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Montgomery Bar Association I Montgomery County PA
MAGAZINE
OF THE PEOPLE,BY THE PEOPLE,FOR THE PEOPLE:
OF THE PEOPLE,BY THE PEOPLE,FOR THE PEOPLE:
Attorney General
Joins our bar!KATHLEEN KANE
MBAs new disputeresolution centerlaunches to ravereviews
THE CENTERFOR MEDIATION& ARBITRATION
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Montgomery Bar As
sociation I Montgom
ery County PA
MAGAZINE
OF THE PEOPLE,
BY THE PEOPLE,
FOR THE PEOPLE:
OF THE PEOPLE,
BY THE PEOPLE,
FOR THE PEOPLE:
Attorney General
Joins our bar!
KATHLEEN KANE
THE CENTERFOR MEDIATIO
N
& ARBITRATION
A Unique Countywide
Arts
Initiative & Courthouse
Improvement Project
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spring 2013contents
IN EVERY ISSUE... FEATURES
SIDEBAR COMMITTEE MEMBERS
Co-ChairsRobert R. Watson, Jr., Esq.
Gary J. Friedlander, Esq.
Regular columnists:Joel B. Bernbaum, Esq.Richard E. Cohen,
Esq.Lindsay Hanifan, Esq.
David R. Jacquette, Esq.Dennis R. Meakim, Esq.
Elaine Moyer, Esq.William J. Newman, Esq.
Douglas I. Zeiders, Esq.
MBA StaffGeorge Cardenas
IT Manager
Jack Costello
Marketing Manager
Jim Mathias
Director of Marketing,
Communications and Public Affairs
Nancy R. Paul
Executive Director
The Sidebar Committee invites articles and news information of
interest to the membership to be sent to: MBA, c/o Sidebar
Committee, P.O. Box 268, Norristown, PA 19404-0268 or email:
[email protected]
The Sidebar Committee reserves the right to edit any material
submitted and/or to omit
the same from publication. Most articles are written by members
for members.
Montgomery Bar Association2013 Officers
Serving the Profession and the Community since 1885
Paul C. Troy, Esq., President
Michael F. Rogers, Esq., President-Elect
Bruce Pancio, Esq., Vice President
Carol R. Mirabile, Esq., Treasurer
Eric B. Smith, Esq., Secretary
Commissioner Bruce L. Castor, Jr. Welcomed
.........................................14Alternatives to
Incarceration ...........15American Taxpayer Relief Act
.........16Kathleen Kane Joins our Bar ............17Welcome New
Board Members .......18Real Estate Committee Task Force ...26MBA
Ski Trip .....................................27Annual Business
Luncheon ..............28Class Action Cy Pres
.........................29Current Financial Observations
........30Helping Our Bar Foundation ............32
7
20
Presidents Message ...........................4Bits & Bytes
.........................................5Lawyers Lending a Hand
....................6Young Lawyers
....................................8Wiretaps
............................................23Bar Foundation
..................................24Movie Review
...................................25Upcoming
Events...............................31Restaurant Review
............................35
24
MAGAZINE
Center for Mediation Arbitration
10
BYOD Scary Liability for Employers
Of the People, by the People, for the People
Recovering Unemployment Compensation Benefits
.....................33
New Lawyers Professional Liability Program
...............................................9
Montgomery Bar Association / Montgomery County PA
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S I D E B A R 4 S P R I N G 2 0 1 3
I know a lot of lawyers. The majority of my practice is defend-
ing lawyers in professional liability suits. I also have met
thousands of lawyers through local and State Bar
activities. I have met lawyers who love their jobs. I have met
lawyers who really dont like theirjobs. Lawyers have asked me for
years why I devote time and effort to Bar Associa-tion activities.
I always tell them that I do so because
it makes it more fun to practice law. I often get a quizzical
look as if fun and the practice of law should never be used in the
same sentence. I am writing to suggest to those who feel this way
that they might need to consider a different approach. Take
litigation for an example. Litigation is necessarily competition.
In competition, opponents can sometimes treat each other poorly. We
have all dealt with angry, miserable lawyers who needlessly spend
their clients money sending letters and emails accusing the
recipient of various crimes against humanity. These letters usually
threaten some sort of draconian punishment that was thought to have
been banned
in the Middle Ages. The recipient can always be sure of one
thing. He or she is not the only one receiving those letters. Those
letters are the modus operandi of the author. He or she sends them
daily to all of their opponents. Common phrases in such letters
include I am writing to confirm our conversation... and in all my
years of practicing law... The verb shocked appears at least once
in each of these letters. Sometimes the author takes the extra step
of copying the Judge on theletter. There may be no hope for the
authors of such letters. There is hope for the recipients. Get
involved in the Montgomery Bar Association. We have 2,100 members.
Every one of them will treat you a lot better than the authors of
those letters. Some of my best friends in the practice of law are
attorneys who have been my oppo-nents. I also know them through Bar
Association activities. It is a joy to have cases against them.
Extensions of time are given routinely. Courtesies are ex-changed
regularly. There is no need to write a letter to confirm a
conversation. There is absolutely zealous advocacy, and both sides
do the best for the clients, but there is also a good quality of
life for the lawyers. There is also less money spent by the clients
who arent having their resources wasted on needless bickering by
the attorneys, and unnecessary court arguments. Lawyers who see
each other at Bar Association activities or elsewhere outside of
the courtroom simply dont engage in poor behavior with each oth-er.
Spending your career tied to your desk is no way to have fun
practicing law. Get out to a few of the great events we have this
year. While there are many worthwhile events happening at the Bar
Association each month, here are some of my favorites that I hope
you can attend: On Friday, April 19th, we will be having our annual
dinner dance at the Green Valley Country Club in Lafay-ette Hill,
PA. You have already received
an invitation. If you lost the invitation in the stack of angry
letters from the lawyer I mentioned earlier, please just contact
Nancy Hagner at the MBA ([email protected]). There are
discounted prices for young lawyers and government lawyers. And you
dont even have todance. On June 7th, we will hold the Legal Aid
Golf Classic at Bellewood Country Club. You dont need to be a good
golfer...I shoot about 120, and am almost certain it is due to
faulty equipment. On the afternoon and evening of July 18th, we
have a Clam Bake at Mermaid Lake in Blue Bell. There will be golf,
bocce, softball, tennis, and of course terrific food. Please join
us from September 20th to 22nd for our Annual Bench Bar Conference
at the refurbished Lowes Hotel in Annapolis, Maryland. While we
have several events planned for the weekend that you will hear
about in the future, the best part of Annapolis is just walking
around town with your friends. Have no fear. The author of that
angry letter wont be there. We have a zero tolerance policy for
people like that at theseevents. Finally, mark your calendar for
the Annual Membership Dinner on November 1st. That is our other
black tie optional event, and is only for MBA Members. This is
always a night of laughter and entertaining stories. Some of the
stories are even true. I want every lawyer to have the chance to
experience all the wonderful little things we have in the MBA. Over
the years at our Association I have ap-preciated all the
conversations at these events when an older lawyer has given me
valuable advice about the practice of law, or life, or both. Rarely
will you have those conversations sitting at your desk answering
interrogatories, or writing abrief. Retiring athletes say what they
will miss most is the comradery. That is what retiring lawyers say
they miss most also. Dont miss out on it now.
presidents Message
its tiMe to start enjoying the practice of LawBy PAUL C. TROY,
ESQ.
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S I D E B A R 5 S P R I N G 2 0 1 3
F irst, review the contacts contained in your digital address
book. This could be your Out- look contacts folder, email folder or
your business (Exchange server) address book on your work computer.
Hopefully, they are synched and you dont have to review multiple
databas-es. Delete those contacts that are no longer necessary,
relevant or useful. You probably will be able to prune 20% of the
contacts. Next, attack youremail. Most of us are so afraid of
deleting potentially important email that we are retaining enough
data to paper the Empire State Building. Seriously, if you have
more than 10 emails in your inbox, you are doing something wrong.
Organize your mail program with folders and subfold-ers. For
example, I have a Bar Asso-ciation folder in my mail program. My
subfolders are MBA, PBA, PBI, and AAML. I act on a received email
when received and if I need or want to retain the original email, I
move it the appropriate folder or subfolder and out of my inbox. I
have a work folder (with subfolders), personal folder, etc. The
important thing to remember is to act on email within one day and
either delete it or move it to an appropriate folder for reference.
However, this is not forever. Spring cleaning means you go through
your retained emails and delete, delete, delete. If you absolutely
need to retain the message, move it to a folder marked archive or
closed but you still should review them annually. If you are at
work, you need to have client related emails saved to your
firms server, by client. For example, a message from Mr. Smith
should be saved to a Smith folder on your firms computer rather
than your individual computers hard drive (unless your firm is not
networked). The ability to access your email from your desktop
greatly enhances your productivity. You can respond, set a reminder
or forward the email as needed without further dicta-tion or having
to go and retrieve your file, find the message and then take an
appropriate form of action (much more wasted time). Move on to your
voicemail and prune away, delete those old-out-of-date messages. I
cant tell you how many problems can occur when you leave messages
in your voicemail and the caller gets a mailbox full message. Clean
up your internet browser
bookmarks. A lot of them probably dont work anymore because the
website doesnt exist or has changed its settings. Pruneaway! The
same principals apply to your tablets and smart phones. Delete
voice mails, emails and most importantly apps. They take up
valuable space and can slow down or cause your device to crash. I
dont know of a contest that
awards prizes for who has the most apps, although many people
brag about the 100 or so that theyre keeping on their phone. You
dont really use more than 20 on a regular basis. They take up space
and memory on your digital device. My tip of the month is to
consider banning clients from texting you as a means of
commu-nication. I allow and encourage email and cell phone
communication with my clients. A Family Law practice lends itself
to these types of com-munication and I can
control and protect confidentiality as well as any intrusion on
my non-business time. Texting is different. Most often, there is no
way to receive a text without access to a cell phone. Most lawyers
dont have access from the desk-top computer. I dont always have my
cell phone with me and I usually have it on silent to avoid
unwanted intrusion at work. Also, the carrier only retains text
message for 30 days, and they cannot be easily authenticated. I
dont want to be responsible for time sensitive messages under these
circumstances. Think about it and let me know your policy, ifany.
Finally, please send me your com-ments and suggestions for topics.
I want this column to be user friendly and instructive to your
needs. Send them along to [email protected] and I will be
happy to respond.
Bits & Bytes
By Joel B. Bernbaum, Esq.
Spring Cleaning YourTechnology
This edition of Bits & Bytes marks over sixteen years of
sharing technology with members of the Montgomery Bar Association.
It also marks the end of winter and
the onset of spring - a good time to extend your spring cleaning
to your technology.
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S I D E B A R 6 S P R I N G 2 0 1 3
Bell-Ringing & Powerball
Lawyers Lending a hand
T he law firm of Rubin, Glickman, Steinberg, and Gifford, PC,
Lansdale, Pennsyl-vania, continues its sponsorship of Salvation
Army Kettles at the Montgomery Mall in North Wales, PA. Last year
marks the 7th year the firm and its employees have been providing
this support to the Salvation Army. On Wednesday evenings from
November 28th through December 19th the firms employees and their
families rang the bells for the Salva-tion Army through its Bells
Ringing Across America celebration to raise funds for the needy in
our area. Rubin, Glickman, Steinberg and Gifford, P.C.
and its employees have found this to be a very heartwarming
project and look forward to continuing it again nextyear.
_______________________
$104 in winnings from the Pennsylvania Lotterys Powerball game
got the ball rolling on a holiday donation to charity given each
year by
the lawyers and staff at Timoney Knox LLP in Fort Washington.
Thirty-eight lawyers and staff each contributed $2 to purchase a
Powerball ticket in late November, and that $76 yielded $104 in
winnings. The group decided that, rather than host a pizza party or
some other event for the firm, the funds should go to Timoney Knoxs
annual holiday fund collection for an area charity, according to
Criss Tull, director of administration. With the lottery winnings,
plus personal donations and a donation from the firm, Timoney Knox
presented $700 to the Mattie N. Dixon Community Cupboard in Ambler,
a nonprofit organization that serves individuals and families in
the Ambler area whose incomes fall below the Fed-eral Government
Poverty Guidelines.
Technology Solutions:Helping you meet the technology needs of
your partners, associates, staff and clients.
Every day, law firms and legal professionals rely on business
technology to run their timesheet and billing software, communicate
with clients through e-mail and fax, store and protect electronic
files and sensitive data, and print hardcopy documents.
Stratix Systems has helped several Montgomery County Bar
Association members address their technology needs with strategic
IT and Managed Services, Document Management Solutions, and
Printing and Imaging Systems.
Learn more. For more information, call 610.374.1936 or visit
Stratix Systems online at www.stratixsystems.com.
No one knows technology solutions like Stratix.
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S I D E B A R 7 S P R I N G 2 0 1 3
A s any judge, attorney, or courthouse employee in Montgomery
County can tell you, the county courts are bursting at the seams.
So much so, that a court already running at full capacity can
sometimes be over-whelmed by the sheer volume of cases. Thanks to
the recent efforts of the Montgomery County Court of Common Pleas,
the backlog of cases waiting to be tried has been reduced by 45%.1
The Montgomery Bar Asso-ciations Alternate Dispute Resolution (ADR)
Committee hopes to join the bench in its effort to further
alleviate the courts backlog. The committee recently unveiled the
brand new Center for Mediation and Arbitration (CMA), which seeks
to resolve disputes either before or after they escalate into a
filing in civil court. The CMA will also mediate and arbitrate
cases in suit. The MBAs ADR program, which began in 2002 as the
Davenport Dispute Resolution
Center, has helped numerous parties avoid costly litigation and
reach amicable settlements. In an effort to increase awareness of
the ADR program, the committee decided to rebrand, revamp, and
relaunch this pastwinter. The CMA is a low-cost service for the
resolution of disputed matters that have been or could be filed in
civil court or that the parties other-wise wish to resolve. The
goal of the program is to provide an opportu-nity for an
expeditious resolution of disputes outside of the courts. Services
are provided through an expert panel of ADR specialists, all of
whom have been carefully selected by the ADR Committee for their
extensive experi-ence in mediation and arbitration of civil
matters. The CMA is available to lawyers, insurance companies, and
any members of the public who have a civil dispute or a pretrial
case pending in Pennsylvania. The new center is already
receiving
rave reviews. An initial two day medi-ation session with a major
nationwide insurance company garnered the praise of all parties
involved, as well as Court of Common Pleas Judge Thomas M. Del
Ricci. Building on the success of this initial session, the center
has sev-eral other mediations scheduled with major insurance
companies in the near future. Judge Del Ricci is especially looking
forward to seeing old cases disappear from the courts back log.
Anyone interested in learning more about the Center for Mediation
and Arbitration can visit www.mont-gomerbar.org/adr/home.htm or
call 610-279-9660, ext. 208.
The Center for Mediation & Arbitration
MBAs new dispute resolution center launches to rave reviews
1 Elliot-Engels, Amaris. Montco Reduces Civil Trial-Ready
Caseload by 45 Percent, The Legal Intelligencer. Feb. 6, 2013.
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S I D E B A R 8 S P R I N G 2 0 1 3
young Lawyers
P ennsylvanias mock trial program is one of the largest in the
nation. This year, 333 teams from 276 high schools statewide will
compete in Pennsylva-nias 30th Annual Mock Trial Competition. The
first round of competition began on January 29, 2013 with 30 high
school teams competing for the Regional Title. During the
competi-tion, eight-member student teams are given the opportunity
to present their case in the courtrooms of the Montgomery County
Courthouse, and make arguments before Common Pleas Judges,
Magisterial District Judges and Discovery Masters of Montgomery
County throughout each round
of competition. The students, who play the roles of lawyers,
witnesses, plaintiffs and defendants, are assisted by teacher
coaches and lawyer advisors in prepar-ing for competition. Lawyers,
law office staff and commu-nity leaders serve as jurors and provide
helpful feedback for each team through-out the competition. The
juries determine the winners based
on the teams abilities to prepare their cases, present arguments
and follow court rules. At the conclusion of each trial, the
participating teams exchanged awards for the best advocate and best
witness. In the end, Mount Saint Josephs Academy (Team 1) defeated
Harriton High School in the final round of competition on February
27, 2013. President Judge William J. Furber presided over this
trial, where Mount Saint Josephs Academy represented the defense
and Harriton served as the prosecution. The jury was composed of
some of Montgomery Countys most prestigious members, including Kier
Bradford-Grey, Chief Public Defender; The Honorable Carolyn
Tornetta Carluccio; Marcel L. Groen, Chair of the Montgomery
County Democratic Committee; Mark Levy, Prothonotary; Kevin R.
Steele, First Assistant District Attorney; Past President of the
Montgomery Bar Association Steven H. Lupin and Pres-ident-Elect
Michael F. Rogers; and Past Chairs of the Young Lawyers Section,
Justin A. Bayer and Seth D. Wilson. Mount Saint Josephs Academy
(Team 1) advanced to the Pennsylva-nia Bar Association Statewide
Mock Trial Championships, which began on March 22, 2013. The
winning team of the state championship will represent Pennsylvania
in the national mock trial finals to be held May 9 11, 2013 in
Indianapolis. Over 100 Montgomery County judges, teachers and
lawyers volunteered their time to prepare teams and to judge the
2013 District and Regional High School Mock Trial Competition. The
Young Lawyers Section would like to thank all of the volunteers
that helped make this years program a success!
Teams Compete in the Montgomery County
Mock Trial Competition Each year, the MBA Young Lawyers Section
organizes the District and Regional
High School Mock Trial Competition in Montgomery County.
By Sarah N. Ponzio, Esq., MBA YOUNG LAWYERS SECTION CHAIR
recent young Lawyers section events:
stay tuned to Barnews and MontgoMeryBar.org for upcoMing young
Lawyers section events!
March 22, 2013Annual March Madness Event P.J. Whelihans, Blue
Bell, PA
April 5, 2013 Fundamental Formation and Governance Issues
Affecting Your Small Business Clients (1.0 substantive CLE credit)
Presented by: Andrew D. Santana, Esq., Fox RothschildMontgomery Bar
Association
April 13, 2013Wills for Heroes Event (Montgom-ery County
Sheriffs Office)Montgomery Bar Association
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S I D E B A R 9 S P R I N G 2 0 1 3
T he Montgomery Bar Association and our endorsed broker and
partner USI Affinity are proud to introduce a new and much improved
Lawyers Professional Liability Insur-ance program in 2013. The
program was chosen after a thorough review of the Bar Association
program last year showed that improvements were needed to ensure
that members are getting the best possible products and services.
At the end of that process, we decided to partner with CNA on the
new professional liabil-ity insurance program. CNA is an A Rated
national leader in Lawyers Professional Liability insurance,
pro-viding coverage to more than 44,000 law firms in the United
States. With more than 50 years of experience, they deliver world
class underwriting, dedicated claims and state-of-the-art risk
management tools and resources. We feel this new Lawyers
Professional Liability program is the best combination of coverage,
services and value for MBA members. In addition to expanded risk
management resources and credits for Bar Associa-tion members, the
new LPL offering features comprehensive coverage and policy
features tailored to meet the unique requirements of law firms in
Pennsylvania, from solo attorneys to largefirms. The new program
features Limits of Liability up to $10 million for qualifying
insureds, with continuous coverage and full prior acts available.
It also includes improvements over the previous program offering,
including:
True Consent to Settle: The named Insureds written consent is
required to settle a claim.
Cancellation: Cannot be cancelled except for non-payment of
premium.
Supplementary payments fordisciplinary proceedings: up to
$50,000 per proceeding and up to $100,000 total.
Supplementary payments for loss of earnings: up to $500 per day
and up to $50,000 total per insured.
Discrimination complaint coverage: up to $25,000 per policy
period for attorneysfees.
Privacy Event coverage: up to $10,000 per event and $20,000
total for expenses related to unauthorized
disclosure of non-public personal information.
Public Relations Event coverage: up to $25,000 per event and
$50,000 for expenses in response to specified public
relationsevents.
Regulatory Inquiry coverage: up to $25,000 for attorneys
fees.
Supplemental claim expense benefit: in the event the total limit
of liability is exhausted and any unresolved claims remain, the
com-pany agrees to reimburse the Insured up to 10% of the limit of
liability, up to a maximum of $100,000, for claim expenses incurred
handling the unresolvedclaims. Reduced deductible for early claim
resolution: deductible reduced by 50% (up to maximum of
$12,500).
We are confident that you will find the new MBA-endorsed
professional liabili-ty offering to be a tremendous member benefit
and a great value. If you are not currently insured through the Bar
Association program, we encourage you to get a quote when your
policy expiration date approaches.
Lawyers Professional Liability ProgramFeatures Many
Improvements
New Montgomery Bar Association
If you have any questions, you can talk to the insurance experts
at
USI Affinity. Call them toll-free at 855-USI-0100 PIN 761.
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S I D E B A R 10 S P R I N G 2 0 1 3
he phone rings. It is 10:30 p.m. on a Friday. Calls at this hour
rarely bring good news; and this one is no exception. Gloria, a
newly hired agent in the Benefits Department of your insurance
brokerage and financial services company, informs you that her
personal laptop computer was stolen from her car. At first you
wonder why Gloria is sharing this unfortunate news with you; but
she quickly reminds you that under the companys newly adopt-ed
Bring Your Own Device (BYOD) Program, Gloria was using her personal
laptop for company business. Residing on her now missing, computer
are the full names, addresses, social security numbers, account
numbers, and ac-count balances of plan participants for 15 client
benefit plans for which you act as plan administrator and for
several other plans to which your clients serve that role. That
same information and health histories for the client health plans
that your company administers are also on the laptop. Gloria
informs you that the same information for all 75 of your own
companys employees resides on her computer. All told, per-sonal
information of more than 2500 individuals, living in all fifty
states, potentially has been breached. The news gets worse when you
speak with your lawyer. You learn that
because some information is health in-formation, you will have
to notify those individuals whose information has been compromised
under the Federal Health Insurance Portability and Account-ability
Act. (HIPAA) and the Health Information Technology for Economic and
Clinical Health Act (HITECH), this will require your lawyer to
review regulations issued by the Department of Health and Human
Services and the Federal Trade Commission to determine who must be
notified and what information must begiven. As you are considered a
financial institution, you will have reporting responsibilities
under the Financial Services Modernization Act of 1999 (aka
Gramm-Leach-Bliley Act). This will require review of regulations
issued by the Office of the Comptroller of the Currency, the
Federal Reserve Board and the Federal Deposit Insur-ance
Corporation as well as the Office of Thrift Supervision to
determine what regulations might apply to that aspect of your
business.
BYOD Policies...Scary Liabilities For
the Uninformed Employer
By Robert W. Small, Esq.
Furthermore, your lawyer tells you that if any of the employees
workfor your affiliated radio station hewill also have to spend
time visiting the Federal Communications Act 1934 and Regulations
issued under that Act by the Federal Communica-tions Commission
which relate to data breach notification. But then the really bad
news comes. At least 46 states have legisla-tion dealing with the
breach of personal information. Although he is familiar with the
laws of your state, he and a team of associates will have to blue
sky the other 45 statelaws.
T
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S I D E B A R 11 S P R I N G 2 0 1 3
Your lawyer tells you that personal information subject to
breach notifi-cation statutes include social security numbers,
drivers licenses numbers, account numbers, credit card or debit
card numbers, along with security and or access codes or passwords
that would permit access to an individual account, medical
information, health insurance information, date of birth, mothers
maiden name, biometric data, DNA data, passport number, taxpayer
identification numbers, and account numbers even disassociated from
passwords or PIN numbers. Anticipating a large legal fee and
notification costs, you ask if notifi-cation is required. He
responds that many states have risk of harm thresh-
olds which require notification only if the breach of personal
information poses, or is likely to pose, a significant risk of harm
to the affected individuals. In response to his questions you
inform your lawyer that, while a password is required to open the
files on the stolen laptop, the data is not encrypted. With this
information your lawyer tells you that this probably rises to the
level of a significant risk of harm to the individ-uals whose
personal information is on the computer triggering your
notifica-tion obligations. You ask what you have to tell your
employees and what your clients will have to tell their employees
as you are certain your clients will be looking to you for guidance
as to their obligations. Your lawyer tells you that the
informa-tion you must provide depends on each state statute. You
ask if the company could simply provide all of the information
required by the most
comprehensive statute which would save time with the blue sky
exercise. Your lawyer responds that what some states require you to
put in employee notifications, other states prohibit. Therefore,
there can be no one size fits all notificationletter. Furthermore,
it is not as simple as notifying plan participants or your own
employees. Some states require notification to state officials such
as the State Attorney General. Some states permit you to delay
notification if the law enforcement agency investigating the breach
requests that of you so as not to impede its investigation.
Addi-tionally, at least one state requires that you notify them
before notifying plan participants or employees and have your
notification letter approved. Your lawyer will have 4 associates
begin the blue sky process immediately. By the end of the day he
lets you know that the good news is only 11 states statutes create
a private right of action for individuals to sue you for
Continued on page 12
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S I D E B A R 12 S P R I N G 2 0 1 3
damages they sustain as a result of the data breach. However,
the bad news is that your company and your clients have hundreds of
employees who reside in those 11 jurisdictions. Seeing dollar signs
fly by, you ask what the risk would be of not notifying anybody; in
the hope the information is never wrongly used. You learn that
several state statutes impose fines rang-ing from $10,000.00 to
$150,000.00 per breach if required notification is not made. Other
jurisdictions impose civil penalties or fines up to a $500,000.00.
Not notifying all those entitled to notification simply is not
anoption. I thought all the laptop comput-ers you gave to your
employees had encryption, GPS location and remote destruction
software, your lawyer says. You respond that, in an effort to save
hardware costs and address concerns of a new generation of techies
who want to do all their computing on a single device, your company
recently adopted a BYOD policy that allows employees to use a
single device of their own choosing for both personal and company
business. You did not require employees using personal devices to
download those protective software programs. Your lawyer asks what
steps you took to protect the companys own trade secrets and
confidential information on employee devices. You never thought
about that and have no protection either from whoever stole the
computer or even from your own employees wrongful use of that
information. Your lawyer advises that, because there is health
information on the laptop subject to HIPAA and HITECH, you are
subject to an enforcement action by Health and Human Services. He
also advises that under the Interagency Guidance Pub-lication
issued by the Comptroller of Currency under Gramm-Leach-Bliley your
company was required to have in place a risk-based response program
to address incidents of unauthorized
access to private information because your business qualifies as
a financial institution under the Financial Services Modernization
Act of1999. You belatedly realize that, before adopting a BYOD
program, you should have completed a comprehensive risk assessment.
Such an assessment might have revealed that employees already were
using their own devices for work related information and likely
would have determined whether a BYOD program was technically or
financially feasible and appropriate for your com-pany. Such an
assessment also would have enabled you to select the best
technological means for
implementation of a comprehensive security program and to
develop specific policies and procedures governing BYOD
administration and management. Your lawyer recommends that, after
this crisis is over, the company develop a comprehensive BYOD risk
assessment procedure and urges you to contact your Errors and
Omissions carrier to determine whether you have coverage in the
event your clients, their employees or your own employees bring
damage lawsuits. Although fictional, the foregoing arises out of
actual events.
BYOD Policies...Scary Liabilities For the Uninformed
Employer
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S I D E B A R 13 S P R I N G 2 0 1 3
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S I D E B A R 14 S P R I N G 2 0 1 3
The Business, Banking and Corporate Coun-sel Committee hosted
Commissioner Bruce L. Castor, Jr. over lunch at the Bar on January
24, 2013. It was the inaugural 2013 monthly meeting of the
Committee, which usually includes a lawyer or non-lawyer from the
business com-munity who is invited to share his/her business
experiences. Mr. Castor was an excellent guest to help the
Com-mittee kick off the new year, sharing his experiences with the
challenges of running the County government in a way that meets the
needs of its citizens in a fiscally responsible manner. Mr. Castor
was elected Com-missioner of Montgomery County, Pennsylvania in
November 2007, and re-elected in November 2011. Prior to his
election as Commissioner, he served in the office of the District
Attorney of Montgomery County for twenty three years, starting in
1985 as a Legal Intern in the Sex Crimes Unit; continuing from 1986
until 1991 as an Assistant District Attorney in the Major
Crimes
and Sex Crimes Unit (Serving as Captain of the Major Crimes Unit
1988-1991);
and servin gas Deputy District Attorney (Chief of Trials,
Cap-tain Grand Jury Unit) from 1991 until 1993 when he became First
Assistant District Attorney. Mr. Castor was elect-ed District
Attorney of Montgomery County, Pennsylvania, in November, 1999, and
re-elected as District Attor-ney in November, 2003. Mr. Castor has
been a Shareholder and Director of Elliott, Greenleaf &
Siedzikowski, P.C. since January, 2008, where he focuses his
practice on general litigation, trial strategy and tactics, and
conducting independent internal investigations for major
corporations. Attendees at the luncheon were treated to Mr. Castors
humorous and fact filled accounts of the Countys business affairs.
Mr. Castor regaled the audience with tales of his personal
experience with County, State and Federal officials, and then he
turned serious in discussing the hard choices faced by the
Commissioners in prepar-ing the 2013 County Budget without raising
taxes. When Mr. Castor was asked how he divides his time between
his official County duties and his law firm responsibilities, he
reminded the
attendees that being a politician also placed great demands on
his time. However, Mr. Castor emphasized that he has voluntarily
undertaken all these responsibilities with pride and pleasure. Mr.
Castors governmental service has included many prominent roles and
has earned him numerous awards, including The Hon. Louis D Stefan
Law Enforcement Award of the Mont-gomery Bar Foundation; President
of the Pennsylvania District Attorney Association; Special Deputy
Attorney General 1987-2007; Graduate of the FBI Academy (National
Law Institute), Quantico, VA. 1993; Pennsylvania Po-lice Hall of
Fame inductee 2007; Top 100 Trial Lawyers of America, 2012;
Pennsylvania Super Lawyer, Philadel-phia Magazine, 2004-2008,
2010-pres-ent; inclusion on the Martindale-Hub-ble Lawyer Bar
Register of Preeminent Lawyers since 2000; Honorary Captain,
Montgomery County Sheriffs Depart-ment; and a 33rd Degree Scottish
Rite Mason NMJ, Royal Arch Mason York Rite and Shriner. Mr. Castor
is a life-long resident of Montgomery County, born in Abington
Township and now residing in Lower Salford Township with his wife,
Elizabeth, and two children. May I add, to give you a more complete
understanding of the range of Mr. Castors activities, he has also
served as a Confirmation Class Teacher at the Abington Presbyterian
Church and asa Harleysville Baseball Coach.
Business, Banking & Corporate Counsel Committee
WelcomesCommissioner Bruce L. Castor, Jr
MBA / FEATURE
By David A. Feldheim, Esq., MBA Business Banking & Corporate
Counsel Committee Chair
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S I D E B A R 15 S P R I N G 2 0 1 3
ven those of us that do not practice criminal law may have
noticed the pendulum swinging away from get tough on crime towards
a get smart on crime philosophy. Our legislature has recently
continued the trend to prioritize and advance alternatives to
incarceration for nonviolent offenders and has authorized early
release mechanisms for prisoners who meet eligibility
require-ments. These measures also include efforts to scale back
certain sentencing provisions and returns to prison for probation
and parole violators. These evidence-based practices amount to cost
savings which allow for reinvest-ment back into other aspects of
the criminal justice system, including treatment and local law
enforcement. RIP, SIP, RRRI, Boot Camp, Drug Court, Behavioral
Health Court and Veterans Court are all available right here in
Montgomery County to address the root cause of criminality
and to alleviate our ever-in-creasing prison population. Senate
Bill 100, approved by the Governor on July 5, 2012, has expanded on
these sen-tencing provi-sions. Offenders convicted of certain
low
quantity drug trafficking offenses, in-cluding low tier
mandatories, may now be sentenced to county intermediate
punishment. SB 100 also authorizes el-igible offenders to receive a
RRRI (early release) minimum sentence even if a mandatory sentence
is authorized. The bill also widens the net of eligibility for the
underutilized treatment-based SIP program and increases the age
limit for Boot Camp to age 40. Additionally, the Safe Community
Reentry program was created to ensure successful reinte-gration and
reentry of parolees back into the community by coordinating
services such as housing, health care, education and job training.
SB 100 also added a section to Ti-tle 42 (9771.1) which allows
common pleas courts to establish a program to impose swift,
predictable and immedi-ate sanctions on probation violators un-der
supervision for drug-related crimes. The program requires drug
testing, a violation hearing within two days, and, in lieu of
revocation, sanctions of three days jail time for a first
violation,
seven days for a second violation, four-teen days for a third
violation and so on. As many of the inmates in our prison are
probation violators, perhaps this new law will become a viable
solution in our county soon. Much of the crime in the county is in
some way related to drugs and alcohol. As the nation shifts away
from the infatuation with long-term incarcer-ation as the perceived
solution to drug addiction, problem-solving courts, such as Drug
Court, have been tremendously successful in both reducing
recidivism and prison populations. There are now over 2,600 drug
courts nationwide, almost one for every county in the U.S.
Treatment, combined with structure and intensive supervision, has
been effective in reducing addiction-fueled crime. Similarly,
Behavioral Health Court diverts the mentally ill away from the
prison system and into the treatment setting. And with almost a
million veterans in Pennsylvania, Vet-erans Court offers a more
appropriate disposition and a unique way to address the needs of
veterans involved in the criminal justice system. Our elected
representatives across the political spectrum are now encour-aging
the defense bar, our colleagues at the District Attorneys office
and our judges to think outside the cell when analyzing the
appropriate remedy to criminal behavior. By considering all of the
relevant circumstances of an offense, we must assess not only the
risks, but also the needs of an offender in an effort to reduce
future criminality.
Alternatives to Incarceration in Montgomery CountyBy Scott C.
McIntosh, Esq., MBA Criminal Defense Committee Vice-Chair
E
MBA / FEATURE
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S I D E B A R 16 S P R I N G 2 0 1 3
he American Taxpayer Relief Act of 2012, P.L. 112-240 (the Act)
was signed into law on January 2, 2013, following a period of
taxpayer uncertainty and busy 2012 year-end planning for the
possibility of a return to pre-EGTRRA tax laws. For 2013, the
applicable exclusion amounts from Federal Estate, Gift, and
Generation-skipping transfer (GST) taxes were increased to $5.25
million, per individual, to be annually adjusted for inflation. The
Federal Estate, Gift and GST tax rates were increased to forty
(40%) percent. Portability among spouses, or the ability to use a
prede-ceased spouses applicable exclusion amount on the
second-to-die spouses tax return, has been made perma-nent, meaning
generally a married couple both dying in 2013 will not pay Federal
Estate or Gift tax on up to $10.5 million. Notably, GST was not
made portable among spouses, although deemed automatic allocations
of GST exemption were retained in the Act. The state death tax
deduction (as opposed to a credit) has been made permanent. The
annual exclusion for making gift-tax free transfers increased to
$14,000 or $28,000 for married taxpayers who splitgifts. The Act
also imposed significant changes to the Federal income taxation of
estates and trusts, and individual beneficiaries of those entities.
Un-like individuals, the new top Federal income tax rates of 39.6%
apply for trusts and estates with over $11,950
in undistributed income. Income, including trust and estate
income distributed to beneficiaries, is taxed at the new 39.6% top
rate, which now applies to couples with over $450,000 and
individuals over $400,000 in taxable income. For capital gains
above the thresholds mentioned, rates were increased to
twenty-percent (20%). Another consideration in 2013 is the 3.8%
Medicare surtax on net investment income (part of The Afford-able
Care Act of 2010), which applies to individuals whose adjusted
gross income exceeds $200,000 or $250,000 for married taxpayers,
and for trusts and estates having over $11,950 in un-distributed
net investment income. The 3.8% surtax applies only to the lesser
of: (i) the amount by which the tax-payers modified adjusted gross
income exceeds the applicable threshold or (ii) the taxpayers net
investment income. Rather than expiring sunset periods, the Act
made these higher ex-emptions permanent, but tax laws are
intrinsically tied to politics and these exemptions could obviously
change in the future. To fill the void created by a Federal Estate
tax that now taxes
only the ultra-high-net worth individuals, an increasing number
of states will likely enact or retain their own sep-arate estate
taxes, with exemptions de-coupled from the Federal ex-emptions. For
example, in nearby New Jersey and New York, the applicable
exclusion amounts are only
$675,000 and $1 million, respectively, and portability is not
recognized. Penn-sylvania continues to impose its inheri-tance tax
on net transfers to non-spousal and non tax-exempt beneficiaries.
Coverage of planning opportuni-ties under the Act is beyond the
scope of this particular article. While they last, the higher
exemptions will likely mean that gifting into irrevocable trusts
will continue to play a significant role for high-net-worth estate
planning, although a competing interest will be the income tax
benefit of holding property until death. The Act is likely to
increase focus on Federal income tax consequences of Trusts and
Estates, and many clients may decide now is the time to take
action, before the winds of tax reform change again.
Michael J. Moyer, Esq. (LL.M. in Taxation) is an Associate
Attorney at Friedman Schuman, P.C., a full-service law firm
headquartered in Jenkintown, PA. Michael practices in Tax, Estate
Planning and Wealth Preservation, Estate and Trust Administration,
and Corporate Law, and he is admitted in Pennsylvania, New Jersey
and NewYork.
The American Taxpayer Relief Act of 2012:
By Michael J. Moyer, Esq.
The Federal Estate, Gift, GST and Selected 2013 Income Tax
Changes
T
MBA / FEATURE
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S I D E B A R 17 S P R I N G 2 0 1 3
Attorney General Kathleen Kane and MBA Bar President Paul
Troy.
Pennsylvanias first elected female Attorney General, Kathleen
Kane, visited our Bar on March 13, 2013. Ours is the first bar
association the Attorney General agreed to visit. Mrs. Kane made
good on a campaign promise she had made to Wendy G. Rothstein. Mrs.
Kane capped off her promise by graciously accepting Bar President
Paul Troys offer to become an honorary member of ourBar. The
Attorney General was as effervescent, gracious and down-to-earth as
she was portrayed during her maverick campaign. Meeting her, you
immediately felt that this time the media got it right. Mrs. Kane
was without pre-tense, as she looked you straight in the eye and
invited you to speak about whatever was on your mind. She took her
time to answer questions and spoke personally about herself and her
family. She appeared visibly moved when some of us reminded her
that she has become a trailblazer for women. She laughed readily,
mingled freely and was genuinely enthusiastic about being with us.
Mrs. Kane appears to be no ordinary politician. In fact, she
denounced being
motivated by politics in her brief remarks following the
reception. Mrs. Kane addressed the standing-room only crowd which
included fourteen Judges of the Montgomery County Court of Common
Pleas including the Honor-able Joseph A. Smyth, Stanley R. Ott,
Bernard A. Moore, William R. Carpenter, Emanuel A. Ber-tin,
Arthur R. Tilson, Thomas C. Branca, Thomas P. Rogers, Garrett D.
Page, Kelly C. Wall,
Carolyn Tornetta Carluccio, Gary S. Silow and Richard P. Haaz.
Other dig-nitaries included Commissioner Leslie S. Richards,
District Attorney Risa Vetri Ferman, Public Defender Keir
Bradford-Grey, Court Administrator Michael R. Kehs and Clerk of
Court Ann ThornburgWeiss. Mrs. Kane announced that her platform as
Attorney General is to enforce the laws of Pennsylvania. She
described some of the major actions her office has taken since
January, including issuing indictments involving a Turnpike
pay-to-play scheme; heroin distribution; child predation; and
cocaine trafficking between state lines. On the civil side, the
Attorney General has entered into
numerous large monetary set-tlements as well as disapproved a
previously proposed lot-tery contract. Mrs. Kane announced that
equally import-ant to her as Attorney Gen-eral is educating our
youth on ways to avoid becoming victimized by crime. To that
end, she declared her intention of visiting schools and
community centers through
out the Common-wealth to support our youths and
their families. Mrs. Kanes articulation of her priorities as
Attorney General con-firmed our sense on meeting her that she will
be her own person as our Attorney General. The Bar thanks Wendy G.
Rothstein for ensuring that our Bar was the first to receive the
Attorney General. The evening was one our Bar, and I know Wendy,
will cherish in more ways than one.
Joins our Bar!
By Pamela M. Tobin, Esq.
Attorney General
Mrs. Kane kept her campaign promise by graciously accepting Bar
President Paul Troys offer to become an honorary member of our
Bar.
Kathleen Kane\
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S I D E B A R 18 S P R I N G 2 0 1 3
Edward J. DiDonato. Partner at Fox Rothschild LLP in Blue Bell.
Over 35 years experience in Bankruptcy and business law, business
reorganizations,
creditors rights and represen-tation of trustees; served on the
Third Circuit Judicial Merit Selection Commit-tees for
both Bankruptcy and Magistrate Judges for the Eastern District
of Pennsylva-nia; a frequent guest lecturer for Montgomery and
Philadelphia Bar Associations; a Pennsylvania Super Lawyer for 2005
-2013 ; rated by his peers as AV; a graduate of Villanova
University and Widener University School of Law; he was voted Man
of the Year by the Italian American Press Club, a member of the
Board of Directors of the Justinian Society and Co-Chair of the MBA
2013 Bank-ruptcy/Creditors and Debtors Rights Committee.
Stewart J. Greenleaf, Jr. is a shareholder in the law firm of
Elliott Greenleaf & Siedzikowski, P.C. in Blue Bell. Mr.
Greenleaf concentrates his practice in a wide-range of commercial
litigation matters, as well as appeals to Pennsylvanias appellate
courts. Mr. Greenleaf is a 2004 graduate of Amer-ican Universitys
Washington College of Law where he served as president of the
American University chapter of the Federalist Society for Law and
Public Policy Studies from 2002 to 2003, and received a B.A. from
the University of
Maryland. Following law school, Mr. Greenleaf served a judicial
clerkship with President Judge Emeritus Stephen J. McEwen, Jr. of
the Pennsylvania Superior Court. From 2008 through 2012, he was
named a Pennsylvania SuperLawyers Rising Star. Mr. Greenleaf is
active in the com-munity both within and outside of the legal
profession. In addition to serving on the Montgomery Bar
Associations Board of Directors and as President of the
Associations Trial Lawyers Section, he represents child victims of
abuse with the Montgomery Child Advocacy
Program. Outside of the legal profes-sion, Mr. Greenleaf serves
as a member of the Upper Moreland Parks and Recreation Advisory
Commission. Mr. Greenleaf has also served as a hearing committee
member for the Pennsylvania Supreme Courts Disciplinary Board and
as a Trustee of the Upper Moreland Free Public Library. In November
2011, Mr. Greenleaf was elected as Controller for Mont-gomery
County, PA. In that role, he oversees the countys $400 million in
annual expenditures, as well as the countys $440 million pension
fund. Mr. Greenleaf is a member of the Bars of the Commonwealth of
Pennsylvania, the State of New Jersey, the United States District
Courts of the Eastern District of Pennsylvania, the Western
District of Pennsylvania
and the District of New Jersey, the Third Circuit Court of
Appeals, and the United States Supreme Court. Mr. Greenleaf s
professional relation-ships include the Pennsylvania and Montgomery
Bar Associations and the Pennsylvania Association of County
Controllers.
Mark F. Himsworth has been han-dling commercial litigation
matters for over 20 years. A member of the Litiga-tion Department
at Hamburg, Rubin, Mullin, Maxwell & Lupin, a consid-erable
amount of his practice is related to business disputes, including
cases involving covenants not to compete, interference with
contractual relations, unfair competition, misappropriation of
trade secrets, commercial defama-tion, and partnership and
shareholder disputes which include cases involv-ing minority
oppression and squeeze outs. In addition, he handles a wide
spectrum of con-struction disputes, including construc-tion
defect claims, mechan-ics lien claims, unfair trade practice
and consumer protection law claims, municipal bid litigation,
and payment and performance bond claims. He also represents
residential and com-mercial brokers in broker malpractice cases and
in commission disputes and individuals and companies in various
real estate disputes, including quiet title actions, partition
actions,
MBA Welcomes New Board MembersMeet the 2013 Additions to our
Board of Directors
MBA / FEATURE
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S I D E B A R 19 S P R I N G 2 0 1 3
claims involving adverse possession, lis pendens, easements,
deed restrictions, disputes involving both residential and
commercial agreements of sale, and tax assessment appeals. Mark is
a past President of the Montgomery Trial Lawyers and is a member of
the Montgomery Inn of Courts as a Barrister and past Treasurer. In
2010, 2011 and 2012 Mark was named by Super Lawyers magazine as one
of the top attorneys in Pennsylvania. Only five percent of the
lawyers in the state are named to the list. He is a former member
of the Board of Directors of the Patrician Society, a non-profit
food cupboard devoted to helping the needy in the Norristown area
and the United Fund of Collegeville-Trappe, Inc., a non-profit
serving various charities in the Collegeville-Trappe area. He is a
past President of the Board of Directors of Big Brother/Big Sisters
of Montgomery County, and was coun-sel for that organization. He is
also a former member of the Trappe Borough Planning Commission. A
graduate of the University of Notre Dame in 1984 (B.A. Accounting),
Mark obtained his law degree from Widener University School of Law
in1987.
Jacqueline M. Reynolds is a member of the Health Care Liability
Practice Group in the King of Prussia office of Marshall, Dennehey,
Warner, Coleman and Goggin. Throughout her 16-year career, she has
provided legal counsel to physicians, physician practices, nurses,
allied health professionals, hospitals and health systems. She
handles cases
through-out five Penn-sylvania counties. Jackie received her
Bache-lor of Arts degree and paralegal certificate from
Cedar Crest College, where she was also the recipient of the
Butz Award as the member of the senior class who exerted the best
influence in her college life and association. She worked for
defense litigation law firms in Philadel-phia before returning to
school at the Temple University School of Law. She joined Marshall
Dennehey in 1995 as a law clerk, and has remained with the firm
since that time. She concentrates her practice in the Medical
Malpractice and Prem-ises Liability areas. Member of the
Pennsylvania and New Jersey Bars. American Bar Association,
Montgom-ery Bar Association, Pennsylvania Bar Association, American
Inns of Court, Montgomery County, Medical Legal Society, Montgomery
County ,Trial Lawyers Section, Montgomery County and Women in the
Law, Montgomery County Jackie received her J.D. from Tem-ple
University School of Law and the Cedar Crest College-Allentown,
B.A. American History.
Seth D. Wilson is a shareholder at Morris and Clemm, P.C. He
graduated from Lafayette College in 2000 with a degree in
Interna-tional Affairs. He is a 2003 graduate of the Temple
University Beasley School of Law where he focused on trial
advocacy. Mr. Wilson prac-tices in Pennsyl-vania, New Jersey and
the federal courts. He handles plaintiffs personal injury matters,
including med-ical negligence, products liability and
automobile
accidents, and com-mercial litigation. He is an active member
of
the Pennsylvania Bar Association and the Montgomery Bar
Association. Mr. Wilson served as the 2012 President of the Young
Lawyers Section of the MBA. He is currently the Co-Chair of the
Unauthorized Practice of Law Committee and a member of the Trial
Lawyers Section, Bench Bar, Medical Legal and Long Range Planning
Com-mittees. Mr. Wilson is a former Editor of the Montgomery County
Law Report-er. He has been named a Rising Star by Super Lawyers
magazine. He is also an appointed member of the Environmen-tal
Advisory Commission of Springfield Township, where he lives with
his wife and two daughters.
A &A
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S I D E B A R 20 S P R I N G 2 0 1 3
L ike many great undertakings, this one began with someone
staring at a blank wall. In this case, that someone was 38th
Judicial District of Pennsylvania Court of Common Pleas Judge
Carolyn Tornetta Carluccio. Judge Carluccio, a pioneering past
president of the Mont-gomery Bar Association, now serves as the
Chair of the Community Outreach Committee. Having recently
complet-
ed a series of consumer educational video vignettes featuring
local attor-neys, the committee was charged with finding a new
project. And so Judge Carluccio found herself staring at a blank
wall when inspiration struck. As a judge, I spend much of my time
facing out into the courtroom. During one particular recess, I
noticed that something was missing from my courtroom: artwork.
Judge Carluccio brought her idea to the next meeting of the MBAs
Communi-ty Outreach Committee. The commit-tee shared her enthusiasm
and worked diligently to come up with a project that would both
serve the community and beautify the county courthouse. Each and
every day, the doors of the Montgomery County Court House are
opened to serve citizens from 38 townships and 24 boroughs. The
court-
A UNIQUE COUNTYWIDE ARTS INITIATIVE COURTHOUSE IMPROVEMENT
EFFORT
OF THE PEOPLE,
By Melissa M. Boyd, Esq.
by the People,
& FOR THE PEOPLE.
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S I D E B A R 21 S P R I N G 2 0 1 3
house represents the ideals of democra-cy and stands as a pillar
of justice in our community, but for those who must avail
themselves of court intervention, the very idea of visiting the
courthouse can be overwhelming. Few things are more stressful than
a day in court. For litigants, whether attorney or client, the
strain of a trial is enormous. For law enforcement, for victims
facing their abusers and for those traumatized by events in which
theyre forced to testify, a day in court can be downright scary.
From the unease of the albeit necessary security check upon
entering, to the cold, cavernous hallways; the emotion-ally charged
courtroom testimony; the sometimes gruesome trial evidence and
other courtroom stressors theres just not a lot of comfort in a day
in court. Situated in the county seat of Norristown, the courthouse
is an architectural treasure. Despite the unique mix of history and
progress that the courthouse represents, it has been decades since
the interior of the courthouse underwent a significant
transfor-mation or received a cosmetic facelift. In the early
1950s, artist George M. Harding was commissioned to paint grand
murals in the main courtrooms of the 2nd and 3rd floors, depicting
scenes from the countys rich history. No other art initiatives for
the commissioned since that time. If you walk down any of the
courthouse hallways or visit any of the newer courtrooms, you will
see blank, and I venture to say, uninviting walls. In the shadow of
tough econom-ic times and widespread budget cuts impacting county
organizations like
Legal Aid and the Montgomery Child Advocacy Project, members of
our legal community and those of us who visit or conduct business
in government buildings like our courthouse recognize there are far
more pressing issues for our tax dollars to address than sprucing
up the courthouse And so, MBAs Community Out-reach Committee
developed Courting Art: a community art initiative which aims to
populate the interior walls of the Montgomery County Court House
with artwork from county residents. The committee, a group
comprised of lawyers, community leaders, and business leaders, were
able to develop this initiative from the ground up completely
internally. We were able to tap particular members with experience
in art and exhibitions, whose input was invaluable in creating this
project,
says Judge Carluccio. Courting Art will embody a series of
community art contests and public exhibitions, hosted by the Bar
Association and its partners, over the next several years.
Mont-gomery County is loaded with artistic talent. These contests
and exhibitions are intended to solicit work from the
community, and in exchange provide a forum for local artists to
showcase their work for years to come. For this years inaugural
contest, What I Love About Montgomery County, artists age 55 or
better from Montgomery County are invited to create and submit
original paintings, drawings and mixed media for a juried, VIP art
exhibition and contest. Make no mistake, the artwork that the MBA
COC expects to receive from those se-nior artists should be nothing
less than exceptional. Many senior citizen com-munities and centers
have incredible art programs. These facilities are teeming with
talented artists and the MBA COC felt there was no better forum to
showcase the talents of the countys senior artists. Joanne Kline, a
member of the MBA COC and Executive Director of Aging and Adult
Services
of Montgomery County, has been a tremendous sup-porter of the
contest and affirmed the incredible artwork being produced by our
countys seniors. Prizes will be awarded for win-ning entries at the
conclusion of this years event. A grand prize of $1,000 is planned.
Unique to this years Courting Art exhibition and contest, our
esteemed panel of judges will include, among others, sitting
judges
In mid-March, Community OutreachCommittee Chair, Hon. Carolyn
T.Carluccio (c) and Vice-Chair, Melissa M. Boyd, Esq. (r) made an
on-air appearance on the Hank Cisco Show.
Continued on page 22
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S I D E B A R 22 S P R I N G 2 0 1 3
from the Montgomery County Court of Common Pleas. Immediately
following this years exhibition, all art will be re-turned to its
creators and winners will be notified. One reproduction or likeness
of each winning piece will then be produced at the expense of the
Bar Association and its sponsors. These reproductions will be
displayed for years to come on the walls of the courthouse.
Fittingly, May is Older Americans Month. This years exhibition will
be open May 10 & 13, 2013 from 10 a.m. until 5:00 p.m., with a
VIP awards reception following the exhibition.The exhibition and
VIP reception will be hosted at the Montgomery County Community
College Fine Arts Center, commonly known as the Art Barn. The
Montgomery County Community College has been a wonderful supporter
of the Montgomery Bar Association. The Colleges representative to
the MBA COC, Vice President of Development and External Affairs
Sharon Beales, was instrumental in securing the host site for the
exhibition and reception. With the blessing of President Judge Hon.
William J. Furber and the Mont-gomery County Commissioners Office,
Courting Art was launched with a Valen-tines Day press conference
on February 14, 2013 in Judge Carluccios courtroom. The community
response to this initiative has been impressive. Anticipated
submis-sions include one seniors depiction of her 300 year old
home. Residents from Shan-nondell at Valley Forge, one of the
largest continuing care retirement communities in the area, have
begun work on their masterpieces. With the theme, What I Love About
Montgomery County,
the pool of submissions will be vast in content and
interpretation. In response to the recent media coverage, several
area businesses, law firms, community partners and individ-uals
have already begun fulfilling their fiduciary call by agreeing to
sponsor our inaugural contest and exhibition. Entry level
sponsorships start at just $200; however, the most popular
sponsorship option thus far has been at the $500 level, where
sponsors receive considerable value in exchange for their
generosity and support. At the $500 level, sponsors names and logos
will appear in ads placed in legal news media like the Legal
Intelli-gencer and in popular general circulation newspapers
throughout Montgomery County. These sponsors will also be
recognized for their generosity and support on signage and
materials at the Public Exhibition on May 10th and May 13th, as
well as the V.I.P. Awards Reception on May 13th. All supporting
sponsors will receive prominent recogni-tion online and in various
MBA media like SIDEBAR, the Montgomery County Law Reporter and
more. Several other sponsorship opportunities are available as
well. As an added incentive to our first year supporters, one lucky
sponsor will take home an original watercolor of the Montgomery
County Court House, painted by Kathleen S. Howell. Ms. Howell is an
award-winning artist, residing in Perry County, PA who has painted
some of Pennsylvanias most significant legal arenas. Her works also
include beautiful watercolors of the courthouses from each of the
67 counties
of Pennsylvania. Her County Courthouse Series is displayed on
the first floor of the Pennsylvania Judicial Center in Harris-burg.
Dean Phillips, Esquire of Elliott Greenleaf & Siedzikowski,
P.C. kindly commissioned and donated this work of art to be raffled
off to a lucky sponsor. Complete information on this years
inaugural Courting Art Contest and Exhibition can be found online
at www.courtingart.com. If ever you needed any affirmation of the
world-class talent, work ethic and initiative of the MBA staff, it
is evidenced through the construction of this website. Each year,
members of our legal community, through the bar association, the
Mont-gomery Bar Foundation, and their own individual and
firm-sponsored pro bono efforts give countless hours of time and
money to support justice-related causes in Montgomery County.
Courting Art is a unique model, however; the project is aimed at
physically and aesthetically improving our county courthouse and
re-ducing the stress typically associated with a day in court. In
order to succeed, the project will rely heavily on the support of
sponsors. Please consider supporting this great cause by serving as
a sponsor. Do-nations of any amount will be accepted and go towards
the funding of this and additional Courting Art projects in the
future. Visit the Sponsors section of www.courtingart.com for more
infor-mation. With your help, the nonpareil grand faade of this
great courthouse will soon be matched by its interior beauty.
Perhaps Judge Carluccio sums it up best in discussing her hope for
the project: the next time that I glance at a wall in my courtroom,
I want to be inspired by the artwork, not the lack thereof.
The Honorable Carolyn T. Carluccio addresses media at a Courting
Art press conference.
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S I D E B A R 23 S P R I N G 2 0 1 3
Michael Moyer (Friedman Schuman in Jenkintown, PA) and Elaine
Moyer (Kane Pugh) welcomed baby Garrett Joseph on December 13,
2012.Michael Drossner has been ap-pointed by the Whitemarsh
Township Board of Supervisors to the Ethical Standards
AdvisoryBoard. Adam L. Fernandez a member of Wisler Pearlstine, LLP
has been appointed by the Nether Providence Township Board of
Commissioners to be a permanent member of the Town-ships Zoning
Hearing Board for a five (5) yearterm.Philadelphia-area based
Stewart, Bernstiel & Rebar (SBR) announced that shareholder
Bryan W. Petrilla has joined the firm as a partner. Petrilla
handles litigation throughout the country, with a focus on
insurance coverage disputes. David L. Allebach, Jr., a partner of
Yergey Daylor Allebach Scheffey Picardi-
Pottstown office, was appointed to the Board of the newly
created Philadel-phia Freedom Valley ForgeYMCA.Jennifer J. Riley,
Associate Attorney at the Lansdale law firm of Rubin, Glickman,
Steinberg and Gifford, P.C. co-authored a new book by the PBI
entitled Custody Law and Practice in Pennsylvania. The publication
was written by some of Pennsylvanias best family law professionals
and provides practioners with a comprehensive re-source covering
substantive, procedural, tactical and ethical considerations in the
area of custody law. Justin A. Bayer is now a partner at Kane,
Pugh, Knoell, Troy & Kramer, LLP and Mary Coyne Pugh has joined
the firm as Special Counsel. Claudia Huot has been named a partner
at Wisler Pearlstine. She has been an associate in the firm since
2001, working part-time for eight years before full-time status
in2010.
wiretaps
MeMBers in the news Shemtob Law, PC, is pleased to an-nounce
that Christina DeMatteo has joined the firm as a partner. Ms.
DeMatteos practice includes all aspects of family law litigation,
including divorce, property division, custody, support and abuse,
primarily in Mont-gomery, Chester, Delaware, Bucks and Philadelphia
Counties.Kevin H. Buraks, of Portnoff Law Associates, was elected
President of the Tredyffrin/Easttown School District.Thomas G.
Wilkinson of Cozen OConnor has been elected president of the
Haverford Civic Association.Obermayers family law attorney, Michael
E. Bertin served as a trainer for the Philadelphia VIP CLE Training
Program Divorce Practice in Philadel-phia on December 7, 2012. He
has also been named chair of the Phila-delphia Bar Associations
Family Law Section for 2013.
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Still hard-working.
Still VlST.VlST Bank is now part of the
Tompkins Financial family.
Member FDIC
Offering a wide variety of consumer andbusiness banking
services.
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S I D E B A R 24 S P R I N G 2 0 1 3
his month, the Montgom- ery Bar Foundation will kick off a new
drive for its Fellows Program. The pro-gram, which was established
in 2007 under the leadership of then-President of the Montgomery
Bar Foundation William H. Pugh, V, is major source of funding for
the foundations annual grants program. Participation in the Fellows
Program requires a minimum commit-
ment of $1,250, payable in five annual install-ments. These
multi-year pay-ments generate a steady stream of funding that
en-ables the founda-tion to maintain a consistent level of support.
More-over, this struc-tured approach benefits program
participants by spreading the charitable tax deduction over
severalyears. The Fellows Program has been highly successful,
attracting support from a broad base of Bar Association leaders and
members, and generating more than $110,000 since its incep-tion.
These monies have been distrib-uted to organizations that provide
counseling, advocacy services, and free legal assistance to victims
of crime,
ever-growing need for their assistance. As the charitable arm of
the Montgomery Bar Association, the Montgomery Bar Foundation by
its mission statement is committed to helping to close this gap and
combat the continued erosion of legal related services and support.
Please join us in this effort. As lawyers, we have a special
obligation to ensure that the doors of justice are open to all. By
joining the Fellows Program, you are demonstrating a deep
com-mitment to the cause of justice. More importantly, your
commitment reflects compassion for those who struggle dai-ly to
make ends meet, keep a roof over their heads and protect themselves
and their children from crime andabuse. This year we will be
introducing a number of new opportunities for pro-gram
participants. You can learn more about these, and download the
Fellows Program enrollment form, by visiting
montgomerybarfoundation.org.
MontgoMery Bar foundation
A Call to Join Our Fellows ProgramContributions will help
support the delivery of legal services to
the disadvantaged.
By Steven H. Lupin, Esq. Montgomery Bar Foundation President
poverty, abuse and discrimination, and also to other law
relatedcauses. The first round of pledges were fulfilled in 2011,
when the initial Fellows paid their commitment in full. Many of
those individuals have already renewed their support for an
addi-tional five years; for those that havent done so, we encourage
you to take this opportunity to do so, by calling the Bar
Association at 610-279-9660 or emailing
[email protected]. Public and private support
for free legal services or legal related services for the most
vulnerable members of our community has steadily declined over the
past couple of years. This funding gap has led to staff layoffs and
other extreme cost-cutting measures in many of the organizations
providing these services, and their shrinking staff is overrun by
the
The Montgomery Bar Foundation is a 501(c)(3) non-profit
organization whose mis-sion is to improve, facilitate and support
justice and fair treatment for all. The official registration and
financial information of the Montgomery Bar Foundation may be
obtained from the Pennsylvania Department of State by calling toll
free, within Pennsylvania, 801-800-732-0999. Registration does not
imply and endorsement.
T
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S I D E B A R 25 S P R I N G 2 0 1 3
O ne hundred and thirteen years after L. Frank Baums book, the
Wonderful Wizard of Oz, Walt Disney Pictures has released the
prequel: Oz the Great and Powerful. The movie tells the story of
how a circus performer, Oscar Diggs (played by James Franco), makes
his way to the Land of Oz and becomes the Great and Powerful
Wizard. Just like Dor-othy Gale in the Wonderful Wizard of Oz,
Oscar is whisked out of Kansas by a powerful tornado. There, he is
met by a witch, Theodora (played by Mila Kunis), who believes him
to be the wizard that was prophesized to avenge the death of the
last king. After consulting with her sister, Evanora (played by
Rachel Weisz), Theodora sends Oscar to the Dark forest to kill the
WickedWitch. Along the way, Oscar befriends a flying monkey named
Finley and an adorable little China Girl. Once they reach the Dark
Forest, they discover that the Wicked Witch is really Glinda the
Good Witch (played by Michelle Williams). Although Glinda knows
that Oscar is not a true wizard, she believes that he can still
lead the people of Oz to overthrow the truly evil witch, Evanora.
With the help of the Munchkins, Tinkers and Quadlings, Oscar
devises a plan to trick Evanora into believing that he is truly the
wizard meant to rule the Land of Oz. Oscars plan involves many
references to the Wonderful Wizard of Oz, including a field of
poppies, scarecrows, and sleight of hand. In the end, Evanora and
Theo-dora are banished, the Land of Oz is saved, and Oscar becomes
king, with the lovely Glinda as his queen.
The entire movie is visually rich, even on a regular 2D screen.
But view-ers can also choose to see it on IMAX 3D. The characters
are all well-played, and the humor is appropriate and entertaining
for most ages. Although some scenes may be frightening for
Oz the Great and Powerful
Movie review
By Lindsay C. Hanifan, Esq.
young children, the story is clearly geared towards younger
viewers. Over-all, if you enjoyed watching The Wizard of Oz as a
child, you will probably enjoy seeing this movie and learning how
Oscar became the man behind the curtain.
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S I D E B A R 26 S P R I N G 2 0 1 3
he Real Estate Com- mittee continues as one of the MBAs active
and vibrant committees, thanks to the terrific sup-port from its
member attorneys. Except for the summer months, the committee meets
monthly for lunch with CLEs and other programs of interest to its
members whose practices include real estate, municipal, and land
use law. If you are on the Real Estate Committee Listserv and have
not attended any of our meetings, or if you are not cur-rently a
committee member, we invite you to join the committee at one of its
lunch meetings for the information and collegiality. The Real
Estate Committee received a number of reports relating to the
rejection of documents offered for recording at the Office of the
Recorder of Deeds. Specifically, reports about a significant number
of document rejections resulting in the imposition of rejection
fees and inconvenience to the attorneys and their clients. In
response, the Real Estate Committee invited our Recorder of Deeds,
Nancy Becker, to join the committee at a luncheon meeting in
January. Nancy Becker welcomed and graciously accepted our
invitation. At that meeting, there was an open and candid
discussion about document rejection. It became clear that there was
indeed an issue that warranted special attention and action by the
Real Estate Committee. As Chairman, I appointed a task force
chaired by Carl Weiner, joined by Adam Bram and Ellen Enters. The
task force immediately went to work
and met with Nancy Becker and her two chief deputies. This joint
meeting followed Nancy Beckers own meeting with her staff in the
effort to address concerns raised by the Real Estate Committee. The
issue addressed by the Real Estate Committees task force is a
significant one, since document rejec-tions have been as high as
12% of the documents offered for recording. Following its meeting
with Nancy Becker and her deputies, the Com-mittee Task Force
reported back to the Real Estate Committee and was opti-mistic that
they were well on their way to correcting a number of the practices
that led to this high document rejec-tionrate. The discussion at
the Real Estate Committee and the efforts of the com-mittee members
who volunteered for the task force are yet another example of how a
Bar Association committee can work effectively on behalf of both
practicing attorneys and the public, in this case, those who have
the occasion and need to record documents at the Office of the
Recorder ofDeeds.
Real Estate Committee Task Force Meets with Recorder of DeedsBy
Marc D. Jonas, Esq., MBA Real Estate Committee Chair
T
In an effort to whet your appetite, here is a list of the
upcoming luncheon meetings and programs of the Real Estate
Committee, all at noon.
Thursday, April 18th CLE on the use of Settlement Agreements in
land use.Friday, May 24th Judge Gary S. Silow; A View from the
Bench of a Jurist and Professional Actor.
Thursday, June 20th Hot Planning Topics in Montgomery County
presented by the Montgomery County Planning Commission.
MBA / FEATURE
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S I D E B A R 27 S P R I N G 2 0 1 3
e awoke to the sound of steady hard rain, and glumly gath- our
gear and sloshed up the Turnpike through the rain and mist. My son
and I wondered aloud whether the trip was worth it, whether we
might not ski at all, whether the snow would be nothing but slush
to sap the strength and energy from our legs by the 3rd run. As we
drove up the south face of the Blue Mountain, into the fog, we
re-alized the rain had finally stopped. We still fully expected to
be skiing onslush. For the rest of the day, on our
Annual MBA Ski Trip /February 11, 2013 Blue MountainBy John R.
Howland, Esq.
dozens of rides up the lift, after our break-neck runs down
every slope on the mountain, Patrick and I exclaimed how wrong we
were. We had failed to take into account the positive karma infused
onto the mountain by our personal hosts, Joe and Trish Lynch. It
started with the brightness of the blooming forsythia lighting up
our pri-vate room, that seemingly cast its spell over the
fog-shrouded mountain, near-ly empty of skiers but holding onto the
near-perfect snow conditions through-out the day. We sped down
repeatedly, to be greeted by an empty lift for our quick deposit
back at the top and our
next run down. We finally succumbed to our exhausted legs at
around3:30. As always, the 20+ brave hearts from the MBA enjoyed
the lunchtime camaraderie and the plentiful selections of Joe and
Trishs gourmet candlelight wine and cheese spread supplied by the
Bar Association. We were further rewarded by door prizes generously
supplied by our own local Salters Ski Shop. Each year, those of us
lucky enough to have been there make our drive back down the
Turnpike happily looking forward to thenext.
Well see you there, February 2014.
W
MBA / FEATURE
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S I D E B A R 28 S P R I N G 2 0 1 3
2013 MBA President Paul C. Troy and MBA Past President Donald J.
Martin.
Montgomery Bar Foundation Louis D. Stefan Law Enforcement Award
Montgomery Bar Foundation Presi-dent Steven H. Lupin, (second from
right) presents the Louis D. Stefan Law Enforcement Award
posthumously to Plymouth Township Police Officer Bradley M. Fox.
Accepting for Officer Fox are, from left: Lt. Jeff OBrien and Ofc.
Gerald DeSantis of the Plymouth Township Police Department, his
parents Kathy and Tom Fox, wife Lynsay Fox, and brother Jim
Fox.
Committee of the Year Award Elder Law. Accepting on behalf of
the 2012 Elder Law Committee, Robert C. Gerhard, III, Chair
(left-center) and Vice-Chairs, Rosemary R. Ferrino, (left) and
Michelle C. Berk (right). The Award was presented by 2012 MBA
President Donald J. Martin, (right-center).
Presidents Award Mark S. Cappuc-cio, (left) receives the
Presidents Award from 2012 MBA President Donald J. Martin. This
award was given for his outstanding work and the successful real
estate tax appeal representation of the Montgomery Bar Association
in 2012.
Outgoing Board of Directors Caren E. Morrissey, Sarinia M.
Feinman, Past President Donald J. Martin and E. Nego Pile. (Not in
picture Craig B. Bluestein, Christen G. Pionzio).
Milton O. Moss Award The Honorable Paul W. Tressler accepts the
Milton O. Moss Award for distinguished service to the judicial
system from Bar Foundation President Steven H. Lupin.
n Friday, Jan. 11, the Montgomery Bar Association (MBA) held its
Annual Business Luncheon Meeting at the Meadowlands Coun-try Club
in Blue Bell. Nearly 300 local dignitaries, legal professionals and
community leaders attended the event which included the election of
the MBAs officers for 2013, an awards
Montgomery Bar Association Welcomes New Leaders
presentation to honor area attorneys, members of law enforcement
and com-munity leaders, as well as the installa-tion of its 89th
president, Paul C. Troy, Esq., with the ceremonial passing of the
gavel. A named partner at the Norris-town law firm of Kane, Pugh,
Knoell, Troy & Kramer, LLP, Mr. Troy is widely known for his
legal acumen in
the areas of professional liability and medical malpractice
defense. In June of 2012, he appeared on Philadelphia Magazines Top
100 Attorneys In Phila-delphia list. In addition to his excellent
reputation in the courtroom, Mr. Troy is respected among his peers
as a leader in continuing legal education and for his contributions
to the profession at both the state and county level.
MBA / FEATURE
O
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S I D E B A R 29 S P R I N G 2 0 1 3
have been fortunate enough, in connection with the settlement of
a number of consumer class action cases, to have been able to
recommend Legal Aid of Southeastern PA (and Montgomery Legal Aid
before that) to be the recipient of left-over funds through the
application of the cy pres rule. Nothing I could write could
summarize the meaning of cy pres as well as the first paragraph
from an opinion of the Court of Appeals for the 3rd Circuit just
last month (In Re Baby Products Antitrust Litig., Feb 19, 2013):
The term cy pres is derived from the Norman French expression cy
pres comme possible, which means as near as possible. When class
actions are resolved through settlement, it may be difficult to
distribute the entire settlement fund, after paying attorneys fees
and costs along with fund administration expenses, directly to its
intended beneficiariesthe class members. Money may remain unclaimed
if class members cannot be located, decline to file claims, have
died, or the parties have overestimated the amount projected for
distribution for some other reason. It may also be economically or
administratively infeasible to distribute funds to class members
if, for example, the cost of distributing individually to all class
members exceeds the amount to be distributed. In these
circumstances, courts have permitted the parties to distribute to a
nonparty (or nonparties) the excess settlement funds for their next
best usea charitable purpose reasonably approx-imating the
interests pursued by the class. Since these funds arise from
consumer class action lawsuits, the next best thing to
redistribution is often to direct the funds to LASP, or simi-lar
Legal Aid organization, for use in
consumer credit education, counseling and advocacy.How sorely
these monies are needed! The past county budget was a roller
coaster of Legal Aid funding, concluding in a large cut from an
already lean budget. In settlement of a class action involving
repossession practices of an area lender, about $55,000 was
available from residual funds for LASP (with an equal amount paid
to Villa-nova Law School for their consumer clinic program). In the
20 years of my career that I have been handling consumer class
action, we have been fortunate enough to have nominated
recipients to receive nearly $2,000,000 in cy pres funds for an
array of consum-er purposes, and nearly $150,000 to LASP. I hope to
be fortunate enough to continue to be able to nominate LASP for
future cy pres awards. LASP is a par-ticularly appropriate
candidate if your case involves an area of the law and a
CLASS ACTION CY PRES:Another way of giving back
IAbout Cary L. Flitter, Esq.Cary L. Flitter is a 2013
Pennsyl-vania Legal Aid Network Excellence Award Recipient, a
long-time member of the MBA and founding partner of the Montgomery
County firm Flitter Lorenz, P.C. He is a leading consumer
protection lawyer and has trained many legal services attorneys in
consumer law issues; has paid for legal services attorneys to
attend con-sumer law training conferences; and he has directed
nearly $2,000,000 in cy pres funds to support consumer law practice
at legal aid programs in Pennsylvania. Mr. Flitter has worked
personally with MidPenn Legal Services to set up a position and
train staff on consumer law issues. In 2010, he initiated, designed
and provided training for legal services programs on claiming and
collecting attorney fees, once the Legal Services Corporations ban
on such fees was lifted.
Flitter presents LASP Co-Executive Directors Liz Fritsch and
Harvey F. Strauss with a much-needed check in the amount of
$55,743.32. The terms of the agreement approved by the Court stated
cy pres funds from a recent con-sumer class action settlement
involving automobile repossessions be used for con-sumer credit
protection goals, including consumer education and counseling.
By Cary L. Flitter, Esq.
geographic area in which they service low-income consumers. I am
very lucky lawyer indeed to be able do well while doing good.
Harvey Strauss and Liz Fritsch of LASP will no doubt use every
dollar wisely.
MBA / FEATURE
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S I D E B A R 30 S P R I N G 2 0 1 3
s we enter the Spring of 2013, the stock market is roaring, the
housing market is improving and homes are selling at higher prices,
the job market is slowly getting better and overall people are
feeling a little bit better about them-selves and their financial
condition. Of course, nobody likes the higher gasoline prices and
higher taxes, including the end of the social security tax
reduction.