FEBRUARY 2014 | VOLUME 37 • NUMBER 7

NOMINATIONS SOUGHT FOR BENCH AND BAR AWARD P. 7

TECHNOLOGY AND RELATIONSHIPS P. 10

VALENTINE’S DAY SWEETS P. 34 Get Involved in DSBA Leadership!

The Delaware State Bar Association is looking for a number of talented members to join the 2014-2015 Executive Committee and lead DSBA to continued success.

The following positions on the Executive Committee of the Association must be filled for the year 2014-2015: Vice President-at-Large; Vice President, New Castle County; Secretary; Assistant Secretary; Treasurer; Assistant Treasurer; Six Members-at-Large Note: The Vice President, Kent County and the Vice President, Sussex County will be those persons selected by, respectively, the Kent County Bar Association and the Sussex County Bar Association.

The following position must be filled for terms as noted: One (1) DSBA Representative to the Delaware Bar Foundation Board for a four-year term

The Nominating Committee wants to consider all interested candidates. If you are interested in serving on the Executive Committee or would like to recommend a candidate, please send your name or the candidate’s name along with a CV and at least one letter of nomination to Rina Marks, Executive Director, by e-mail at: [email protected] or by mail at: Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE 19801 by February 14, 2014.

WE NEED YOUR HELP TO FIND STRONG LEADERS FOR THE FUTURE!

The Nominating Committee consists of: James G. McGiffin Jr., Chair Theresa V. Brown-Edwards, Vice-Chair

New Castle County Shakuntla L. Bhaya (2014) Tabatha L. Castro (2015) Sanjay Bhatnagar (2016) Matthew F. Boyer (2014) Tara D. Elliott (2015) Erika R. Caesar (2016) Jennifer Gimler Brady (2014) Danielle Gibbs (2015) Kiadii S. Harmon (2016) Teresa Ann Cheek (2014) Lisa B. Goodman (2015) Natalie J. Haskins (2016) Gerald J. Hager (2014) Tarik J. Haskins (2015) Rakesh H. Mehta (2016) Tiffany A. Poole (2014) Rakesh H. Mehta (2015) Sharon Oras Morgan (2016) Adam Singer (2014) Edward P. Welch (2015) Jordan J. Perry (2016) Monté Terrell Squire (2014) Kent County Sussex County Bradley S. Eaby (2014) David N. Rutt (2014) Gretchen C. Gilchrist (2015) Kim DeBonte (2015) David J. Bever (2016) James Patrick Sharp (2016)

Delaware State Bar Association 405 N. King Street, Suite 100 Wilmington, Delaware 19801 (302) 658-5279 DSBA BAR JOURNAL FEBRUARY 2014 | VOLUME 37 • NUMBER 7

PRESIDENT Gregory Brian Williams

EXECUTIVE DIRECTOR Rina Marks

EDITORIAL BOARD David W. deBruin Michael L. Sensor Seth L. Thompson

EXECUTIVE COMMITTEE LIAISON Richard A. Forsten FEATURES

PUBLICATIONS EDITOR 2 Notice of the Nominating Committee Rebecca Baird

PUBLICATIONS ASSISTANTS 7 Nominations Sought for Bench & Bar Award Janice Myrick Susan Simmons 14 Clarifying “Guaranteed Issue” Health Insurance The Bar Journal is published and distributed By Aaron W. Mitchell, REBC by the Delaware State Bar Association

405 North King Street, Suite 100 16 Photographs and Sponsor Recognition from the Inaugural Wilmington, DE 19801 Dr. Martin Luther King, Jr. Breakfast and Statewide Day of Service 302-658-5279 FAX: 302-658-5212 www.dsba.org 19 Nominations Sought for Law Day Awards

© Copyright 2014 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 COLUMNS on the law, the legal profession and the administration of justice. It may publish articles representing unpopular and 4 President's Corner controversial points of view. Publishing and editorial decisions are based on the 6 Editor’s Perspective quality of writing, the timeliness of the 10 Tips on Technology article, and the potential interest to readers, and all articles are subject to limitations of 12 Ethically Speaking good taste. In every instance, the views expressed are those of the authors, and 20 Access to Justice Spotlight no endorsement of those views should be DE-LAP Zone inferred, unless specifically identified as the 22 policy of the Delaware State Bar Association. 24 Book Review A Profile in Balance The Bar Journal published monthly with a 26 combined July/August issue. 34 Judicial Palate 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 e-mailed to: [email protected] 8 Calendar of Events All inquiries regarding advertising should be directed to the address above, Attention: 9 Section & Committee Meetings Advertising, Bar Journal. 31 Disciplinary Actions Letters to the Editor should pertain to recent articles, columns, or other letters. Unsigned 32 Bulletin Board letters are not published. All letters are 32 Of Note subject to editing. Send letters to the address above, Attention: Editor, Bar Journal. 36 2014 Legal Directory Order Form

Cover Photo Credit: © istockphoto.com/nito100

DSBA Bar Journal | February 2014 3 President's Corner

By Gregory B. Williams, Esquire

Want to be Great? Serve Others

f we are honest with ourselves, But to sit on my right hand and on my Jesus told them that they knew not what most people want to be recognized left hand is not mine to give; but it shall they asked of him and asked them the as great, first, or as the best in be given to them for whom it is prepared.” question, “Can you drink of the cup that something. As a profession, we have (St. Mark 10:39-40). And when the other I am about to drink?” Icreated a countless number of awards and ten disciples heard the conversation, they God answers prayers. However, be- distinctions to recognize ourselves as great were displeased with James and John. (St. cause of our own selfish motives, we or somebody special — Super Lawyer, Mark 10:41). Thereafter, Jesus gathered sometimes ask for things that may not Top Lawyer, Rising Star, AV Rated, Best all twelve disciples and said to them “You be the right thing for us. In the above in America, Best in Delaware, etc. There know that they which are accounted to example, James and John were thinking of is nothing wrong in having the need to rule over the Gentiles exercise lordship themselves first. Jesus ultimately explained be great or somebody special. The Bible over them: and their great ones exercise to James and John and the remainder of teaches, however, that a problem occurs authority upon them.” (St. Mark 10:42). his disciples the importance of denying self when we try to fill that need to be great However, that shall not be among you: but and serving others. or special in the wrong way or through whosoever will be great among you, shall The irony and lesson from the illus- improper means. be your minister (servant). Whosoever of you tration is that true greatness comes from will be greatest, shall be servant of all. For A Biblical Illustration serving others. Even Jesus himself came to even the Son of man came not to be served, In the gospel of St. Mark, Chapter 10, give of himself and to serve. What a great but to serve, and to give his life a ransom for example to follow! beginning at verse 32, Jesus tells his twelve many. (St. Mark 10:43-45). disciples that he is about to be betrayed and Practical Application and Open turned over to the Romans, and thereafter, Insight and Lessons Learned Call for Future Leaders of the he shall be condemned to death, mocked from the Biblical Illustration DSBA and crucified, and the third day he shall What we learn from this story is that rise from the dead. (St. Mark 10:32-34). In Becoming a leader in the DSBA is an there are twelve disciples but, these two their ambition, James and John, the sons of example of servant leadership. Giving of brothers, James and John, came to Jesus Zebedee, came unto Jesus, saying “Master, your talents and time to serve others and in private asking for a special favor. At this we want you to do for us whatever we shall making a meaningful difference in our most inopportune moment and being so desire.” (St. Mark 10:35). Jesus said to them Association and in our profession may be wrapped up in their own selfish ambition “What do you want me to do for you?” (St. a path to greatness in our profession. The and competition, their request reveals Mark 10:36). They answered Jesus “Grant DSBA is currently looking for future lead- that they had totally misunderstood the unto us that we may sit, one on thy right ers willing to serve others. You will find meaning of their mission and the nature hand, and the other on thy left hand, in the announcement asking members of the thy glory.” (St. Mark 10:37). Jesus said unto of Jesus’ mission. DSBA to consider applying themselves or them “You know not what ye ask: can ye Jesus knew what was implied by their to assist in identifying other strong leaders drink of the cup that I drink of? And be request. They wanted a shortcut to glory. for the future on page 2 of this month’s baptized with? (St. Mark 10:38). And they They wanted the glory without paying issue of The Journal. said unto Jesus “We can.” Jesus said unto the costs of glory. They failed to realize The DSBA bylaws provide some them “Ye shall indeed drink of the cup that there is no crown without a cross, guidelines on the criteria that should be that I drink of: and with the baptism that no throne without sacrifice, and no glory used to evaluate an individual’s fitness I am baptized withal shall ye be baptized: without the suffering that leads to it. Thus, to serve as a leader of the DSBA, includ-

4 DSBA Bar Journal | www.dsba.org ing “professional reputa- “ vice with the DSBA tion and standing at the thus far and would Giving of your talents and time to serve others Bar; contributions over recommend a similar the years to the work and making a meaningful difference in our path to others looking of the Association and Association and in our profession may be a to make a difference the Courts of Delaware; “ in our Association, geographic balance, in- path to greatness in our profession. the profession and the cluding an orderly rota- community. tion and distribution of offices among thereafter serving one year as Secretary, As I approach the second half of my the three counties; gender and minority thereafter serving one year as Treasurer, term as President of the DSBA, I have a representation; type and size of practice; thereafter serving one year as Vice Presi- renewed commitment to service to oth- community service; and such other factors dent of New Castle County, thereafter ers and, with the able assistance of all of for fair representation and competency as serving one year as Vice President-at-Large, my equally committed colleagues on the the [Nominating] Committee deems ap- thereafter serving one year as President- DSBA Executive Committee who toil with propriate.” The foregoing is, however, best Elect, and thereafter becoming the 66th me, look forward to finishing my term summed up as follows: Delaware attorneys President of the DSBA on July 1, 2013. strong. Hopefully, others with ears to hear that care about the future of our Associa- While working my way up the leader- and appreciate the insights from the lesson tion and the legal profession who are will- ship ladder of the DSBA, I served under above will step up to the plate and carry ing to volunteer their time and talents and and with some extraordinary Presidents the mantle going forward in future years. work their way up through the leadership and other leaders who exhibited all of the Will you answer the call? Be Blessed! ladder of the DSBA need only apply. characteristics, traits and spirit found in I answered a similar call and started my servant leaders. They inspired me to care journey working up the DSBA leadership more and to want to do more to continue, Gregory B. Williams is President ladder eight years ago, first serving as a advance, elevate, preserve and expand the of the Delaware State Bar As- sociation and a Partner at Fox Section Chair for a year, thereafter initially good work of the DSBA and the service Rothschild LLP. He can be reached serving for one year on the DSBA Ex- of its members in Delaware and beyond. I at [email protected]. ecutive Committee as a Member-at-Large, have thoroughly enjoyed my journey of ser-

We believe in building relationships. Kruza Legal Search Specializing in permanent attorney, paralegal and support staff placement services since 1980.

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

DSBA Bar Journal | February 2014 5 Editor’s Perspective

By David W. deBruin, Esquire

The Client Made Me Do It

art of the responsibility of be- The fact is that attorneys are often keeping with the Delaware way of the ing an attorney in Delaware is presented with challenging issues and practice of law. the often-discussed idea that decisions. It is very important to choose Unfortunately, there will always be there is a “Delaware Way” of wisely when we are presented with such people in the world who are aware of the Ppracticing law. This is precisely why it is issues and decisions. This is because Delaware way credo, however, they se- so important for lawyers to take the time how we act or respond when faced with lectively attempt to exploit it—as if pro- and make the effort to fully educate the such situations ultimately has a direct fessionalism and courtesy were the soft client and/or out-of state counsel about effect upon how we are viewed by our underbelly of lawyers practicing in Dela- the special nature of the Delaware Bar, its adversaries in the legal community and ware. It is our duty as Delaware lawyers esteemed Bench, and about the Delaware by the court. to beat back those that would tear down way of practicing law at the outset of the There are times when attorneys need the well-established way to practice law. representation. “cover” for themselves or their firm When faced with such a runaway client Despite the fact that the total number for a myriad of reasons. There are also or co-counsel, it is unacceptable to say of actively practicing Delaware attor- certain clients that require additional to your opposing counsel, “I’m really neys consistently amounts to less than attention or special consideration. Ad- sorry about that, but I had to do it for the annual influx of new admittees in ditionally, there are times where a client my client.” It is sometimes very difficult some other states, some more seasoned or co-counsel directs us to take a certain to redirect a client or co-counsel, but if attorneys may think the size of the Bar position that you know is likely to cause warranted by the situation, you must be has expanded beyond the point that we a problem for opposing counsel and/or willing to lose the representation if they can realistically maintain the Delaware their client. How we respond to such a refuse to comply with your advice. way. We cannot let this happen. It is client or co-counsel in the face of this I strongly believe that when you prac- important for all of us currently practic- type of situation is a true measure of tice law in concert with the Delaware ing attorneys to respect and uphold what your intestinal fortitude and your pro- way, you do more than just evidence the those who came before us built. fessionalism. due measure of respect for former and Most of us have a select group of fel- In my mind, there is a distinct dif- current lawyers and judges, you demon- low lawyers with whom we can consult ference between doing something that strate to clients and/or out-of-state co- and in whom we can confide, in order you would not ordinarily do as a “CYA” counsel the very essence of what makes to fully and properly discuss important (loosely defined herein as something Delaware’s courts such a highly prized and difficult decisions. I believe that that you would do to protect against forum in which to resolve disputes. such a “sounding board” is a vital part of the possibility of bad things happening) Editor’s note: This Editor’s Perspective effectively representing one’s clients. You and something that you do or agree to previously ran in the March 2009 Bar need to be able to share all of the vital do in an effort to show your client and/ Journal. information without selectively tailoring or co-counsel what a tough and zealous the facts and circumstances for whatever advocate you are on their behalf. You Bar Journal Editor David deBruin is really must guard against letting a client the founder of The deBruin Firm and reason. Practicing law without the ability his practice is dedicated to representing to vet tough decisions with a group of or co-counsel dictate your every move. victims of mesothelioma, dangerous colleagues you respect is tantamount to Turning over the reigns of your practice drug and medical devices, and select walking a high-wire rope without a net to a client or co-counsel will surely complex litigation. He can be reached beneath you. lead to errors in judgment and is not in at [email protected].

6 DSBA Bar Journal | www.dsba.org Nominations Sought for Bench & Bar Award The Delaware State Bar Association and the Awards Committee are seeking nominations for The First State Distinguished Service Award to be presented at the 2014 Bench & Bar Conference. The award is described below: First State Distinguished Service Award – 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.

Delaware State Bar Association Nomination Form for First State Distinguished Service Award Name of Candidate: ______Title/Occupation of Candidate: ______Date: ______Nominator: ______Phone: ______Fax:______E-Mail ______Firm: ______Address:______Brief statement of reasons that candidate is deserving of Award (Please attach sheet if necessary): ______Nominations should be submitted to Rina Marks, Executive Director, e-mail [email protected] or fax to (302) 658-5212. The deadline for nominations is March 24, 2014.

Direct: (302) 576-6838 Email: [email protected]

Celebrating over 35 years in Real Estate ... let my experience work for you. Office: 302-429-4500

157 Candlewyck Drive 7 Buckridge Drive 1113 legacy lane 4 nine Gates Road CanDlewyCk BaRley wOODS, GReenVIlle lOnGVIew aT wylIe CHaDDS FORD New Price

$469,900 $699,500 $799,900 $899,000

• Thoughtfully designed residence in New • Custom built contemporary with energy • Elegant 4BR with 4½B home in rolling country • Custom home to be built by Montchanin Garden Township, Avondale, PA, has efficiency in mind, situated on 2 acres with side of Chester County w/fabulous views! Builders on a beautiful 3.9 acre lot with impressive 2-story foyer w/turned staircase. public water and sewer. • Unionville School District pond view. • Traditional LR & DR w/crown molding, chair • Built into a hillside facing south, with large • Spacious kit has maple cabinets, center • Open floorplan with spacious kitchen and rail & wainscoting. windows, 2x6 studs, and extra insulation. island, sunny eating area & opens to family family rm featuring frpl and vaulted ceiling. • Spacious & bright, the eat-in kit has central • Stunning LR with fireplace, cathedral ceiling room with vaulted ceiling, and stone hearth • 1st flr MBR suite w/private BA & walk-in closet. location, abundance of cabinets, expansive and spectacular views. fireplace. • Formal living and dining rooms, and island & seemingly-endless counter space. • Eat-in kitchen with plenty of cabinet space, • 2-story foyer with butterfly staircase. two story foyer for elegant entertaining. • MBR suite has sitting area, 2 walk-in closets & SubZero fridge, JennAir cooktop, and • Formal living room features gas fireplace & • Second floor offers three additional private BA w/2 vanities, soaking tub &sep shower. walk-in pantry. opens to dining room w/tray ceiling. bedrooms and another full bath. • Spacious walk-out fin LL features wet bar, full • Wonderful private location, yet close to • Large study/office on first flr w/bay window. • Full basement w/rough-in plumbing & bath & 2 additional rooms for multiple uses. Greenville, downtown Wilmington, I-95 • Finished walkout lower level with full bath, walk-out access. • Spacious yard & deck w/paver patio & walkways. and more. game room, and exercise room. • Located ½ mi from DE state line.

property website: www.psre.com/1105 property website: www.psre.com/9188 property website: www.psre.com/8528 property website: www.psre.com/9972 For expanded information & additional photos regarding any of these fine properties, please visit my website at:http://scrifasi.psre.com

DSBA Bar Journal | February 2014 7 Calendar of Events Professional Guidance Committee February 2014

This committee provides peer counseling Wednesday, February 12, 2014 and support to lawyers overburdened by ADR Contractual Provisions: Best Practices and Recent Developments personal or practice-related problems. It 1.5 hours CLE credit offers help to lawyers who, during difficult Delaware State Bar Association, Wilmington times, may need assistance in meeting law Webcast to Tunnell & Raysor, Georgetown practice demands. The members of this committee, individually or as a team, will Monday, February 17, 2014 help with the time and energy needed to Workers’ Compensation Breakfast Seminar keep a law practice operating smoothly and Rescheduled from January 22, 2014 to protect clients. Call a member if you or 3.3 hours CLE credit someone you know needs assistance. Chase Center on the Riverfront, Wilmington Friday, February 21, 2014 New Castle County Rubenstein-Walsh Seminar on Professionalism and Ethics 6.0 hours CLE credit Karen Jacobs, Esquire, Co-Chair* Chase Center on the Riverfront, Wilmington, DE Victor F. Battaglia, Sr., Esquire Tuesday, February 25, 2014 Dawn L. Becker, Esquire Delaware Administrative Law: Vincent A. Bifferato, Sr. Practicing before Delaware’s Boards and Commissions Mary C. Boudart, Esquire 3.0 hours CLE credit Ben T. Castle, Esquire Delaware State Bar Association, Wilmington Webcast to Tunnell & Raysor, Georgetown Thomas Conaty, Esquire David J. Ferry, Jr., Esquire Robert D. Goldberg, Esquire March 2014 Bayard Marin, Esquire March 7 and 8, 2014 James K. Maron, Esquire Women and Law Section Retreat Wayne A. Marvel, Esquire 7.0 hours CLE credit Michael F. McTaggart, Esquire The Bellmoor, Rehoboth Beach Elizabeth Y. Olsen, Esquire* Kenneth M. Roseman, Esquire* Thomas Doyle Runnels, Esquire April 2014 R. Judson Scaggs, Esquire* Thursday, April 3, 2014 Hon. William L. Witham, Jr. Labor and Employment Update 2014 5.0 hours CLE credit David A. White, Esquire Delaware State Bar Association, Wilmington Webcast to Tunnell & Raysor, Georgetown Kent County Thursday, April 10, 2014 I. Barry Guerke, Esquire Co-Chair* Short Topics in Real Estate 3.5 hours CLE credit Crystal L. Carey, Esquire Delaware State Bar Association, Wilmington Edward Curley, Esquire Webcast to Tunnell & Raysor, Georgetown Clay T. Jester, Esquire Friday, April 11, 2014 Mary E. Sherlock, Esquire Environmental Law 2014 4.0 hours CLE credit Delaware State Bar Association, Wilmington Sussex County Webcast to Tunnell & Raysor, Georgetown Larry W. Fifer, Esquire

Remember that CLE Videos are shown for CLE credit five days a week Carol P. Waldhauser, Executive Director at the DSBA in Wilmington! Call 302 658-5279 to make an appointment. DSBA/DE-LAP Liaison

8 DSBA Bar Journal | www.dsba.org Section & Committee Meetings Executive Committee Gregory Brian Williams February 2014 President Thursday, February 6, 2014 • 4:00 p.m. Yvonne Takvorian Saville Real & Personal Property Section Meeting President-Elect Woloshin, Lynch, Natalie & Gagne, P.A., 3200 Concord Pike, Wilmington Thursday, February 13, 2014 • 6:00 p.m. Richard A. Forsten Young Lawyers Section Happy Hour Vice President-at-Large Cafe Mezzanotte, 1007 North Orange Street, Wilmington Miranda D. Clifton Tuesday, February 18, 2014 • 11:30 a.m. Litigation Section Meeting Vice President, Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington New Castle County

Tuesday, February 18, 2014 • 12:30 p.m. Mitchell William May Labor & Employment Law Section Meeting Vice President, Morris James LLP, 500 Delaware Avenue, Suite 1500, Wilmington Kent County Thursday, February 20, 2014 • 12:00 p.m. Elder Law Section Meeting Michael Ryan Smith Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington Vice President, Thursday, February 20, 2014 • 12:00 p.m. Sussex County Executive Committee Meeting Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington David J. Ferry, Jr. Secretary Monday, February 24, 2014 • 11:30 a.m. Environmental Law Section Meeting Michael F. McTaggart Richards, Layton & Finger, P. A., One Rodney Square, 920 North King Street, Wilmington Assistant Secretary Monday, February 24, 2014 • 4:00 p.m. Taxation Section Meeting David A. Felice Morris James LLP, 500 Delaware Avenue, Suite 1500, Wilmington Treasurer Thursday, February 27, 2014 • 4:00 p.m. Family Law Section Meeting William Patrick Brady Bayard, P.A., 222 Delaware Avenue, Suite 900, Wilmington Assistant Treasurer

Theresa V. Brown-Edwards March 2014 Past President Monday, March 3, 2014 • 12:30 p.m. Senior Lawyers Committee Monthly Luncheon Meeting The Honorable Alex J. Smalls Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington Judicial Member

Thursday, March 6, 2014 • 4:00 p.m. Mary I. Akhimien Real & Personal Property Section Meeting Assistant to President Woloshin, Lynch, Natalie & Gagne, P.A., 3200 Concord Pike, Wilmington Wednesday, March 12, 2014 • 12:00 p.m. Michael Houghton Alternative Dispute Resolution Section Meeting Legislative Liaison Marshall Dennehey Warner Coleman & Goggin,1220 North Market Street, 5th Floor, Wilmington Santino Ceccotti Thursday, March 13, 2014 • 6:00 p.m. Johnna M. Darby Young Lawyers Section Happy Hour Reneta L. Green-Streett Cafe Mezzanotte, 1007 North Orange Street, Wilmington Laina M. Herbert Friday, March 14, 2014 • 4:30 p.m. Brenda James-Roberts Workers’ Compensation Section Meeting Christopher L. Kenny Young Conaway Stargatt & Taylor LLP, 1000 North King Street, Wilmington Robert J. Krapf Thursday, March 20, 2014 • 12:00 p.m. Thomas P. McGonigle Elder Law Section Meeting David C. Shelton Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington Monte Terrell Squire David A. White Thursday, March 20, 2014 • 12:00 p.m. Members-at-Large Executive Committee Meeting Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington Rina Marks Executive Director

DSBA Bar Journal | February 2014 9 TIPS ON TECHNOLOGY

By Kevin F. Brady, Esquire

It’s Valentine’s Day...Back Away from the Phone...

echnology is everywhere and there is no getting Technology has blurred the lines to the extent that the boundar- around it. It seems like everyone over the age of five ies are almost unrecognizable. Intimate interpersonal exchanges has a smartphone and they use it everywhere they that were once reserved for face-to-face alone time are now con- go — at home, in the office, in the car, in the res- ducted electronically with, unfortunately, the same expectation Ttaurant, in the elevator, crossing the street, in the bathroom, in of intimacy and privacy. the bedroom etc., and for all kinds of reasons — good and not Truth is, there is no personal privacy anymore. We should © istockphoto.com/ dolgachov so good! We are all crazed with constantly checking e-mail, text all assume that we are being recorded all of the time. (I would messages, Facebook, Twitter, and Instagram. use 24/7 here, but that phrase, according Do you have a panic attack if you leave to a January 4, 2014 New York Times your house and then realize that you article, “What Words or Phrases forgot your phone or tablet? When Should Be Retired in 2014,” was you have no texts and it has been over kicked to the curb.) Wearable five minutes, do you text yourself technology subjects everyone just to make sure your phone is still to be recorded or videoed just working? about everywhere you go. Who How we gather, send, and re- would have thought just a few ceive digital information has altered years ago that it would be ap- the way we live our lives. While there propriate to wear Google Glass are tremendous benefits to technology, on a date to record the events or there are some not-so-positive aspects share the experience on the internet to this techno-centric lifestyle. While the with others? Who would have thought number of people looking to “connect” with that it would be acceptable for a bride to another person remains at a very high level, wear Google Glass on her wedding day (and interpersonal skills are on the wane because face- night) for the same reason? Yes, that has already to-face interactions have been profoundly altered by the happened. Have we gone too far with technology? use of technology. You can go to just about any restaurant on Maybe it is time for a “time out.” any given night and see the traditional family of four sitting at the table not speaking to each other because they all have their heads Valentine’s Day and What If… down looking at their smartphones. You can go to just about any Valentine’s Day is a day of romance, an opportunity to tell college or university classroom and see the teacher teaching to someone you know that they are very special to you. It is supposed the tops of students heads because the students are not looking to be fun, sincere, heartfelt, intimate, and meaningful. Traditional at the teacher; they are looking at their computers. approaches (which did not include technology) include sending someone flowers, candy, a romantic card, going out to a romantic Interpersonal Relationships and Technology? dinner, or spending a romantic evening at home. But, those were When it comes to technology and interpersonal relationships the old days. After conducting a completely unscientific survey I (formerly known as “dating”), apparently the first and only rule did find that sending someone a romantic text, e-mail, picture, or is that “you have to be available any time and any place.” Beyond “snap” (“Snapchat” is the social network application that allows that, there do not appear to be any boundaries or rules. What people to send photos and video messages — known as “snaps” — is acceptable and not acceptable in today’s digital dating world? that “allegedly” disappear in 10 seconds or less) on Valentine’s Day

10 DSBA Bar Journal | www.dsba.org is appropriate, if not expected. It seems like Day that at the end of the evening you falls in love with the female voice produced there should be more to Valentine’s Day should be holding something other than by his new computer’s operating system. I than focusing on your phone. What if you your phone or tablet. think that says it all! downplayed or even eliminated technology For those of you who prefer to be tap- Happy Valentine’s Day to all! just for that day? Is it possible? ping the keys on your smartphone at the What if you pretend that the time you end of the night, if you want to find out Kevin F. Brady is a litigation spend with your special someone is a “no- where you got “disconnected,” I suggest member at Eckert Seamans Cherin phone zone”? What if you were “present” you cuddle up to Robert Weiss’ new book, & Mellott, LLC and can be reached at during that time with them and you let Closer Together & Further Apart – The Ef- [email protected]. your special someone be the focus of your fect of Technology and the Internet on Sex, “Tips on Technology” is service of attention for the evening and not just an Intimacy & Relationships. Or, if you would the E-Discovery and Technology Law attractive diversion between the times you like to go to the movies, I suggest Her, Section of the Delaware State Bar are checking your phone for texts, tweets, starring Joaquin Phoenix, whose character Association. snaps, etc. As blasphemous as that sounds, in today’s digital space, what would your world look like for that evening? Delaware’s Premier That Awkward Moment… What if you go out to a romantic Litigation Support Team dinner and instead of whipping out your phone as soon as your date leaves the table to go to the restroom, you experience that very awkward feeling of sitting at a table by yourself with nothing to read or do but look around? That is a trick question because it is not an awkward moment anymore because no one will be looking at you. They are all looking at their phones! How would the person you are with feel if he or she sees you sitting and actu- ally waiting for her/him to return to the table instead of seeing you talking on your phone to your buddy, posting pictures to Instagram, sending/receiving snaps or tweets while they were gone? Wouldn’t that approach make you look a little more interested in your date and a little less self-centered or self-absorbed? Would Stephen M. Conyers, CPA Edward P. Byrnes Stacey A. Wynne, CPA, CFE, CICA William A. Santora, CPA your date think you were romantic and connected to him or her or would your date think you were bored or discon- • Review & Analysis of Documents nected because you were not looking at • Damage CalculaƟon your phone? Is looking at someone and paying complete attention to them going • Detailed Expert Report PreparaƟon to be viewed as special and connected or • DeposiƟon & Court TesƟmony weird and creepy in today’s digital society? • RebuƩal Reports Then Maybe… • Forensic AccounƟng Giving someone your attention, or more importantly, your time, is much more valuable in today’s non-contact interper- sonal relationship. Good etiquette means good manners — make your date feel special on Valentine’s Day. If it is not the Call 302-737-6200 or toll free 800-347-0116 goal, it is certainly the spirit of Valentine’s

DSBA Bar Journal | February 2014 11 ETHICALLY SPEAKING

By Charles Slanina, Esquire

Ignoring Technology at Your Own Disciplinary Risk: Rule 1.1 and the Duty to be Technologically Competent By Kevin F. Brady

his month Ethically Speak- preserve relevant electronic information. information; and (ii) ordered Employee ing welcomes guest columnist See, Massachusetts Bar v. Reisman (No. to return to NSA all information that he Kevin Brady who describes 2013-21) (Oct. 9, 2013) http://www.mass. deleted from the NSA laptop and trans- one of the first instances of an gov/obcbbo/pr13-21.pdf. ferred to any other device. Tattorney being disciplined under the newly revised Rule 1.1 which Delaware adopted Background Where the Lawyer Went Wrong last year. Kevin is a litigation member at The facts on this case are not com- Even though Employee knew that Eckert Seamans Cherin & Merlott, LLC plicated. In November 2006, the lawyer he transferred NSA files from his NSA and Co-Chair of the Delaware Supreme Respondent, Kenneth Reisman (“Reis- laptop to an ASI laptop, Employee told Court’s Commission on Law & Technology. man”), was hired to represent ASI and lawyer Reisman (and Reisman did noth- ing to verify this fact) that Employee did • • • its employee (“Employee”) in an action brought by NSA (which was the former not transfer any NSA information to In January 2013, the Delaware Su- employer of the Employee and a competi- any other device. Based solely on what preme Court amended the Delaware tor of ASI). When Employee left NSA at his client told him, Reisman filed an Lawyers’ Rules of Professional Respon- the end of September 2006, he took his answer and counterclaims denying that sibility (“Delaware Rules”) and adopted, NSA laptop with him. During a three- any confidential information of NSA was among other things, the changes that the week period in October 2006, Employee “uploaded or given to ASI.” Two days American Bar Association made to the transferred some files from the NSA lap- after the court entered the restraining comment to Rule 1.1 of the Model Rules top to an ASI laptop and then scrubbed order (and in direct violation of the court of Professional Conduct governing lawyer the NSA laptop (to delete some files), order), Employee deleted some NSA files competence. The revised comment to then returned the laptop to NSA. NSA from the ASI laptop. the ABA Model Rules notes that lawyers filed suit getting a restraining order that: Four months later in March 2007, “should keep abreast of changes in the (i) barred Employee from disposing of or counsel for NSA advised Reisman that law and its practice, including the ben- using NSA trade secrets or confidential NSA was going to file a motion to gain efits and risks associated with relevant technology….” The Massachusetts Board of Bar The ethical traps for the unwary lawyer in Overseers recently issued a public rep- electronic discovery are numerous“ and especially rimand to a “relatively inexperienced” daunting given the charge that lawyers in many lawyer who violated, among other rules, “ Massachusetts Rule of Professional states, including Delaware, are required to Conduct 1.1 (competence) for failing to understand the “benefits and risks associated understand and instruct his client on this with relevant technology.” basic concept — the scope of a duty to

12 DSBA Bar Journal | www.dsba.org access to Employee’s computer and that terms of handling electronic information Delaware Rules. The Commission is in Reisman was obligated to tell Employee to in discovery, Reisman’s “conduct of han- the process of developing and publishing preserve any information relevant to the dling a matter that he was not competent guidelines and best practices regarding matter. However, Reisman did not take to handle without adequate research or the use of technology, especially as they any action (either after he was told that associating with or conferring with expe- may relate to lawyer competence and cli- NSA was going to file the motion or after rienced counsel, and without any attempt ent confidentiality. The Commission is NSA filed the motion) to advise Employee to confirm the nature and content of the also in the process of creating a knowledge or ASI not to delete any relevant informa- proposed deletions, was conduct in viola- bank of opinions and articles relating to tion “including any on the [E]mployee’s tion of Mass. R. Prof. C. 1.1.” Reisman ethical issues involving technology and ASI laptop.” was given a public reprimand. the practice of law. This knowledge bank On April 12, 2007, the court held will be available electronically to all mem- Could This Happen in Delaware? a hearing on discovery issues and then bers of the Delaware Bar at no charge. The ethical traps for the unwary law- ordered that NSA’s forensic expert was “Ethically Speaking” is intended to stimulate permitted to have access to and allowed yer in electronic discovery are numerous awareness of ethical issues. It is not intended as legal to copy the hard drive in the ASI laptop. and especially daunting given the charge advice nor does it necessarily represent the opinion On the same day as the hearing, ap- that lawyers in many states, including of the Delaware State Bar Association. parently without Reisman’s knowledge, Delaware, are required to understand “Ethically Speaking” is available online. The Employee deleted more files from his ASI the “benefits and risks associated with columns from the past two years are available on www.dsba.org. laptop. Following the April 12 Order, relevant technology.” However, the Dela- Employee told Reisman that there were ware Supreme Court recognized the need for assistance and in July 2013, it created “confidential documents and information Charles Slanina is a partner in the firm of ASI, unrelated to NSA, on his laptop the Commission on Law & Technology” of Finger & Slanina, LLC. His practice that should not be disclosed to NSA or (the “Commission”). The Court charged areas include disciplinary defense its expert.” Based solely on Employee’s the Commission with providing Delaware and consultations on professional representation and without any further lawyers and judges guidance and educa- responsibility issues. Additional infor- tion in technology and the practice of mation about the author is available at investigation, Reisman told Employee www.delawgroup.com. that “he could scrub such confidential in- law so as to facilitate compliance with the formation from his laptop.” Then, the day before the expert was to examine the hard drive, Employee scrubbed additional files from the hard drive of his ASI computer. Law Offices Of Client Dodges Sanctions – Lawyer Not So Lucky Dana L. ReynOLDs, LLc The court found that there was spolia- tion of evidence by Employee. However, because the plaintiff failed to prove that FAMILY LAW Divorce and Separation Employee’s scrubbing/deletion of data Adoption “caused any damage to NSA,” the court Custody/Guardianship did not sanction Employee or ASI. How- Termination of Parental Rights Embryo & Egg Donation ever, the Massachusetts Board of Bar Gestational Surrogacy Overseers found that Reisman’s advice to Domestic Violence/PFAs his client to scrub certain files from the hard drive of a laptop in contravention CRIMINAL DEFENSE of a court order constituted unlawful Drunk Driving/DUI Misdemeanors obstruction of another party’s access to Felonies evidence, in violation of Mass. R. Prof. Expungements & Pardons C. 3.4(a). Second, Reisman’s failure to Juvenile Offenses Motor Vehicle Offenses adequately communicate to his client his Post-Conviction Relief preservation obligations under the court Dana L. ReynoLDs, esq. Appeals order and the potential prejudice of alter- ing property subject to the court order was conduct in violation of Mass. R. Prof. C. 30C Trolley Square • WilmingTon, De 19806 1.4. Finally, because there was no evidence 302.428.8900 • WWW.DanareynolDSlaW.Com that Reisman knew what he was doing in

DSBA Bar Journal | February 2014 13 Special Qualifying Events Much like group plans, there are spe- cial enrollment periods for those people who have a qualifying event. Anyone who loses coverage, at any point in the year, will be given the ability to enroll DSBIS Up date Clarifying in the Exchange marketplace. There will also be special elections periods for events such as marriage, birth, adoption, death, or divorce. Most events provide a “Guaranteed window of 60 days to enroll in coverage. Missing an Enrollment Period Anyone who misses the annual en- Issue” rollment period or fails to enroll within the time limit from a qualifying event will not be able to enroll until the next Health Insurance Annual Open Enrollment. This prevents people from only signing up for health By Aaron W. Mitchell, REBC insurance when they need services and dropping coverage immediately after the services are paid. This part of the legislation was not as widely communi- efore Healthcare Reform, the greatest complaint over health insurance was cated and is very important to anyone denial of coverage. Thanks to the new legislation, all Americans have been who has delayed looking at their op- granted the ability to obtain insurance, regardless of their health. This privi- tions. Additionally, anyone uninsured lege comes with important rules regarding the timing of electing coverage. past March 31st will incur the “Shared BThe first enrollment period ends on March 31 and will not reopen until November 15 Responsibility Payment” of at least $95 per year or 1% of their income. This is Any law firm with employees who contribute towards their health insurance should the penalty for not carrying insurance be aware of when individuals can elect coverage. If your plan renews mid-year, your that starts in 2014. employees will not be given the opportunity to enroll in the Public Exchange unless you choose to completely cancel the group plan. If your firm has employees who may Being Proactive want to be covered under the individual exchange, it is very important to look at the It is not your firm’s responsibility to options early in the year. present the options available through the Background on Legislation Public Exchange, but many firms will see the value in sharing this information The Patient Protection and Affordable Care Act (PPACA) included the requirement with employees. With the deadline of that all individual and small group health insurance coverage be “guaranteed issue”. March 31 for this first year of “Guaran- This requirement of the legislation went into effect on January 1, 2014. This means teed Issue” plans, notifying employees two important things: of their options as soon as possible is the 1. Coverage cannot be denied due to medical conditions. best way to ensure they do not miss out 2. Premiums will not be based on the “health rating category” of your firm. on an opportunity for coverage in 2014. Additionally, anyone enrolling in individual coverage after January 1 would not be If your firm has less than 50 em- denied coverage of pre-existing medical conditions. However, PPACA specified that ployees, your renewal rates are available individuals may only enroll in the Public Exchange during an annual open enrollment much earlier in the year. Rates will be or during a special qualifying event. unique to each employee based on their age and tobacco status, but not their Annual Open Enrollment health. With the new rating structure, In the first year, enrollment runs from October 1 through March 31. Starting next groups can now look out and discuss a year, the proposed open enrollment period each year will run from November 15, 2014 renewal strategy much earlier in their through January 15. The proposed rules state that anyone applying by the 15th of the year. Many companies are surprised at month will have coverage begin on the 1st day of the next month. Anyone applying how much rates are changing in 2014. after the 15th of the month will have coverage start on the 1st day of the 2nd month. Some firms are seeing decreases for the

14 DSBA Bar Journal | www.dsba.org first time and others are finding the larg- est increase since they started offering THE 19th ANNUAL ENHANCED ETHICS AND DELAWARE PRACTICE coverage. The most important thing is to start the process early so that you have Rubenstein-Walsh Seminar the time to put in place the best options for 2014 and beyond.. in Professionalism and Ethics DSBIS is a wholly owned insurance Friday, February 21, 2014 | 9:00 a.m. - 4:30 p.m. brokerage subsidiary of the Delaware State Chase Center on the Riverfront, Wilmington, Delaware Bar Association. DSBIS serves all insur- ance needs for attorneys, their firms, their families, and their Presented by The Delaware State Bar Association and the St. Thomas More Society clients. DSBIS was 6.0 hours CLE credits including 4.3 Enhanced Ethics formed by Delaware for Delaware and Pennsylvania attorneys attorneys for Dela- ware attorneys. Program Aaron Mitch- Ethical Hot Spots Social Media Ethics Update ell is DSBIS’s lead marketing represen- Virtue and Advice: Tips on State and Socratic Perspectives on Federal Appellate Practice tative, coordinating Lawyer Independence and all lines of insurance. He specializes in group Moral Counseling of Clients Update on Implementation benefits and life insurance. Contact Aaron at of Obamacare (302) 397-0170. Delaware Supreme Court Commission on Law & Technology Ethics Update Ethical Issues in Estate Planning

Visit www.dsba.org for more information and to register.

Don’t Weigh Your You can rely on the knowledge and experience of your Delaware Insurance Options State Bar Insurance Services, Inc. (DSBIS) representatives to help Without an Expert you make more informed decisions in Your Corner regarding insurance products and we offer value-added services with the goal of simplfying the year- round process for you.

Whether your needs are professional or personal, we’ve got you covered.

LET US BE YOUR INSURANCE ADVOCATES.

Aaron Mitchell - Human Capital / Employee Benefits 302.397.0170 / 570.847.1885 (c) / [email protected] Kurt Taylor - Professional / Property & Casualty Contact DSBIS and we’ll make sure you’re protected! 302.397.0332 / 302.379.5135 (c) / [email protected] Kimberly Matthews - Personal Lines 302.658.8055 www.dsbis.com 302.397.0185 / 302.983.0122 (c) / [email protected]

DSBA Bar Journal | February 2014 15 1 2

The Inaugural Dr. Martin Luther King, Jr. Breakfast and Statewide Day of Service

January 20, 2014 • Chase Center on the Riverfront

3 4

To view a recap of the event, click the image.

Photographs by Final Focus 16 DSBA Bar Journal | www.dsba.org 5 6 7

8 9 10

1. The Inaugural Dr. Martin Luther King, Jr. Breakfast took place in the Christina Ballroom of the Chase Center on the Riverfront in Wilmington. 2. DSBA President Gregory B. Williams, Esquire, gave the Welcome Address. 3. (L to R) United States Senator Christopher A. Coons, MLK Event Committee Member Wali Rushdan II, Esquire, and United States Senator Thomas R. Carper. 4. Click the image to view a recap of the Event. 5. The Honorable Leo E. Strine, Jr. 6. The Invocation was delivered by George E. Evans, Esquire. 7. University of Delaware Choir Members Chanelle Caple, Regina-Natasha Snow, and Rosemena Dalmace. 8. MLK Event Committee Co-Chair Mary I. Akhimien, Esquire, introduced the keynote speaker. 9. Lani Guinier, Esquire, Civil Rights Attorney and First Tenured African-American Woman Professor at Harvard, gave the keynote address at the Breakfast. 10. Wali Rushdan II, Esquire, gave the closing remarks.

Statewide Day of Service Projects

Volunteers at the Food Bank of Delaware in Newark. Volunteers at the Food Bank of Delaware in Milford. Attorneys and paralegals working with Seniors at the Wills for Seniors Service Project at the Chase Center.

Thank you for allowing

me to be a part of this “ “ project – working with these families touched my heart. -Service Project Volunteer The Sunday Breakfast Mission volunteers. Volunteers packaged more than 130 bags for families visiting Ronald McDonald House.

DSBA Bar Journal | February 2014 17 THE DELAWARE STATE BAR ASSOCIATION’s INAUGURAL DR. MARTIN LUTHER KING, JR. BREAKFAST & STATEWIDE DAY OF SERVICE • Monday, January 20, 2014

THANK YOU TO OUR SPONSORS

PLATINUM SPONSORS

GOLD SPONSORS SILVER SPONSOR

BRONZE SPONSORS

FRIEND SPONSORS

WEISS & SAVILLE, P.A.

attorneys at law

18 DSBA Bar Journal | www.dsba.org Nominations Sought for Law Day Awards The Delaware State Bar Association and the Awards Committee are seeking nominations for the Liberty Bell Award and the Community Service Award to be presented at the 2014 Law Day Luncheon. Below is the form and the criteria for these awards. Liberty Bell Award – The Liberty Bell Award is given annually to an individual, who is not a judge or lawyer, who has rendered outstanding service to his or her community. The award is designed to promote a better understanding of government, a greater respect for the rule of law or a deeper sense of individual responsibility which contribute to the .effective functioning of our governmental institutions Community Service Award – The Community Service Award recognizes annually a member of the judiciary or the Delaware Bar who has rendered meaningful service to the community and who has contributed significant time and effort to the greater Delaware community. Nominees should have demonstrated a commitment to leadership and service in activities that enrich and strengthen our community over a substantial period of time. Myrna L. Rubenstein Professional Support Recognition Award – 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 contributed in a significant way to them and to the high ideals of the legal profession. The DEADLINE for receiving nominations for the Liberty Bell Award, Community Service Award, and Myrna L. Rubenstein Professional Support Recognition Award is February 14, 2014.

Delaware State Bar Association Awards Nomination Form Name of Candidate: ______Title/Occupation of Candidate: ______Award: ______Date: ______Nominator: ______Phone: ______Fax:______E-Mail: ______Firm: ______

Address:______

Brief statement of reasons that candidate is deserving of Award (see above Award criteria): ______

Send Responses by February 14, 2014 to: Rina Marks, Executive Director, DSBA E-Mail: Rina Marks at [email protected] • Fax: (302) 658-5212

DSBA Bar Journal | February 2014 19 Access to Justice Spotlight

By Susan Simmons Access to Justice For the Public Good

The Heart of the Matter

When a man’s an empty kettle Specific Cause with 43% — and, in third At the heart of any pro bono program He should be on his mettle place, with only one-third of lawyers cit- is a deep commitment to bringing the And yet I’m torn apart ing it — Meeting an Ethical Obligation best possible legal representation to the Just because I’m presumin’ (37%). Survey Conducted by LexisNexis most underserved, and frequently over- That I could be a human and Pro Bono Net. looked, populations. We are extremely If I only had a heart These results show that lawyers do proud of the work DSBA members do, frequently in partnership with our well- The Tin Woodsman, care. Rather than pro bono being a tool respected legal services organizations. The Wizard of Oz to get ahead in their careers, lawyers are seeking pro bono opportunities in order to Our attorneys work one-to-one with • • • really give back, and perhaps do the kinds clients daily to resolve legal issues that As Dorothy, Toto, and the Scarecrow of meaningful work they once pictured could otherwise leave them and their bounce through the forest on their way themselves doing while in law school, but families devastated. While these matters to meet the Wizard, they happen upon a had to defer in the face of accepting that are not always widely publicized, the startling site while rescuing apples pum- job to pay back student loans. work our attorneys perform, both inside meled at them from those scary trees: the and outside the courtroom, often makes Tin Woodsman, rusted in the forest, as One Good Turn: Striving for the difference between their clients be- he was caught in rain. Soon, they use his Equal Access to Justice, Fueled ing sheltered or homeless, healthy or oil can to release him. He follows them by the Power of Pro Bono sick, and with or without a voice in the to the Emerald City to get a heart from “Pro Bono Publico” service, “For the courtroom, before administrative agen- The Wizard. In many ways, lawyers Public Good,” is at the heart of the legal cies or in their daily lives. are like the Tin Woodsman: they come profession. Providing pro bono service to Pro Bono Has Benefits Beyond across as thick skinned, can be an impos- individuals or groups, traditionally under- the Heart ing force, and are often thought of as not served by the private bar, is the goal of the It is often said that, “Pro bono is at the having a heart. Pro bono volunteers may 50-hour pro bono service aspirational goal. heart of being a lawyer.” This has been just prove these perceptions wrong. said by very intelligent people who Where many would think that have thought a lot about the issue, but lawyers do pro bono work either because that sentence really does not capture “they have to” or are motivated by en- why our members do pro bono. Pro hancing their career through getting bono is at the heart of being a lawyer valuable, hands-on experience they only to the extent that it is at the heart might not have otherwise gotten if a of being a person. If you look out at paying clients’ money was on the line, the world and you see people in need studies have found quite the opposite. and you want to use your skills to meet With an overwhelming majority of that need, then that is a reflection of 75%, pro bono lawyers made it clear that who you are as a person, not who you their commitment to pro bono work is are as a lawyer. However, it is desirable mainly driven by Personal Fulfillment. that lawyers are among the moral lead- This was followed by a distant second ers of our world. Especially because of influential factor — Commitment to a the role they play as gatekeepers to the istockphoto.com/nito100©

20 DSBA Bar Journal | www.dsba.org institutions and processes of justice. And to that extent, we would like to see pro MARSHALL DENNEHEY bono at the heart of every person who is WARNER COLEMAN & GOGGIN a lawyer. “I shall take the heart. For brains do MEDIATION – ARBITRATION: not make one happy, and happiness Employment – Civil Litigation is the best thing in the world.” Richard R. Wier, Jr. (44 years experience)

L. Frank Baum Alternate Dispute Resolution Section, Chair, DSBA The Wonderful Wizard of Oz AV ® Preeminent™ by LexisNexis Martindale-Hubbell  [email protected]@mdwcg com Best Lawyers in Delaware – Labor and Employment Law  302.552.4350 Super Lawyers – Labor and Employment Law Civil Litigation – All Courts State & Federal Susan Simmons is the Director of marshalldennehey.com Development & Access to Justice Co- ordination at the Delaware State Bar Association and can be reached at [email protected]. MEDIATION/ARBITRATION

JOHN A. ELZUFON, Esq. 38 years Trial Attorney experience -- jury and non-jury. Legal background in professional liability (including medical, legal, accounting and engineering negligence), personal injury, corporate, trade secrets, construction, real estate and environmental cases. Pre legal background in engineering and construction: Engineering undergraduate degree and three years of field experience as a chemical engineer for DuPont and as a construction engineer for the U.S. Army Corps of Engineers. [email protected] WG_4.95x2.375_AD_11813_11.8.13302-504-3221 11/8/13 3:46 PM Page 1

Available for Arbitration and Mediation Services With more than 30 years of experience as a Trial Attorney

Mary E. Sherlock, Esquire 302.346.6377 | [email protected]

The 4Sight Group is an information technologies (IT) company that has a specialty niche in serving law firms in MEDIATION/ARBITRATION Delaware. Give us a call. IN DOVER

4SIGHT GROUP LLC Personal Injury • Commercial Litigation 4023 Kennett Pike, Suite 233 Real Estate Litigation • Estate Litigation • Employment cases Wilmington, DE 19807 Phone: 800-490-2131 X88 www.4sightgroup.com

STEVEN SCHWARTZ,ESQUIRE Phone: 302-678-8700 Contact Paralegal Dawn Jopp for Conflict Check and Availability

DSBA Bar Journal | February 2014 21 DE-LAP Zone

A Message from the Delaware Lawyers Assistance Program

By Carol P. Waldhauser, Executive Director

Building a More Compassionate Workplace – From the Inside Out By Kathleen Dolan Seipel, MSW, LCSW

his month, I am pleased to welcome Kathleen Dolan welcome, the stressors we face in our jobs as part and parcel of the Seipel, MSW, LCSW, who is currently part of the fast-paced, stimulating, and challenging career we have chosen. clinical team at the The Family Counseling Center of Other times, we experience stress as a destructive invader in our St. Paul’s (FCCSP), a behavioral health organization carefully planned-out lives. Before we know it, we grow accus- Tlocated in Wilmington, Delaware. Their compassionate, holistic tomed to an “out of control” feeling that is the furthest thing from approach to care is a result of over 10 years of experience provid- what we had imagined for ourselves when we started our career. ing bilingual (English/Spanish), culturally competent mental and Like social workers, lawyers encounter the stressful and traumatic behavioral health counseling and training services to individuals stories of clients on a regular basis, and the constant exposure to and families in our community. The clinicians help their clients to the trauma of others, what we call “vicarious trauma,” can lead

cope with issues which include, but are not limited to depression, even the most driven, passionate, and productive among us to

anxiety, schizophrenia, bipolar disorder, anger, ADD/ADHD, experience burn-out within a workplace that once motivated us. post-partum psychosis, and alcohol and/or drug addiction. Chronic work stress and burn-out has a cumulative effect • • • on mind and body over time. In an effort to adapt to increased “ Recently, I have been thinking a lot about work stress and burn-out. I am a social worker. People in my By choosing to be more compassionate with profession are not usually drawn to the work we do by the promise of a big paycheck, but by the opportunity to ourselves, we become open to new ways of make a difference in the lives of others — to help strug- incorporating healthy practices into our lives. gling people find inner strength, external resources, and a “ greater voice in the community. Ironically, many of the workplaces demands at work, many ignore early signs and symptoms of in which we find ourselves seem full of people depleted of inner chronic stress. More dangerously, sufferers of chronic stress may strength, cut off from external resources, and too overwhelmed to recognize changes in their mood and physical health, but dismiss voice their need for the changes needed to bring about a healthier these changes as just “part of the job.” Our bodies give us “red place to work. flags” to let us know when we need to pay attention to our stress I believe that many of the same noble ideals that led me to level and make a change: social work have led others to practice law. I have met many • Sleep disturbance – Difficulty feeling relaxed enough to like-minded lawyers who are motivated by their passion to serve fall asleep, inability to stay asleep, waking in early morning hours others and bring about justice in the community. At the flipside without being able to get back to sleep, dependence on alcohol or of this passion, however, is a serious vulnerability to overwork and other substances to aid sleep. burn-out, and a feeling of powerlessness toward the possibility • Appetite changes – Including diminished appetite and of finding a sense of well-being at work. I believe that a return overeating. to a healthier work environment is only possible when we make an effort to look more closely at the signs of stress we experience • Increased irritability – Hypersensitivity to comments from and pay attention to what we need to feel healthy. others, increased reaction to things that did not bother you before. All of us experience stress at work. The sources of that stress • Fatigue – Low energy, low motivation, dependence on © istockphoto.com/ BVDC are varied, and plentiful. Sometimes, we recognize, and even substances to perform expected tasks. © istockphoto.com/4774344sean © 22 DSBA Bar Journal | www.dsba.org • Other physical problems – Susceptibility to viruses, chronic setbacks. When we acknowledge difficulties with a gentle under- pain, can also be signs that we need to pay attention to the stress standing that we are not perfect instead of aggressively demand- in our lives. ingn a impossible ideal, we are more open to the possibility of No one should have to sacrifice their health at the cost of growth and change. job advancement. The fact is, none of us can sustain living with • Common Humanity. e When w are aware of our connec- chronic stress for long without suffering damage to our health tion with all human beings, and acknowledge that all people expe- and our relationships. rience difficulties and setbacks, we are open to the understanding It is possible to start living a different way — a way that builds that we are not alone in our struggles. Instead of feeling isolated resilience and flexibility, a way that ultimately can help us recon- and defensive, we feel an acceptance that allows us to deal with necto t the passion that led us to our work in the first place. Not our failings in a constructive way. only is it possible, but it is imperative — for our own well-being • Mindfulness. Instead of becoming overwhelmed by regrets and that of our colleagues and our loved ones — that we become of past failings or worries about the future, mindfulness cultivates as responsive to our need for self-care as we are for our desire for an ability to be attentive to the present moment in a non-judgmen- recognition in our career. tal way. Jon Kabat-Zinn, founder of the Mindfulness-Based Stress My research on the topic of “Self-Care” has led me to the work Reduction program at the University of Massachusetts, which of Kristin Neff, a University of Texas researcher who has defined has earned respect across disciplines for its efficacy in treatment “Self-Compassion” and developed techniques to bring more of of depression, anxiety, and other illnesses associated with stress, it into our lives. Contrasting with psychological movements of has worked over the past 30 years to demystify mindfulness as the past that emphasize “Self-Esteem,” which depends on an a f way o being in the world that is not dependent on belief or understanding of ourselves as valued at all times, self-compassion practice of any particular religion or spirituality. He wants people helpss u understand ourselves as fully human and deserving of to understand it simply as a matter of deliberately paying atten- compassion whether we succeed or fail at our endeavors. Tech- tiono t what is happening in the present moment. The problem niquesf o self-compassion are so effective precisely because they is, “paying attention” is not a skill that is easy to cultivate within causeso u t see our stresses and failings with the open, curious the f pace o our busy lives. Living on “autopilot,” as many of us perspective of a comforting friend. have to do to cope with our busy lives, usually causes us to avoid There are three elements to Self-Compassion, as Dr. Neff any opportunity to sit in silence, to stop and breathe and really explains: pay attention to how we are feeling, physically, and emotionally. • Self-Kindness. This means treating ourselves with the By choosing to be more compassionate with ourselves, we same kindness with which we would treat a good friend. While become open to new ways of incorporating healthy practices into the criticism of a drill sergeant may be effective motivation in our s lives. A we engage in these practices, the positive changes the short-term, this kind of self-censure fails us in the long-run we experience in our own lives have an effect on our colleagues and often causes us to shut down when we encounter repeated and our loved ones. The stressors may continue to be present in our workplace, but they do not affect us in the same way they used to, and we have the capacity to speak up and connect with others to make our workplaces places of well-being. For more information: Neff, Kristin. (2011). Self-Compassion: The Proven Power of Being Kind to Yourself. New York: HarperCollins. www.self-compassion.org Kabat-Zinn, Jon. (2005). Coming to our Senses: Healing Ourselves and the World through Mindfulness. New York: Hyperion. • • • If r you, o someone you know is experiencing symptoms that are unhealthy and can affect quality of life and/or qual- ityf o professionalism, or your would like more information call The Delaware Lawyers Assistance Program (DE-LAP) (302) 777-0124 or e-mail [email protected].

Carol P. Waldhauser is the Executive Director of the Dela- ware Lawyers Assistance Program and can be reached at [email protected].

DSBA Bar Journal | February 2014 23 BOOK REVIEW

Reviewed by Richard A. Forsten, Esquire

In Defense of the Defenders: Indefensible, One Lawyer’s Journey

into the Inferno of American Justice By David Feige (Little Brown, 2006) legal career comes in all shapes “ and all sizes. In Indefensible, Like any lawyer’s biography, though, it is the war One Lawyer’s Journey Into The stories that make or break the book, and Feige does Inferno Of American Justice , not disappoint. PublicA Defender David Feige takes the “ reader through a typical day in the life of a South Bronx Public Defender. It is busy. Several things stand out after reading Feige’s book. First, a public defender needs It is hurried. It is not a pretty picture; and, to have excellent time management skills and master the art of multiple court ap- although written as a work of non-fiction, pearances for multiple clients on the same day. That Feige is able to accomplish all it often reads as a legal thriller. he is able to do is an amazing feat (that he is able to do so while providing a level of caring and respect for his clients even more so). Second, much of the system seems to No lawyer, of course, lives the life of consist of almost endless court appearances of no substance. Matters are not ready, Perry Mason, or the lawyers on Law and and are continued, and then continued, and then continued again. Meanwhile, many Order, or certainly the lawyers on L.A. defendants, unable to post bail, simply wait in jail. Finally, one has the sense of a Law for that matter. Lawyers, for the system that virtually all would agree does not work as well as it should, yet no one most part, work long, hard, unglamorous has the time or inclination to try and do anything about it (assuming, of course, a hours. Nowhere does this seem more true consensus could be reached on what should be done). than public defenders. Feige starts his day early, runs from courtroom to courtroom, Like any lawyer’s biography, though, it is the war stories that make or break the making appearances, entering pleas, and book, and Feige does not disappoint. Sometimes enjoyable, sometimes depressing, speaking with clients, all in an effort but always interesting, his stories are entertaining and informing. simply to ride herd on a very demanding Feige starts with his first murder case. Gillian Sands admitted to stabbing her caseload. He is so busy it is hard to believe husband and causing his death. But, though her marriage had been a happy one at he gets anything done, let alone finds time first, it ultimately led to a history of abuse and violence by her husband. The night of to do the background work, the thinking, incident, her face was bruised from where he had hit her. She told the police she had the analysis, the legwork, necessary to killed him, and in her initial meeting with Feige was ready to plead guilty. “It’s okay. adequately represent his clients. Yet, some- Whatever happens. I deserve it,” she told Feige. “I killed him. It was all my fault.” how he does, and, all the more, he does it Yet, at the initial arraignment, Feige asked that his client be released on her own re- with a decency and caring attitude that cognizance. He emphasized her work history, her ties the community, her family, her such a crushing caseload could have easily friends, her genuine remorse. After the judge heard the impassioned plea, he turned destroyed. By the end of Feige’s day (the to the prosecutor, noting the strong defense which the defendant seemed to have. The last chapter starts at 10:18 p.m. in night prosecutor looked straight at the judge and, in a deadpan voice, while moving his head court), you find yourself not only admiring side to side, simply responded that he was required by his office to oppose any bail Feige, but wishing that all lawyers were as in a murder case. The judge looked at him, somewhat surprised, and the prosecutor dedicated to the profession. repeated his statement and his head motion. Although not captured by the transcript,

24 DSBA Bar Journal | www.dsba.org the meaning was clear. Gillian Sands was The next morning, Feige was dis- Feige’s book is full of such stories. released on her own recognizance. patched to get Johnson out of jail. Feige Good and bad. Inspiring and depress- Not everyone, though, is as fortunate found a judge and a prosecutor and ing. It presents a different view of the as Gillian Sands. Michael Johnson, nine- recounted the story. The judge was not criminal justice system, warts and all, teen years old, was walking his friend’s pleased about the facts, and ordered and is well worth the time reading. dog because his friend had a family emer- Johnson brought before him so he could gency. No good deed goes unpunished. be released. But, that meant Feige now Richard “Shark” Forsten is a Part- Three blocks from the house, Johnson was had to find Johnson, and no one in the Corrections Department seemed to know ner with Saul Ewing LLP, where he stopped by a police officer who wanted practices in the areas of commercial to see the vaccination reports for the dog precisely where he was. Feige ended up real estate, land use, business transac- (little known fact, in New York City you going cell to cell with a corrections officer tions, and related litigation. He can be reached at [email protected]. are required to have copies of such vaccina- until they found him, although by the time tion reports with you when out in public they did, the court had recessed for lunch. with your dog; needless to say, the law is After lunch, the charges were dismissed. rarely enforced). When Johnson said it was not his dog, but a friend’s, the officer HARRIS FINKELSTEIN, PH.D. issued three summonses — one for an un- Over 20 Years of Experience in vaccinated dog, one for failing to have the Assessment & Therapy with Children & Adolescents vaccination reports, and one for failing to Available to the Legal Profession: produce tags. Johnson told his friend about the issue, and the friend said not to worry, Œ S.722 Custody Evaluations – with (highly preferred) or without both parents he would pay the tickets. Only, he did not. Œ Psychological Evaluations for P.I. damages to children and adolescents And so, a few years later, the warrant squad including trauma, abuse, anxiety and PTSD. showed up and took Johnson into custody. Licensed in DE & PA Nationally Certified School Psychologist Johnson was arrested on a Saturday 1300 Pennsylvania Avenue, Wilmington, DE 19806 morning, but never made it to an ar- (302) 594-9000 raignment on Saturday (those arrested by the warrant squad receive lowest prior- ity for arraignments). Johnson spent the night in jail. No arraignment on Sunday either, and so he spent another night in jail. And, he was not offered a phone call either. Finally, on Monday, his day came and he met with his public defender in the courtroom. The judge offered three days’ community service if Johnson would plead guilty. The public defender asked for time served, but the judge refused. Before the public defender could finish discussing the matter with his client, the judge set bail at five hundred dollars for each charge and Johnson was taken back into holding, unable to make bail. The public defender managed to get the judge to rehear the matter at the end of the day, and the judge again offered the plea deal. Johnson said he would plea. “So, you knew you had an unvaccinated dog?” the judge asked. “Actually, ma’am, it was my friend’s dog; I was just walking him,” Johnson responded. “Fine,” the judge responded, “I don’t accept the plea.” She left the bench and court was adjourned. Johnson spent another night in jail.

DSBA Bar Journal | February 2014 25 A Profile in Balance

By James G. McGiffin, Jr., Esquire

Don Brown: As Delaware As DuPont

f I aspire to be the best lawyer I can During one summer while on be, I must first try to be the best break from college, Don was work- person I can be. I am fortunate ing at the Chrysler plant in Newark to know many lawyers who have when he was summoned for a term Isucceeded in their work, in part, because of jury duty. He spent most of that they are excellent people. This column in summer watching lawyers try cases The Journal will feature an article on one and thought to himself, “I can do such lawyer. Each featured lawyer will that.” Don was intrigued by the exemplify the art of balance in life. I have notion that a successful trial lawyer learned much from these people. Perhaps must develop a strategy to persuade readers will also benefit. a jury. Now with this kernel, Don - Jim McGiffin decided to attend law school. • • • Don picked a law school located in a city that catered to his strong Born at St. Francis Hospital and interest in politics and his newfound raised in the Little Italy section of Wilm- interest in law — George Wash- ington, Don Brown is a product of the ington University in Washington, city he still calls home. His parents were D.C. The city was “fantastic!” With lifelong public service employees — his friends who worked on Capitol Hill father was a city Health Inspector and and the Washington Post on his his mother a Public Health and School doorstep every day, Don was really Nurse. The neighborhood of his youth in the mix, politically speaking, and was racially diverse. He began school he enjoyed every minute of it. during the early days of school integra- After graduation, Don returned tion, and he attended his neighborhood to Delaware and found his job pros- schools. He did well in school and, when pects slim. He’d previously served as a law it came time for college, he ventured moved with (now Judge) Farnan to the clerk with the office of Attorney Gen- Delaware Department of Justice and, across the Delaware River to Princeton. eral Laird Stabler, and liked that work, when Mr. Farnan was appointed by The early 1970s were turbulent times but found it difficult to secure regular President Reagan to be the U.S. Attorney, on college campuses. Don’s interest in employment. He notes that at the time the Attorney General (Richard Gebelein) politics dictated his course of study, and there were perhaps only fifteen African asked Don to serve as his Chief Deputy. the college environment, “a simmering American lawyers in the Delaware Bar. Don was relatively young and inexperi- pot of academic and social issues,” in- It certainly did not help matters that he enced at the time, but he accepted the spired him to challenge himself academi- did not pass the Delaware Bar exam right challenge. In this role he was responsible cally. Everyone else there had “something away, though he did pass the Pennsylva- for running the daily operations of the on the ball.” Don dug right in. He says nia test. office for General Gebelein and building it now reminds him of the Delaware Bar Don persevered, “as we have to”, and the team of lawyers who worked there. By where “skills are assumed, but reputation eventually went to work in the office of the time there was another political change has to be earned.” the New Castle County Attorney. He (in the person of Charlie Oberly, elected

26 DSBA Bar Journal | www.dsba.org to the office in 1982), Don had learned the Delaware Bar reflects Delaware and younger and sang in an a capella group a great deal in this job. The Delaware the region.” in college, but now he is a committed Bar principles of civility, advocacy, and Bar Association work has also inter- listener, and he will listen to “anything.” respect were deeply embedded. ested Don, and over the years he has Don Brown has never been afraid to Staying with the Department of Jus- served several stints on the Delaware reinvent himself. He now works with tice after the change in administration, State Bar Association Executive Com- people and on projects from all over Don was reassigned to the civil division mittee. He has also worked with the the world, but he has remained close representing the Department of Cor- Association of Corporate Counsel and to home. Clearly where we find Don is rection in litigation. Many of the cases the Delaware Valley Corporate Coun- where he has found himself. included, as a co-defendant, a private sel Association, for which he served as health care provider. Don was soon re- president. Don is also a member of the James G. McGiffin, Jr., is a Senior cruited by one of those providers, Prison Board of Directors of Children & Fami- Staff Attorney with Community Le- Health Services, and served as General lies First and the Delaware Volunteer gal Aid Society, Inc. and a former Counsel to that corporation. In an event Legal Services and enjoys pro bono work President of the Delaware State Bar that mirrored his experience with the at DuPont and raising money for the Association. He can be reached at Department of Justice, Don was ap- Combined Campaign for Justice, which [email protected]. proached by the Chief Executive Of- supports DVLS, Community Legal Aid ficer to expand his role and become the Society, and Legal Services Corporation Executive Vice President, which he did of Delaware. for several years. Following that stint, he Don looks younger than the 62 years even tried his hand at starting his own of age he claims. He manages to stay fit correctional health services company, an by running, including the occasional 5K experiment that was “absolutely fun,” race. He and Lynne enjoy travel. They but one that helped him realize he was get to Mexico every year and have been meant for other daily work. intrigued enough by Spain to get there Don then signed on with fellow a few times recently. Don is also a mu- Delaware attorney and General Counsel sic lover. He played music when he was Jim Gilliam, Jr. at Beneficial Corpora- tion, a credit card bank, before finding a more permanent professional home with the DuPont Company, where he JUSTLEGALINC. is Team Lead for the Sourcing and Lo- gistics Legal Group. His team includes . . .continuing our commitment to excellence five lawyers and four paralegals. Throughout this career journey, Don has maintained an interest in commu- 3 ATTORNEY PLACEMENT nity issues and elected politics. He grew CONTRACT, LATERALS, PERMANENT up a Delaware Republican and enjoyed the hands-on work of electioneering — 3 phone banks, lit drops, door knocking, LEGAL SUPPORT STAFFING PARALEGALS, LEGAL SECRETARIES, OFFICE SUPPORT etc. — for candidates like fellow Dela- ware lawyer Mike Castle. Don’s wife, Lynne Howard, is a well-known Demo- Proud to be celebrating crat, but there is no political disharmony over 10 years in business. at home. Don suggests they agree on “most important” political issues. Don’s initial experience with the Delaware Bar Exam inspired him to JUST IN CASE • JUST IN TIME • JUST FOR YOU remain involved in Bar exam issues. For [email protected] www.justlegalinc.com many years, he has been both a formal and informal mentor and tutor for ap- plicants to the Delaware Bar and he Delaware Southeastern PA served for 6 years on the Board of Bar (302) 239-5990 (610) 696-8787 Examiners. “Delaware benefits when

DSBA Bar Journal | February 2014 27 Is there a major milestone in your future, or the future of your law firm?

An anniversary, a memorial or a celebration?

Consider a tax deductible gift to the Delaware Bar Foundation Endowment is pleased to announce that Fund, a gift that will continue to give to those most in need. Susan Wood Waesco & Kevin M. Coen

have become Partners

Melissa Flynn www.MorrisNichols.com Executive Director Phone: (302) 658-0773 Morris, Nichols, Arsht & Tunnell LLP www.delawarebarfoundation.org 1201 N. Market Street, Wilmington, Delaware 19801 - (302) 658-9200

Looking for referrals?

TAKES PLEASURE IN ANNOUNCING THAT Kara Hammond Coyle Erin D. Edwards Make sure Anne Shea Gaza your colleagues James M. Lennon HAVE BECOME PARTNERS IN THE FIRM know about you! AND THAT Advertise in the Michael P. Sta ord DSBA Bar Journal. HAS BECOME COUNSEL IN THE FIRM AND THAT For current advertising rates, Elizabeth S. Justison contact Rebecca Baird at (302) 658-5279 or [email protected]. HAS BECOME ASSOCIATED WITH THE FIRM

28 DSBA Bar Journal | www.dsba.org Delaware Administrative Law: Practicing before Delaware’s Boards and Commissions The Law Offices of Sponsored by the Delaware State Bar Association ��� Michele D. Allen, LLC Tuesday, February 25, 2014 9:00 a.m. - 12:15 p.m. 3.0 hours CLE credit for Delaware and Pennsylvania attorneys The Law Offices of Live in New Castle County at Delaware State Bar Association Michele D. Allen, LLC specializes 405 N. King St., Suite 100, Wilmington, DE in Labor & Employment Law, Live webcast in Sussex County at Tunnell & Raysor General Litigation and the 30 E. Pine St., Georgetown, DE representation of Health Care

Visit www.dsba.org for more information. Professionals.

[email protected]

302-234-8600 www.micheleallenlaw.com

is pleased to announce that Patrick J. Boyer former Delaware Family Court Law Clerk has joined the firm’s Delaware Family Law Group in its Centreville, Delaware location with Felice Glennon Kerr Mary Ann Plankinton Peach Marie I. Crossley

5721 Kennett Pike, Centreville, Delaware 19807 www.macelree.com 302.654.4454 [email protected]

DSBA Bar Journal | February 2014 29 Certified PubliC ACCountAnts & Advisors

Advancing Tradition since 1939

Cover & Rossiter Directors (left to right): Marie Holliday, Geoff Langdon, Loretta Manning and Peter Kennedy Providing Complete Tax, Audit and Accounting Services

for AttorneysScan with yourand mobile Law Firms Wilmington • Middletown throughoutphone to learn Delaware more! @CoverRossiter www. over ossiter.com C r /CoverRossiter (302) 656-6632 Business of the Year Find out how we can put our experience to work for you!

BAILEY & GLASSER LLP

Corporate and CommerCial litigation mediation/arbitration | bankruptCy proCeedings ContraCt negotiations, liCensing and transaCtional support David A. Felice, Esquire Office Managing Partner

Red Clay Center at Little Falls 2961 Centerville Road, Suite 302 Wilmington, Delaware 19808 Phone (302) 504-6333 | Fax (302) 504-6334 [email protected] www.baileyglasser.com

alabama :: delaware :: distriCt of Columbia :: illinois :: massaChusetts :: new Jersey :: west Virginia B30 DSBA Bar Journal | www.dsba.org G Disciplinary Actions

ONE-YEAR SUSPENSION INTERIM SUSPENSION attorney’s operating account, taken as In the Matter of Raymond S. Nadel In the Matter of Michael D. Carr legal fees, prior to earning the full amount No. 559, 2013 Supreme Court No. 674, 2013 transferred. The attorney also failed to Effective Date: December 4, 2013 Effective Date: December 19, 2013 notify the client said fees were being with- drawn and failed to advise the client that On December 4, 2013, the Delaware By Order of the Delaware Supreme any unused portion of retainer, not earned Supreme Court ordered Raymond S. Court dated December 19, 2013, Michael by the attorney in fees, was refundable. Nadel, Esquire, a licensed New Jersey and D. Carr, a Delaware lawyer who was ad- By taking funds from the client’s Pennsylvania attorney, be suspended from mitted to the Delaware Bar in 1988, was escrow account prior to earning them as any practice of law in Delaware for one- immediately suspended from the practice legal fees, failing to notify the client of year and be prohibited from acting pro of law in Delaware, pending final disposi- the transfer of said funds, and failing to hac vice on any matter for three years. The tion of all attorney disciplinary proceed- advise the client these funds were refund- Court found Mr. Nadel, who has never ings. The Court concluded Mr. Carr, a able, if not earned, the attorney violated been licensed to practice in Delaware, had solo practitioner, engaged in professional Rule 1.5(f)(fees). (1) established a systematic and continu- misconduct which demonstrates he poses ous presence in Delaware by representing a significant threat of substantial harm to In a second matter, the attorney ac- more than seventy-five Delaware residents the public and to the orderly administra- cepted a check from a client as a retainer with respect to injuries arising out of mo- tion of justice. Mr. Carr’s misconduct for the attorney’s representation. The at- tor vehicle accidents which occurred in included failure to maintain his firm’s torney submitted the check to his bank for Delaware; and (2) held out to the public books and records in compliance with deposit in the client’s escrow account. The that he was admitted to practice law in Rule 1.15 of the Delaware Lawyers’ Rules client’s check “bounced” for insufficient Delaware by meeting Delaware clients in of Professional Conduct, misrepresenta- funds. The attorney wrote two checks a doctor’s office in Wilmington to discuss tions on his Annual Registration State- from the client’s escrow account prior to his representation. ments and Certificates of Compliance confirming the client’s check “cleared,” and failure to timely pay state and federal resulting in an overdraft. TWO-YEAR SUSPENSION tax obligations. Brian F. Dolan, Esquire By failing to maintain his financial In the Matter of Fred Barakat (302) 856-3561 has been appointed Re- books and records, including require- No. 397, 2013 ceiver of Mr. Carr’s law practice. ments applicable to all fiduciary and Effective Date: December 11, 2013 escrow accounts, the attorney violated By order dated December 11, 2013, the PRIVATE ADMONITION Rule 1.15(d). Delaware Supreme Court suspended Fred ODC File Nos. 108366-A & In support of a determination that Barakat, Esquire from the practice of law 110023-O a sanction of a private admonition for in Delaware for two years for violations Effective Date: January 9, 2014 violating Rules 1.5(f) and 1.15(d) was an of the Delaware Lawyers’ Rules of Profes- A Panel of the Preliminary Review appropriate sanction for the attorney’s sional Conduct. The Court approved the Committee (“PRC”) of the Board on professional misconduct in the two mat- findings made by the Board on Profes- Professional Responsibility (“BPR”) of- ters, the PRC considered, as mitigation: sional Responsibility that Barakat did not fered a private admonition to an attorney (1) the attorney had no prior disciplinary maintain a bona fide office in Delaware as a result of its finding of probable cause record; (2) the attorney cooperated with for the practice of law, he knowingly made that the attorney violated Rules 1.5(f) and the Office of Disciplinary Counsel and false statements to the Office of Disci- 1.15(d) of the Delaware Lawyer’s Rules of the Lawyer’s Fund for Client Protection plinary Counsel regarding his bona fide Professional Conduct (“Rules”) in two and provided full disclosure about the office, he failed to provide competent and separate matters. The attorney accepted facts and circumstances involved; and (3) diligent representation to a client, he failed the private admonition. the attorney agreed to engage in remedial to safeguard client funds and he failed to efforts to correct the deficiencies and im- The attorney represented a defendant prove his office procedures. maintain his law firm’s books and records in a criminal case. The client paid the in compliance with Court Rules. attorney a retainer for his representation. The Delaware Court of Chancery The attorney deposited the retainer in has appointed, David A. White, Esquire the client’s escrow account held by the (302) 984-6300 as Receiver of Barakat’s attorney. The attorney transferred funds law practice. from the client’s escrow account to the

DSBA Bar Journal | February 2014 31 Bulletin Board Of Note

WILMINGTON OFFICE BUILDING Condolences to the family of James POSITIONS AVAILABLE for sale or rent: Newly renovated office. 2 T. McKinstry, Esquire, who died on Wilmington, DE: Financial Re- spacious floors. On North Union Street October 25, 2013. structuring & Bankruptcy Associate. along Potter Carmine office row. Call Condolences to the family of Fox Rothschild LLP has an opening (302) 690-7766. Edmund M. Hillis, Esquire, who died in the Wilmington, DE office in the Office Space Available: on December 24, 2013. Financial Restructuring & Bankruptcy Office sublet available on the third Condolences to the family of Peter department. The ideal candidate will floor of the Conectiv Building, 800 Francis Clark, Esquire, who died on have at least 2 to 4 years of experience N. King St. in Wilmington with January 1, 2014. in all aspects of financial restructuring Don Gouge and John Deckers. Space Condolences to the family of Andrew & bankruptcy including chapter 11. consists of one windowed lawyer’s Booth Kirkpatrick, Esquire, who died Representation of debtor experience office and one assistant/paralegal of- on January 18, 2014. is a plus. Candidates must be licensed fice. It also includes a file/copy room. to practice in the state of Delaware. Services include copier, conference Condolences to H. Garrett Baker, Strong academic record and excellent room, runner etc. Space available im- Esquire, on the death of his mother. writing skills are required. EOE. If inter- mediately. For more information, please ested, please apply online at http://www. contact Linda Martin at (302) 658-1800 foxrothschild.com/careers/jobListing. or [email protected]. aspx?id=15032391906. Cover letters can be addressed to Sarah Apelquist, Direc- Office for rent in a beautiful tor of Professional Recruitment. historic building. Shared services and Available Opportunities: facilities include conference and large Several great firms are looking to add reception area. Some furniture available. lateral associates and partners in the Reasonable rent. Excellent opportunity following areas: corporate transactional, to open a new practice or continue a small commercial litigation, trust and estates, practice in a collegial atmosphere Call labor and employment and more. Please Bayard Marin (302) 658-4200. contact [email protected] Hockessin office space: for more information. All inquiries are share reception, conference, kitchen. confidential. Separate office. For details call Gary Elzufon Austin Tarlov & A. Bryde (302) 239-3700 or e-mail Mondell, P.A. seeks a Full Time [email protected] Associate for its Medical/Legal Mal- DOWNTOWN WILMINGTON: practice Defense practice. DE Bar Appr. 2000 sq. ft. office space on 2nd required. Medical background highly floor in an elevator building. 2 blocks preferred. Send resume in confidence from court houses. Parking available on to: PO Box 1630, Wilm, DE 19899- premises. Call (302) 656-5445. 1630 Attn: John Elzufon, Esq., e-mail [email protected] , or Fax: 302-428-3180. Available For Labor & Employment And Noncompete/Nonsolicit Arbitrations and Mediations

Office Space Sheldon N. Sandler, Esquire Over 40 years’ experience in labor and employment matters ▪ Fellow, College of Labor & Employment Lawyers DOWNTOWN LEWES: Approx. ▪ Chambers USA - Senior Statesman 3,300 sq. ft. law office space now available ▪ The Best Lawyers in America, Labor & Employment Law, since 1983 ▪ AV Preeminent Rating - LexisNexis Martindale-Hubbell for rent. Great location on Second Street. ▪ The Most Powerful Employment Attorneys in America, Lawdragon 2010 ▪ Delaware Super Lawyers, Employment & Labor Parking lot in rear, second floor space ▪ Who’s Who Legal, 2007-2013 serviced by elevator. A very nice space. ▪ Past Chairperson - 3rd Circuit Lawyers Advisory Committee Willing to subdivide to create smaller [email protected] space. Call (434) 242-9110 or e-mail 302.571.6673 [email protected].

32 DSBA Bar Journal | www.dsba.org 2014 Delaware High School Mock Trial Competition

Call for Judge Volunteers

The Delaware High School Mock Trial Committee and Delaware Law Related Education Center invite you to join us as a judge volunteer for the 2014 Delaware High School Mock Trial Competition. The Competition will take place at the New Castle County Courthouse, 500 N. King Street, Wilmington, Delaware on Friday, February 21, and Saturday, February 22, 2014. The time commitment to judge a round is approximately four hours. This time includes an orientation for volunteers prior to your scheduled round, judging the competition round, and student debriefing after the round. To learn more about the Delaware High School Mock Trial Competition and the Delaware Law Related Education Center, please visit www.delrec.org or contact Pat Quann at [email protected] or Jason C. Jowers at [email protected].

Please complete the form below and fax it to Margie Touchton, Judge Volunteer Coordinator, at 302- 571-1750, or download a copy of the form from www.delrec.org, and email it to [email protected]. Confirmation of assignments will be sent out by email by early February, along with a confidential bench brief, competition details, and information about obtaining CLE credit for your participation.

2014 JUDGES INTEREST FORM DELAWARE HIGH SCHOOL MOCK TRIAL COMPETITION

Name: ______(as it appears in the Legal Directory)

Address: ______Firm, Court, or Agency

______

Phone: ______Fax: ______

Email Address ______

Have you participated before as a scoring judge? ______as a presiding judge? ______

Dates you are available for the 2014 Competition (if you are available for more than one date or time, please indicate your preference) Friday Session Start Times: 8:15 a.m. and 12:30 p.m. Saturday Session Start Times: 8:00 a.m. and 12:00 p.m.

Friday 2/21 AM ______Saturday 2/22 AM ______

Friday 2/21 PM ______Saturday 2/22 PM ______

Questions about signing-up to judge a round? Please contact Margie Touchton at [email protected] or 302-888-6976.

2403326/2 DSBA Bar Journal | February 2014 33 judicialThe By Susan E. Poppiti, Esquire Palate Valentine' s Day Sweets

Most people associate a gift of chocolate with Valentine’s Day. While a box of chocolates is the traditional sweet, whether it is dark chocolate bark or chocolate truffles, I intend to make my Valentine a special dessert following a homemade meal. Below are three of my favorite desserts that are rich and comforting, yet relatively simple to make.

Chocolate Ricotta Cheese Cake

½ cup of sugar You can prepare this recipe in a pie dish or you can use 3 eggs ramekins for individual servings. I prefer the latter for ease of serving and a more interesting presentation. ¼ pound of semi-sweet chocolate cut into small pieces ½ teaspoon of cinnamon Preheat the oven to 350 degrees. Beat the sugar and eggs ½ teaspoon of salt together, then add the chocolate and other ingredients. Put 1 teaspoon of vanilla extract the ricotta in last and mix thoroughly. Butter the ramekins Small splash of orange flavored liqueur and fill them with the mixture so it reaches about ¾ up the such as Triple Sec sides of the ramekins. Place the ramekins in a baking dish and add enough hot water to the dish to come about ½ the 1½ pounds of ricotta way up the sides of the ramekins. Cover the entire dish with aluminum foil and bake for 25 to 30 minutes or until it looks like the mixture is cooked through. Remove the foil and bake for another 5 to 10 minutes.

Test doneness by putting a toothpick in the center and mak- ing sure that the center is no longer liquid. Remove the dish from the oven and carefully remove the ramekins from the water bath. Chill the ramekins before serving and top with fresh berries. © istockphoto.com/PaulPaladin ©

34 DSBA Bar Journal | www.dsba.org Flan with Fresh Fruit Coconut Rice Pudding

5 eggs ½ cup of short grain pudding rice 14 ounce can of sweetened condensed milk 3 tablespoons of superfine sugar 1 cup of whole milk ½ teaspoon of vanilla extract 1 teaspoon of vanilla extract 1 ¼ cups of whole milk

© istockphoto.com/burneingphoto © ½ cup of sugar 1 ²/³ cups of coconut milk 2 tablespoons of water 7 tablespoons of light cream 2 tablespoons of shredded coconut

Preheat the oven to 350 degrees. Beat the eggs. Mix the Soak an unglazed clay pot, such as a Römertopf, in cold eggs, condensed milk, whole milk and vanilla (this is the water for 15 minutes and then drain the pot. Add the rice, flan mixture). sugar, vanilla, milk, coconut milk and cream. Cover the clay pot and place it in a cold oven. Set the oven to 350 degrees and cook for 1 hour. Remove the lid, stir the pudding, then Heat a saucepan over medium-low heat and add the sugar replace the cover and cook for 30 to 45 minutes until the

© istockphoto.com/IngaNielsen © and water. Using a wooden spoon, stir the sugar and water rice is tender. Remove the lid and stir the pudding. Sprinkle mixture until the sugar melts and turns a light brown color the pudding with the shredded coconut and bake uncovered (this is the caramel). You may need to add more water to for 15 minutes. Serve at room temperature. achieve a caramel consistency.

Happy Valentine’s Day! And save some room for dessert! Remove the saucepan from the heat and pour the caramel into a buttered 9 inch round pie dish. Then pour the flan mixture into the mold and cover tightly with aluminum foil. Susan E. Poppiti, is a mathematics teacher Place the mold into about 1½ inches of hot water in a larger at Ursuline Academy High School and man- aging member and cooking instructor for La pan. Bake for about 1 hour. To test, insert the tip of a knife Cucina di Poppiti, LLC and can be reached at in the flan. If the knife comes out clean, then the flan is [email protected]. Other recipes and cooking finished. Chill the flan before serving. To serve, place fresh tips are available on Susan’s new food blog at berries on the side of the flan. www.cucinadipoppiti.com.

DSBA Bar Journal | February 2014 35 The 2014 Delaware Legal Directory The Delaware State Bar Association Delaware Legal Directory is the only comprehensive up-to-date listing of all Delaware attorneys and judges, including address, telephone number, fax number, and e-mail address. The Delaware Legal Directory also contains contact information for the Delaware Court System and related offices frequently contacted by legal professionals.

Comprehensive Listings Extensive References • Entries for over 4,500 Delaware attorneys & judges • Listing of Delaware firms with names of • Names, addresses, phone and fax numbers every partner and associate • E-mail addresses • Law-related organizations and programs • Photographs • Courts and government

• Supreme Court ID Numbers • DSBA information and contact persons • Year admitted to the Delaware Bar Convenient Format Member Benefit • Easy to use 5.5” x 8.5” wirebound book • Every member of the Association receives one free copy.

• Tabbed, labeled dividers • For additional copies, please see order form below.

2014 Delaware Legal Directory Order Form Please fill out all information. Incomplete order forms will delay processing. Name: ______Bar ID: ______Firm: ______Phone: ______Address: ______

DSBA MEMBERS AND THEIR STAFF: QUANTITY TOTAL • NEW copy ...... ______x $40.00 each $______SUBTOTAL: $______

NONMEMBERS: QUANTITY TOTAL • NEW copy ...... ______x $99.00 each $______SUBTOTAL: $______

SHIPPING:  please ship order (add shipping charges)  order will be picked up (no charges apply) • $10.00 1st copy, $4.00 each add’l copy...... SHIPPING TOTAL: $______ORDER TOTAL: $______

CHECK (MADE PAYABLE TO DSBA) OR CREDIT CARD AUTHORIZATION MUST BE ENCLOSED WITH ORDER FORM.

MasterCard  Visa  Amex  Discover  Card #______Billing Zip Code: ______

Signature: ______(Required for credit card purchases) Expiration Date : ______

Mail order to: Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE 19801 FAX: (302) 658-5212 QUESTIONS? Call (302) 658-5279 Working Together to Support Tomorrow’s Leaders!

(L-R) Thomas L. Sager, Senior VP & General Counsel - DuPont Legal, A. Kimberly Hoffman, Lewis H. Lazarus, Morris James Partners, Ellen J. Kullman, DuPontInvesting Chair & CEO and Chair,Together Boys & Girls ClubsToday of Delaware for Capital Tomorrow’s Campaign, Thomas E.Leaders! Hanson, Jr., Morris James Partner

DuPont and Morris James LLP Proud to Support the Capital Campaign of the

BOYS & GIRLS CLUBS OF DELAWARE

You can make a donation by going to www.bgclubs.org/capitalcampaign or by sending a check to the following address: George Krupanski, President/CEO, Boys & Girls Clubs of Delaware, 669 S. Union Street, Wilmington, DE 19805

Wilmington - Downtown . Wilmington - West . Newark . Dover . Rehoboth Beach . Georgetown T 302-888-6800 . www.morrisjames.com