Grand Rapids Bar Association Newsletter - Jan/Feb 2014

A P U B L I C AT I O N O F T H E G R A N D R A P I D S BA R A S S O C I AT I O N

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February 20, 2014 @ 7:00 pm Wealthy Theatre

JANUARY / FEBRUARY 2014

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THE GRAND RAPIDS LAWYER is published by the Grand Rapids Bar Association Waters Building 161 Ottawa Ave., NW, Suite 203-B Grand Rapids, MI 49503 www.grbar.org 616.454.5550 / 616.454.7707 fax Editorial

Mieke Stoub

Anne Marks-Gaertner Advertising Coordinator

Debbie Kurtz STAFF Executive Director Kimberly Coleman/ext. 105 kimc@grbar.org Executive Assistant/Membership/ Inns Administrator Debbie Kurtz/ext. 101 debbie@grbar.org Communications Specialist/ grab LAW Administrator Mieke Stoub/ext. 109 mieke@grbar.org Administrative Assistant/ Foundation Administrator Elaine Bugbee/ext. 100 elaine@grbar.org Lawyer Referral Administrator Nancy King/ext. 107 nancy@grbar.org

IN THIS ISSUE:

January/February 2014

4 President’s Perspective

By Kristin Vanden Berg

8 YLS Update

By Charles Kierpiec

5 Court of Claims Legislation

By Todd Tennis

9 To Solo or Not To Solo

By Wafa Adib-Lobo

12 Upcoming Events

13 Criminal Notes

By Timothy McMorrow

10 Photos 7 The Affordable Care Act

By May Bauman

JANUARY 2014

FEBRUARY 2014

MARCH 2014

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5 6 7 8 9 10 11 12 13 14 15 16 17 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

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19 20 21 22 23 24 25 26 27 28 29 30 31

16 17 18 19 20 21 22 23 24 25 26 27 28

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8 3Rs Program Session

Ottawa Hills High School

15 Ask-a-Lawyer Program Series

Grand Rapids Public Library

6:00 pm - 7:00 pm

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American Inns of Court University Club

12 3Rs Program Session Ottawa Hills High School

12 3Rs Program Session

Ottawa Hills High School

17 President's Day Bar Offices Closed

20 Attend Just Lips!

Wealthy Theatre

19 Ask-a-Lawyer Program Series

Grand Rapids Public Library

6:00 pm - 7:00 pm

OFFICERS & TRUSTEES President Kristin M. Vanden Berg. . . . . . . . . . 616.456.2468 President-Elect Thomas R. Behm . . . . . . . . . . . . . . . 616.235.5500 Vice-President Patrick F. Geary . . . . . . . . . . . . . . . . . 616.458.5358 Secretary Randall Velzen. . . . . . . . . . . . . . . . . . 616.233.9160 Treasurer Elizabeth K. Bransdorfer. . . . . . . . 616.632.8000 Immediate Past President T.J. Ackert . . . . . . . . . . . . . . . . . . . . . . 616.831.1730

20 Martin Luther Kings Jr. Day Bar Offices Closed

22 Family Law Section Meeting

University Club

12:00 pm - 1:15 pm

Trustees David E. Bevins. . . . . . . . . . . . . . . 616.235.3500 Elizabeth Joy Fossel . . . . . . . . . . 616.336.6000 Benjamin H. Hammond. . . . . . . 616.458.3600 Sarah Riley Howard. . . . . . . . . . . 616.752.2541 Hon. William G. Kelly. . . . . . . . . . 616.554.0717 Edward P. Perdue. . . . . . . . . . . . . 616.458.1300 Courtney L. Quist. . . . . . . . . . . . . 616.454.9008 Brian K. Lawson. . . . . . . . . . . . . . . 616.235.3500 Marcus Jones. . . . . . . . . . . . . . . . . 616.787.5799 ON THE COVER: Nikole Canute, Suanne Watt-Stay, Steve Edison, Lee Henderson performing Time Warp.

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president’s perspective

4 1 0 2 n i m a e t S Pickin g u p BY: KRISTIN M. VANDEN BERG

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appy New Year! It was wonderful to see so many of you at the GRBA/Justice Foundation Holiday Reception on December 5, which was a great way to kick off the many holiday gatherings of the year.

Despite the hectic pre-holiday time, I hope that all of you had the opportunity to take a break to celebrate with family and friends. For myself, I had the great good fortune to welcome my son home from his first term away at college. Seeing him was all the gift our family needed this year.

of schedule in implementing the plan. We have successfully launched our grabLAW marketing campaign, and the Grand Rapids buzz is picking up steam. In January, our attorney and student volunteers are meeting for the third time with ninth graders at Ottawa Hills High School, this time exploring the Equal Protection Clause of the Fourteenth Amendment.

And our member firms are implementing best policies and practices designed to retain diverse attorneys.

In addition, our members are actively involved in various sections and committees. Our sections continue their frequent meetings and educational offerings. Our revitalized Continuing Legal Education committee is hosting several new programs of interest to the entire Bar. Our Community Services Committee is hosting its third Ask-A-Lawyer program for this Bar-year on January 15 at the Grand Rapids Public Library.

As we come back to work feeling renewed, things are picking up again at work and in the GRBA. I’m sure that, like me, you found that your inbox was overflowing and your schedule was again packed.

And the GRBA calendar is no exception.

This month, the Managing Partners Diversity Collaborative gathers for the first of its two annual meetings, tackling the annual planning and budgeting for activities authorized by the five-year plan. I am delighted to report that we already are ahead 4

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But lest lawyers be accused of being all work and no play, February 20, 2014 is the date for our biannual Just Lips! Charity l

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Lip Sync at the Wealthy Theatre.

If you have attended this event in the past, you know how much fun it is to laugh at and with your fellow bar members and community leaders as they take on celebrity personas, dress in silly costumes, and generally make fools of themselves – all in a good cause, the support of the Justice Foundation. If you have never attended, you will not want to miss this event! If you haven’t yet become a sponsor, consider doing so. And get your tickets early. In 2012, we nearly burst the Wealthy Theatre at its seams.

So the GRBA and its hardworking staff are, like you, busy, busy, busy. But we are always on the lookout for ways in which we can better serve the needs of our members. We are never too busy to hear from you, whether you want to congratulate us on something we have done, chastise us for something we have missed, or contribute your own suggestions. I personally welcome you to contact me at any time (540-4102) to do any of these things. Thanks for all of your support!

Court of Claims Legislation flies through Legislature BY: TODD TENNIS · LOBBYIST AT CAPITOL SERVICES, INC.

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ith surprising speed, the Michigan Legislature made sweeping changes to the structure of Michigan’s Court of Claims.

Students of judicial history may remember that, in the late 1970’s, the Legislature transferred all Court of Claims litigation to the Ingham County Circuit Court.

The rationale then was that it was a central location and would save the state money by alleviating the need to defend cases all over the state. It was also seen as a neutral court that would provide a fair hearing for both sides.

In early November, the Michigan Legislature completed a whirlwind process that completely reshaped the Michigan Court of Claims. With unprecedented speed, legislation was introduced and moved through the Senate and House that abolished the current Court of Claims housed in the Ingham County Circuit Court and replaced it with four judges chosen from the Michigan Court of Appeals. While proponents of this change claimed that they did it to allow more voters to have a say in who sits on the Court of Claims (as opposed to having them all elected by Ingham county residents), shifting

all power over the Court of Claims to the Supreme Court was a highly controversial method of dealing with that problem.

of provisions within may very well have violated the Michigan Constitution. For example, there was no provision within the original bill to allow for a jury trial in the Court of Claims – something guaranteed in the Constitution. The bill as passed would also reassign all pending cases (including the ones on behalf of state workers regarding pension and health care costs) to the new Court of Claims. While this may not be unconstitutional on its face, it is certainly burdensome and could create problems for the court system.

Many observers felt that this legislation had a lot more to do with the recent rulings coming from the Ingham County judges than with the makeup of the electorate. The fact that the bill (Senate Bill 652) was pushed through in less than two weeks (an almost unheard of timeframe for legislative action) indicated to some that this was more about reshaping the decision-making power of the Court of Claims than good government.

Governor Snyder and Republican leaders were concerned enough about the problems within the new law that a “trailer bill” was quickly introduced and passed through the Legislature. House Bill 5156 clarified that nothing within the Court of Claims changes would eliminate a person’s right to a jury trial. The State Bar of Michigan, in conjunction with the Negligence Law Section, asked for and received an additional amendment that further clarified that the right to a jury trial exists for cases against state employees.

Perhaps in an effort to mitigate the perception that this was merely a power grab, the Republican-controlled Michigan Supreme Court chose a bipartisan panel from the Court of Appeals to serve as the new Court of Claims. Of the four selected judges, two were appointed by Governor Granholm (Judges Amy Ronayne Krause and Deborah Servitto) and two were appointed

by Governor Engler (Judges Michael Talbot and Pat Donofrio).

The bill was pushed through so fast, in fact, that a number grbar.org

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Thanks to all 2013 LAC Donors!

LAC CHAMPIONS LAC Champions provide annual gifts and grants at a leadership level.

Miller Johnson Armen Oumedian Gruel, Mills, Nims & Pylman Justice Foundation of West Michigan Kent County “FRIENDS OF THE LAC” “Friends of the LAC” have committed to make a sustaining gift of $100 per year or more. *Indicates Friends giving above the $100 level.

Valerie T. Ambrose Frederick J. Antczak* Martin Axelrod Sherry A. Batzer Thomas R. Behm* Elizabeth K. Bransdorfer Laurie & Brent D. Chesley Timothy A. Chester & Henry Matthews John M. DeVries Tania & Scott DeVries* Debera & William Eggleston* Robert J. Eleveld Anthony P. Gauthier Chris & Patty Hastings* Richard E. Hillary II* Pamela A. Hove Deborah J. Hughes* Catherine H. Jacobs Jon Jellema Jennifer L. Jordan Marie Kessler & Jay Stone* Brian K. Lawson Michele McIsaac Kim S. Mitchell Stephanie L. Newton Kevin O’Dowd Amy Preston Armen Oumedian* Ross D. Plont* Courtney L. Quist Judge George Jay Quist Andy & Kathy Rent Kenneth J. Sanders Thomas G. Sinas David & Ruth Skidmore Dr. Wayne D. Sneath & Dr. Kriss Ferluga Candace L. Sorensen Gary Stark & Kathleen Underwood Suanne & Worth Stay John D. Tully Andy VanBronkhorst Kristin M. VandenBerg* 6

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Jennifer VanSingel Matthew & Paula Vicari Victoria A. Vuletich Diane J. Wechter Bruce C. Young Judge Daniel V. Zemaitis* $1,000 and above Chris & Patty Hastings Julie Haveman Wendy & Mark Holtvluwer Deborah Hughes & Fred Antczak Marie Kessler & Jay Stone Jon Muth Lee & Darrell VanOrsdel Over $500 - $999 Thomas R. Behm Judge Paul J. Denenfeld Craig & Barbara Paull Ross & Lauren Plont Richard A. Roane Over $250 to $499 Tracey W. Brame Tania & Scott DeVries Debera & William Eggleston Richard E. Hillary II Anne & Rich HIskes Kevin & Cynthia McCurren Nelson P. Miller H. Rhett Pinskey Skip & Janet Pylman Judge Kimberly A. Schaefer Lee T. Silver Robert F. Sorensen David & Nancy VanNoord Thomas R. Wurst Jeffery G. York Judge Daniel A. Zemaitis Over $100 to $249 Todd Almassian Mary L. Benedict Gayle Davis Elizabeth & Jerry Lykins David L. Smith Michael P. Szczytko Victoria A. Vuletich Marshall L. Walters Over $25 to $100 Tim Alles Valerie Ambrose Jeanne Arnold Sarah Ash Miriam Aukerman Martin Axelrod Jan/Feb 2014

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Jeffery S. Battershall Sherry L. Batzer Elizabeth K. Bransdorfer Judge Patrick C. Bowler Thomas & Cheryl Butcher Christie Cierlak Chip Camberlain Laurie & Brent Chesley Tim Chester & Henry Matthews Michael Chileans & Janice Earl Mary Eileen Cleary & Gleaves Whitney Kimberly A. Coleman Steven A. Cook Barbara A. Craft Leslie C. Curry Rev. Andy DeBraber Mary Jo & Robert DeJong Daryl Delabbio Nichole Jongsma Derks John M. DeVries Mark H. DeVries Dodge & Dodge Carlos Dominguez David Drain Michael J. Dunn Robert J. Eleveld Judge Kathleen A. Feeney Karen J.S. & Matthew Fouts Judge Patricia D. Gardner Anthony P. Gauthier Richard A. Glaser Emily A. Green Sangeea Ghosh Lisa A. Hall Laura Nemecek Harmelink Jenne Helmrick David C. Hill Pamela A. Hove Thomas Hubbard Cindy M. Idema Holly A. Jackson Jon Jellema Jennifer L. Jordan Judge William G. Kelly Chuck Kierpiec John D. Kmetz Peter M. Kulas Brian K. Lawson Deidre Link Alieen M. Leipprandt Michele McIsaac F. William McKee Patti L. McKenney Susan E. McMaster Amy Miller Benjamin W. Mills Kim S. Mitchell Kristine B. Mullendore

Lawrence P. Mulligan Judge William B. Murphy Rebecca Musgraves Stephanie L. Newton Kevin J. O’Dowd Daniel A. Ophoff Lynn Marie Perry Steven M. Pestka Amy Preston Paula Pritula-Doyle Courtney L. Quist Judge George Jay Quist Gary J. Raterink Andy & Kathy Rent Mark J. Richards William & Wendy Rohn James R. Saalfeld Kenneth J. Sanders Alan & Doreen Schwartz Jane M. Siegel Thomas G. Sinas David & Ruth Skidmore Robert & Sara Kane Smart Dr. Wayne D. Sneath & Dr. Kriss Ferluga Candace L. Sorensen Gary Stark & Kathleen Underwood Suanne & Worth Stay Ruth S. Stevens & Thomas M. Stellard Vincent St. Germain Jim Talen Elizabeth Topliffe Edward L. Towhey John D. Tully Andy VanBronkhorst Kristin M. VandenBerg Robert D. VanderLaan Sharon VanHaven Jennifer VanSingel Matthew & Paula Vicari Sarah L. Walburn Alan Walczak Diane J. Wechter Stacy & John Westra James R. Wierenga Art. Winther Bill & Kathy Wittland Jessica L. Wood Mitri Zainea Judge Daniel V. Zemaitis If you would like to become a Friend of the LAC or change your donor recognition information, contact Executive Director, Deborah Hughes, at 632-6007 or deborah@legalassistancecenter.org.

The Affordable Care Act: How it Affects You, Your Practice, Your Employees and Your Individual Clients BY: MARY BAUMAN · MILLER JOHNSON

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n November 14, 2013, the Continuing Legal Education Committee of the Grand Rapids Bar Association sponsored a conference on the Affordable Care Act (“ACA”).

I moderated the conference. Panelists included Dave Bilardello of Priority Health, Jeff Rubleski of Blue Cross Blue Shield and Amy Allen from the State of Michigan. The ACA poses unique challenges for attorneys. For example, attorneys must comply with the ACA in their capacity as an employer. Further, attorneys must help their clients (both individuals and employers) address the ACA. This article highlights the key issues discussed at the conference.

must obtain health insurance with “minimum essential coverage” or pay a penalty. Minimum essential coverage is available through public programs such as Medicare or Medicaid, the exchange, or an employer group health plan. The individual mandate penalty, which takes effect in 2014, is the greater of a flat dollar amount or a percentage of household income. The flat dollar amount is $95 for 2014, $325 for 2015 and $695 for 2016. For later years, the flat dollar amount will be increased for changes in the cost of living. The percentage of household income penalty is 1% for 2014, 2% for 2015 and 2.5% for 2016 and later years.

The initial focus of discussion was the creation of the health insurance marketplace, also known as the exchange, in the State of Michigan.

Amy Allen reported that Michigan’s exchange is up and running but like many other exchanges, Michigan’s exchange has experienced website challenges. Coverage should be available on the exchange beginning January 1, 2014. Low income individuals with household income of less than 400% of the federal poverty level may receive assistance to secure health coverage on the exchange. The primary form of assistance is premium credits which will reduce the cost of coverage. The premium credits are capped at a maximum percentage of individuals’ household income. In addition to the exchange, Amy Allen explained that Michigan will be expanding Medicaid in the spring of 2014. As a result, low income individuals should either receive free Medicaid coverage or alternatively, if they do not qualify for Medicaid, they will be eligible to receive premium credits for coverage on the exchange.

Finally, the panelists discussed the employer pay or play penalty. The employer pay or play penalty only applies to large employers with 50 or more full-time employees. These large employers must offer health coverage to full-time employees and their dependents or pay a penalty.

The penalty was set to take effect in 2014 but has been delayed until 2015. Each employee who works, on average, 30 or more hours a week is considered full-time. In addition, part-time employees are counted on an equivalency basis toward the 50 or more full-time employee threshold but once reached, part-timers are disregarded in calculating the penalty.

The panelists then turned their attention toward the individual mandate. Under the ACA most individuals, with certain exceptions,

If a large employer does offer a health plan that has at least one full-time employee who is enrolled in health coverage through the exchange and who receives a premium credit, the large employer may be subject to a penalty of $3,000 per employee receiving the credit. However, low income individuals who are eligible for employer group health coverage can only qualify for the premium credit if the employer’s health coverage doesn’t provide “minimum value” or isn’t “affordable.”

The employer’s plan doesn’t provide minimum value if it doesn’t cover at least 60% of the total allowed benefits under the plan. For purposes of this test the focus is on the deductible and other out-of-pocket costs, rather than the employee’s required premium.

On the other hand, the affordability test looks at the premium cost to the employee. The employer’s plan will not satisfy the affordability test if the employee’s required premium exceeds 9.5% of his or her income. For purposes of the $3,000 penalty, affordability is measured based upon the cost of single employee coverage (rather than family coverage).

In order to stay more up-to-date on developments as they arise, good sources of information are: • The Kaiser Family Foundation website (http://healthreform.kff.org/),

If a large employer does not offer a health plan beginning in 2015 and at least one full-time employee enrolls in health coverage through the exchange and becomes eligible for the premium credit, the employee must pay an annual penalty of $2,000 per full-time employee. However, the first 30 full-time employees are disregarded for this purpose. The $2,000 penalty will not apply as long as the employer offers coverage to at least 95% of its full-time employees or if greater, all but five of its full-time employees. grbar.org

• The IRS (http://www.irs.gov/uac/ Affordable-Care-Act-Tax-Provisions), • The HHS (http://www.healthcare. gov/); and • The U.S. Department of Labor (http://www.dol.gov/ebsa/ healthreform/).

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Loneliness is a Health Risk Newer Attorneys Should Proactively Monitor BY: CHARLES W. KIERPIEC · MCSHANE & BOWIE, PLC

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hough most of us hear the aphorism “the law is a jealous mistress” before practicing, the demands of the profession can be difficult to manage in ways we never expect. Everyone must come to terms with the limits that long hours at a desk and a slowing metabolism impose on us after leaving law school. However, attorneys are also susceptible to another less commonly acknowledged health risk: loneliness.

One does not necessarily suffer from loneliness by being alone; in other words, “loneliness is not a function of solitude.”

Instead, loneliness is a feeling of being alienated from others, or a distinct impression of not feeling understood or connected.

Yes, loneliness. A November 2013 Wall Street Journal article summarized research showing loneliness is not just an unpleasant state of mind, but a health risk on par with obesity and smoking. The WSJ reported researchers at Brigham Young University studying the correlation of social relationships and mortality found in a 2010 meta-analysis, encompassing more than 300,000 subjects, that loneliness was as strong a predictor of early death as was alcoholism or smoking 15 cigarettes a day. The same study found loneliness was a stronger predictor than obesity or a sedentary lifestyle. The New Republic reported similar findings in a May 2013 article titled, “The Lethality of Loneliness.”

One does not necessarily suffer from loneliness by being alone; in other words, “loneliness is not a function of solitude.”

Instead, loneliness is a feeling of being alienated from others, or a distinct impression of not feeling understood or connected. You can suffer from it even when you are constantly in the presence of other people. And genetics can play a role in making a person more or less vulnerable.

New attorneys are particularly susceptible. The sheer amount of work,

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often done in isolation, obviously contributes. Equally important, however, is the fact many attorneys start without any mentoring or support, and maintain an unrealistic belief they should instantly have all of the answers. The risk of appearing weak or incapable just lessens the likelihood that someone will turn to anyone else for support. Thus, a newer attorney constantly interacting with clients and other attorneys can still feel like a lone wolf.

Loneliness can make dealing with all the other stressors inherent in a life in the practice of law exponentially harder.

It not only erodes the self-discipline required to maintain a healthy lifestyle, but can ironically drive a person further away from others. As one expert has said, “Loneliness prompts a desire to affiliate, but it also triggers feelings of threats and dread.” As a result, overcoming it may require a sustained, concentrated effort deserving attention equal to any other professional endeavor.

Researchers have identified all of the following strategies for those at risk: nurturing others, whether by raising children, teaching, or caring for animals; getting unbroken sleep; calendaring your social life to make sure you keep in touch with friends you can be yourself around; looking for professional camaraderie online where advice can be sought and exchanged in a relaxed setting; and, participation in a spiritual community.

Locally, the Young Lawyers Section offers a couple of possible footholds, not only through social opportunities but a mentorship program matching younger lawyers up with experienced attorneys for support.

To Solo or not to Solo… hether you are a brand new law W school graduate or a veteran practitioner, opening a new practice can be a daunting task. Why? Because, if you are opening a solo practice, you are not only practicing law, you are also running a small business.

Law school gives attorneys a solid knowledge of substantive law, but the last time I checked, the curriculum did not include business management or marketing classes. Knowing how to manage your “law-business”, and marketing your skill set to potential clients, can be the key to the success of your practice. I have been told that “a solo or small firm practitioner never stops worrying about where the next client will come from.” Interestingly, this is true in all manner of small businesses. Meet any business person, and they will tell you the same.

So, what to do? Fret not, where there is a will, there is a way. First of all, consider the following: I must clarify that I am not a business expert. However, I know from personal experience that a successful practice must have some sort of business plan. When I first started practicing solo, the term “business plan” sounded intimidating to me. I had mental visions of fifty page documents (akin to telephone directories) with diagrams and graphs. Okay, so maybe I have an overactive imagination, but really, every law firm big or small should have a business plan. The good news is that, a business plan can be as simple as you writing down a description of your firm, what it does and how the organization plans to continue business today and in the coming years. Your business plan does not have to be very complex, but having a simple business plan in place will help define your legal practice.

You may ask why it is important to define your practice? Well, from a business standpoint, you need to establish a base line to measure progress in the near future. A business plan is a forever evolving and dynamic document. It changes as your practice

start with a Business Plan.

Joe may want to see how many other attorneys offer the same services as him in these social circles. How will Attorney Joe differentiate himself from the competition? How will his clients find him? Or better still, how will Joe let his clients know that he is available? These are all questions that Joe will incorporate into his business plan. As Joe analyzes his growth opportunities for the coming year, he will tweak his business plan to reflect his future goals. Next year, he will go through the same process, and evaluate whether his business has grown in the way he planned. If not, Joe will make the necessary adjustments and update his business plan again. Perhaps, this analysis will reveal that Wills and Estates are not for him, and that Real Estate or Criminal Law deserve more of his attention. In this way, his small business has a sense of purpose and direction, rather than simply drifting from year to year.

changes and as your business practices grows. A business plan usually consists of an executive description or overall profile of your business; specifically what type of services your business provides, how the business is organized, an analysis of other competitors in the area, how you will market or advertise your services, how much it will cost to operate your business, how you will fund your business, and last but not least, your firm’s financial projections.

I recall that during the first year of my solo practice, my financial projections consisted of dipping into my personal savings account. That made me nervous.

But, the truth is that all businesses require start-up capital. However, it is important to have a financial projection that allows you to plan for the next few years. Experts often suggest a three year projection. I know that IRS requires brand new (tax exempt) entities to project their profits and losses for at least three years. This will allow you to monitor where you want your legal practice to be the following year. It also allows you to reassess your business plan to take the necessary steps to grow your business each year.

As you head out into the world of solo practice, never forget that you are not just putting your lawyering skills to the test, you are now also entering the world of small business. It can be an exhilarating and terrifying prospect, sometimes both at once. Law school may not have taught you everything you know about running a business, but it does teach you one thing- how to learn.

And it’s never too late to learn. Don’t let the business aspect of being your own boss intimidate you. Get out and conquer it, and start with a business plan. As the year concludes, I know that an updated business plan is on top of my list of New Year’s resolutions. What will you add to your list?

For example, attorney Joe wants to increase revenues in the coming year. He looks at his business plan and decides that he must incorporate another area of law in his practice. So, he adds on Wills and Estates. Now he looks further to analyze where his client base is situated. Are there potential clients in his neighborhood, the local community center or will he be getting referrals from other fellow attorneys? Once he decides, where his clients are coming from, attorney grbar.org

BY: WAFA ADIB-LOBO SAFE HARBOR LEGAL PLC

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Admissions Ceremony

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UPCOMING EVENTS

The Grand Rapids Bar Association is now accepting nominations for: The Donald R. Worsfold Distinguished Service Award, The President’s Award, and the Liberty Bell Award.

AWARDS

Our Worsfold Award is presented to an attorney who has shown excellence in the profession and dedication to the community. The President’s Award is given to a member who has contributed his or her talents to help the GRBA realize its strategic goals. The Liberty Bell award is presented to a non-lawyer or non-profit organization that has made an outstanding contribution to the cause of justice or to advancing public awareness of the Constitution and our legal system.

If you would like to nominate a person or organization you feel is deserving of recognition, visit www.grbar.org for a list of previous award recipients and to download the nomination forms. Nominations must be received by March 10, 2014.

2014 Officer Elections Are you interested or do you know someone who should be?

We are seeking potential candidates for the 2014 GRBA Election, and encouraging members to express an interest in serving. The Association will be electing a new Vice President. The Vice President will subsequently serve as the President-Elect and President.

If you or someone you know would make a great candidate contact Kim Coleman.

Deadline for submission is January 27, 2014

Criminal & Civil Law Bench Bar Conference Join your fellow Bar members for an open discussion with judges on key issues and developments related to the practice of Criminal and Civil Law. April 17, 2014 1:00pm - 5:00pm Kent County Courthouse Watch your email for more information!

Justice Foundation Fellows & Life Member Reception April 17, 2014 Amway Grand Plaza Hotel • Sky Rooms I & II

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Cooley Law School Seeks Nominations for Hilligan Award The Marion Hilligan Public Service Award is given annually to recognize contributions by a lawyer in public service to area governmental bodies or community organizations, reflecting greater individual responsibility in promoting public health and welfare through law.

The purposes of the award are to promote among the bar and public a greater appreciation for the contributions lawyers make to governmental bodies and community organizations, and to foster among lawyers greater individual responsibility for service to those bodies and organizations.

The award criteria include the candidate’s board memberships and other appointments and service, length of service, time expended, skills exercised, and general perseverance, innovation, foresight, and success in developing, promoting, and sustaining the mission of the governmental bodies or community organizations served.

Compensated (career) and volunteer candidates are eligible.

Nominations can be made via e-mail to either Nelson Miller at millern@cooley.edu or to CJ Kruska at kruskac@cooley.edu.

CRIMINAL NOTES

The Danger of Constant Repetition of Legal Principles BY: TIMOTHY K. McMORROW • KENT COUNTY PROSECUTORS OFFICE

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n an earlier column I reported briefly on the case of People v Hardy, 494 Mich 430 (2013). That case, actually consolidated cases, involved the interpretation of sentencing guidelines, in particular Offense Variable 7, treating a victim with unusual brutality. The prosecution ultimately prevailed on the merits in both cases. What I would like to explore in this article, though, was the Supreme Court’s statement on the standard of review.

As a background, the Michigan Supreme Court in the 1980s developed a series of sentencing guidelines, intended to address the disparity in sentences imposed for identical crimes on similarly situated defendants across the state. Those guidelines were not legislatively created. In several cases reviewing the application of those guidelines, the appellate courts eventually held that since the guidelines were not statutes, they did not have the force of law, and that a trial judge’s decisions on scoring those guidelines would be upheld if there was “any evidence in support” of the scoring.

The Michigan Legislature eventually adopted statutory guidelines. While generally modeled after the judicially created guidelines, the Legislative guidelines were, of course, statutes, and did have the force of law.

Those Legislative guidelines apply

to all felonies committed on or after January 1, 1999.

a particular guideline variable, the prosecution will be required to show, by a preponderance of the evidence, that that variable should be scored. It is a standard more favorable to the defense on the evidence issue – though more favorable to the prosecution if the facts support a particular guideline variable, since then the trial court will, as a matter of law, be forced to score the variable.

For years afterwards, the Michigan Court of Appeals continued to use the “any evidence” standard of review. But that standard, while certainly quite favorable to those of us in criminal prosecution, really made no sense.

Since the guidelines as adopted by the Michigan Legislature had the force of law, the legal meaning of those guidelines was an issue of law, subject to de novo review. The trial judge had to determine whether the facts supported a scoring of the statutory guidelines. Factual findings, of course, are reviewed for clear error.

What Hardy illustrates to me, however, is the danger that all of us, whatever our area of practice, face in the law when we rely on some supposedly venerable legal principle without understanding its source. Justice Holmes said in Hyde v United States, 225 US 347, 391, that “[i]t is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.” Justice Cardozo, when on the New York Court of Appeals, expressed a similar thought in Allegheny College v National Chautauqua County Bank, 246 NY 369; 159 NE 173 (1927), when he observed that “[t]he half truths of one generation tend at times to perpetuate themselves in the law as the whole truth of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten.” We should all remember that when we cite some supposedly well-established rule of law.

People v Hardy overruled the “any evidence” standard. The Court held that the trial court’s factual determination would indeed be reviewed for “clear error.”

The Court held that the factual findings had to be determined by a preponderance of the evidence, not under the “any evidence” standard.

If the facts as found by the trial court fit the specific statutory guideline, the Court would be required, as a matter of law, to score that guideline. Those factual findings, however, would not be sacrosanct simply because there was “any evidence” to support them.

So what difference does it make?

In most cases, probably none. But in some cases, a great deal. If there is conflicting evidence concerning

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One Billable Hour -Luncheon

A Special Thank You to the Underwriters of the Luncheon:

Dilley Kooistra Goller & Reens, PLLC, Gruel Mills Nims & Pylman, LLP Hylant Group, Integrity Business Solutions, Meijer, Inc., Plante & Moran, Preferred Benefits, Presto Print, Rockford Construction and Varnum Law -

along with our sincerest appreciation to the Supporters of our event: Gill, Joani Goodrich, Bob Gottlieb, Maureen YLS Grand Rapids Bar Association Hall, Lisa Hathaway, David Heartwell, George Heinze, Jeff Hillary, Dick Hillegonds, Rachel Hooks, Leah Hopson, Preston Hughes, Deborah Iverson, Dale Ann Jansma, Cara Jennings, Leigh Jewell, Bill Johnson-Ellis, Rebecca Jordan, Eric Jordan, Jennifer Karr, Carol Keener, Sue Kempker-Cloyd, Agnes Kierpiec, Charles Larsen, Tracy Leonard, David Lintemuth, Elisa Logan, II, Hon. Benjamin Lykins, Elizabeth Maine, Kathy Marchand, Neil Mason, Susan McGraw, Tom Miller, Jennifer Miller, Tom Moore, Michael

Abraham, Heather Adams, Kathleen Almassian, Todd Ammon, Jeff Ankney, Tom Axelrod, Martin Baker, Kelli Barfuss, Christine Bichler, Joe Bloemers, Margaret Bowman, Nicholas Brady, Jim Brasic, Susan Brennan, Bill Broersma, Amy Jonker Brower, Bob Brown, Melissa Brushaber, Kelly Bylenga, Steve Callahan, Mike Campbell, Mike Carron, Linda Jo Chase & Bylenga Chase, Carol Davis, Mark DeHaan, Dale Denenfeld, Hon. Paul Densham, Sandra Derks, Nichole Jongsma Doran, David Dubbink, Don Eleveld, Bob Franks, Bill Frederick, Craig Geary, Pat Gerville-Reache, Gaetan

WELCOME New Members

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Jennifer Bakhuyzen Kenneth Bauman William Bereza David Byers Misty Davis Erin Doyle Scott Elliott

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Narvaes, Amanda Newton, Stephanie O'Neal, Darlene Ostrow, Hal Plunkett & Cooney Poplar, Andre Quist, Hon. George Raskiewicz, Judith Reens, Matt Reynolds, Frank Rhoades McKee Roberts, Don Roden, Ronald Roegge, Bud Rogalski, Martin Sanchez, Carol Schwartz, Alan Siciliano, Dominic Siciliano, Patricia Stay, Suanne Watt Sullivan, Jim Tasker, Greg Tompkins, Matt Tountas, Sara VandenBerg, Kristin van der Laan, Mark VanderBaan, Gabe VanDyken, Stacy Velzen, Johnsen & Wikander Verspoor, Carl Verwys, Mark Waalkes, Tim Williams, Tom Wood, Jessica

Michael Farrell Jeffrey Hayden Brandon Hewitt Patrick Jaicomo Kathleen Ley-Bruinsma Preston Nate Tyler Osburn

Susan Pifer Scot Putzig Rachel Suhrbier Paige Timmer Mark Tomasik Christine Welton Brian Zomberg

FEBRUARY 20, 2014

7:00pm at the Wealthy Theatre 1130 Wealthy SE • Grand Rapids

Tickets are $25 each

Available at the door or by calling 616.454.5550

CHOOSE ONE: q Please reserve _______$25 tickets. Enclosed is my payment and the names of all attendees q I cannot attend, but enclosed is my contribution of $_________

Rolling Stones

q I would like to participate as a Patron Sponsor for $100.

(Sponsorship includes 2 tickets and your name listed in the event program.) My name should appear in print as follows:

ync S ’N

Name_____________________________________________ Address___________________________________________

__________________________________________________

__________________________________________________

Ke$ha

Phone___________________Fax________________________ PLEASE NOTE: Tickets purchased after February 13 will be held at the door.

ne p p Ste wolf

METHOD OF PAYMENT: q Check made payable to the Justice Foundation of West Michigan. q Visa

q MasterCard

q Discover

andre! mo

q American Express

Card #_______________________________________________ SEND COMPLETED FORM TO: Grand Rapids Bar Association 161 Ottawa Ave. NW, Ste 203B Grand Rapids, MI 49503 Fax: 616.454.7707

Exp. Date___________________ Signature____________________________________________

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• Platinum •

2014 c n y S p Li

ATTORNEYS AND COUNSELORS

• Gold •

Thank You Just Lips Sponsors!

The Justice Foundation of West Michigan and the Grand Rapids Bar Association extend heartfelt thanks to the sponsors of the 2014 Lip Sync Contest, Just Lips!

If you or your firm would like to see your name at Just Lips! please download the sponsorship packet at www.grbar.org

• Silver •

Ameriprise | Amway | Barnes & Thornburg, LLP Drew. Cooper & Anding Dykema | Foster Swift Collins & Swift, PC GRBA Young Lawyers Section | Kent County Office of the Defenders Keller & Almassian, PLC | Kluczynski, Girtz & Vogelzang Meijer | Plunkett Cooney | Sinas Dramis Velzen, Johnsen & Wikander, P.C. | Wheeler Upham

• Bronze •

Adamy Valuation Advisors Gardner Linn Burkhart & Flory, LLP Grand Rapids Law Group, PLLC | Kulas Law Office Merantile Bank | Newton Law Offices PLC | Quist Hansen

MEMBER NOTES Fredrick D. Dilley, a shareholder in Foster Swift Collins & Smith PC’s Grand Rapids office, was elected to serve as Vice-Chair on the Board of Trustees for the Michigan State University College of Law. Court of Appeals Chief Judge William B. Murphy was recently elected to serve as the treasurer of the Council of Chief Judges of the State Courts of Appeal throughout the United States.

David L.J.M. Skidmore of the law firm Warner Norcross & Judd has been appointed to the board of directors of Broadway Grand Rapids.

Charles H. Worsfold of the law firm Worsfold Macfarlane McDonald has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in America.

Douglas A. Dozeman of Warner Norcross & Judd LLP has been elected chair of the board of the Grand Rapids Area Chamber of Commerce.

Visit our website for more news from your fellow Bar members • www.grbar.org 16 The Grand Rapids Lawyer

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Subject: Date:

Join the Discussion Tuesday, December 17, 2013 11:32:44 AM

The GRBA is on LinkedIn Join the discussion!

2014 is bringing in some great things for the GRBA. In addition to the great programs and events we have in store, we will also be rolling out more great content on our LinkedIn Group page. Join the discussion and get all the latest news from area attorneys, legal updates, and even some behind the scenes pictures.

Join the Group!

Stay Connected!

Forward this email

Stay Connected!

Golfers Wanted!

The Attorneys Golf League is looking for golfers to play in the league in 2014.

Forward this email Every Tuesday at Boulder Creek Golf Club

Mid-April through August This email was sent to mieke@grbar.org by kimc@grbar.org | Update Profile/Email Address | Instant removal with SafeUnsubscribe™ | Privacy Policy.

Tee Time: 5:06 pm Dues: $500 - $525

Terri Sobolewski Director of Business Development tsobolewski@officestaffing.com

Medical & Legal Placement

Kalamazoo • Lakeshore • Grand Rapids Phone: (616) 451-6226 www.officestaffing.com 801 Broadway N.W., Suite 200 Grand Rapids, MI 49504 A Division of Axios Incorporated

If interested please contact Tim McMorrow at 632-6690 or timothy.mcmorrow@kentcountymi.gov

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A NNUAL RECRUI TME N T

for the GRBA Legal Assistants Section Who are we?

Paralegals and Legal Assistant in the Grand Rapids area.

What is the purpose?

To encourage a high order of ethical and professional attainment, including but not limited to, continuing the educational needs of Paralegals and Legal Assistants, promotion of the profession, the exchange of ideas among members, scholarships to current students in the profession, and serving the community.

When do we meet?

We have quarterly meetings between 12:00 p.m. - 1:00 p.m (lunch provided).

Past Presentations: Work-Life Balance

Cost to join? $85/year (student memberships available).

Please join today! We look forward to networking with you!

Feel free to contact the Grand Rapids Bar Association for details on joining the Legal Assistants Section.

Like us on Facebook at www.facebook.com/ grbarlegalassistantssection

Functions of the Legal Assistance Center Ethics of Social Media Wills, Estates and Trusts Difficult Issues that Impede Our Lives at Work Expanding your career as a Paralegal/Legal Assistant Becoming an Adventurous Leader Mediation and Arbitration Effective Business Communication Function of the Grand Rapids Bar Association Intellectual Property: Top Do’s and Don’ts

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Save the Date!

April 17, 2014

BENCH BAR CONFERENCE The next Bench Bar Conference is going to take place the afternoon of April 17, 2014 at the Kent County Courthouse • 1:00 pm James Brady, jbrady@dykema.com Perrin Rynders, prynders@varnumlaw.com Co-Chairs, Court Liaison Committee The committee promises a lively, honest, and constructive event.

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Accountants & Consultants

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11th Floor, Bridgewater Place 333 Bridge Street NW Grand Rapids, MI 49504 Ph: 616-774-9004 Fx: 616-774-9081

www.pmcpa.com