFORMATION SEEKING A DELAWARE AT- Bulletin Board rates are $50 for the first 25 words, $1 each TORNEY to join our law firm. Send resume to: Hiring Partner at additional word. Additional features may be added to any Bulletin [email protected]. Board ad for $10 per feature. The deadline to place a Bulletin Board ad is the 15th of the month prior to the month of publication. CLASI IS HIRING ATTORNEYS. Please check our website for details about All Bulletin Board ads must be received electronically and the positions. http://www.declasi.org/ prepayment is required. Submit the text of the Bulletin Board ad employment/. and payment to [email protected]. For more information, contact SEEKING RETIRED LAW YER OR Rebecca Baird at (302) 658-5279. SENIOR PARALEGAL: Seeking expe- rienced person part time for Wilmington Family Law office to work remote or in person. Experience in legal research a plus. Potentially seeking a retired at- torney. Please respond in confidence to [email protected].

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DSBA Bar Journal | January 2021 37 THE LAST WORD

10 LAWYERS From Delaware who Achieved National Political Prominence

BY RICHARD A. FORSTEN, ESQUIRE istockphoto.com/marcusamelia©

hether you agree with his politics or not, no one can argue that Joseph R. Biden, Jr. is the Delaware lawyer who has achieved the most national political prominence of all Delaware lawyers. But other Delaware lawyers have also appeared W on the national political stage and been prominent in their own time, and so we offer this list: James A. Bayard. Bayard, a Federalist, was the Delaware John M. Clayton. A Congressman and Senator, Clayton Congressman who, in January 1801, cast the tie-breaking vote 5 also served briefly as Secretary of State under Zachary on1 the 36th ballot that broke the deadlock and elected Thomas Taylor. Clayton Hall at the University of Delaware is named Jefferson over Aaron Burr as President. Bayard later also served for him. as a U.S. Senator. Louis McLane. Also a Congressman and Senator, McLane Caesar Augustus Rodney. Nephew of his more famous uncle 6 served as Secretary of State and then Secretary of the who made the ride to Philadelphia in 1776, Caesar Augustus Treasury under Andrew Jackson. McLane also served as Rodney2 served as Attorney General under Jefferson and then Minister to the United Kingdom under Andrew Jackson and Madison; however, he resigned in 1811, when not appointed to the later under James Polk. Supreme Court. Later, he was appointed by Monroe to a special Thomas F. Bayard. A Senator who made three unsuccess- diplomatic mission that recommended the United States recognize ful bids for the Democratic nomination for President, Ba- the newly-formed South American republics, and the report that yard7 also served as Secretary of State under Grover Cleveland. he co-authored with one of his fellow commissioners is thought to have contributed to the formation of the Monroe Doctrine. Louis Redding. No list of great Delaware lawyers is ever Rodney was also a Congressman and Senator before being ap- 8 complete without Louis Redding. pointed Minister Plenipotentiary to the United Provinces of the Río Along with Louis de la Plata (now Argentina), where he died one year later in 1824. The Honorable Collins J. Seitz, Sr. 9 Redding, no list of great Delaware lawyers is complete Pete du Pont. Delaware’s Governor from 1977 to 1985 and without the Judge’s name as well. a candidate for the Republican nomination for President. He Willard Saulsbury, Jr. The last Delaware Senator pulled3 Delaware back from the brink of bankruptcy, he created selected by the General Assembly prior to the Sev- DEFAC and implemented numerous financial and budgetary re- enteenth10 Amendment and the direct election of Senators, forms, he created the Judicial Nominating Commission, signed Saulsbury become President Pro Tempore of the Senate; but, the Financial Center Development Act, slashed marginal tax rates when he faced the voters for the first time in 1918, he was (which were as high as nearly 20 percent), the list goes on and on. turned out, a loss attributed to his opposition to women’s William Roth. Most members of Congress go their entire suffrage and the Nineteenth Amendment. 4 careers without contributing their names to anything, but Note: We have not listed every Delaware lawyer who has served Senator Roth is known for two: the Roth-Kemp Tax Cut and the in Congress, as that list would be quite lengthy on its own, nor Roth IRA. As Pete du Pont once quipped, “That’s two political have we listed Delaware lawyers from the founding era which, victories in a lifetime. That’s very unusual.” again, would be a lengthy list.

Richard “Shark” Forsten is a Partner with Saul Ewing Arnstein & Lehr LLP, where he practices in the areas of commercial real estate, land use, business transactions, and related litigation. He can be reached at [email protected].

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