DSBA June 2023 Bar Journal

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DSBA BAR JOURNAL

PRESIDENT

Charles J. Durante

EXECUTIVE DIRECTOR

Mark S. Vavala

EDITORIAL BOARD

Laina M. Herbert

Jason C. Powell

Kristen S. Swift

Seth L. Thompson

EXECUTIVE COMMITTEE LIAISON

Mary Frances Dugan

EDITORIAL ADVISORY COMMITTEE

Valerie A. Caras

Denise Del Giorno Nordheimer

Adria B. Martinelli

Victoria R. Sweeney

Holly O. Vaughn Wagner

PUBLICATIONS EDITOR

Rebecca Baird

The Bar Journal is published and distributed by the Delaware State Bar Association

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© Copyright 2023 by the Delaware State Bar Association. All Rights Reserved.

The Bar Journal is the independent journal of the Delaware State Bar Association. It is a forum for the free expression of ideas on the law, the legal profession and the administration of justice. It may publish articles representing unpopular and controversial points of view. Publishing and editorial decisions are based on the quality of writing, the timeliness of the article, and the potential interest to readers, and all articles are subject to limitations of good taste. In every instance, the views expressed are those of the authors, and no endorsement of those views should be inferred, unless specifically identified as the policy of the Delaware State Bar Association.

The Bar Journal is published monthly with a combined July/August issue.

All correspondence regarding circulation, subscriptions, or editorial matters should be mailed to:

Editor, DSBA Bar Journal

Delaware State Bar Association

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Letters to the Editor should pertain to recent articles, columns, or other letters. Unsigned letters are not published. All letters are subject to editing. Send letters to the address above, Attention: Editor, Bar Journal.

Independence Carries Responsibility

We used to make fun of a House of Lords.

Our nation was different. Certainly, there was a life-tenured Supreme Court, but its role was to resolve disputes arising from laws enacted by popularly-elected lawmakers, interpret those laws, and where necessary, enjoin enforcement of laws where the government had exceeded its authority, building from principles and precedents, guided by the nation’s experience.

That Supreme Court, with its nine good-faith searchers of justice, helped lift America from ignorance, insisting on racial equality. It recognized that criminal defendants were vulnerable to shakedowns and worse. It affirmed that the Sixth Amendment meant something. It established the principle that one person should have one vote.

The Court would regularly displease each side, as its judges evolved in experience, coalitions shifted, fact patterns changed, and new Presidents made appointments. Yet, the judicial modesty and respect for democracy urged by Holmes and Brandeis prevailed.

The Supreme Court has now evolved into something different. As always, it issues controversial decisions each term, climaxing this month, but its methods and tenor differ fundamentally from any Court in our lifetimes. The manner and tone of its rulings, coupled with unanswered questions about private largesse to at least one justice, have degraded the Court’s reputation to an unprecedented extent.

Rulings are based on speculation about the thoughts of long-deceased scriveners. Opinions occasionally read like blog posts. Doctrines are created that were unknown to Lewis Powell or Hugo Black. Antipathy to modern governance has become a baseline. When a case is submitted for decision, the only suspense is what word games will be used to reach the inevitable result.

In the past two years, the Court has ruled that states can no longer enforce longstanding laws regulating gun ownership and concealment, and has permitted criminalization of a medical procedure used by over one-fifth of women. Each outcome was based on suppositions of what the drafters of centuries-old texts must have thought.

Meanwhile, on the question of partisan gerrymandering that is strangling representative democracy, the Court pleaded lack of capacity. The practice is “incompatible with democratic principles,” said Chief Justice Roberts, but there are no “judicially discoverable and manageable standards” to resolve it. So said the dissenters in Baker v. Carr, but

standards to ensure equal representation were universally implemented. The Court’s 5-4 shrug means that the composition of much of the House of Representatives is determined by state legislatures, an inversion of the Founders’ view.

The Court did not feel this paralysis in annihilating the Voting Rights Act, capsizing a century of campaign finance laws in Citizens United , shredding environmental regulations, or creating a massive interstate gambling industry.

Much of the problem arises when judges play historian rather than judging facts and the law. Originalism, the once-outré thesis that every passage of the Constitution must be interpreted based on how it must have been understood when it was adopted, causes much of the problem, as justices and their clerks search 230-year-old fragments to justify a desired result.

Originalism underlay Heller, the 5-4 decision authored in 2008 by Justice Scalia that invalidated the District of Columbia’s 32-year-old ban on hand guns. “He wholly ignores the history of how the

The Supreme Court has now evolved into something different. As always, it issues controversial decisions each term, climaxing this month, but its methods and tenor differ fundamentally from any Court in our lifetimes.

Second Amendment got adopted,” said Stanford’s Pulitzer-winning historian Jack Rakove. “He makes things up that did not happen the way he hypothesizes. But I’m a historian and he’s a justice. I’m a private citizen and he’s a public official. I think I have better footnotes, but he has a vote on the Supreme Court.”

Some cases are decided on doctrines that the Founders never imagined. The Major Questions Doctrine in effect says that if enough money or controversy is involved in a contested regulation, an ordinary congressional grant of authority is not enough. As Chief Justice Roberts put it at oral argument over Covid regulations in NFIB v. Department of Labor, “I don’t think [Congress] had Covid in mind” when it enacted the Occupational Safety and Health Act.

The Anticommandeering Doctrine, initially developed to say that the federal government cannot force states to adopt

federal law, was torqued to mean that the Congress could not prevent New Jersey from revoking its prohibition on sports gambling. An Equal Sovereignty Doctrine was fashioned to truncate a Voting Rights Act that Congress approved by 390-33 and 98-0 margins.

Cases are heard that would once have been dismissed as moot. The Court has taken jurisdiction where standard jurisprudence would find no case or controversy. It has stayed regulations still under lower court review. Standing has become optional. Citizens United was decided on an issue not raised in the lower courts. Issues of national importance are resolved by emergency orders, without full briefing or oral argument, often without a written opinion. The unprecedented disclosure of a draft opinion caused only a superficial investigation.

And we need to learn more about a justice’s acceptance of favors that would

be a firing offense at the newspapers where I once worked.

Chastened by President Roosevelt’s threat to pack the Court, and President Nixon’s commitment to restrain it, the nation’s highest court responded, however indirectly, to the public temperament. Respect for precedent meant that major rulings could be explained as the logical next steps. When it rebuked previous decisions, rights were expanded. The Fourteenth Amendment was a vehicle to protect rights. The Warren Court’s most conservative member, John Harlan II, was primed to overturn state bans on contraception before his brethren, arguing that the Fourteenth Amendment “is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

That Supreme Court is gone. The Court of the late Twentieth Century, which protected citizens and the government’s ability to protect those citizens, is in the recycling bin. Its replacement is a Court of talented, but partisan scholars.

James Bradley Thayer, a pioneer in the study of constitutional law, argued in 1893 that courts should strike down legislation only when a bill’s unconstitutionality is indisputable, a mistake “so clear that it is not open to rational question.” His Harvard students and other followers — Holmes, Brandeis, John Henry Wigmore, Roscoe Pound, Learned Hand, Felix Frankfurter — succeeded in freeing Constitutional jurisprudence from a century of judicial caprice. These Progressives preached restraint, sometimes frustrating liberals of a later generation, but established a basic standard of conduct that enabled the Court’s stature to survive controversial decisions. The midcentury scholar Alexander Bickel’s advocacy of judicial restraint was prescient. “The Court must wield its power carefully so as not to degrade republican virtue and compromise self-government.”

This grounding has been lost by the current majority. Black Robe Disease, combined with life tenure, can be toxic. Even after mortality and political winds change the Court’s composition, the danger of its recurrence requires that serious thinkers of all political viewpoints consider long-term reform. An enforceable code of ethics is overdue. Congress should take seriously its power to regu-

late the judiciary. Should the will of the people be overturned by five unelected lawyers?

Legislative gamesmanship can affect budgets for a year, but when applied to judicial nominations, can last decades, especially when paired with life tenure that was established when life expectancy was 45 years. Many proposals in the report issued in 2021 by the Presidential Commission on the Supreme Court of the United States merit serious consideration. Term limits, like the designated hitter, provide outrage when first proposed, but will sound obvious once they are implemented.

The Supreme Court is the face of our profession. Authority carries responsibility. Standards cannot be voluntary. The Court must conduct itself, in its deliberations and its processes, at the highest possible level. Citizens and their elected representatives must monitor the Court and if necessary, ensure that the Court’s decisional independence includes the highest ethical standards and fidelity to democratic principles.

Chuck Durante, the President of the Delaware State Bar Association, is a partner at Connolly Gallagher LLP, fellow of the American College of Trust and Estate Counsel, chair of the Board of Editors of Delaware Lawyer magazine, president of the Delaware Sports Museum and Hall of Fame, trustee of the Delaware Historical Society and president of the Delaware Sportswriters and Broadcasters Association. He can be reached at cdurante@ connollygallagher.com.

The Supreme Court is the face of our profession. Authority carries responsibility. Standards cannot be voluntary. The Court must conduct itself, in its deliberations and its processes, at the highest possible level.

Marie Holliday (Managing Director), Pete Kennedy, and Jennifer Pacilli

ATTORNEY BURNOUT

IS REAL And In One Way or Another, It Affects All of Us

We all know that practicing law can be stressful. Life, in general, can be stressful, right? After listening to Dr. Laurie Santos’ podcast episodes from The Happiness Lab, “Burnout and How to Avoid It,”1 which examines the emotional states that are driving so many people to quit their careers that many have had for over a decade because of burnout, and “Fighting that ‘Meh’ Feeling of Languishing,” 2 which covered the emotional space between depression and flourishing, which is referred to as “languishing,” I became curious about burnout. More specifically, these podcasts caused me to want to further explore what causes burnout, and how we — all of us — can work towards reducing, and preventing, attorney burnout in a meaningful and intentional way.

The term “burnout” seems to dominate the headlines and social media these days. While I was writing this article, several articles and at least one report and recommendation studying attorney burnout landed in my inbox.3 Because there is no one definition of burnout,4 the term is often overused, or misused,5 and researchers who study burnout all seem to use different definitions of the term.6 During a recent podcast interview, Dr. Christina Maslach,7 the pioneer of research on the definition, predictors, and measurement of job burnout, described burnout as “the stress response of exhaustion, the negative response to the job of cynicism, and the negative response to self, of inefficacy.”8 To be clear, burnout is not synonymous with general stress.9 According to Paula Davis, an attorney who has been studying burnout for at least twelve years after becoming burned out practicing law, stress exists on a continuum, with thriving on one side of the spectrum, and burnout on the extreme other, and frustration, overwhelm, ineffectiveness, tired, overextended, and languishing, or a sense of stagnation and just muddling through, in the middle.10 As the World Health Organization made clear in 2019, when including burnout as an occupational phenomenon with health consequences in the ICD-11, burnout is not a medical diagnosis.11 Indeed, burnout is a workplace issue, not a personal illness, and it should not be defined in medical terms.12 As Jennifer Moss so aptly describes it, burnout is “a ‘we’ problem to solve.”13

Maslach and her colleagues have found burnout has three key dimensions: (1) emotional exhaustion characterized by “overwhelming exhaustion that includes low energy, depletion, and fatigue,” and includes “feeling emotionally drained by interpersonal contact and being overextended and exhausted by one’s work”; (2)

depersonalization, described as “cynicism and detachment, i.e. a negative and excessively impersonal response towards clients (recipients of one’s services or care) and various aspects of the job,” and includes “irritability, loss of idealism, withdraw and other negative shifts in attitude;” and (3) lack of professional efficacy on the job or a reduced personal accomplishment, which can be described as “a sense of inefficacy and a feeling of ineffectiveness in producing the desired results.”14 In other words, “a negative self-evaluation of professional competence,” which “is linked to depression, low self-esteem, low morale, and an inability to cope.”15 Maslach and her colleagues created the Maslach Burnout InventoryTM (“MBI”), the gold standard for measuring how frequently people are experiencing these three aspects of burnout, as defined by the WHO and in the ICD-11. According to Maslach, burnout is “rampant today, partly because many workers feel they can’t say ‘no’ to their employers without being targeted, demoted, or punished in some way.”17

Not surprisingly, both environmental factors and internal factors contribute to burnout. Maslach and Leiter have identified the following six factors in the workplace that fuel stress and trigger burnout, including: (1) work overload; (2) lack of control over your work; (3) insufficient reward; (4) breakdown of community;

(5) absence of fairness; and (6) conflicting values.18 According to Dyan Williams, a Minnesota attorney practicing in the area of Legal Ethics and Professional Responsibility, and author of several articles on attorney burnout, individual traits or tendencies among attorneys, which tend to cause burnout, include: (1) perfectionism; (2) conscientiousness; (3) achievement orientation; and (4) workaholism.19 Davis suggests that legal organizations, leaders, and teams need to address the causes of burnout, including the following six core job demands, in order to decrease the likelihood of burnout:

1. Lack of autonomy (having some choice as to how and when you perform the tasks related to your work);

2. High workload and work pressure (particularly problematic in combination with too few resources);

3. Lack of leader/colleague support (not feeling a sense of belonging at work);

4. Unfairness (favoritism; arbitrary decision-making);

5. Values disconnect (what you find important about work doesn’t match the environment you’re in); and

6. Lack of recognition (no feedback; you rarely, if ever, hear thank you).20

SIDEBAR ON BURNOUT

From the New Jersey State Bar Association’s Putting Lawyers First Task Force: An Excerpt of the Report and Recommendations on Improving the Legal Profession for Lawyers (March 2023)

Nearly half (49 percent) of all participating lawyers reported moderate to high levels of burnout. These levels of burnout are nearly twice as high as reports in other working populations. The prevalence of burnout in 2017 among the US working population was 28 percent 43 and in 2020 it was 25 percent.44

Burnout was associated with personal and occupational factors such as: age, whether you felt you had enough support staff, isolation, hours worked on the weekends, hours worked outside of normal business hours, the expectation felt by lawyers to be available outside of normal business hours, the amount of vacation time taken, and whether an attorney took time off for well-being.

Age: Lawyers between 35-50 years of age were six times as likely to report burnout than those over 65. Lawyers who were younger than 34 years of age were four times more likely to report burnout than those over 65.

Support Staff: Lawyers who felt they did not have sufficient staff were three times more likely to report burnout than those who did.

Isolation: Lawyers reporting that they almost always felt isolated were four times as likely to report burnout than those that hardly ever felt isolated.

Hours Worked on Weekends: Lawyers who worked seven or more days on the weekends per month were six times as likely to report burnout than those who worked less than one day.

▪ 74 percent of respondents reported working on weekends;

▪ 45 percent of respondents reported working three or more days on the weekends per month.

Expectation to Be Available Outside of Normal Business Hours: Lawyers who felt that expectations to be available outside of normal business hours always interfered with their personal life were 16 times as likely to report burnout than those who felt the expectation never interfered with their personal life.

▪ 52 percent of respondents believed their employers expected them to be available outside of normal business hours either frequently or always;

▪ 29 percent reported that their employer’s expectation of them to be available outside of normal business hours interferes with their personal lives frequently or always and 53 percent reported this interferes occasionally.

Hours Worked Outside of Normal Business Hours: Lawyers who worked an average of 15-20 additional hours outside of normal business hours during the week were eight times as likely to report burnout than those who reported rarely or never working outside of normal business hours.

▪ 72 percent of respondents reported answering emails outside of normal business hours during the week either frequently or always (every day);

▪ 39 percent of respondents reported taking calls from clients outside of normal business hours.

Vacation Time: Lawyers who reported taking five days or less of vacation time were four times as likely to report burnout than those with more than 20 days.

Taking Time Off to Address Well-Being: The survey reported that 39 percent of New Jersey lawyers do not feel comfortable taking time off to address well-being. Lawyers who responded that they were not comfortable taking time off to address well-being were 10 times as likely to report burnout than those who felt comfortable taking time off to address well-being.

According to Williams, some of the common warning signs of burnout include “emotional symptoms, such as feeling overwhelmed, forgetfulness; inability to focus; feeling empty or depressed; chronic anxiety; increased irritability; intolerance of others; and withdrawal from friends and family,” “[p]hysical symptoms [such as], headaches; indigestion; nausea; sudden weight loss or gain; and getting sick more frequently,” and “behavioral symptoms [such as] insomnia; alcohol dependence; and substance misuse.” 21

Williams suggests the consequences of burnout stretch far beyond the individual attorney and impact the attorney’s firm, their clients, and the legal industry as a whole. First, an attorney experiencing burnout may experience ethical missteps.22 For example, a Delaware attorney experiencing the intense fatigue, cynicism, detachment, and hopelessness associated with burnout risks running afoul of the Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”).23 Second, studies have found a link between burnout and cardiovascular health. 24 According to one author, attorneys experiencing burnout are likely to experience physical consequences, such as type 2 diabetes, heart disease, cardiovascular disorder, chronic pain, prolonged fatigue, headaches, gastrointestinal issues, respiratory problems, severe injuries, and shorter life spans, and psychological effects, including depression and anxiety disorder. 25 Third, stress is known to contribute to alcoholism and drug addiction, and studies have found a link between burnout and substance abuse issues.26 As multiple studies have shown, “[a]ttorneys in the United States struggle with higher-than-average occurrences of substance abuse, depression, and suicidal ideations.”27 While this issue was identified more than three decades ago in a study by Johns Hopkins University, 28 a more recent study found similar incidence rates of depression and substance abuse.29 Specifically, in the 2016 study,

SIDEBAR

10 TINY NOTICEABLE THINGS

Paula Davis’ list 10 of TNTs (tiny noticeable things) that can build the type of positive cultures needed to prevent burnout and directly address the job demands attorneys face:45

1. Say thank you more (probably much more) than your current practice.

2. Offer in-time feedback to peers and direct reports.

3. Be clear when giving assignments in order to minimize conflicting requests and ambiguity (two known accelerants of burnout).

4. Make constructive feedback a learning-focused, two-way conversation.

5. Keep people informed of changes.

6. Keep track of and talk about small wins and successes.

7. Check in on team members and colleagues.

8. Provide a rationale or explanation for projects, goals, and big-picture vision.

9. Clarify confusing and missing information related to roles and tasks.

10. Prioritize “you matter” cues like calling people by name, making eye contact, and giving colleagues your full attention.

“The Prevalence of Substance Use and Other Mental Health Concerns Among A merican Attorneys,”30 the researchers found that 20.6 percent of the attorneys in their study “screen[ed] positive for hazardous, harmful, and potentially alcohol-dependent drinking.”31 When broken down by years of practice, the study found that attorneys within the first 10 years of their practice experienced the highest rates of problematic use (28.9 percent), followed by attorneys practicing 11 to 20 years (20.6 percent).32 Fourth, it is not surprising that burnout leads to withdrawal from family and friends and more interpersonal disputes.33 Finally, those experiencing burnout are not as efficient or effective, leading to reduced productivity, or even high turnover rates.34

Sadly, nothing has changed since the 1990 Johns Hopkins University

study. As discussed in Scott Godshall’s article, “The Archbishop’s Suggestion,” in the May issue of the Bar Journal , in March 2023, the New Jersey State Bar Association’s Putting Lawyers First Taskforce (the “Taskforce”) released an “eye-opening” report titled “Report and Recommendations on Improving the Legal Profession for Lawyers” (“Report”). While I encourage you to read the entire Report, I have included the Taskforce’s findings on burnout in the sidebar on the previous page.

Several of the articles I read offered useful suggestions for reducing or preventing burnout. First, practice kindness, including “small, deliberate acts of compassion toward yourself and others.”35 For example, if you are feeling exhausted, find ways to create breaks in your schedule for self-care.36 Second, recharge and reach

out.37 Some people have found that journaling, with a focus on gratitude, helps them recharge.38 Others use professional support groups.39 Third, lighten your load by evaluating the responsibilities you have accumulated, and delegating the ones that can be handled by someone else.40 Finally, ask for help.41 Letting someone know that you’re not okay is important not only for your own well-being, but it can also help create a space for others to share their own struggles.42 Davis offered a list of 10 TNTs (tiny noticeable things), which I found to be both a practical and an easy-to-implement blueprint for ensuring I am not contributing to the burnout of others. I’ve included Davis’ list of 10 TNTs in the sidebar on the previous page for your consideration.

The more I dug into the research on burnout, one thing became abundantly clear — this is a systemic issue that we all have a shared responsibility for reducing. It is a major problem, and in order to solve it, we need to reframe the conversation, and develop meaningful strategies that address the core causes. While this problem will not be resolved overnight, once we recognize that burnout is an issue, each of us can do our part to reduce — and prevent — burnout in the Delaware legal community.

I look forward to continuing the conversation about this important topic in the legal profession, and in particular, within the Delaware Bar, throughout the year. Some of the topics I plan to explore include: How do you talk with your colleagues, employer, and spouse or significant other about burnout? What resources are available for someone who is experiencing burnout? What we can do to change the culture to reduce — or prevent — burnout for ourselves and others?

Bar Journal Content Editor Laina M. Herbert is senior counsel at Grant & Eisenhofer P.A. in Wilmington, Delaware. She may be reached at lherbert@gelaw.com and additional information about the author is available at www.gelaw.com.

Notes:

1. Laurie Santos. “Burnout and How to Avoid It.” The Happiness Lab, Feb. 21, 2022. Podcast, website, 40:19, https://www.pushkin.fm/podcasts/the-happiness-labwith-dr-laurie-santos/burnout-and-how-to-avoid-it.

2. Laurie Santos. “Fighting that ‘Meh’ Feeling of Languishing.” The Happiness Lab, Feb. 14, 2022. Podcast, website, 41:54, https://www.listennotes.com/ podcasts/the-happiness-lab/fighting-that-meh-feeling-of-aFjUJ2PwOpn/.

3. Anna Sanders, “What Attorneys With Burnout Should Do to Get Help,” Law360 Pulse, Sept. 6, 2022, https://www.claritytherapynyc.com/wp-content/ uploads/2020/10/What-Attorneys-With-BurnoutShould-Do-To-Get-Help-Law360.pdf/; Andrew Strickler, “How Happy Are Attorneys At Work,” Law360, Apr. 11, 2023, https://www.law360.com/employment/articles/1591943?nl_pk=415206a1-36a1-4ec9bff8-86204ad3ec77&utm_source=newsletter&utm_ medium=email&utm_campaign=employment&utm_ content=2023-04-12&nlsidx=1&nlaidx=0/; New Jersey State Bar Association. “Putting Lawyers First Task Force: An Excerpt of the Report and Recommendations on Improving the Legal Profession for Lawyers.” March 2023. https://tcms.njsba.com/PersonifyEbusiness/Portals/0/NJSBA-PDF/miscellaneous/ PLF%20lttr%20CJ%20Rabner%20And%20Report%20 Excerpt%204-12-2023.pdf. For further discussion of the NJSBA’s Report and Recommendation, including a summary of the Report’s findings, see Scott Godshall’s article, “The Archbishop’s Suggestion,” in the April issue of the Bar Journal

4. Jonathan Malesic, The End of Burnout: Why Work Drains Us and How to Build Better Lives (Oakland, California: University of California Press, 2022), 1935; Dyan Williams, “Attorney Burnout: The High Cost of Overwork,” Dyan Williams Law, Dec. 18, 2018, https://dyanwilliamslaw.com/2018/12/attorneyburnout-the-high-cost-of-overwork/; Paula Davis, “Six Sources of Burnout at Work: Are You at Risk,” Psychology Today, Aug. 29, 2013, https://www.psychologytoday.com/us/blog/pressure-proof/201308/ six-sources-of-burnout-at-work/.

5. Paula Davis, “Six Sources of Burnout at Work.”

6. Malesic, The End of Burnout, 24. Jonathan Malesic describes burnout as “the experience of having to stretch across the gap between your ideals about work and the reality of your job.” Id. at 11. According to Davis, “[b]urnout is caused by an imbalance between your job demands (aspects of your work that take consistent effort and energy) and job resources (aspects of your work that are motivational and energy giving).” Davis, “How to Address Burnout.”

7. Christina Maslach, PhD, is an emerita psychology professor and researcher at the Healthy Workplaces Center at the University of California, Berkley.

8. Christina Maslach, “Why We’re Burned Out and What to Do About It,” interview with Kim Mills, American Psychological Association, July 2021, Podcast transcript, 29:28. https://www.apa.org/news/ podcasts/speaking-of-psychology/burnout.

9. Malesic, The End of Burnout, 34 (citations omitted); Paula Davis, “How to Address Burnout in the Legal Profession,” Forbes, Apr. 27, 2021, https://www.forbes. com/sites/pauladavis/2021/04/27/how-to-addressburnout-in-the-legal-profession/?sh=1fad4561434b; Williams, “Attorney Burnout.”

10. Paula Davis, “How to Address Burnout in the Legal Profession.”

11. Maslach, “Why We’re Burned Out”; Catherine Zuckerman, “How to Beat Burnout – Without Quitting Your Job,” The New York Times, Apr. 30, 2021, https:// www.nytimes.com/2021/04/30/well/workplace-burnout-advice.html/.

12. Maslach, “Why We’re Burned Out;” Davis, “How to Address Burnout;” Zuckerman, “How to Beat Burnout.”

13. Jennifer Moss, The Burnout Epidemic: The Rise of Chronic Stress and How We Can Fix It (Boston, Massachusetts: Harvard Review Press, 2021) 69, 140.

14. Williams, “Attorney Burnout.”

15. Id.

16. Christina Maslach, Susan E. Jackson, Michael P. Leiter, Wilmar B. Schaufeli, & Richard L. Schwab, “Maslach Burnout InventoryTM (MBI),” Mind Garden, https:// www.mindgarden.com/117-maslach-burnout-inventory-mbi/. The original MBI was focused on workers in

human services, and the authors of the MBI have since developed additional MBI products, including an MBI for Medical Personnel, Human Services workers, Educators, General Use, and Students. Id.

17. Zuckerman, “How to Beat Burnout.”

18. Christina Maslach and Michael P. Leiter, The Truth About Burnout: How Organizations Case Personal Stress and What to Do About It (San Francisco, California: Jossey-Bass, 1997), 38-60; Maslach, Why We’re Burned Out; Davis, “How to Address Burnout.”

19. Williams, “Attorney Burnout.”

20. Davis, “How to Address Burnout.”

21. Williams, “Attorney Burnout.”

22. Id.

23. For example, an attorney experiencing burnout may have difficulty complying with the following Rules of Professional Conduct. DLRPC Rule 1.1 requires attorneys to provide “competent representation,” which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” DLRPC Rule 1.3 requires attorneys to “act with reasonable diligence and promptness in representing a client.” Similarly, DLRPC Rule 1.4 requires attorneys to promptly inform the clients of any decisions or circumstances with respect to which the client’s informed consent is required; to keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information, among other things. DLRPC Rule 3.2 requires attorneys to make reasonable efforts to expedite litigation consistent with the interests of the client.

24. Ilona Salmons, “Best Practices for Managing Burnout in Attorneys,” Doctor of Ed. in Org. Leadership diss., (Pepperdine University Graduate School of Education & Psychology, July 2017), 22 (July 2017) (citations omitted).

25. Williams, “Attorney Burnout;” see also Malesic, The End of Burnout, 10 (noting writers in this field often recognize burnout “causes workers to lose sleep, disengage from work, and become more likely to get heart disease, depression, and anxiety”) (citations omitted).

26. Salmons, “Best Practices for Managing Burnout in Attorneys,” 22 (citations omitted).

27. Id. (citations omitted).

28. Id at. 1, 7, 15, 17, 42, 48, 57, 68-69, 140 (citing William W. Eaton, et al. “Occupations and the Prevalence of Major Depressive Disorder.” Journal of Occupational Medicine 32, no. 11 (1990): 1079–87. http://www.jstor. org/stable/45012690).

29. Id. at 17 (citations omitted).

30. Krill PR, Johnson R, Albert L. “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.” J. Addict Med. 2016 Jan-Feb;10(1):46-52. doi: 10.1097/ ADM.0000000000000182. PMID: 26825268; PMCID: PMC4736291. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4736291/pdf/adm-10-46.pdf.

31. Id. at 46.

32. Id. at 51.

33. Williams, “Attorney Burnout;” Salmons, “Best Practices for Managing Burnout,” 22 (citations omitted).

34. Id.

35. Zuckerman, “How to Beat Burnout.”

36. Id.

37. Id

38. Id.

39. Id.

40. Id.

41. Id.

42. Id.

43. New Jersey State Bar Association, “Putting Lawyers First Task Force” (citing Tait D. Shanafelt et al. “Changes in Burnout and Satisfaction With Work-Life Integration in Physicians and the General US Working Population Between 2011 and 2017,” Mayo Clinic Proceedings 94, no. 9 (Sept. 2019); 1681, https://www.mayoclinicproceedings.org/article/S0025-6196(18)30938-8/fulltext).

44. Id. (citing Tait D. Shanafelt et al. “Changes in Burnout and Satisfaction With Work-Life Integration in Physicians and the General US Working Population Between 2011 and 2020.” Mayo Clinic Proceedings 97, no. 3 (Mar. 2022); 491, https://www.mayoclinicproceedings.org/article/S0025-6196(21)00872-7/fulltext).

45. Davis, “How to Address Burnout.”

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TOP 5

LEGAL ANNIVERSARIES IN JUNE

1 June 4, 1919: The Nineteenth Amendment to the U.S. Constitution is passed by Congress.

The amendment, which gave many American women the right to vote for the first time, went into effect the next year.

2 June 13, 1966: Supreme Court ruling established the Miranda Rights.

The U.S. Supreme Court handed down its decision in Miranda v. Arizona in favor of Ernesto Miranda, who was convicted of a crime based on a confession he had made before being advised of his rights to consult a lawyer and to remain silent. In its ruling, the Court specified a code of conduct for police interrogations to safeguard Fifth Amendment protections against self-incrimination.

3 June 19, 1862: President Abraham Lincoln signed legislation prohibiting slavery in federal territories.

Three years after Lincoln ended slavery in U.S. territories, on June 19, 1865, enslaved African Americans in Texas officially learned of the Emancipation Proclamation — more than two years after it took effect on January 1, 1863.

4 June 21, 1788: The day the Constitution was ratified by nine states, making its adoption official.

The Constitution became the official framework of the government of the United States of America when New Hampshire became the ninth of 13 states to ratify it, following Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, and South Carolina.

5 June 26, 2015: The Supreme Court declared that same-sex couples have a fundamental right to marry.

The landmark United States Supreme Court decision, Obergefell v. Hodges , made marriage equality the law of the land in the United States and confirmed that denying gay and lesbian couples the right to marry is unconstitutional.

Condolences to the family of John G. Kuniholm, Esquire, who died on January 24, 2022.

Condolences to The Honorable Vivian L. Medinilla on the death of her father, Dr. Otto Raul Medinilla, who died on November 27, 2022.

Condolences to William B. Larson Jr., Esquire, on the death of his father, W. Bruce Larson, who died on April 27, 2023.

If you have an item you would like to submit for the Of Note section, please contact Rebecca Baird at rbaird@dsba.org.

Quick-Look ETHICS

A QUARTERLY CONTRIBUTION

BY LUKE W. METTE, ESQUIRE

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YOU ATTRACTING NEW BUSINESS?

Placing an ad is easy!

Take advantage of the target audience of the DSBA Bar Journal and initiate new business through referrals and building your brand.

For more information, contact Rebecca Baird at (302) 658-5279 or rbaird@dsba.org.

&

“When You and Your Client Disagree (Part 2) –Maintaining Distance”

In my previous “Quick-Look Ethics” column, I summarized certain options a lawyer has (and does not have) under the Delaware Lawyers’ Rules of Professional Conduct (the “Rules”) when a lawyer and client disagree over litigation strategy and tactics, social or moral views, and “fundamental” issues. In this issue, I want to focus on the importance of a lawyer maintaining appropriate distance from the client.

Sometimes, clients insist on a degree of fealty from their lawyers that is simply inconsistent with the Rules. Lawyers sometimes point to their obligation to “zealously” represent their clients, even though the word “zealous” now only appears in comments, not the in Rules themselves.

Not surprisingly, the Rules (including as construed by the Delaware Supreme Court) require that a lawyer must, at times, balance competing duties to a client and to others. Sometimes, it is important for a lawyer to maintain “distance” from the client. There is a reason judges typically prefer to have parties represented by counsel.

This theme of maintaining “distance” from one’s client runs throughout the Rules. Consider, for example:

• Rule 1.4(a)(5) (consult with the client when the lawyer knows the client expects assistance not permitted by the Rules);

• Rule 1.6(b) (permissive disclosure of confidential information);

• Rule 1.16 (mandatory and permissive withdrawal from representation);

• Rule 2.1 (a lawyer shall exercise independent professional judgment);

• Rule 3.1 (a lawyer shall not bring/defend a proceeding, nor assert/controvert an issue, unless there is a basis in law and fact for doing so);

• Rule 3.3 (duties to the tribunal regarding disclosure of legal authority directly adverse to the client, and remedial measures (including disclosure) when a lawyer comes to know of the falsity of material, offered evidence); and

• Rule 4.1(b) (disclosure of material fact necessary to avoid client crime or fraud).

We owe duties of loyalty, diligence, and competence (among others) to our clients, but generally we are not, and should not be, our own clients.

Luke W. Mette is a partner at Armstrong Teasdale LLP. He has been a Delaware lawyer for 34 years and was Chief Disciplinary Counsel in Delaware from 2019-2021. He can be reached at LMette@atllp.com.

PROFESSIONAL GUIDANCE COMMITTEE

This committee provides peer counseling and support to lawyers overburdened by personal or practice-related problems. It offers help to lawyers who, during difficult times, may need assistance in meeting law practice demands. The members of this committee, individually or as a team, will help with the time and energy needed to keep a law practice operating smoothly and to protect clients. Call a member if you or someone you know needs assistance.

New Castle County

Karen Ann Jacobs, Esquire, Chair*

Dawn L. Becker, Esquire

Sean Michael Brennecke, Esquire

John P. Deckers, Esquire

David J. Ferry, Jr., Esquire

Antranig N. Garibian, Esquire

Laura Nastase Najemy, Esquire

Denise D. Nordheimer, Esquire

Kuhu Parasrampuria, Esquire

Kenneth M. Roseman, Esquire*

Yvonne Takvorian Saville, Esquire

R. Judson Scaggs, Jr., Esquire*

Victoria R. Sweeney, Esquire

The Hon. Gregory Brian Williams

Lydia E. York, Esquire

Kent and Sussex County

Candace E. Holmes, Esquire, Chair

Crystal L. Carey, Esquire

Clay T. Jester, Esquire

Christopher D. Tease, Esquire

The Hon. William L. Witham, Jr.

Honorary Volunteer Members:

Victor F. Battaglia, Sr., Esquire

Mary C. Boudart, Esquire

Wayne A. Marvel, Esquire

Bayard Marin, Esquire

Michael F. McTaggart, Esquire

Mary E. Sherlock, Esquire**

I. Barry Guerke, Esquire**

Dennis L. Schrader, Esquire**

E. Alan Uebler, Esquire

David A. White, Esquire

Scott Godshall, Executive Director DSBA/DE-LAP Liaison *Certified

June 2023

CALENDAR OF EVENTS

Thursday, June 1, 2023 • 3:30 p.m. – 5:00 p.m.

A Discussion of Legal Solutions for Issues Facing

LGBTQ+ BIPOC Folks in Delaware

1.5 hours of CLE credit in Enhanced Ethics

Live Seminar at The Screening Room at 1313, Wilmington, DE

Friday, June 2, 2023 • 9:00 a.m. – 4:30 p.m.

Delaware ABOTA presents Discovery Best Practices

6.0 hours CLE credit including 1.0 hour Enhanced Ethics

Live Seminar at DSBA

Tuesday, June 6, 2023 • 12:00 p.m. – 1:00 p.m.

Toxicology Pearls for Attorneys

1.0 hour CLE credit

Seminar via Zoom

Thursday, June 15, 2023 • 9:00 a.m. – 3:00 p.m.

Bench and Bar 2023: Looking Back, Moving Forward

3.0 hours CLE credit in Enhanced Ethics

Live at Clayton Hall, University of Delaware, Newark, DE

Dates, times, and locations of Events and CLEs may occasionally change after time of press. Please consult the DSBA website for the most up-to-date information at www.dsba.org.

SECTION & COMMITTEE MEETINGS

June 2023

Tuesday, June 6, 2023 • 12:00 p.m.

Estates and Trusts Section Meeting

Zoom Meeting, see Section listserv message for link and password

Thursday, June 8, 2023 • 12:00 p.m.

Executive Committee Meeting

Delaware State Bar Association, 405 North King Street, Suite 100, Wilmington, DE

Thursday, June 15, 2023 • 4:00 p.m.

Elder Law Section Meeting

Estate and Elder Law Services of Delaware, P.A., 2961 Centerville Road, Suite 350, Wilmington, DE and Zoom Meeting, see Section listserv message for link and password

Wednesday, June 21, 2023 • 9:00 a.m.

ADR Section Meeting

Zoom Meeting, see Section listserv message for link and password

Wednesday, June 21, 2023 • 12:30 p.m.

LGBTQ+ Section Meeting

Zoom Meeting, see Section listserv message for link and password

Refer to the DSBA Section Listserv messages for the most up-to-date information on Section Meetings. Please contact LaTonya Tucker at ltucker@dsba.org or (302) 658-5279 to have your Section or Committee meetings listed in the Bar Journal .

EXECUTIVE COMMIT TEE

Charles J. Durante

President

Kate Harmon President-Elect

Mary Frances Dugan

Vice President-at-Large

David A. White

Vice President, New Castle County

Anthony V. Panicola

Vice President, Kent County

Alaina M. Chamberlain

Vice President, Sussex County

Samuel D. Pratcher III

Vice President, Solo & Small Firms, New Castle County

Jessie R. Benavides

Vice President, Solo & Small Firms, Kent County

Stephen A. Spence

Vice President, Solo & Small Firms, Sussex County

Francis J. Murphy, Jr.

Secretary

Mae Oberste

Assistant Secretary

BECOME A DSBA SECTION MEMBER

Jennifer Ying Treasurer

Ian Connor Bifferato

Assistant Treasurer

Kathleen M. Miller

Past President

The Honorable Abigail M. LeGrow

Judicial Member

Brandon R. Harper

Assistant to President

Thomas P. McGonigle

Legislative Liaison

Loren R. Barron

Sean Michael Brennecke

Lori A. Brewington

Crystal L. Carey

Paige C. Chapman

Alberto E. Chávez

Joseph D. Farris III

Richard A. Forsten

Katelin A. Morales

Denise Del Giorno Nordheimer

Victoria R. Sweeney

Members-at-Large

Mark S. Vavala

Executive Director

Doth the End of Remote Hearings and Depositions Approach?

BY EMILY A. BRYANT-ÁLVAREZ, ESQUIRE, AND JEFFREY J. LYONS, ESQUIRE

It might be time to dust off those suit bottoms because the golden age of remote hearings and depositions may be coming to an end.

No one out there thinks that the Covid-19 pandemic was a good thing, but there were certainly some good things that came from it. One of those good things was the fine tuning of remote litigation. In the distant years B.C. (Before Covid), hearings were either in-person or via phone. Both had their drawbacks; in-person was expensive and could take a person away from other responsibilities, like families, for days at a time, and phone hearings suffered from dropped calls, static/interference, and (very often) people talking over each other. Phone arguments (which of course still happen) suffered from a lack of visual advocacy, such as slide presentations and the inability for judges and litigants to judge body language and other subtle cues.

As Covid-19 surged, courts and litigants had to adapt, and virtual hearings and depositions became the norm.1 The Judicial Conference of the United States temporarily “approved the use of video and

Emily A. BryantÁlvarez is CoChair of the Young Lawyers Section. Emily (she/ her) is the judicial law clerk to Delaware Supreme Court Justice N. Christopher Griffiths and can be reached at emily. bryant-alvarez@dela ware.gov.

Jeffrey J. Lyons is CoChair of the Young Lawyers Section. Jeff (he/him) is an associate at Baker & Hostetler LLP. He can be reached at jjlyons @bakerlaw.com.

teleconferencing for certain criminal proceedings and access via technology for civil proceedings during the Covid-19 national emergency.” 2 The Delaware courts followed similar strategies: issuing standing orders cancelling in-person hearings, suspending jury trials, 3 and giving the courts authority to conduct hearings and trial by telephone “or other electronic means.”4 And for a while, remote hearings were standard — for better or worse. Better of course being the hilarious mistakes and faux pas that literally defined the Covid-era zeitgeist, like leaving your cat filter on5 or flushing the toilet during a Supreme Court argument. 6

But as Covid-19 transitions from pandemic to endemic,7 courts are starting to suggest that things may go back to the way they were. The Judicial Conference said the “Covid-19 emergency is no longer affecting the functioning of the federal courts[.]” 8 And not long ago, the Chancery Court declined to renew the suspension of requirements relating to sworn declarations and affidavits.9 Courts have also “become less sympathetic to parties seeking remote depositions due to Covid-19 concerns.”10 So what should the litigator expect regarding the future of remote litigation? Our guess is, like the liger and CatDog, a hybrid.

It certainly seems unlikely that things will go back 100 percent to the way they were B.C. The new generation of attorneys is not thrilled with the idea of mandatory in-office work given that they can work efficiently from home,11 and clients benefit from remote hearings and depositions even if just to save the cost of attorney travel and lodging.12 Although nothing quite compares to appearing in court and arguing your position face-to-face with the judge or sparring with a witness across the table, we cannot unlearn what we have learned during the pandemic. And we learned that remote hearings and depositions are not only possible but effective and cost conscious.13 There should be little doubt that video hearings and depositions will continue on, to some extent post-pandemic, based on the convenience and cost, even if they are not the “default.”14 At least one judge in Delaware is not keen to dispose of teleconferences altogether, even for substantive hearings,15 although taking them away certainly has its uses.16

So what does that mean for the practicing litigator? It means you should not forget the benefits of remote hearings and depositions and the unique set of skills required to effectively advocate over a video stream, especially when those things benefit your client. And it also means that you might not need to dust off your suit bottoms for every hearing and deposition. But please remember to not stand up.17

Notes:

1. Eric Scigliano, Zoom Court Is Changing How Justice Is Served, The Atlantic, Apr. 13, 2021, https://www.theatlantic.com/magazine/archive/2021/05/can-justice-beserved-on-zoom/618392/; James H. Gilbert, In-Person Depositions in the Time of COVID-19, ABA (Mar. 3, 2022), https://www.americanbar.org/groups/litigation/ committees/pretrial-practice-discovery/articles/2022/winter2022-in-person-depositions-in-the-time-of-covid-19/.

2. “Judiciary Authorizes Video/Audio Access during COVID-19 Pandemic.” United States Courts, March 31, 2020. https://www.uscourts.gov/news/2020/03/31/judiciaryauthorizes-videoaudio-access-during-covid-19-pandemic.

3. Delaware Superior Court Standing Order No. 2.

4. Delaware Court of Chancery Standing Order No. 2 Concerning COVID-19 Precautionary Measures (Mar. 16, 2020).

5. Daniel Victor, ‘I’m not a Cat,’ Says Lawyer Having Zoom Difficulties, The New York Times (Feb. 9, 2021), https://www. nytimes.com/2021/02/09/style/cat-lawyer-zoom.html.

6. Ariana de Vogue, Supreme Embarrassment: The Flush Heard Around the Country, CNN (May 6, 2020), https:// www.cnn.com/2020/05/06/politics/toilet-flush-supremecourt-oral-arguments/index.html.

7. “Covid-19 Public Health Emergency Expires Thursday Night. What Does That Mean?” Delaware First Media, May 11, 2023. https://www.delawarepublic.org/2023-0511/covid-19-public-health-emergency-expires-thursdaynight-what-does-that-mean.

8. “Judiciary Ends Covid Emergency; Study of Broadcast Policy Continues.” United States Courts, May 11, 2023. https://www.uscourts.gov/news/2023/05/11/judiciaryends-covid-emergency-study-broadcast-policy-continues.

9. Delaware Court of Chancery Standing Order No. 9 (Jan. 28, 2022) (suspension expiring March 31, 2022).

10. Gilbert, In-Person Depositions, supra at n.1.

11. Sara Merken, As More Lawyers Return to Office, ABA Finds Stark Split on Remote, Reuters (Sept. 28, 2022), https://www.reuters.com/legal/legalindustry/morelawyers-return-office-aba-finds-stark-split-remotework-2022-09-28/.

12. Fahi Takesh Hallin, Embracing and Preparing for Remote Depositions, ABA (Feb. 11, 2022), https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2022/january-february/embracing-preparing-remote-depositions/.

13. In re Univ. of San Diego Tuition & Fees COVID-19 Refund Litig., Case No. 20-cv-1946-LAB-WVG, Order at 2 (S.D. Cal. Jan. 6, 2022) (“Remote depositions continue to be a prudent and effective way to conduct discovery.”); see also Swenson v. GEICO Cas. Co., 336 F.R.D. 206, 210 (D. Nev. 2020), objections overruled, 2020 WL 8871311 (D. Nev. Aug. 26, 2020) (noting that remote depositions are “an effective and appropriate means to keep cases moving forward notwithstanding pandemic-related restrictions”).

14. Pat Murphy, Litigators Divided as New Rule on Remote Depositions Nears, Massachusetts Lawyers Weekly (Mar. 1, 2023), https://masslawyersweekly.com/2023/03/01/litigators-divided-as-new-rule-on-remote-depositions-nears/.

15. The Nielson Co. (US), LLC v. TVision Insights, Inc., C.A. No. 21-1592-CJB, Oral Order (D. Del. Apr. 19, 2023) (“In this letter, the parties should also let the Court know if there is joint agreement to conduct the Markman hearing via videoconference. If there is joint agreement, the Court will do so; if there is not joint agreement, then the hearing will go forward as an in-person hearing in Courtroom 2A.”).

16. Natera, Inc. v. CareDx, Inc., C.A. No. 20-38-CFC-CJB, Oral Order (D. Del. Feb. 1, 2023) (“In light of the fact that the parties have requested the scheduling of a discovery dispute teleconference three times in the past two months regarding nine disputes, [] the Court hereby ORDERS that the procedures for discovery disputes set out in the Amended Scheduling Order[] shall be amended as follows: With regard to any further discovery disputes among the parties, the Court will hear argument regarding those disputes with counsel appearing in person in Courtroom 2A. Absent further amendment to this Order, following the February 27, 2023 discovery dispute teleconference, the Court will no longer hear argument on such motions during a teleconference.”).

17. Liz Dye, Miami Judge Reminds Attorneys to Wear Pants for Zoom Hearings, Above the Law (Apr. 14, 2020), https://abovethelaw.com/2020/04/miami-judge-reminds-attorneys-to-wear-pants-for-zoom-hearings/.

© istockphoto.com/ BartekSzewczyk

SLANINA, ESQUIRE

What Is a Retainer?

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association issued Formal Opinion 505 on May 3, 2023. Entitled Fees Paid in Advance for Contemplated Services , it is a long overdue explication of when or if retainers can be non-refundable. It is also likely to be unwelcome advice to some practitioners.

In a nutshell, it is a plea from the ABA to all attorneys for an agreement as to the definition and use of the term “retainer.” At the same time, it is a warning that misuse of that term does not make a fee non-refundable nor excuse attorneys from compliance with the applicable Professional Conduct Rules.

The Committee notes that the term “retainer” is neither used by nor defined in the Professional Conduct Rules. However, fees paid by a client to a lawyer in advance for legal work are often referred to as “advanced fees, advanced fee deposits, fee advances, prepaid fees or retainers.” Unfortunately, attorneys also use the term “retainer” to cover any fee paid by the client, but especially any money paid to the lawyer at or near the commencement of the representation. This can include “general retainers, classic retainers, true retainers, engagement retainers, and availability retainers.”

Such retainers have historically represented a type of option contract. As the Opinion notes, hourly time is not billed against a general retainer nor is it a flat fee for a specific service or amount of the lawyer’s time. A general retainer is paid solely to reserve the lawyer’s availability.

The Committee points out that general retainers are quite rare and have largely disappeared from the modern practice of law. General retainers, if they still exist, can be treated as earned when paid and need not be processed as trust funds. The Opinion notes, however, that they are still refundable if not earned and must still be reasonable.

While I share the Committee’s skepticism that there are as many general retainers or availability retainers as many attorney fee agreements suggest, I still think that such agreements are possible and appropriate. Sophisticated consumers of legal services could reasonably agree to pay a firm to be available especially where that firm has an expertise in handling such matters. That fee may be defensible as reasonable and nonrefundable, if that availability causes the firm to decline other cases or clients because of a conflict that might otherwise arise. The fee might also be defended as reasonable if the firm maintains some level of staffing in order to be ready and

able to handle possible fut ure matters. In other words, a lawyer claiming to have a general retainer must be prepared to demonstrate a valuable benefit to the client and/or an actual detriment to the lawyer.

The Committee warns against the use of terms such as “non-refundable retainer earned upon receipt” fee agreements. These are not actual types of fees and use of these descriptors does not, in and of itself, make a fee agreement a general retainer. In fact, such language is most often used as an attempt to make an advance fee nonrefundable. The Opinion suggests that the use of such terms is an act of legerdemain, which does not withstand even superficial scrutiny, and states that lawyers cannot sidestep the ethical obligation to safeguard client funds by claiming that the fees were earned when paid.

Many attorneys, particularly those practicing in the fields of criminal and bankruptcy law, have attempted to avoid some of the duties to account for client

The Committee points out that general retainers are quite rare and have largely disappeared from the modern practice of law. General retainers, if they still exist, can be treated as earned when paid and need not be processed as trust funds.

funds by treating all fees as availability retainers or earned when paid. There is a common misconception that characterizing fees as such relieves them of the duty to deposit the funds in escrow or to provide the client with an accounting when the funds are drawn from escrow as payment for completed legal services.

Some of this misunderstanding is attributable to Comment 10 to Delaware Rule 1.5 which states that some smaller fees such as those less than $2500 may be considered earned in whole upon some identified event such as upon commencement of the attorney’s work on that matter or the entry of the attorney’s appearance on the record. However, treating a fee as “earned upon commencement of the attorney’s work on the matter” is not the same as a fee “earned upon receipt.” The former requires that the attorney to actually begin work whereas the latter is dependent only upon payment by the client. In a criminal defense matter, for example, a smaller fee such as a fee under $2500 may be considered earned upon entry of the attorney’s appearance on the record or the initial consultation at which substantive confidential information has been communicated which would preclude the attorney from representation of another potential client (e.g., a co-defendant). Nevertheless, even a smaller fee might be refundable in whole or in part, if it is not reasonable under the circumstances.

Comment 11 provides that larger advance fees over $2500 will not be considered earned upon one specific event and written fee agreements must include a reasonable method for determining when the fees will be earned either on an hourly or an event basis. It should be noted that ABA Opinions are based on the ABA Model Rules. Model Rule 1.5 does not include section (f) found in the

Delaware Rules, which requires a written statement that the fee is refundable if not earned and the basis upon which fees shall be considered to have been earned. The ABA Models also do not include Comments [10] and [11].

Delaware attorneys relying on these Comments have not always fared well. The disciplinary system has consistently rejected the argument that there is a $2500 exception to the requirement that advance fees are refundable if not earned.

Formal Opinion 505 is well worth reading. There are three excellent hypotheticals distinguishing between a payment as a deposit for future legal fees and a general retainer. The hypotheticals also aid in understanding when and if such advance payments can be nonrefundable. However, the bottom line from the Committee was that there are no magic words that a lawyer can use to change what is actually an advance payment of fees into a general retainer which is earned when paid. Instead, the Committee suggests the use of plain language in fee agreements. In place of the term “retainer,” they recommend “advance” with an explanation in the fee agreement that it is a deposit for fees to be applied to the balance owed for future work on the matter.

“Ethically Speaking” is intended to stimulate awareness of ethical issues. It is not intended as legal advice nor does it necessarily represent the opinion of the Delaware State Bar Association.

“Ethically Speaking” is available online. Columns from the past five years are available on www. dsba.org.

Charles Slanina is a partner in the firm of Finger & Slanina, LLC. His practice areas include disciplinary defense and consultations on professional responsibility issues. Additional information about the author is available at www. delawgroup.com.

LAWYER ASSISTANCE PROGRAM AND ITS REGULATORY PURPOSE

BY ROBYNN MORAITES

Exactly what DE-LAP does and why they do it are questions frequently asked. As the following column points out, we don’t generate any income and we don’t give away any money. We don’t exhort the influence of the Disciplinary Board; we can’t force change from anyone. So, where do we fit in the process of helping lawyers and protecting their clients?

In this month’s column, we share answers to this question, skillfully gathered by Robynn Moraites, Executive Director of the North Carolina Lawyer Assistance Program and a leading light of Lawyers Assistance Programs across the country.

There’s been a fair amount of discussion lately, both nationally and in North Carolina, about what services and programs should be considered essential to the regulation of the legal profession. In the course of this ongoing dialogue, I have been asked how the Lawyer Assistance Program (LAP) fits into this self-regulation framework.

There are some old studies on file effectively demonstrating the correlation between impairment and harm to the public. In the late 1990s, a study of the Client Protection Fund cases in Louisiana examined the correlation between impairment and trust account violations. They found that 80 percent of trust account violation cases involved some form of substance use disorder or a compulsive

gambling disorder (a process addiction).

The Illinois Bar also conducted a study around that same time. Illinois looked at discipline cases broader than just trust account violations over a several year time span. Depending on the year, they found that any-where from 40 percent to 75 percent of lawyer discipline cases involved some form of substance use disorder or mental health issue (like depression). Another study in Oregon found that 80 percent of the Client Security Fund cases involved a substance use disorder, gambling, or mental health issue.

A reasonable follow-up question might be, then, how much of an impact does a Lawyer Assistance Program make in curtailing these types of discipline cases? As we often say, one cannot prove a negative. But maybe we can.

Oregon is the only state in the nation that has a self-insured Bar. All lawyers are insured by the Oregon State Bar Professional Liability Fund; there are no outside liability insurance carriers or providers. So the Oregon Bar has the ability to track 100 percent of malpractice claims. The Oregon State Bar Professional Liability Fund provides 100 percent of the funding of the Oregon Attorney Assistance Program (OAAP). The OAAP is also housed within the Oregon Bar, as is the Office of Disciplinary Counsel. So Oregon is in the unique position to be able to track malpractice claims, discipline cases, and involvement in the lawyer assistance program (i.e. recovery). It is the only state in the nation capable of compiling reliable data that is not based on self-reporting, but is rather based on statistics and demographics contained within the different divisions and departments of the Bar itself.

The OAAP conducted a study in 2001 involving 55 recovering lawyers who were in private practice for five years before their sobriety dates and five years after their sobriety dates, a ten-year period in all. The first part of the study compared the incidence of malpractice claims for each of the five-year periods,

while a second part looked at discipline complaints. In order to assure that the identity of the recovering lawyers would remain confidential, the study was conducted by OAAP Attorney Michael Sweeney.

During the five years before sobriety, the 55 lawyers had 83 malpractice claims filed against them. The number dropped dramatically — to 21 claims — in the five years after sobriety. This represents an astounding over-all 75 percent decrease in total claims, specifically a 30 percent annual malpractice rate before sobriety, and an 8 percent rate after sobriety. The same lawyers had 76 discipline complaints during the five years before sobriety and 20 discipline complaints during the five years after sobriety. This represents a similar overall decrease of approximately 75 percent with a 28 percent annual discipline complaint rate before sobriety, and a 7 percent discipline complaint rate after sobriety.

The study found that malpractice and discipline complaint rates for lawyers before recovery are nearly four times greater than for lawyers in recovery. In addition, applying Oregon’s average malpractice cost per claim in 2001 ($16,500) to claims made against the 55 lawyers in the study, the reduced incidence of malpractice resulted in a savings of approximately $200,000 per year — attributable to just 55 lawyers in recovery. The costs to the Oregon State Bar disciplinary process were less quantifiable, but it is obvious that sobriety brings savings that follow from the reduction in discipline matters in need of prosecution.

The study then went a step further to compare lawyers in recovery to the general bar population. The study found that lawyers in recovery had lower malpractice and discipline complaint rates than the general population of lawyers. In 2001, Oregon’s annual malpractice claims rate for lawyers in private practice was 13.5 percent, compared to 8 percent for lawyers in recovery. Similarly, the annual discipline complaints rate for Oregon lawyers was nine percent, compared to seven percent for lawyers in recovery.

While medical and social science researchers are always careful not to equate correlation with causation, it seems pretty clear from the OAAP study that substance use disorders (specifically alcoholism in this particular study) are a root cause of both malpractice and discipline complaints, and that the accompanying costs, whether lost dollars because of malpractice claims or the loss of favorable public opinion and reputation because of ethical violations and discipline claims, are great. The study also makes pretty clear that recovery directly equates to less harm to the public.

During one of our national trainings at the ABA conference for the Commission on Lawyer Assistance Programs, one of the presenters was discussing the regulator’s duty to effectively discipline lawyers who have committed ethical violations. I have repeated her tongue-in-cheek analogy many times and will summarize it here. Part of the challenge of discipline, if it is to be effective, is for regulators to determine in which bucket a particular offense/offender goes. There are three buckets to choose from: bad, stupid, or sick.

(Oregon Study) Risk Management & Protection of the Public

(Oregon Study) Risk Management & Protection of the Public (Oregon Study) Risk Management & Protection of the Public

(Oregon Study) Risk Management & Protection of the Public

If a lawyer is a bad actor, discipline is appropriate and effective. For a bad actor, discipline serves a useful retributive purpose and will hopefully deter future intentional bad acts.

If a lawyer made an honest mistake (lumping all mistakes from silly to egregious in the stupid category), discipline might not be warranted because it serves no real retributive purpose. From simply having been involved in the discipline process, it is unlikely that the lawyer will make the same mistake again or will take extra caution in the future when unsure about what action to take. But regulators may decide that discipline is warranted for its deterrent effect to hammer home the point that lawyers are in a unique fiduciary role and extra care must be taken to not make mistakes.

If a lawyer is sick, however, discipline or punishment will have no deterrent effect whatsoever. The behavior will continue until the underlying ailment is treated and addressed. Almost universally, when regulators are seeing the same lawyer churn back through the discipline process again and again, whether the lawyer is aware of it or not, there is usually an underlying impairment involved. If a lawyer is suffering from major depression and is unable to return client calls or meet critical filing deadlines month after month, year after year, it doesn’t matter how many times that lawyer is disciplined. Until the depression is addressed and treated, the lawyer is incapable of doing anything differently. The same holds true for substance use disorders and a host of other impairments.

Lawyer assistance programs are positioned to offer a unique and vital regulatory function that other programs of the Bar cannot do as effectively. The discipline arm of the Bar, considered one of the core features of the self-regulatory function, operates in a retributive framework after damage has been done and in response to harm that has already oc-

Study data is combined total of the 5 years before recovery and 5 years into recovery (i.e., before and after LAP involvement)

The Oregon Attorney Assistance Program study found that malpractice and discipline complaint rates for lawyers before recovery are nearly four times greater than for lawyers in recovery.

The Oregon Attorney Assistance Program study found that lawyers in recovery had lower malpractice and discipline complaint rates than the general population of lawyers.

curred to the public. Lawyer assistance programs operate in a proactive capacity. We are trying to reach lawyers before they commit ethical violations and before the public has been harmed. We are also effective after an ethical violation has been committed. In the example given above of the depressed lawyer, a referral to LAP is appropriate at any time in the process. We can never guarantee that a lawyer will recover, but the lawyer will stand a much better chance if given the opportunity earlier in the process. While the discipline arm of the Bar can include conditions requiring a lawyer to get help for impairments, part of the benefit of lawyer assistance programs is that we provide the support, encouragement, and recovering-lawyer community needed to forge a path to real recovery and to sustain it over the course of a career.

I would like to conclude this article with an excerpt from Tom Lunsford’s Winter 2016 State Bar Outlook column, Going Overboard(s), wherein he described every program of the State Bar and how each fit within the Bar’s budgetary framework.

The Lawyer Assistance Program, as noted above, doesn’t really generate any income. And it doesn’t give away any money. It does, however, dispense something more precious than gold — hope. Through its professional staff and a large network of dedicated volunteers, the LAP provides free confidential as-

sistance to lawyers, judges, and law students in addressing substance abuse, mental health problems, and other stressors that impair or may impair the ability to practice law effectively. As is well-known, the State Bar is in the public protection business and so is the LAP. Although the program’s orientation is humanitarian, its raison d’etre is regulatory. The LAP is funded by the State Bar primarily because it saves clients. However, I suspect that most of the people who support, serve, and staff the LAP do so because it saves lives.

The annual cost of the program to the lawyers of North Carolina is about three quarters of a million dollars. This is around eight percent of the State Bar’s total budgeted expense for the year and is a testament to the importance the council attaches to the enterprise. The fact that the LAP is a State Bar program with an adequate source of recurrent funding is a double-edged sword, however. Because the money is readily available, the members of our staff are not involved in the sort of constant fundraising that preoccupies many of their counterparts who do similar work in other states for LAP programs that are organized as 501(c)(3)s. Our people are consequently free to work without distraction and with laser focus on a burgeoning caseload that reflects an almost inexhaustible demand for LAP services. The downside of State Bar affiliation is, no doubt, that a great many suffering lawyers wrongly suppose that the LAP is in cahoots with the Grievance Committee. Although rising numbers of selfreferrals suggest that our efforts to dispel that misguided notion have been increasingly effective in recent years, it persists. That is unfortunate, to be sure, but not reason enough to depreciate the program’s great success, of which we all as members of the North Carolina State Bar can be quite proud.

Reprinted with permission of the NC State Bar and the NC Lawyer Assistance Program. This article first appeared in the NC Bar Journal , Winter 2019 (volume 24, number 4) edition. Large sections of this article were reprinted and modified with permission from the Oregon Attorney Assistance Program. The Oregon Study authors were Ira Zarov, who is the now-retired CEO of the Oregon State Bar Professional Liability Fund, and Barbara S. Fishleder, who is the program director for the Oregon Attorney Assistance Program and the director of loss prevention for Oregon’s Professional Liability Fund. Tom Lunsford is the recently-retired executive director of the North Carolina State Bar.

Robynn Moraites is the director of North Carolina’s Lawyer Assistance Program. Prior to joining NC LAP in 2011, she worked in big firm, small firm, and in-house settings. Robynn has a background in public health. She can be reached at robynn@nclap.org.

Lawyer assistance programs operate in a proactive capacity. We are trying to reach lawyers before they commit ethical violations and before the public has been harmed. We are also effective after an ethical violation has been committed.

DELAWARE BAR FIRSTS & SECONDS

BY ADRIA B. MARTINELLI, ESQUIRE

Many of us have read about some of the “firsts” in Delaware Bar history, but we thought it would be interesting to cover some “seconds” as well. Here, we highlight some of those who may not often get recognized because the “first” title eluded them — some by mere moments and others by decades.

First and Second Members of the Delaware Bar Thomas Spry and John Adams

Thomas Spry is listed as the first Delaware Bar Admission on the bronze plaques at the Supreme Court in Dover, admitted in 1676. Spry was also a medical doctor, and is recognized as the first attorney admitted to practice under English law “in the Delaware River Settlements now included in the states of Pennsylvania, New Jersey, and Delaware.”

John Adams was the next admitted attorney, listed along with John Matthews as admitted in 1677. Following these three admissions on the plaques, there was 53-year gap until the next Delaware Bar Admission was recorded.

First and Second Women Admitted to Bar

Evangelyn Barsky and Sybil Ursula Ward

This is the only category with a tie for first, when the first two women admitted to the Delaware Bar took their oaths together in 1923. Three years after women obtained the right to vote via passage of the Nineteenth Amendment to the Constitution, Delaware saw fit in 1923 to amend the State’s constitution to provide that no citizen should be disqualified from holding office by virtue of their sex. That same year, Evangelyn Barsky and Sybil Ursula Ward were admitted to the Delaware Bar.

Evangelyn Barsky was an active member of the Delaware Bar and the American Bar Association. She was also involved in the League of Women Voters and the American Association of University Women. She was active in politics and in 1935 was appointed Assistant City Solicitor. Unfortunately, she did not serve in that position long — she died in car accident in 1936.

Sybil Ursula Ward was also involved in politics, representing the 12th Ward as the first woman elected to the Wilmington City Council. In her private practice, she performed title searches for the family law firm of Ward & Gray, now known as Potter Anderson & Corroon.

First and Second Persons of Color Admitted to the Bar

Louis L. Redding and Theophilus R. Nix

In 1929, Louis L. Redding became the first African American lawyer admitted to the Delaware Bar. Redding’s accomplishments are many and his admittance to the Delaware Bar a storied one. Redding graduated from Brown University and Harvard Law School. He almost didn’t get the chance to sit for the Delaware bar exam because no attorney in Delaware was willing to act as his preceptor. Following much political maneuvering, Judge Daniel O. Hastings agreed to assume the role of preceptor. Hastings was running for the U.S. Senate and Redding’s father, founder of the YMCA for Negroes in Delaware and an officer of the Wilmington Branch of the NAACP, promised to help deliver the “Negro vote” in exchange.

Redding’s apprenticeship was also unique — rather than working in his preceptor’s office as was typical of the time, Redding was sequestered in the law library in order to keep the arrangement private. He was the sole minority attorney in Delaware for 27 years following his admission, until 1956. Although he passed the bar examination in 1929, he was not allowed to become a member of the DSBA until 1949.

Redding gained national recognition for representing minority litigants in the consolidated cases known as Brown v. Board of Education — the landmark Supreme Court case which held for the first time that segregation in public schools was unconstitutional and that separate educational facilities were “inherently unequal.” 347 U.S. 483 (1954).

Theophilus R. Nix comes in as the most distant “second” among those discussed here. Nearly 30 years after Redding was admitted to the Delaware Bar, Nix, the second person of color, was admitted. Nix focused his 36-year career on protecting the rights of minorities, the disenfranchised, the disabled, and the rights of criminal defendants. Nix founded his own solo practice and successfully handled many landmark civil rights cases, including cases which won equal funding for the only African American fire company in the State and challenged discriminatory hiring practices in the State.

CONFERENCE ROOMS AND SPECIAL EVENT SPACE

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First and Second Presidents of the DSBA

Josiah Marvel and William S. Hilles

Josiah Marvel was President of the Delaware State Bar Association from 1923 to 1927. Under his term, standing committees were created for law reform, legal biography, grievances, membership, American citizenship, code of ethics, and admission to the Bar. Special committees were established, including on increasing salaries for state and federal judges, for Legal Aid, and the public defender.

In 1927, Marvel was succeeded by William S. Hilles, who unfortunately passed away before the end of his one-year term in office. During his tenure, the Delaware State Bar Association began holding at least one meeting during the summer months in Rehoboth. Although records are slim on Hilles’s legal laurels, it is certain he was an accomplished and respected attorney. Judge Percy Warren Green, who served as a Common Pleas judge until 1958 and had no formal legal education, was quoted as saying “Mr. Hilles on one side of a table and a pupil on the other side constituted a university.”

First and Second Governors Who Were Delaware Bar Members

Thomas McKean and George Read

Lawyers have long been involved in politics, and Delaware lawyers are no exception. From the beginning of Delaware’s history, its attorneys have achieved prominent political positions — including the highest position in State government: Governor.

First and Second Female Presidents of the DSBA

Susan C. Del Pesco and Anne L. Naczi

Susan C. Del Pesco became the first female president of the Delaware State Bar Association in June 1987. Del Pesco started the In Re: newsletter (now the Bar Journal ), first published in September of 1987. Del Pesco also led a joint education project among the Delaware medical and dental societies and the Bar Association on the AIDS epidemic which culminated in a successful seminar at University of Delaware. Del Pesco’s term was cut short when she was appointed to the Delaware Superior Court in May of 1988.

Anne L. Naczi was the next female Delaware State Bar Association President, serving her term nearly ten years after Del Pesco’s, in 1996. Naczi’s accomplishments during her tenure included: celebration of the 100th Anniversary of the Delaware Constitution and publication of a book in conjunction with that anniversary; outreach to membership with statewide focus groups; and coordination of pro bono and legal services to better serve low-income residents.

Delaware’s second and third governors were both admitted to the Delaware Bar: Thomas McKean briefly served as governor from September 22, 1777 to October 20, 1777, after taking over for John McKinly who was arrested and removed from office. Following McKean, George Read served as Governor from October 20, 1777 to March 31, 1778. Among early Delaware governors, being a member of the Bar seems to be the rule more than the exception. John Dickinson, Nicholas Van Dyke, Nicholas Van Dyke, Jr., Gunning Bedford, Jr., and Caesar Augustus Rodney were all Delaware Bar members who served as governors in the 18th Century.

Adria Martinelli has spent more than 20 years practicing employment law in Delaware and currently serves as a Deputy Attorney General representing Delaware’s Department of Human Resources. She can be reached at adria. martinelli@delaware.gov.

You Don’t Have to Throw a Brick to Support Your LGBTQ+ Family & Friends

BY ZACHARY S. STIRPARO, ESQUIRE

One wondered how 2023 could be worse for individual freedoms than 2022, a year where Roe v. Wade and Planned Parenthood v. Casey, cases which granted women a modicum of freedom of choice over their own bodies and health, were overturned.1 A year where Florida Governor Ron DeSantis, to thunderous applause and surrounded by impressionable young children huddled around his desk, signed into law HB 1557, the infamous “Don’t Say Gay” bill. HB 1557 took effect on July 1, 2022, preventing teachers from mentioning sexual orientation or gender identity in kindergarten through the third grade and in later grades if it is deemed “not age-appropriate or developmentally appropriate” for the students. 2

Yet, the LGBTQ+ community has been the target of a wave of bigotry in 2023. As of May 18, 2023, 474 anti-LGBTQ+ bills have been introduced in the United States.3 The Iowa legislature

passed a bill preventing instruction on gender identity or sexual orientation to students through sixth grade4 and requiring teachers to inform a student’s parent if the student expresses a “gender identity or intention to transition to a gender that is different than the sex listed on a student’s official birth certificate.”5 In Tennessee, the legislature sought to ban drag performances beginning on April 1, 2023.6 Unsurprisingly, the bill’s sponsor had never been to a drag show.7 Likewise, Tennessee Governor Bill Lee seems unaware of what a drag show is, despite dressing in drag in 1977.8 In Texas, the

legislature passed legislation prohibiting various types of gender affirming care to those under the age of 18.9

Of course, this bigotry is not new. The increased violence that such legislation has caused, and unfounded “us vs. them” rhetoric, is new. The U.S. Department of Homeland Security has indicated increased threats of violence against the LGBTQ+ community are linked to the types of legislation discussed above.10 Members of the community were already nearly four times more likely to be victims of violent crime.11

Pride month commemorates the first brick (or coins or beer) thrown at the Stonewall Inn located in Greenwich Village in June 1969 which turned the tides of LGBTQ+ liberation.12 It is certainly a celebration of the battles and skirmishes our community has fought to ensure we are treated equally. We should celebrate the historic — and assuredly embattled — triumph of marriage equality. However, we should not allow our past triumphs to render us complacent. Indeed, as Justice Thomas expressly stated in Dobbs, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”13 This past year solidifies that continued vigilance is demanded.

Delaware is not immune. A bill was introduced in the Delaware General Assembly just last year that would prohibit transgender students from participating on athletic teams in accordance with their gender identity.14 Thankfully, the bill did not advance. In defiance of such attitudes, Representative Peter Schwartzkopf and Senator Sarah McBride sponsored legislation that encouraged the Delaware Department of Education to consult with key stakeholders — such as the Human Rights Campaign (“HRC”) and The Trevor Project — to develop historic lessons of LGBTQ+ history that educators can incorporate into existing curricula for students in seventh to twelfth grade.15 And Representative Eric Morrison introduced HB 142, which prevents a criminal defendant from claiming someone’s actual, or perceived, sexual orientation, sex, gender, gender identity, or sex assigned at

birth as a complete or partial justification for their criminal act (i.e., the “LGBTQ+ panic defense”).16

Nevertheless, while the General Assembly has made solid strides to protect the LGBTQ+ community this past year, further work is necessary. The Movement Advancement Project ranks Delaware’s LGBTQ+ policies as “Medium” and the HRC has given the First State the “Working Toward Innovative Equality” moniker.17

You may be asking what we, as neither legislators nor activists, can do to make an impact. The Delaware Bar’s strides this past year to increase diverse perspectives and opportunities in the Bar is surely a good start.18 But further action is necessary and will require small, mundane steps. It starts with a call or an email. Whether it is volunteering at local organizations like PFLAG-Wilmington or Sussex Pride, supporting your law firm’s diversity committee and promoting its recruitment efforts, providing those recruited attorneys with the necessary resources so that they can invest and improve the Delaware legal community, or providing pro bono services for the LGBTQ+ community, your contributions will have a ripple effect. While sometimes the thought of getting involved can be overwhelming, you do not need to arrive with all the answers. Just being present, receptive, and willing to help is an impactful step.

We cannot forget that the demonstrators at Stonewall not only included a wide array of the community — i.e., homeless LGBTQ+ teens, trans women of color, and drag queens — but it also included residents and visitors of Greenwich Village.19 The need for action and visibility did not end at Stonewall. Countless hours and mundane steps have been taken by everyday people since — like Marsha P. Johnson and Sylvia Rivera — to further advance equality for all people. 20 You don’t have to throw a brick.

Notes:

1. Dobbs v. Jackson Women’s Health Org. , 142 S. Ct. 2228, 2242 (2022).

2. HB 1557, at 4-5 (Fl. 2022), available at https:// www.flsenate.gov/Session/Bill/2022/1557.

3. ACLU, Mapping Attacks on LGBTQ Rights in U.S. State Legislatures, available at www.aclu. org/legislative-attacks-on-lgbtq-rights.

4. SF 496 (H-1173), at 25 (Iowa 90th), available at https://www.legis.iowa.gov/legislation/BillBook ?ga=90&ba=SF%20496&v=.

5. Id. at 23.

6. SB 3 (Amend. 1), at 1 (Tenn. 113th), available at https://wapp.capitol.tn.gov/apps/Billinfo/default. aspx?BillNumber=SB0003&ga=11. On March 31, 2023, the District Court for the Western District of Tennessee granted a temporary restraining order that prevented the law from going into effect on April 1st. Friends of George’s, Inc. v. Tennessee , 2023 WL 2755238, at *6 (W.D. Tenn. Mar. 31, 2023).

7. Newsmax Interview with Jack Johnson at 00:4000:50 (Mar. 4, 2023), available at https://www. youtube.com/watch?v=V0WV3DdkM0U (describing drag shows as “sexually explicit adult themed entertainment in front of kids”).

8. Vanity Fair, Tennessee Governor Set to Ban Drag Shows Would Rather Not Talk About the Time He Dressed in Drag , available at https://www. vanityfair.com/news/2023/03/bill-lee-tennesseedrag-shows (describing drag shows as “obscene, sexualized entertainment”).

9. SB 14, at 2-3 (Tx. 88th), available at https:// capitol.texas.gov/BillLookup/History.aspx? LegSess=88R&Bill=SB14.

10. Josh Margolin, Calls for Violence Against LGBTQ People Intensify, DHS Report Says (May 16, 2023), available at https://abc7chicago.com/ calls-for-violence-against-lgbtq-people-intensify-dhs-report-says/13252503/.

11. UCLA School of Law Williams Institute, LGBT people nearly four times more likely than nonLGBT people to be victims of violent crime (Oct. 2, 2020), https://williamsinstitute.law.ucla.edu/ press/ncvs-lgbt-violence-press-release/.

12. NYC LGBT Historic Sites Project, Stonewall Inn , https://www.nyclgbtsites.org/site/stonewall-innchristopher-park/ (last visited May 17, 2023).

13. Dobbs , 142 S. Ct. at 2319 (Thomas, J., concurring).

14. SB 227 (Del. 151st), available at https://legis. delaware.gov/BillDetail/79146.

15. HCR 90 (Del. 151st), available at https://legis. delaware.gov/BillDetail?LegislationId=109613.

16. HB 142 (Del. 152nd), available at https://legis. delaware.gov/BillDetail?LegislationId=130335.

17. MAP, Delaware’s Equality Profile , https://www. lgbtmap.org/equality-maps/profile_state/DE (last visited May 16, 2023); HRC, Laws & Legislation: State Scorecards, https://www.hrc.org/ resources/state-scorecards (last visited May 16, 2023).

18. Del. Supr. Ct., Bench & Bar Diversity Committee Issues Report & Recommendations to the Delaware Supreme Court 1-2 (Feb. 22, 2022), available at https://courts.delaware.gov/forms/ download.aspx?id=135198.

19. Supra note 12.

20. Library of Congress, Activism After Stonewall , https://guides.loc.gov/lgbtq-studies/afterstonewall (last visited May 17, 2023).

Zach Stirparo is a Deputy Attorney General at the Delaware Department of Justice, and an incoming Co-Chair of the LGBTQ+ Section of the DSBA. He can be reached at Zachary.Stirparo@delaware.gov.

BENCH AND BAR

THURSDAY, JUNE 15, 2023 CONFERENCE 2023

LOOKING BACK, MOVING FORWARD

3.0 hours CLE credit in Enhanced Ethics for Delaware and Pennsylvania Attorneys

CONFERENCE SCHEDULE

8:00 a.m. - 9:00 a.m. Registration Breakfast/Vendor Visit 9:00 a.m. - 9:15 a.m. Opening Session Welcome and State of the Judiciary

9:15 a.m. - 10:45 a.m. CLE Plenary Session with Keynote Speaker Aaron N. Taylor Reform and Rigor: How Delaware’s Bar Admission Reform Efforts Can Be a Model for the Nation

10:45 a.m. - 11:00 a.m. Refreshment Break/Vendor Visit 11:00 a.m. - 12:00 p.m. Annual Meeting 12:00 p.m. - 1:00 p.m. Lunch Reception 1:00 p.m. - 2:30 p.m. CLE Breakout Sessions Choose one Session: Civil Litigation, Chancery Law, Criminal Law, or Family Law

2:30 p.m. - 3:00 p.m. Dessert Reception and Toast

KEYNOTE SPEAKER

Aaron N. Taylor

Senior Vice President, Executive Director at AccessLex Institute Center for Legal Education Excellence

Aaron N. Taylor provides leadership and oversight for the AccessLex Center for Legal Education Excellence®. He joined AccessLex Institute in June 2017 from Saint Louis University School of Law, where he served as a Professor of Law. Dr. Taylor also served as director of the Law School Survey of Student Engagement, a national study that seeks to measure the effects of legal education on students.

ANNUAL MEETING

Presided over by Charles J. Durante, Esquire, Delaware State Bar Association President

Presentation of the First State Distinguished Service Award to William E. Manning, Esquire

Recognition of individuals who have been members of the Delaware Bar for more than 50 years

Election of 2023-2024 Executive Committee Members

Passing of the Gavel to the new Delaware State Bar Association President, Kate Harmon, Esquire

JOHN M. CLAYTON HALL | UNIVERSITY OF DELAWARE | NEWARK, DELAWARE

CLE BREAKOUT SESSIONS

CIVIL LITIGATION LEAVE IT TO THE MEDIATOR

According to the most recent statistics from The American Bar Association, approximately 90 percent of civil cases resolve short of trial. This panel of experienced mediators will provide their perspectives on how best to prepare for mediation, present your case during mediation, and avoid some common pitfalls throughout the process. The panel will also address some of the ethical obligations that can arise while engaged in the alternative dispute resolution process.

Panelists

The Honorable Joseph R. Slights III (Vice-Chancellor, Ret.)

Wilson Sonsini Goodrich & Rosati

David A. White, Esquire Office of Disciplinary Counsel

Yvonne Takvorian Saville, Esquire

Weiss, Saville & Houser, P.A.

CRIMINAL LAW

Bernard G. Conaway, Esquire Conaway-Legal LLC

Kathi A. Karsnitz, Esquire

Kathi A. Karsnitz, Attorney at Law

WHO’S CRIME IS IT ANYWAY?

This panel will discuss an update to Brady obligations and the new proposed change to Criminal Rule 16. It will also touch upon a criminal best practices and update on any recent new Supreme Court decisions in the field.

Panelists

The Honorable Danielle J. Brennan Superior Court of the State of Delaware

Abigail E. Rodgers, Esquire Delaware Department of Justice

Sonia Augusthy, Esquire Office of Defense Services

CHANCERY LAW REAL WORLD CHANCERY

This session will look at the Court of Chancery’s Greatest Hits 20222023. Members of the Court of Chancery will discuss hot topics on the court’s docket in the past year, including SPACs, advance notice bylaws, and Caremark liability.

Panelists

The Honorable Kathaleen St. Jude McCormick Chancellor, Court of Chancery of the State of Delaware

The Honorable Nathan A. Cook Court of Chancery of the State of Delaware

FAMILY LAW

The Honorable Lori W. Will Court of Chancery of the State of Delaware

Benjamin M. Potts, Esquire

Wilson Sonsini Goodrich & Rosati

Mae Oberste, Esquire

Bernstein Litowitz Berger & Grossmann LLP

The LINK: Domestic Violence, Animal Abuse, and Child Welfare

Panel will present on the links between various forms of abuse and how we can use that knowledge to better protect and support victims. In addition, the panel will discuss the importance of family relationships (especially those of children) with their pets with a focus on how uncertainty in divorce proceedings relates to the future of their pets.

Panelists

The Honorable Michael K. Newell Chief Judge, Family Court of the State of Delaware

The Honorable Jennifer B. Ranji Family Court of the State of Delaware

Kara M. Swasey, Esquire Bayard, P.A.

Tania Marie Culley, Esquire Office of the Child Advocate

Jenna R. Milecki, Esquire Delaware Department of Justice

Janine N. Howard-O’Rangers, Esquire Delaware Volunteer Legal Services, Inc.

The 32nd Annual Delaware High School Mock Trial Program

BY THE MOCK TRIAL COMMITTEE

This year the annual high school mock trial competition returned to the Leonard L. Williams Justice Center — the first time in three years that the competition was held in person, rather than virtually. The competition was held on February 24 and 25, 2023 and, after five rounds, the Charter School of Wilmington was named the winner of the competition. Wilmington Friends School, Cape Henlopen High School, Archmere Academy, and Tower Hill School finished in second, third, fourth, and fifth places, respectively. A total of 18 teams participated in this year’s competition. Students from each school spent two days arguing both sides of a simulated civil case. Charter, as the winning team, represented Delaware in the National Mock Trial Competition held in mid-May in Little Rock, Arkansas. The Delaware Law Related Education Center, Inc. (DELREC) sponsored the event.

This year, there were an odd number of teams competing, and students from Cape Henlopen and the Salesianum School volunteered to form a “byebuster” team to have an even number of teams. These students had never competed together before (and had not even met each other before the morning of the competition). The students were awarded the Delaware Way Award, which is awarded to the team that best exemplifies the ideals of mock trial — civility, justice and fair play. Jace Walker from Archmere Academy won

the courtroom artist contest, and Audrey Pachuta of Ursuline Academy won the inaugural courtroom jour nalism contest. Ms. Walker also represented Delaware at the national competition.

The 2023 Mock Trial Case Committee was co-chaired by Daniel M. Attaway, Esquire, and The Honorable N. Christopher Griffiths. The Honorable Francis J. Jones, Jr., and The Honorable Paul R. Wallace, Judges, Superior Court of Delaware, served as advisors to the co-chairs. Additional members of the Committee included Sean O’Sullivan, Margie Touchton, Judith Nazarewyez, Kammas Kersch, and Eileen Wilkinson. The Committee organized the case material and helped coordinate the competition. Judge Paul R. Wallace, Superior Court, served as the Committee’s Liaison to the Court. Pat Quann, Executive Director of DELREC helped to coordinate the program.

The Committee and DELREC thank the Delaware Supreme Court for its support, along with the Administrative Office of the Courts. The Committee and DELREC also thank the Delaware Bench and Bar, and the Delaware Paralegal Association, including Judith Nazarewyez, for providing many of the volunteers that helped organize and operate the competition. We are very grateful for the Attorney Advisors who gave their time to support each of the teams.

The Competition would not be possible without the support from our scoring and presiding judges from the Bench and the Bar.

We are very grateful for the commitment of the following Attorney Advisors who gave so much help to our Mock Trial teams.

The Honorable Brendan Linehan Shannon

T he Honorable Katharine L. Mayer

Deborah I. Gottschalk

Robert W. Whetzel

Matthew C. Buckworth

Douglas E. McCann

Chandra J. Williams

Ipek Kurul

John S. Malik

Kristin A. Giakas

Catherine Zwolak Kilian

Kevin A. Guerke

Donna L. Culver

Kyle Kemmer

April C. Betts

Gregory P. Skolnik

Kristin C. Collison

Nicole Marie Walker

Maria T. Knoll

Rebecca Batson Kidner

Matthew M. Bartkowski

Neilli M. Walsh

Taylor M. Reeves

Karen C. Bifferato

A. Dean Betts Jr.

Natalie Wolf

Jennifer McCloskey

Kristina G. Lehman

Kevin M. Howard

The Competition would not be possible without the support from our scoring and presiding judges from the Bench and the Bar. We are very grateful to Margie Touchton for recruiting and coordinating the following volunteers:

Mary I. Akhimien

Roger A. Akin

Rachel D. Allen

Sonia Augusthy

Stephani J. Ballard

Nick Beard

Kevin A. Beaugez

Dwayne J. Bensing

Shakuntla L. Bhaya

Ashley M. Bickel

Mary C. Boudart

Thad J. Bracegirdle

The Honorable Danielle J. Brennan

The Honorable Gregory R. Babowal

Nicholas J. Brannick

Lauren N. Brown

Thomas E. Brown

Emily A. Bryant - Álvarez

The Honorable Peter Burcaat

The Honorable William C. Carpenter, Jr.

The Honorable Jeffrey J Clark

Nancy Chrissinger Cobb

Bernard G. Conaway

Curtis J. Crowther

Douglas J. Cummings, Jr.

Anthony N. Delcollo

Brian V. DeMott

Catherine M. Di Lorenzo

Amy M. Dudash

Colleen E. Durkin

Sean A. Elman

The Honorable Sherry R. Fallon

Nicole M. Faries

Richard A. Forsten

The Honorable Kyle Evans Gay

Kevin C. Gilligan

R. Eric Hacker

Shauna T. Hagan

James J. Haley, Jr.

Evanthea Hammer

Ronald W. Hartnett, Jr.

Robert P. Haynes III

Randy K. Herndon

The Honorable James Horn

Christopher R. Howland

Tianshu Ji

The Honorable Francis J. Jones, Jr.

The Honorable Jan R. Jurden

Kathryn S. Keller

The Honorable Felicia Glennon Kerr

Nathaniel J. Klepser

Tara L. Lattomus

The Honorable Abigail M. LeGrow

Bradley P. Lehman

Lauren E. Maguire

Jon Marconi

Peter Akawie Mazur

Devan A. McCarrie

Bruce W. McCullough

The Honorable James G. McGiffin, Jr.

John D. McLaughlin, Jr.

Matthew L. Miller

Lisa A. Minutola

The Honorable Selena E. Molina

Marcus E. Montejo

The Honorable Tamika R. Montgomery-Reeves

The Honorable Maryellen Noreika

Penelope B. O’Connell

Patricia M. O’Neill

Ricardo Palacio

Darryl A. Parson

Jordan J. Perry

Zoe Plerhoples

Jillian M. Pratt

Alyssa M. Radovanovich

Erin K. Radulski

Doug Ransom

Richard M. Rettig II

William F. Richardson

Patrick G. Rock

Michael C. Rosendorf

Kevin A. Rudolph

Christopher M. Samis

Kathryn M. Sanchez

Alexandria M. Shaffer

The Honorable Kelly H. Sheridan

Emily L. Skaug

Michael Slights

Aaron H. Stulman

Caixia Su

Karen V. Sullivan

Grayson P. Sundermeir

Paul D. Sunshine

Amy M. Taylor

Mary S. Thomas

The Honorable Gary F. Traynor

Megan E. Traynor

The Honorable Paul R. Wallace

Elizabeth Wang

Dawn M. Williams

We also thank volunteers from the Delaware Paralegal Association and the Courts for their help with the 2023 Competition:

Jessica Thompson

Juliette Steenkamer

Britney Schneese

McKenzie Waide

Sandra Kece

Ahdel Candelaria Vega

Melissa Bodley

Marlennys Rodriguez

Delaware Paralegal Association Student Volunteer: Lucien Edwards

Administrative Office of the Courts (State employees who assisted us):

Bethany Geleski and Sarah Bowers

Capitol Police: Lt. David L. Kerr, Jr.

New Castle County Chief of Security: Jim Irving

Superior Court Administrator: Lisa Robinson

Ashley Sausman

Michelle Briggs

Concetta Mazara

Karen Raison Holness

Waleska Figueroa Santiago

Stephanie McConaghy

Nora Kohn

Heather Campbell

Court of Common Pleas Court Administrator: Stephanie Fitzgerald

Family Court Administrator: Michelle Hoffman

State Court Administrator: Gayle P. Lafferty

Chief Justice of the Supreme Court of the State of Delaware:

The Honorable Collins J. Seitz, Jr.

2023 Law Day Luncheon

Tuesday, May 2, 2023 | Riverfront Events

The DSBA held its annual Law Day Luncheon on May 2 at Riverfront Events. Members of the Delaware Bench and Bar gathered to celebrate the 2023 Law Day Awardees: T he Honorable Kyle Evans Gay, recipient of the Community Service Award; Cheryl Stein, recipient of the Myrna L. Rubenstein Professional Support Recognition Award; T he Honorable Bethany HallLong , recipient of the Liberty Bell Award; and R ichard K. Herrmann, Esquire, recipient of the A ndrew D. Christie Pro Bono Publico Award.

At the event, keynote speaker Judge Glenda A. Hatchett, the first African American Chief Presiding Judge of a State Court in Georgia and TV Personality, gave an inspiring address about finding your life’s purpose and how to connect that purpose with a meaningful legacy.

DSBA Executive Director Mark S. Vavala, Esquire, welcomed guests to the 2023 Law Day Luncheon.

Attendees at the 2023 Law Day Luncheon.

Myrna L. Rubenstein Professional Support Recognition Award Cheryl Stein of the United States Court of Appeals For The Third Circuit (R) with presenter The Honorable Kent A. Jordan of the United States Court of Appeals For The Third Circuit (L).

Liberty Bell Award recipient The Honorable Bethany Hall-Long (L) with presenter The Honorable Kathy Jennings, Attorney General of the State of Delaware (R).

Judge Glenda A. Hatchett delivering the keynote address.

Community Service Award recipient The Honorable Kyle Evans Gay of Connolly Gallagher LLP and State Senator for Delaware’s 5th Senate District (R) with presenter Arthur G. Connolly III, Esquire, of Connolly Gallagher LLP (L).

Andrew D. Christie Pro Bono Publico Award recipient Richard K. Herrmann, Esquire (L) with presenter The Honorable Karen L. Valihura of the Supreme Court of the State of Delaware (R).

Member Appreciation Spring Event

Saturday, May 20, 2023 | Ramsey’s Farm

Big-Top Fun with the DSBA

Our carnival-themed Member Appreciation Event at Ramsey’s Farm on May 20 gave members a chance to get outside (even in the rain), mingle with their colleagues, eat some good food, play games, and win prizes. The event was well-attended with members and their families taking a chance on the weather. The Fletcher’s Kitchen food truck and Cajun-Sno ice cream truck provided lunch and treats for attendees, while children had their faces painted by Dori Fostok of Party Business, played carnival games, basketball, and Jenga, went on a hayride, and visited the farm animals. All the children got a turn at the piñata and everyone was a winner, but this year we let the adult’s get in on the fun with a piñata just for them! The DSBA-sponsored event is part of member appreciation month and a way to get DSBA members and their families together and have fun. We hope you’ll

The Real Secret For Success

What is the most important thing in life? What is the key to happiness? Is it fame? Fortune? Success? No, it’s none of those things. According to Drs. Robert Waldinger and Marc Schulz, the answer is simple and something we often overlook or take for granted. The answer is strong relationships. A good marriage. Good friendships. At work, at play, at church, in community organizations, book clubs, sports leagues, charities — the more relationships we have, and the deeper and stronger those relationships are, the better people feel. The more connected someone feels to others, the happier they feel. Relationships are the key to a good life. In their book The Good Life: Lessons From the World’s Longest Scientific Study of Happiness, Doctors Waldinger and Schulz describe and discuss the Harvard Study of Adult Development, which has been ongoing since 1942, and which has been following, in detail, the lives of some 700 Harvard students and their children. More than anything, this study demonstrates the need for good relationships.

Journalist Johann Hari comes at the issue from a different perspective. Diagnosed with depression as a teen, he started taking anti-depressants, but to no avail. He tried higher dosages. He tried different drugs. He might get some shortterm relief, but nothing permanent. As an adult, he began applying his investigative journalism skills to the problem. Having been told that the problem was one of brain chemistry and that antidepressants could correct t he problem,

The Good Life: Lessons From the World’s Longest Scientific Study of Happiness

By Robert Waldinger and Marc Schulz

Simon & Schuster, 2023

why did it seem as though after years and years of treatment, and having tried a host of different drugs, he was making no progress? In Lost Connections: Uncovering The Real Cause of Depression And The Unexpected Solutions, Johann Hari takes us along on his journey investigating the matter. Why had science failed him and so many others?

As it turns out, while brain chemistry may play a role in some depression, for a majority it does not. Doctors, patients,

Lost Connections: Uncovering The Real Causes of Depression – And The Unexpected Solutions

By Johann Hari Bloomsbury, 2018

and, of course, pharmaceutical companies all turn to science (anti-depressive drugs) as the solution, but, for the vast majority, such drugs only treat the symptom not the cause. There is no such thing as a magic pill. The real cause for most depression, according to Hari and the research he presents, is lost connections not just lost connections from others, but lost connections from meaningful work, from status and respect, from moral values, and a host of other lost connections.

Hari tells the story of an employee at a large hardware store/chain. The employee worked the paint mixing machine. Every day, day in, day out, the employee would come in to work, customers would present him with the desired paint color, he would add the appropriate dye packet to the can of paint, run the machine, mix the paint, hand the can of paint back to the customer and wait for the next customer. Every day. Day in. Day out. No real interaction with others. No real friends at work (or otherwise). Every day. Running the noisy paint mixer. Perhaps not surprisingly, the employee developed depression and addictions. Alcohol. Drugs. When prescribed anti-depressants, they had no long-term effects or benefits.

Hari also tells the story of an overweight, depressed woman, in no close relationships. Anti-depressants provided no assistance. Only when a doctor thought to ask when she first began gaining weight (which, as it turned out, was when a family member began to sexually abuse her) was the woman able to successfully treat her depression. Anti-depressants were not the solution. Only when she realized why she was cutting herself off from others (i.e., what was causing the lost connections), did she make progress.

Connections matter. Relationships matter. None of this should be all that surprising. It all seems intuitive. It seems obvious. And yet, so much of life, and so much of society, seems structured in a way that hinders rather than promotes those connections. And Covid-19, and our response to it, has made things worse.

Do you have a best friend at work?

Not everyone does. But studies find that those who do are more productive. More engaged. Less likely to burn out. And less likely to leave. So it seems odd that one of our responses to Covid-19 has been to allow folks to skip the office (or at least require only minimal attendance). As humans, we often take the short-term perspective, and fail to appreciate the long-term; but are we setting ourselves up for failure in the long run?

If relationships do matter, if they are the key to a good life, then reduced office attendance will inexorably diminish those

relationships. We can all, no doubt, think of others with whom we once worked and considered close friends, yet after they moved on to another firm or another office (or we moved on), we grew less close and, in some cases, might barely recognize each other today. Proximity matters, and conversations via Zoom and Teams can’t replace that proximity. We all see and enjoy certain benefits that working remotely can bring no commutes, more casual, comfortable attire, the ability to do laundry between conference calls, etc., etc. but we fail to appreciate the fraying of friendships, or, indeed, the failure to form some friendships at all. The lack of mentoring and the loss of those casual conversations, whether in the hallway or at lunch or otherwise, are all things lost but because they never happen, their loss isn’t felt. It’s easy to say that avoiding a commute and parking fees is a benefit because its tangible and easily thought of; it’s difficult to balance that against the loss of daily interactions and connections that remote work deprives from us. In some ways, this is the old conundrum

of practice versus accomplishment. It’s hard to practice an instrument every day for months and years, it’s hard to start running or exercising to get in shape, but, do so long enough, and the benefits accrue. So too, it’s easy to just stay home and sit in front of a monitor and chat on the phone and get paid, but make no mistake — connections are diminished and eventually will be lost. Go to the office every day (or nearly every day), interact with your colleagues and staff, put in the time, and the benefits will accrue.

The Good Life and Lost Connections both demonstrate the importance of relationships, something we too often take for granted. Both are full of interesting stories and insights. Both are backed by scientific studies. And we should learn from them both if, indeed, we want the good life.

The Editorial Board welcomes submissions from attorneys and other professionals who wish to share their expertise on law-related topics in the DSBA Bar Journal

For information on submitting articles for publication in the Bar Journal, please contact Rebecca Baird at rbaird@dsba.org.

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

P(R)ESTO! A Summer Sauce

Summer offers endless opportunities to enjoy simple, healthy dishes. The season’s ingredients truly shine when sauces are light and, even better, showcase fresh herbs.

In this wellness issue, I feature the epitome of such a sauce: pesto. The bonus with pesto is that key ingredients — nuts — are full of nutrients and important for heart health. Rich in omega-3 fatty acids and fiber, nuts lower the risk of heart attack and high blood pressure. While nuts are high in protein, they are also high in fat and calories. Therefore, enjoying them in moderation (like the modest quantity in the recipe) is important.

Most pesto recipes call for pine nuts, but I encourage creativity. Pistachios and walnuts are also excellent choices (and less expensive alternatives). All told, pesto contains six ingredients: basil, nuts, extra virgin olive oil, garlic, Parmesan cheese, and Romano cheese. Marcella Hazan writes about the simplicity of pesto in The Classic Italian Cookbook : “If the definition of poetry allowed that it could be composed with the products of the field as well as with words, pesto would be in every anthology. Like much good poetry, pesto is made of simple stuff.”

Hazan goes on to write that the Genoese, who invented pesto, call for using their own small-leaved Genovese Basil, because it is “bathed by Mediterranean” air. In my opinion, large-leafed Sweet Basil is just fine. It too has a peppery and minty flavor, and you can add a pinch of sea salt to mimic the Mediterranean Sea breeze.

According to Hazan, traditional recipes require a mortar and pestle to fully release the basil’s flavors. However, I agree with Hazan, that we should enjoy blender pesto “with a clear conscience.” As many of us will make large quantities for freezing, a blender or food processor is a must. Just make sure not to add everything at once; we don’t want bruised basil.

Finally, Hazan notes that it is a no-no to make pesto with only one cheese. The Genoese use equal parts Parmesan cheese and a Sardinian sheep’s milk cheese. As the Romano cheese available to us is much sharper than the Sardinian cheese that the Genoese favor, Hazan suggests four parts Parmesan to one part Romano. Depending on your preferred level of “sharpness,” I think it is appropriate to adjust this ratio to your liking.

References:

1. “How Do Nuts Help Your Heart Health?” Mayo Clinic, August 2, 2022. https://www.mayoclinic.org/diseasesconditions/heart-disease/in-depth/nuts/art-20046635.

2. Hazan, Marcella. The Classic Italian Cookbook . (New York: Alfred A. Knopft, Inc., 1973) 139-141.

Susan E. Poppiti is a mathematics educator and is pursuing qualifications in wine. Susan can be reached at spoppiti@ hot mail.com.

Basil Pesto

(6 servings)

Ingredients

• 1/2 cup pine nuts (or walnuts or pistachios)

• 1 clove garlic, peeled

• 2 cups fresh basil leaves, gently pressed down to remove air but not bruise the herb

• 1/2 cup Parmesan cheese, freshly grated

• ¼ cup Romano cheese, freshly grated

• ½ cup extra virgin olive oil

Instructions

In a food processor, pulse the nuts and garlic until roughly chopped. Then add the basil, and pulse into coarse paste. You may need to push down the sides a bit with a rubber spatula. Transfer to a mixing bowl and add the cheeses and olive oil. Blend with a rubber spatula.

You can go heavier on the garlic if you wish and season with sea salt and fresh ground pepper to taste.

Toss with pasta or gnocchi. Dollop on grilled seafood or steak. Serve aside eggs or vegetables. Be creative and have a happy and healthy June.

2023 CHRISTOPHER W. WHITE DISTINGUISHED ACCESS TO JUSTICE AWARDS BREAKFAST

NOMINATIONS ARE NOW BEING ACCEPTED

The DSBA and the Awards Committee are seeking nominations for the 2023 Distinguished Access to Justice Awards formerly known as the Distinguished Pro Bono Service Awards.

THERE ARE FIVE CATEGORIES FOR WHICH INDIVIDUALS, FIRMS, OR ORGANIZATIONS CAN BE NOMINATED.

The Leadership Award

This award is presented to a legal organization (legal department or law office) that has demonstrated outstanding leadership in the field of pro bono service to Delaware’s indigent population based on the following criterion including, but not limited to:

• The number of pro bono hours the organization contributes to the direct representation of indigent clients.

• The number of cases the organization accepts for pro bono representation.

• Flexibility and accessibility in accepting cases.

• The organization’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need.

• Financial support to agencies providing legal services to Delaware’s indigent population.

• The percentage of attorneys in the organization who accept pro bono cases.

• Fostering a culture, which recognizes the value of pro bono service.

The Commitment Award

This award is presented to a member of the Bar who has demonstrated a sterling commitment to pro bono work throughout his or her career by dedicating time and energy to the support and provision of legal services The criterion includes, but is not limited to:

• The number of pro bono hours devoted to legal representation of indigent clients over the lawyer’s career.

• The number of cases accepted for pro bono representation over the lawyer’s career.

• The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need over the lawyer’s career.

The Achievement Award

This award is presented to a member of the Bar who has shown an exemplary recent contribution to pro bono services (generally in the past one to three years) and stands as a role model to other attorneys. The criterion includes, but is not limited to:

• The number of pro bono hours recently devoted to legal representation of indigent clients.

• The number of cases accepted for pro bono representation.

• Consistency, flexibility, and accessibility in accepting cases.

• The lawyer’s commitment and service on committees dedicated to promoting and supporting the provision of legal services to those in need.

Service to Children Award

Awarded to an individual lawyer, legal professional, or organization principally including lawyers, which demonstrates outstanding commitment to, and work for, children in the provision of legal or community services. It may be given to volunteers or those employed in the provision of legal services for children. This award is given as warranted, not necessarily annually.

Legal Professional Pro Bono Service Award

Awarded to a person, qualified by education, training or work experience, who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity, who performs pro bono legal work in the pursuit of Access to Justice. This is a newly-created award that is given as warranted, not necessarily annually.

Nominations should be submitted to Deirdre Sadler-Crew at dsadlercrew@dsba.org. The deadline for nominations is August 1, 2023. Please include: The name, firm, and title/ occupation of the Candidate; name and contact information (firm, address, email, phone, and fax) of the individual nominating the Candidate; and a brief statement of the reasons the Candidate is deserving of the Award.

RUN/WALK

18th Annual Art Connolly Race Judicata

5k Run/Walk & Virtual Option

Sunday, July 16, 2023

Kelly’s Logan House

Wilmington, DE

Proceeds will benefit the Delaware Law Related Education Center (DELREC)

For more information and to register, visit: https://raceroster.com/ events/2023/74753/18thannual-art-connolly-race-judicata

POSITIONS AVAILABLE

DELAWARE DEPARTMENT OF JUSTICE currently has employment opportunities available for Deputy Attorney General positions in multiple divisions. For all opportunities and full job descriptions, please visit: https://attorneygeneral.delaware.gov/ executive/hr/career-opportunities/.

THE DELAWARE DEPARTMENT OF JUSTICE is seeking two Deputy Attorneys General to serve in the Civil Division’s Financial Integrity and Protection Unit. One position will be primarily responsible for providing advice on public works procurement. The other position will have primary responsibility for litigating state tax appeals and providing guidance on state tax issues. Additional information about the positions, including salary and benefits, is available at https:// attorneygeneral.delaware.gov/ executive/hr/career-opportunities/.

BAIRD MANDALAS BROCKSTEDT FEDERICO & CARDEA LLC is seeking a Trust and Estate Attorney who has been an active member of the DE Bar for 1 to 5 years to join our growing Trust and Estate practice in our Lewes office. The candidate should be self-motivated, analytical, and detail orientated, with excellent written and verbal communication skills. The firm offers a competitive salary and an excellent benefits package. Candidates should submit resume to Holly Moore at holly@ bmbfclaw.com.

ASSOCIATE OPENING: Newark office seeking attorney to work in a busy Family Law practice. Competitive compensation and benefits package included. DE bar required, 1 to 3 years experience. Please send cover letter and resume to Walstrom Law c/o Megan Walstrom at megan@ walstromlaw.com.

MARKS, O’NEILL, O’BRIEN, DOHERTY & KELLY, P.C., a regional insurance defense firm, is looking for smart, hardworking Delaware attorneys of all experience levels who: 1) want to have the opportunity to work directly with clients; 2) are interested in taking depositions, arguing motions and defending clients at trial; and 3) believe they have the ability to handle matters independently either now or in the future. Candidates do not need to bring clients with them or develop clients (although those efforts have firm support.) What are you waiting for? Get started on your next career move. We have a hybrid home/office work culture, competitive salary and benefits. Candidates should email: ddoherty@moodklaw.com. We are an Equal Opportunity Employer.

BANKRUPTCY & INSOLVENCY

GROUP OF ASHBY & GEDDES, P.A. is seeking to expand its team with a Delaware-licensed attorney with 1 to 3 years of experience. Superior academic credentials and strong oral and written communication skills required. Must be a team player with an excellent work ethic. Interested candidates should email a resume, writing sample, and transcript to KTsaganos@ashbygeddes.com.

SMITH, KATZENSTEIN & JENKINS LLP seeks a litigation associate with 2 – 4 years’ similar experience. The work will include all facets of the firm’s litigation practice, including corporate, commercial and IP litigation. Delaware bar admission required. We offer a competitive salary and benefits to include health, dental, long-term disability, long-term care and life insurance, 401(k) and profit sharing, and a pleasant work environment. Interested applicants should send résumé, along with a writing sample, to Hiring Partner, P.O. Box 410, Wilmington DE 19899 or email info@skjlaw.com.

THE CITY OF WILMINGTON

LAW DEPARTMENT seeks two attorneys. Two to 3 years experience preferred. Litigation, employment and labor law, environmental and/or transactional law experience are being sought. Must have current Delaware Bar. Salary negotiable. Excellent benefits package (including family medical and dental coverage, pension plan, CLE allowance, professional membership dues, with thirteen paid holidays in addition to 18 days of vacation). Please forward resume with cover letter to: City of Wilmington Law Dept., Attn: Robert M. Goff, 800 French St., 9th Fl., Wilmington, DE 198013537, or email to Javette Lane at jlane@ wilmingtonde.gov. Full job descriptions available at www.wilmingtonde.gov.

BODELL BOVE LLC has immediate openings for coverage attorneys who have solid communication skills, exceptional writing ability, and can work independently as well as part of a team. 5 years of experience evaluating or litigating insurance coverage/ bad faith claims, or a willingness and capability to become an expert in this specific area of law is preferred. Lateral moves, including partners with or without a client following, are welcome to apply and would be subject to a salary or bonus structure commensurate with the particular candidate. We prefer candidates licensed in DE, PA, NJ, NY, and/or IL. This position can be remote, in person, or hybrid depending on what is best suited for the right candidate. There may be infrequent travel if a case requires it. Candidates should email lawyers@bodellbove.com.

CHRISTENSEN & DOUGHERTY, LLP seeks a junior to midlevel associate to work in our complex commercial and corporate litigation practices. Delaware Bar admission (or pending) required. We offer a competitive salary, a collegial and flexible work environment, and the opportunity for early growth and responsibility. Interested applicants should send résumé and writing sample to contact@ christensendougherty.com.

CLASI IS HIRING ATTORNEYS including a Managing Attorney for our Disabilities Law Program. Please check our website for details about all the available positions. http://www.declasi.org/ employment/.

OFFICE SPACE

FREE PARKING FOR FUR -

NISHED FULL-SERVICE PRO -

FESSIONAL OFFICE SPACE. Ideal downtown office location at reasonable rates with flexible lease terms. 1201 N. Orange Street, Wilmington. Delaware State Chamber of Commerce Building. Condo Owner/manager (David N. Williams and John L. Williams) on-premises. Flexible lease duration. 2,245 square feet–Suite 500. 4-Fully furnished offices and large conference room, plus reception and paralegal space and kitchenette. $3,750/ mo. full service (includes cleaning, utilities). 293 Square Feet–Suite 504. Fully furnished Single office $750/ mo., full service (can be combined with Suite 500). (Access to 6th floor conference room available). For more information contact Dave@Trust Williams.com or call David or John at (302) 575-0873.

OPPORTUNITY AT RHODUN

-

DA, WILLIAMS AND KONDRASCHOW, LLC: We have just expanded our office and are looking for an attorney(s) interested in subleasing space. There are two attorney offices and space for 2-3 assistants. There is a conference room and our receptionist will assist as needed. The location at 1521 Concord Pike is prime time. No parking fees, and no city wage tax, but close to the courthouse. If you have your own practice, and need a change of scenery, I would love to speak with you about joining our firm. If interested in details or a visit, please contact Bill Rhodunda (302) 576-2000.

DSBIS brings decades of risk management experience, a proprietary risk analysis process and a local team supported by the expertise of USI Affinity.

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Since 1940, our Wilmington office has provided the insurance solutions and services that lawyers count on to protect their firms, their employees and their families.

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Call today for more information on the insurance products available to The Delaware State Bar members. 302.658.8000 |

LEGAL

AND RESEARCH SERVICES

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From the DSBA Archives

The Delaware State Bar Association Bench and Bar Conference is a time honored tradition dating back to 1945 when William Prickett hosted members of the Delaware State Bar Association at his home, a precursor of today’s Bench and Bar Conference. The first Bench and Bar Conference as we know it today was held in 1965. In 1979, the Awards Committee proposed “The First State Distinguished Service Award” to be presented annually by the Bar Association at the Bench and Bar Conference in June. On this page you will find photos from Bench and Bar Conferences over the years. We hope you’ll join us at this year’s event on Thursday, June 15, 2023 at John Clayton Hall at the University of Delaware!

The Honorable E. Norman Veasey and others at the 1983 Bench and Bar Conference.

Outgoing President Joshua W. Martin III, Esquire, with incoming President J. R. Julian, Esquire, in 1998.

Outgoing President Elizabeth M. McGeever, Esquire, introducing the Capitol Steps at the 2008 event.

The Honorable Susan C. Del Pesco receiving an award at the 1986 Bench and Bar Conference.

Incoming President Helen L. Winslow Esquire, with outgoing President The Honorable Robert B. Young in 2005.

2013 Keynote Speaker Scott Turow with outgoing DSBA President Theresa V. Brown-Edwards, Esquire, and incoming President The Honorable Gregory B. Williams.

Outgoing President Harvey Bernard Rubenstein, Esquire, at the 1992 event at the University of Delaware.

Outgoing President Geoffrey Gamble, Esquire, with Justice Randy J. Holland, Dr. Ilona E. Holland, and artist Simmie Knox at the unveiling of Justice Holland’s portrait at the 2007 Bench and Bar Conference.

The 2022 Bench and Bar Conference theme was “Come Together” to celebrate the first post-pandemic event since 2019.

Nominations Sought for 2023 Awards

2023

The Delaware State Bar Association and the Awards Committee are seeking nominations for the following awards:

Daniel L. Herrmann Professional Conduct Award

Outstanding Service to the Courts and Bar Award

Distinguished Mentoring Award Government Service Award

AWARDS DESCRIPTION

Daniel L. Herrmann Professional Conduct Award

Awarded to a member of the Delaware Bar who, over the course of time, has demonstrated those qualities of courtesy and civility which, together with high ability and distinguished service, exemplifies the Delaware lawyer.

Outstanding Service to the Courts and Bar Award

Awarded to a Delaware lawyer or judge who, by exemplary service to the Delaware Courts and the Delaware Bar, has substantially assisted the courts and the Bar and has strengthened public trust and confidence in the courts in the state of Delaware and the Administration of Justice.

Distinguished Mentoring Award

Awarded to a Delaware lawyer or judge who, by distinguished mentoring of other Delaware lawyers (or future lawyers) over a period of many years, has served as an inspiration to and a model for those lawyers in striving for and maintaining the highest standards in their professional careers and in their community involvement.

Government Service Award

Awarded to a full-time government service employee in recognition of dedicated and distinguished contribution to the Administration of Justice.

These are not necessarily annual awards. All or some of these awards will be presented only upon the recommendation of the Awards Committee and approval by the Executive Committee of the DSBA. Please note that previous nominations must be renewed to be considered. These awards will be presented in a special Awards Luncheon in December 2023.

Delaware State Bar Association Awards Nomination Form

Name of Candidate: ______________________________________________________________________________

Title/Occupation of Candidate:_____________________________________________________________________

Award: ___________________________________________________________________________________

Date: _________________________________________________________________________________________

Nominator: ____________________________________________________________________________________

Phone: _________________________________ Fax:_________________________ E-Mail: _____________________

Firm: _________________________________________________________________________________________

Address:

Brief statement of reasons that candidate is deserving of Award (see above Award criteria). Please attach sheet if necessary.

The Delaware State Bar Association Insurance Program

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As a leading insurance broker for Lawyers’ Professional Liability, USI Affinity has been protecting Lawyers for over 50 years. We understand the business and the risks that attorneys and law firms face every day.

Lawyers Professional Liability

The DSBA Insurance Program Lawyers Professional Policy offers proprietary savings and coverages specifically designed to mitigate risk and close gaps in coverage.

Directors and Officers Liability

Directors & Officers Liability insurance protects the past, present, and future directors and officers of a law firm from losses arising from “wrongful acts”.

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