NYSBA SPRING 2013 | VOL. 5 | NO. 1 The Senior Lawyer A publication of the Senior Lawyers Section of the New York State Bar Association IInsidenside • NNYY EEstatestate AAfterfter AATRATRA 22012012 • RRightsights ooff PPublicityublicity aandnd SSocialocial MMediaedia ffromrom • 3 CCriticalritical CComponentsomponents iinn LLitigationitigation BBogartogart vv.. BBurberryurberry GGraphicraphic DDesignesign • DDigitaligital EEstatestate PPlanninglanning iinn tthehe FFacebookacebook • BBeingeing CClassifilassifi eedd UUndernder ““Observation”Observation” AAgege MMeanseans SSeniorseniors PPayay MMoreore • PPowerower ooff AAttorneyttorney AAfterfter PPerosierosi vv.. 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RReeleel Make the Most of www.nysba.org with Senior Lawyer Section Resources at www.nysba.org/SLS • About the Section — Learn about the Section purpose, profi le, scope of activities and offi cers • The Senior Lawyer — Instant access to past issues and the electronic citation enhanced version of the Section publication • Committees — Your opportunity for increasing your involvement with 11 substantive committees • Materials and Web Links of Interest — 100+ links to a large variety of resources including scams to avoid, health, jobs, fi nancials and entertainment • Senior Lawyer Searchable Directory — Look up and network with your peers • Upcoming Events Login now to instantly access these tools designed for you. Table of Contents Page A Message from the Section Chair . .4 Susan B. Lindenauer A Message from the Editor. 5 Willard H. DaSilva Feature Articles Planning for NY Estate After ATRA 2012 . 6 Laurence Keiser 3 Critical Components in Litigation Graphic Design That You’re Not Doing . 9 David W. Mykel, M.A. Why Being Classified Under “Observation” While in a Hospital Means Seniors Pay Thousands More . 11 Anthony J. Enea A Personal Look at the United States Supreme Court . 12 Spiros Tsimbinos Balancing the Interests of a Minor and a Parent Where the Minor Is the Injured Party in a Personal Injury Action Part One: Preliminary Issues for the Attorney to Consider . 16 Kathryn E. Jerian and Robert P. Mascali Balancing the Interests of a Minor and a Parent Where the Minor Is the Injured Party in a Personal Injury Action Part Two: Establishing the Chosen Settlement Vehicle . 19 Kathryn E. Jerian The Challenges of eDiscovery and Cloud Computing . 21 Jonathan P. Armstrong, Eric J. Sinrod and Philip Favro Who Owns Your Social Media Account? . 27 Adam S. Walker Social Media and Litigation: A Marriage Made in Hyperspace . 32 Andrew B. Delaney and Darren A. Heitner Of All the Lawsuits, in All the Courts, in All the World, They Had to Settle This One What We Didn’t Learn About Rights of Publicity and Social Media from Bogart v. Burberry . 39 Cassidy Merriam Your Online Afterlife: Digital Estate Planning in the Facebook Age . 43 Jim D. Sarlis Amending a Trust Instrument with a Power of Attorney After Perosi v. LiGreci . .48 Helen Z. Galette and James M. Villani Proceed With Caution: Matters to Consider for Business Lawyers Transitioning Into Health Care . 51 Craig B. Garner Mediation: It’s Not Just When the Marriage Breaks Up . 56 Antonia J. Martinez and Robert W. Shaw The Care, Upkeep and Planned Death of a Client File . 58 Kameron Brooks The Roles of Positivism and Ethics in Professional Responsibility . 62 Randall C. Young Krell’s Korner: The Quiz Show Scandal: Real vs. Reel . 64 David Krell NYSBA The Senior Lawyer | Spring 2013 | Vol. 5 | No. 1 3 A Message from the Section Chair In January of each year, in Legislation Committee: The Committee reviews connection with the NYSBA pending State and Federal legislation of interest to Senior Annual Meeting, the New York Lawyers, and proposals under consideration by NYSBA Law Journal invites NYSBA to support or oppose legislation and, where appropriate, Section Chairs to submit an makes recommendations to the NYSBA Executive Commit- article about the work of her or tee as to action. The Committee also reviews recommenda- his Section. In my 2013 article I tions received from the Section or from the NYSBA Execu- noted that more than one-third tive Committee with respect to prospective proposals. of the members of NYSBA are Pro Bono Committee: Staffed civil legal service pro- 55 years of age or older and grams are able to serve only a small portion of low-income thus eligible to be members of New Yorkers who need assistance. Private attorneys who the Senior Lawyers Section. The volunteer their time, pro bono, help reach those who other- mission of the Senior Lawyers wise would not be aided. Senior lawyers, whether retired Section is to appeal to the varied interests of this large and or not, have a wealth of experience to contribute. This growing group by addressing the issues that these lawyers Committee seeks to meet more of the needs of the public, face in their practices and their lives. while at the same time providing an avenue for meaning- The Section has achieved a remarkable rate of growth ful service. The Committee intends to promote strong ties in the almost four years since it was established. That between the Section and the NYSBA Empire State Counsel growth is due in large part to the vision of my predeces- Program and also to the Attorney Emeritus Program of the sors, Justin Vigdor and Walter Burke, as well as to the court system, which is directed to members of the New varied programs developed by our Program and CLE York Bar who are 55 years of age or older. Chair, Carole Burns, who is also Chair-Elect, and the wide- Program and CLE Committee: The mission of the ranging content of our newsletter skillfully shepherded by Committee is to present programs of interest to the Sec- The Senior Editor Willard Da Silva. A review of this issue of tion’s membership. Since SLS membership is quite diverse, Lawyer provides ample evidence of the breadth of the Sec- the programs cover a variety of subjects including: fi nan- tion’s interests. cial planning for the transitional attorney; incorporating The eleven committees that the Section has established new technology into your law practice; practice manage- address a broad range of issues of interests to our mem- ment for solo and small fi rms when an emergency oc- bership and all of them welcome active participation by curs; alternatives to the full-time practice of law; different current and new members of the Senior Lawyers Section. models for pro bono service, and the use of social media In this Message I shall highlight the work of a number of in the practice of law. Suggestions for topics, speakers and these committees by presenting excerpts of descriptions programs are welcome. prepared by the committee chair. It is my intention to have Retirement Planning and Investment: The empha- The Senior Lawye at least a page in each future issue of r sis is on planning rather than retirement. The Committee that provides an update on the work of the various SLS addresses fi nancial and life planning issues and next steps committees. for attorneys and their clients. The Committee’s objective Age Discrimination Committee: The basic purpose is to provide programs and information on professional of the Age Discrimination Committee is to help senior options, work/leisure/life balance and fi nancial and insur- lawyers, as well as younger members of the bar, to become ance planning vehicles. familiar with this area of the law as it may affect their ca- Technology: The Committee focuses on processes, reers and to help promote changes that will end age-related tools and services relating to the use of technology in the discriminatory practice affecting attorneys. As part of this practice of law and looks for those tools, services and effort, the Committee intends to continue the excellent software that assist and streamline the practice of law. It work of the NYSBA Special Committee on Age Discrimina- provides a forum for discussion and analysis of evolving tion in the Profession which issued a report on mandatory issues at the intersection of technology, computer sys- retirement practices in the profession that was approved by tems security and effective use of law offi ce technology. NYSBA in 2007. Its membership include solo, small fi rm and large fi rm Law Practice Continuity Committee: The Committee practitioners. supports efforts to assist solo and small fi rm practitioners As you can see from the brief descriptions that I have in planning for the orderly transition of their practice, as provided, the activities of the SLS are quite varied. I urge well as to identify ways in which mechanisms can be es- members of the SLS to become active on our Commit- tablished to protect the interests of the clients of deceased, tees and members of NYSBA to join our Section and our disabled or absent solo or small fi rms practitioners who Committees. have not made adequate provision in advance for his or her inability to continue representing clients. Susan B. Lindenauer 4 NYSBA The Senior Lawyer | Spring 2013 | Vol. 5 | No. 1 A Message from the Editor Do you remember the days A synopsis of where we were, as to estate tax, and when you were in grammar where we are now is illuminated in our lead article “Plan- school? The Winter, when ning for NY Estate After ATRA 2012” by Laurence Keiser. school was in session, seemed Reading this article on the current status of estate tax law forever. Eventually, Sp ring is a “must.” arrived and—fi nally, Sum- mer.