The Berks Barrister 2015 Fall

FALL 2015

Young v. Seasoned

The Streak Continues!

Charles H. Weidner

Berks County’s First Personal Injury Attorney THE NLRB IN 2015:

Is giving through Berks County Community Foundation right for your clients?

Seven questions for estate and financial advisors.

1. Do I have clients who care deeply about their local community?

2. Do they give to more than one charitable cause?

3. Are they interested in creating a personal or family legacy in their community?

4. Are they considering creating a private foundation?

5. Would they like to stay personally involved in the use of their gift dollars?

6. Do they want to receive maximum tax benefit for their charitable contributions?

7. Do they place a priority on sound financial management of their contributions? Š 2002 COF & CFA

If you answered yes to any of these questions, your clients would benefit from

237 COurt St., reAding PA 19601 610.685.2223 • www.bccf.org

FALL 2015

BOARD OF DIRECTORS

JESSE L. PLEET, President

JILL GEHMAN KOESTEL, President-Elect KURT ALTHOUSE, Vice President LISA A. SICILIANO, Secretary JUSTIN D. BODOR, Treasurer ELIZABETH A MAGOVERN, Director HONORABLE TIMOTHY J. ROWLEY, Director GEORGE A. GONZALEZ, Director PETER F. SCHUCHMAN, Director MARY KAY BERNOSKY, Director MICHAEL A. SETLEY, Director G. THOMPSON BELL, III, Past President THAD M. GELSINGER, President YLS

BAR ASSOCIATION STAFF

DONALD F. SMITH, JR., ESQUIRE, Executive Director ANDREA J. STAMM, Lawyer Referral/Secretary KAREN A. LOEPER, Law Journal Secretary PAULA J. ZIEGLER, Communications Manager RAINY LEONOR-LAKE, Community Outreach Coordinator ROARKE ASTON, Law Journal Editor JOHN E. REIGLE, Law Journal Assistant Editor MATTHEW M. MAYER, Barrister Editor

Please submit materials or comments to: Berks County Bar Association 544 Court Street, P.O. Box 1058 Reading, PA 19603-1058 Phone: 610.375.4591 Fax: 610.373.0256 Email: berksbar@berskbar.org www.berksbar.org

Thank You

Our thanks are extended to the numerous people who have contributed to The Berks Barrister.

Your time, energy and efforts are sincerely appreciated.

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Berks County’s First Personal Injury Attorney

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Government Affairs Committee

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A Labor of Love with Serious Omissions

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Engelhardt Sidebar

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The NLRB in 2015: Back to the Future

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In Memoriam

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Annual Dinner

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Law Foundation of Berks County 2015 Annual Giving Campaign

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Pro Bono Celebration The Streak Continues!

Departments: 1 President’s Message

21 Restaurant Review

8 Technology - Frankly Speaking

22 Miscellaneous Docket

17 Poetry 18 Book Review P U B L I S H E D

B Y

Reading, PA | 610.685.0914 x201 hoffmannpublishing.com For advertising information contact Tracy Hoffmann at tracy@hoffmannpublishing.com

20 Spotlight on New Members

The cover features Youngster Sara Haines and Seasoned Jack Linton

Chick Corea & Béla Fleck

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President’s Message Jesse L. Pleet, Esquire, 2015 President

Online Legal Services: Assistable or Resistible?

The American Bar Association (“ABA”) has launched a joint venture with an online legal service called Rocket Lawyer. This endeavor, referred to as ABAConnect, was formally announced on October 1, 2015. Beginning as a pilot project, it is intended to link ABA-member lawyers in three states with small businesses by providing affordable answers to their legal questions through Rocket Lawyer’s cloud based platform. The pilot states selected are Pennsylvania, California, and Illinois. Unfortunately, the Pennsylvania Bar Association was not provided any advance notice of the joint venture or an opportunity to comment prior to its launch.

According to the Rocket Lawyer website, this system promises “quick answers from qualified attorneys in your area” (emphasis theirs), “legal documents you can trust,” and that “step-by-step instructions make it simple.” Customers can browse the website by category including wills and estate planning, divorce, landlord and tenant, incorporation, and leases, all with a variety of “popular documents” that include living wills, powers of attorney, last wills and testaments, bills of sale, lease agreements, and LLC operating agreements.

According to the ABA press release, “For $4.95 a small business owner or representative can ask a question online of an ABA-member lawyer as well as a follow-up question.” The lawyer and client can then discuss additional legal services at commensurate rates within the context of a client-lawyer relationship.

Rocket Lawyer is one of the newer online legal

service programs. LegalZoom was founded in 2001 and is the most well known. Now that the ABA created ABAConnect it may appear to the public that all lawyers have embraced such legal technology for rendering online form based services. Nothing could be further from the truth.

The ABA Standing Committee on Lawyer Referral and Information Service (“ABA LRIS”) has followed ABAConnect since first conceived in 2014. A riff developed, though, because ABAConnect will be actively engaged in the lawyer-referral business which conflicts with the ABA’s long-standing stance to support state and local bar associations. Colleagues in leadership positions in state and local bar associations across the country, including the PBA, have expressed reservations toward ABAConnect for various reasons that include lack of appropriate vetting, inadequate supervision of participating lawyers, and no resume of a lawyer’s qualifications and credentials to participate. One critique noted that the ABAConnect website page depicts four lawyers where one lawyer displayed was not licensed to practice in any of the three states serving as pilot for the program. Another complaint was the website proclaimed to potential clients that they could “get an answer from a lawyer who specializes in your issue.” This overlooks Pennsylvania Rule of Professional Conduct 7.4 which bars a lawyer from claiming to “specialize” unless the attorney is specially certified in patents, admiralty, or board certified.

I attended a plenary session of the National Conference of Bar Presidents in Chicago this past July. John Suh, CEO of LegalZoom, addressed the audience on the merits of technology assisted legal advice. To our collective surprise, Mr. Suh commented Continued on page 2

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Online Legal Services: Assistable or Resistible?

Continued from page 1 that one in ten businesses in the United States is incorporated by his company. This was shocking. The takeaway? Online legal services, as a growing industry, have found a significant market niche. Remember the old adage that 90% of the lawyers serve 10% of the population? LegalZoom and Rocket Lawyer are not just targeting that 90% of the unserved public, but everyone with access to the internet. We kid ourselves, if we think that our clients are not already looking online to review various legal forms, comparing costs for a traditional brand of services, and looking for better value.

Since the advent of word processing, litigators developed forms including interrogatories, document requests, deposition notices, motions, and pleadings to be more efficient. Similarly, estate planners and practitioners had various forms for powers of attorney and estate planning instruments. Corporate lawyers had their variety of forms for business organizations. Such internal shortcuts with use of in-house office forms helped us compete with other lawyers to render affordable services. Now such tools are available at relatively low cost or free over the internet directly to the consumer.

Lawyers have been under steady pressure since the advent of legal advertising, over the past thirty years, to provide their services at lower cost. Our clients shop around, while attempting to be good consumers, but only to consider our legal services as a consumable commodity. Many believe that online legal services—providing forms and advice—are the unauthorized practice of law; however, courts faced with deciding such lawsuits have experienced great difficulty in evaluating such claims.

The Pennsylvania Bar Association Unauthorized Practice of Law Committee issued Formal Opinion 2010-01 and concluded that “the offering or providing [in Pennsylvania] of legal document preparation services as described herein (beyond the supply of preprinted forms selected by the consumer not the legal document preparation service), either online or at a site in Pennsylvania is the unauthorized practice of law and thus prohibited, unless such services are provided by a person who is duly licensed to practice law in Pennsylvania retained directly for the subject of legal services.” However, there have been no lawsuits and no enforcement actions.

Mr. Suh explained how LegalZoom has successfully defended itself in virtually all jurisdictions where claims were filed against it as the unauthorized practice of law. He mentioned that his company would be among the largest employers of attorneys in the decades ahead as LegalZoom expands its footprint in the legal marketplace.

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Lauren Moxley, a member of the Harvard Law School Class of 2015, wrote an article entitled “Zooming Past the Monopoly: A Consumer Rights Approach to Reforming the Lawyer’s Monopoly and Improving Access to Justice.” She made a pithy observation: Consumer rights will be better served by zooming past the outdated lawyer’s monopoly and by enacting a new regulatory framework that embraces technological advances and legal services as a welcome reality of the information age, while incentivizing online legal alternatives to operate at the consumer’s advantage.

9 Harvard Law & Policy Review, 553, 584 (2015).

While online legal services technology is here to stay and is expanding, one wishes that, before the ABA had jumped into bed with an online legal service, a new regulatory framework had first been enacted to protect the consumer, just as Ms. Moxley suggests. After all, there is no one more qualified to render legal advice than an experienced, licensed attorney focusing on the needs of the client. The ABA should be leading such a regulatory initiative, like it had many years ago with the Model Rules of Professional Conduct.

Instead, with the pilot project, Berks County lawyers will find themselves not only competing with readily available forms that are ubiquitous in the marketplace, but will also now be competing with the ABA for referrals.

Forewarned is forearmed? Food for thought.

We should discuss it more when I see you next at the bar!

Berks County’s First Personal Injury Attorney

By Donald F. Smith, Jr., Esquire

Charles H. Weidner

I did not know Charles H. Weidner. I first heard his name when I was interviewing LeRoy Hyman for a Barrister article in 1994.

Lee, a highly respected trial attorney, was retired at that point. He told me that he had begun a personal injury practice after seeing the success Charles Weidner was having as a plaintiff ’s attorney. Emulate him he did, to the point that Liever, Hyman & Potter became the county’s first firm limiting its practice to personal injury law.

So, who was Charles H. Weidner? He died on April 19, 1989, at the age of 89. Two months later at the Bar Association’s Memorial Service held in Courtroom 5A, then President-Elect Francis M. Mulligan described him as “an outstanding trial lawyer.” One of Mr. Weidner’s partners, William R. Lessig, Jr., remembered him as “one of the best trial and appellate court lawyers ever to practice before the courts of this Commonwealth.” Judge W. Richard Eshelman, a former partner of Mr. Weidner, said “he was one of a kind.” Judge Stallone called him “a lawyer’s lawyer.”

Very few lawyers receive such accolades. How did he come to deserve them? Born on October 19, 1899 in Reading, Mr. Weidner graduated from Boys High School in 1917. After working to save tuition money for college, he entered Temple College in 1923. To make ends meet, Mr. Weidner worked during the day at Philadelphia’s Lit Brothers Department Store and then, at night, attended Temple and later its law school, commuting every day from and to his Reading home.

Following graduation in 1928, he was admitted to the Bar and became the first associate hired by the newly formed firm of Stevens & Lee. As part of his eulogy, Mr. Lessig related the following:

“Charles quickly developed into an excellent trial lawyer with a flare for appellate work. His preparation for a trial or a brief of argument was completely thorough to the minutest detail. Every witness was interviewed again and again and again; every factual statement was repeatedly reviewed; and every reported case relevant or even slightly touching on the issues involved was read and re-read many, many times. The clock or calendar meant little to him and [he] spared neither himself nor those associated with him in his drive to obtain the best possible result for his client.”

Continued on page 4 Berks Barrister | 3

Berks County’s First Personal Injury Attorney Continued from page 3

There was no better example of Mr. Weidner’s intensity in witness preparation than during his telephone conference with a medical expert witness in the late 1950s. As smoke billowed from behind the bookcase in his second floor office at the firm’s then South Fifth Street location, hand-over-mouthpiece, he summoned his partner, Dick Bausher, who immediately called the fire company. As firemen pulled books from the bookcase, Mr. Weidner swiveled around in his chair in the opposite direction, looking out the bay window while maintaining his conference with the doctor. It was determined that the smoke was coming from a short-circuited fluorescent fixture in the ceiling beneath Mr. Weidner’s office.

In Stevens & Lee, A Memoir, a book published in 1978 on the occasion of the firm’s 50th anniversary, author/partner Calvin Smith describes Mr. Weidner’s knowledge of negligence law as “mindboggling.” He would regularly cite appellate cases by volume and page numbers in the case book rather than the parties’ names. That alone is mindboggling.

He seized the challenge to change appellate law that was unsound and against his client’s interest. He would take on the cause if it appealed to his sense of justice, often to the chagrin of his partners. C. Thomas Work, a current shareholder at Stevens & Lee, was mentored by Mr. Weidner. Tom describes Mr. Weidner as “idealistic but not jaded. He would undertake representation of any client he considered to be a victim of injustice or a poor soul. He had a heart of gold.”

In Cal Smith’s memoir of the firm, it is noted that Mr. Weidner “did away with much foolish law which was accepted as gospel.” His arguments, while sometimes novel, were usually convincing. For example, in Gray v. Nationwide, 223 A.2d 8 (Pa.

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1966), he changed the law.

In 1957, Gray had suffered personal injuries and property damage due to an automobile collision caused by the negligence of MacLatchie, who had a Nationwide auto policy providing a total of $5,000 in coverage for personal injuries and property loss, combined. Nationwide defended MacLatchie in the action brought by Mr. Weidner, and the jury awarded $15,000. Appeals followed but the verdict was affirmed at each level.

Nationwide then paid their policy limits, with interest and costs. Gray demanded the balance of the judgment, $9,763.33, from MacLatchie. Instead of payment, Mr. Weidner arranged to have MacLatchie assign his rights against Nationwide to Gray.

A contract action was then filed against Nationwide.

Showing his foresight and tenacity, Mr. Weidner, prior to the underlying suit being filed, had offered to settle the case within the policy limits, but Nationwide refused, forcing its insured to go to court, suffer defeat and be subject to an excess judgment.

On that basis Mr. Weidner asserted bad faith in the contract action, a novel concept in Pennsylvania. In its decision, the Pennsylvania Supreme Court upheld the assignment and the plaintiff ’s right to pursue a full recovery of the jury verdict. The decision gave, and continues to give, a powerful weapon to the plaintiffs’ bar in negotiating a settlement. Gray v. Nationwide stands as a landmark personal injury decision.

During Mr. Weidner’s 1989 Memorial Service, Mr. Lessig remarked, “I don’t know what the count is now, but not too long ago Charles had the reputation for reversing this court on appeal more often than any other member of this Bar.” One such time was in Walbert Estate v. Farina, 192 A.2d 404 (Pa. 1963). Mr. Walbert, 49 at the time, had suffered fatal injuries when his car was struck by a car driven by Defendant

Farina. After the widow, Mr. Weidner’s client, brought suit and went to trial, the jury returned a verdict of $1,500 in the Survival Action and $2,762.23 in the Wrongful Death Action, which was the total of the medical and funeral bills. Nothing was awarded for loss of future income. Mr. Weidner moved for a new trial, claiming an inadequate verdict, but the trial court denied the motion, and the denial was affirmed by the Superior Court.

However, the tenacious Charles Weidner was not done.

He appealed to the Pennsylvania Supreme Court, which reversed the courts below and ordered a new trial. Justice Musmanno wrote the following in the opinion of the Court:

“The lower court said that the verdict was a compromise verdict. We do not believe it was a compromise verdict, and it certainly was not a compensatory verdict. It was what might be called a consolatory verdict, a verdict which damns with faint sympathy. The verdict was a patronizing verdict, one for which there is no warrant in our system of trial by jury. A jury is not to ladle out largess or throw out sops. It is to dispense justice. . .”

192 A.2d at 407.

No wonder Mr. Weidner loved the colorful Musmanno, as Dick Bausher related to me!

Further cementing that love, Justice Musmanno agreed with Mr. Weidner’s novel argument in Schmucker v.

Naugle, 231 A.2d 121 (Pa. 1967), but others on the High Court were not so convinced. Nevertheless, the case is a testament to Mr. Weidner’s dedication and perseverance on behalf of a client who had suffered an injustice.

Plaintiff Schmucker was 15 years of age when injured in an automobile accident in 1958 due to the negligence of Defendant Naugle. Four days after the accident his parents settled their son’s claim for $835, received payment and executed a release of Naugle and his insurance company. The son never received any of the proceeds. The Court agreed that he had the right to disaffirm the settlement after reaching majority.

However, since suit on his behalf was not filed within the two-year statute of limitations, running from the accident date, the Court’s majority barred the claim despite the fact that he would still have been a minor at that point.

Continued on page 6

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Berks County’s First Personal Injury Attorney Continued from page 5 They did not accept Mr. Weidner’s argument that barring the instant claim was a violation of the Federal Constitution’s Equal Protection Clause.

One wants to believe that the injustice presented in this case ultimately led to passage of the legislation in 1978 providing that the statute of limitations does not run during a period of minority and only commences upon attaining majority. Mr. Weidner may have lost a battle but he won the war.

Family and the law were Charlie’s life. Spending time with his wife, their two daughters and their beloved grandchildren was important to him. Nothing conflicted with his spending two weeks at the shore with the family every summer. He was also genuinely interested in the families of his colleagues. As Tom describes it, “He would ask sincerely about family members by name and wait patiently for a complete answer.”

Otherwise, his life was the law. He had no time for sports, politics or small talk. Compliment him on his tie and he would ask, “Why did you say that?” Ask him how he was doing, and he would respond, “Why do you ask?” A master in the art of crossexamination, he employed it in everyday conversation.

Despite his great gifts, he could be dilatory at times. His tax return would inevitably be postmarked just before midnight on April 15. He was known to walk into the managing partner’s office with a very large fee check right before the firm’s books were to close in late December; it had been in his possession for some time.

His dilatory nature figured in what Cal Smith referred to in his book as The Case of the Brief. Mr. Weidner and Ralph C. Body had been fellow associates at Stevens & Lee but “became very intense adversaries” after Body left the firm and began to represent the local bus company. Cal Smith picks up the story as follows:

“On numerous occasions they were squared off. On one occasion, Body had been pressing CHW very hard for a brief. He finally resorted to the court which ordered its delivery in the afternoon of a date specified. CHW had a young associate deliver it several pages at a time on the afternoon of the deadline. As each installment was delivered the associate had to sit through a tirade delivered by the infuriated Body.”

Just as opposing counsel knew they were up against “one of a kind,” judges as well came to realize that Mr. Weidner was no shrinking violet. Once, during a pretrial conference in a federal strict liability case, Federal District Judge Mac Troutman said, “Mr. Weidner, I don’t know how you can prevail in this case,” to which Mr. Weidner responded, “That’s because you don’t know the law, Judge.” Prevail he did. Another time, during argument of a Will interpretation case before the Pennsylvania Supreme

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Court, Justice Rolf Larson, while pacing behind the other seated justices on the bench twirling his Phi Beta Kappa key, asked an uninformed question. Leaning toward Tom Work who was arguing the case within a few feet of the entire Court, Mr. Weidner commented, “What a dumb son-of-a-bitch.” Justice Roberts failed to suppress a smile. The appeal was won.

His clients were the beneficiaries of this unwavering advocacy.

In the words of Judge W. Richard Eshelman, he “fought tooth and nail for his client” and, in the words of Mr. Lessig, “the interest of his client was always paramount and no attorney was ever more loyal, understanding and devoted to a client’s interest than he.”

Judge Stallone ended his Memorial Service remembrance with this very appropriate remark: “He loved making the law. The challenge to us who are still here is to emulate Mr. Weidner’s dedication.”

Truly one of a kind. Will Berks County ever see another Charles H. Weidner, or has the profession lost its idealism and become too consumed by the business of law? If the latter, pity the poor souls.

Author’s Note: The transcript of the Weidner Memorial Service may be found in Volume 82 of the Berks County Law Journal, pages x to xix. Many thanks are extended to Richard A. Bausher and C. Thomas Work for taking the time to meet with the author and share their remembrances of Charles H. Weidner.

The Governmental Affairs Committee of the Berks County Bar Association, Chaired by James M. Smith, hosted two Roundtables this fall. In September, State Representative Tom Caltagirone shared with members and, in October, State Representative Barry Jozwiak engaged in meaningful dialogue.

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Berks Barrister | 7

TECHNOLOGY FRANKLY SPEAKING

Cybersecurity for Law Firms

By Jeffrey A. Franklin, Esquire

“Hacking happens to the big firms, not firms like mine, and besides, we don’t have that much at risk.” You have been meaning to upgrade, but your computer is still Windows XP, your server is Windows 2003, and your password is “password.” Addressing cybersecurity is on your To-Do list, but it keeps getting trumped by more pressing matters. Does this sound familiar?

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We discussed Ransomware, a specific type of computer malware designed to extract ransome payments from victims, in the Winter 2014-2015 Berks Barrister. Ransomware continues to proliferate and is so well designed (allegedly by Russian hacker Evgeniy Bogachev) that even the FBI says that if you don’t have a good backup, you should pay the ransome to get your files back. Now, we discuss more general cybersecurity issues and provide more practical tips.

Law Firm Data Breaches In a recent ABA technology survey, 16 percent of law firms self-reported that they had a data breach. Others have estimated that up to 80 percent of law firms in the United States have had a data breach. Yes, it has happened to Berks County law firms.

Cyberattacks are a National Emergency President Obama declared cyberattacks a “national emergency” resulting in an April Fool’s Day (but it was no joke) Executive Order establishing a financial sanctions program targeting individuals and entities who engage in significant malicious cyberactivities concerning trade secrets and the economic and financial stability of the United States. This Executive Order provides a new tool for both the private sector and the government in the fight against malicious cyberactivity and cybertheft. Information security represents an increasingly

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important issue for the legal profession. Sophisticated hacking activities on private computer systems and networks, including on those used by lawyers and law firms, have increased dramatically over the last decade. The Executive Order, by using authorities pursuant to the International Emergency Economic Powers Act, recognizes the potential national security implications. These breaches also expose clients, their lawyers and society to significant economic losses and undermine the legal profession by threatening client confidentiality and the attorney-client privilege.

Back to back data breaches at the Office of Personnel Management (OPM), first noticed by the agency in early 2015, exposed personal data of current, former and prospective federal workers and their families, including Social Security numbers (SSNs), fingerprint data, addresses and even prior drug and alcohol use. The incursions – the first of which compromised data on 4.2 million current and former employees and the second exposing the SSNs of 21.5 million individuals – thrust cybersecurity into the national limelight.

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Pennsylvania’s Breach of Personal Information Notification Law With a lack of federal statutory action, Pennsylvania is one of forty-seven states enacting security breach notification laws. In Pennsylvania, the Breach of Personal Information Notification Act (PA Notification Act), 73 P.S. §§ 2301, et seq., effective June 20, 2006, triggers upon the breach of the security of a computerized data system of any resident of the Commonwealth whose unencrypted and unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person. When triggered, notice of the security breach must be made without unreasonable delay. If more than 1,000 persons at a time are impacted, then consumer reporting agencies must be notified as well.

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Berks Barrister | 9

TECHNOLOGY FRANKLY SPEAKING

Cybersecurity for Law Firms

Continued from page 9 merely to attain the goal of certification, and then put aside.

ISO 27001 certification will likely be a trump card to play when firms are pressured to respond to security questionnaires and audit requests from their clients. This has been especially true of financial services clients.

What should I do?

Each firm or solo practitioner’s situation is somewhat different, and the particular risk-management policies, processes and security controls employed will also be different. The development, configuration and actual implementation of a law firm’s final, fully-formed risk management plan is best accomplished through a risk management platform like ISO 27001 or the National Institute of Standards and Technology (NIST) Framework based on existing standards, guidelines, and practices for reducing cyberrisks to critical infrastructure.

Several cybersecurity components are essential to a law firm’s cybersecurity risk-management plan. They are applicable to almost any business, but are particularly vital for law firms because of the breadth, volume and sensitivity of the confidential information handled by attorneys. The absence of, or failure to implement, one or more of these essential components significantly reduces the likelihood that a law firm would be able to successfully argue that it had employed reasonable security measures. These cybersecurity components can be implemented without having to wait on the development of a comprehensive cybersecurity risk-management program. After implementation, they can be later integrated into any well-designed plan.

Highlighted below are some essential components.

Encryption. If a firm is not encrypting its confidential information, then it is not being serious about the risk of potential compromise of that information. Confidential information should be encrypted every time it is transmitted into or outside of the firm. Further, consideration should be given to encrypting specified categories, or all confidential information at rest (stored) within the firm. The manner and nature of the encryption employed may vary depending on the specific threats involved, but will nearly always provide for the encryption of laptops, cell phones and other mobile devices; and the availability of encryption for email and file transfers.

Intrusion Detection and Prevention. The early detection of malware and the timely prevention of information loss require development and maintenance of specialized threat detection and prevention hardware and software. This includes regular review of firewall and other system logs, and penetration testing/ auditing.

Meaningful User Education. User education is an essential part of good cybersecurity. Users of law firm computing systems may constitute the most critical component of

10 | Berks Barrister

the security protecting the firm’s confidential information.

Whether analyzing the theft of information via the most sophisticated Advanced Persistent Threat, or the leakage of information through transmission of unencrypted email, a common denominator defining successful attacks has been the actions that a system’s user took (or failed to take) in initiating or propagating the attack. Risky user behavior and a reluctance to embrace security protocols and procedures are often directly related to not understanding the nature of the threats to the firm’s confidential information, the reasons why a particular security protocol needs to be followed or the real-life consequences of failing to do so. Firm IT “training” often does a good job at explaining the “how” of any technology or practice, but it can be far less adept at explaining the “why.”

Law firms may want to begin approaching cybersecurity education as an opportunity to make each user a willing and enthusiastic protector of the firm’s confidential information. I find sending an occasional test phishing e-mail to be informative for all.

Written Policies. Law firms must have up-to-date written policies addressing key cybersecurity topics. Firms should have a breach response policy that spells out precisely, and in reasonable detail, who, what and how the firm will respond to a breach, leak or other actual or potential compromise of its confidential information. Firms also should have a computer use policy in place. This policy should describe the rights and responsibilities of the users of the firm’s computers (desktop or mobile) and any other computers used to access or hold the firm’s confidential information.

What can I do right now?

If you are your own IT department, there is no way you alone are up to the challenge of securing your network against determined hackers, but here is a to-do list to get you started.

• If you use a Mac, keep your OS updated and turn on the firewall and FileVault (free full disk encryption). These are off by default. Also, download an antivirus program, such as the free Sophos Antivirus for Mac (https://www.sophos.com/en-us/ products/free-tools.aspx).

• In Windows, keep Windows updated, turn on Bitlocker, free full disk encryption with business versions of Windows, Windows Defender, included free security software.

• Use better passwords. Passwords are the key to everything.

Use good ones (longer, upper and lower case letters, numbers, and symbols), and turn on two-factor authentication (sends code to your mobile phone), where available.

• Upgrade to Windows 7, 8, or 10. Windows XP and Vista are outdated, particularly when it comes to security. Get your systems up to date on Windows 7, at a minimum, and make sure it is fully up to date.

• AntiVirus/Anti-Malware. Use Windows Defender.

Formerly known as Microsoft Security Essentials, Windows Defender is included, free, reasonable security software. It is not foolproof, but it will go a long way to securing your computer.

Other third party programs (e.g., Symantec) can be effective as well, but only use one antivirus program at a time. Got malware? Free, effective MalwareBytes is my favorite antimalware (https://www.malwarebytes.org).

• Turn on your firewall. A software firewall prevents unwanted incoming connections. You may need to set up some exceptions (allowed programs), but it will be worth the extra security. Windows helps with this by prompting you to select the network connection type, Public, Work, or Home. Mac OS has its firewall off by default.

• Encrypt mobile devices. Any data that leaves the office should be encrypted. This includes notebook hard drives, external drives, tapes, and smartphones. Apple iPhones and iPads with up to date iOS will use encryption by default, enable Find My iPhone and/or use Mobile Device Management (MDM) software, and use a six (6) digit or longer PIN and/or fingerprint. Android and Windows offer free encryption and long pass codes as well.

• Always try to use SSL/TLS. When using a browser, always try to use HTTPS. I recommend use of the free HTTPS Everywhere (https://www.eff.org/Https-everywhere). When accessing or configuring e-mail, always try to use a secure connection (SSL or TLS). When remotely accessing your firm’s network, always use a secure connection such as HTTPS or Virtual Private Network (VPN), preferably with two factor authentication, and avoid using public computers such as at a business center. If you have concerns about the Wi-Fi, opt for a cellular connection instead, if available.

• Firewall. Your firm needs a hardware firewall. It blocks unwanted external connections. Some block content, provide intrusion detection, antivirus, spam filtering, secure remote access, and more.

• Spam Filter. Every firm needs to have a spam filter on its e-mail. Many attacks come from phishing e-mails. It is best to stop these e-mails before they get to your firm’s computer and network. Mimecast is a law firm favorite (www.mimecast.com).

• Advertising Filter. Attacks are increasingly coming from advertisements on web sites.

Consider an ad blocker such as the free and effective AdBlock Plus (https://adblockplus.org).

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Jeffrey A. Franklin, Esquire, is chair of the BCBA’s Technology Committee, practices law with the Prince Law Offices, P.C. and is a principal of Brightline Tech Solutions, LLC.

Berks Barrister | 11

A Labor of Love

with Serious Omissions

By John J. Speicher, Esquire

I have been asked to write about the book Reading’s Big League Exhibition Games, written by yet another author of our Bar Association, Brian C. Engelhardt.

Before I write about what is in the book, it is important to note what, inexplicably, was omitted from the book. Curiously, Mr. Engelhardt, who has been a fixture at what was once Reading Municipal Stadium (now FirstEnergy Stadium), never mentions his youthful complicity in throwing trash off the top of the Reading Municipal Stadium onto Reading Indian fans entering the ball park, and how his friend, at the age of 10, was left to be escorted out of the stadium by security guards, as Brian distanced himself from his friend.

Reportedly, his friend still has flashbacks of the look on Brian’s grandfather’s face as he witnessed this humiliation. I am sure Brian’s grandfather was disgusted at his grandson’s cowardly actions, and not the fact that Brian’s friend was being taken out of the stadium by security guards. Did this occur during a visit of a major league team to Reading? No! Would an honorable man, who needs to make this right, mention it in his book nonetheless? I think so.

Mr. Engelhardt also omitted the night the Reading Red Sox had about 150 people in attendance at one of its games. A true Reading athletic legend, Dick Gernert, was up to bat for the Red Sox. Dick was a star of the Boston Red Sox during the peak of his career, playing with the likes of Ted Williams. He

12 | Berks Barrister

was ending his playing days in Reading, obviously hoping to be called up to the majors one last time before the ravages of time destroyed the dream forever.

Anyway, I digress. With the stands almost empty, irresponsible and immature heckling by one person could be heard throughout the stadium. Dick hit a foul ball off his shin. This was before anyone thought of equipping batters with shin guards. Ball players were tough back then. Helmets didn’t have ear flaps. If you got beaned, too bad. Your concussion was ignored and you went on. How do you think Dizzy Dean got his name? There were no “Tommy John surgeries.” If you couldn’t pitch without a tendon in your arm, you sucked and were sent to Reading to be booed and heckled by stupid kids. It’s what you did.

Anyway, the ball hit off Dick’s shin and bounced about 2 feet to his left. As Gernert writhed in pain, some kid yelled a bit too loudly, “Hey Gernert, straighten one of those out!” Everyone in the stadium, including the suffering Dick Gernert heard the unfortunate comment. Gernert looked up into the stands to the source of the insult and glared right at the boorish kid.

Reportedly, he still has flashbacks of that terrifying murderous look. Brian never once tried to deflect any of the animus to himself, even if he was laughing at the obvious humor of the moment. No, as with the previous incident, any sense of comradery deserted him as he did his best imitation of Peter denying Jesus and moved away from his friend to join the other 148 spectators shooting daggers at him. Did I mention the flashbacks?

Even though those noteworthy minor league events aren’t mentioned in the book, one has to be impressed with the

Engelhardt Sidebar tremendous amount of time and attention to detail Brian gave to this labor of love. From the earliest days that baseball was played, Brian has found photos and box scores of the major league games that were played in Reading. One can only imagine the late nights spent at his computer compiling all the details. Through his commentary the reader learns how pure the game was 100 years ago. Men played because they loved the game. It certainly wasn’t because of the money they were paid or the posh accommodations they received.

Hell, the greatest players ever to grace the uniform played here. Did you know Babe Ruth and Lou Gehrig were here in 1928? No detail, no matter how small, is missed. You even learn that there was a ball park at 3rd and Buttonwood! My, how things have changed.

The book takes you through the maturation process of 20th century America as reflected in the microcosm that is baseball. To purists, like Brian, the changes may be the natural progression of the game. Great players who grew up here, Schmidt, Bowa and Luzinski, returned “home” to play in front of the Reading faithful.

But the book illustrates how over time those trips to Reading changed as our society changed. Intentionally or not, Brian shows how the game has lost its purity and maybe its soul. In the end, there are no more major league games being played here. Major league baseball is entertainment more than sport. That might not have been Brian’s message or his intent. But I was left with a sadness that the best days of the game are behind us. As a historian of the game, Brian has painstakingly taken us through this journey that was and now is baseball. At one time, Reading really was “Baseballtown.”

John J. Speicher, Esquire, is a partner at Leisawitz Heller and a childhood friend of Brian C. Engelhardt, Esquire.

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The Author

By Donald F. Smith, Jr., Esquire

Brian C. Engelhardt has now joined the ranks of BCBA members who have authored books: J. Bennett Nolan, Clemson Page, Mickey Restrepo, Frank Mulligan, Mahlon Boyer and Judges Endlich, Smith, Stallone and Sprecher.

Brian is a connoisseur of baseball, and his book Reading’s Big League Exhibition Games reflects his devotion to the sport. Five years of work on the book began with an offhand conversation at the gym. A fellow gym-rat had mentioned to Brian that he remembered seeing the St. Louis Cardinals play at George Field in 1946 when he was 12 years old.

It sparked an interest in Brian to learn more about the playing of professional exhibition games in Reading.

The research, including time at the Hall of Fame in Cooperstown, included pulling together more than 200 photographs and compiling box scores for each of the 94 games.

The writing became intense in January of this year, working at home early in the morning and late into the night, sandwiched around his daytime job duties.

Brian explains his motivation, “It was fascinating to learn about the wide number of teams and the wide range of players who played here that would later enter the Hall of Fame, like Babe Ruth, Lou Gehrig and Carl Yastrzemski.”

A graduate of Dickinson College and the University of Pittsburgh Law School, Brian’s daytime job is that of associate general counsel for BB & T. With the book now complete and in the hands of book sellers, the baseball connoisseur is once again preparing to join Mark Caltagirone on stage at the December 4th Holiday Benefit Luncheon as the armchair interviewers of special guest Joe Morgan. Expect well researched questions. In 2013 and 2014, the duo’s interviews with Steve Carlton and Jamie Moyer were very well received.

As for those professional exhibition games that attracted so many fans, they are part of Reading’s history. Brian rightfully thinks that his book is “about games that mattered even though they did not count.”

With the holidays coming up, the book will make a great gift for a Berks baseball fan. The latest book by a BCBA member is available for purchase at Barnes & Noble or the Reading Fightin Phils Team Shop.

Berks Barrister | 13

THE NLRB IN 2015:

By Kevin A. Moore, Esquire The calendar year 2015 was significant in labor circles. The National Labor Relations Board (“NLRB”/“Board”) celebrated 80 years of “protecting employee rights” with its own unique version of Back to the Future. First, the Board erased the timespan associated with representation election procedures (perjoratively known as the “ambush” election rules). Then, apparently forgetting that all lawyers were abolished in the future, the General Counsel issued an interpretive Memorandum on employer handbook polices, that has the effect of dissipating from view formerly “lawful” handbook policies only to have them reappear as “unfair labor practices.” Finally, the Board transcended the space-time continuum by re-defining “jointemployer” in a way that will take employers, their subcontractors, and possibly their franchisors back to the future, by erasing decades of precedent and imposing a new alternative reality of employment and contracting relationships.

I. BACK TO 1935.

In July 1935, President Franklin D. Roosevelt signed into law the National Labor Relations Act (“NLRA”/“the Act”)1. The Act was passed in response to growing labor-management strife and unrest that impacted commerce during the Depression.

The NLRB was established under the Act to serve as the primary enforcer of its provisions.2 The two primary functions of the Board are to: (i) oversee the election process and; (ii) prosecute violations of the law known as “unfair labor practices.” The Act also empowered the Board to issue rules interpreting labor legislation.3 The Board’s discretionary power of interpretation is further carried out through the promulgation of regulations, general counsel memos, manuals and policies.

The Board consists of five voting members appointed by the President, subject to the advice and consent of the Senate, to five year terms. The Board presently consists of three Democrats and two Republicans. As an organization, the NLRB operates through 50 regional, sub-regional and resident offices.

29 U.S.C. §151 et seq.

29 U.S.C. §153-156 (as amended).

29 U.S.C. §156.

4 National Labor Relations Board: 80 Years of Protecting Employee Rights. NLRB 2015.

5 U.S.DOL, Bureau of Labor Statistics, Union Member Survey, January 23, 2015.

1 2 3

14 | Berks Barrister

As a quasi-judicial body, the Board, through its five appointed members, decides cases on a formal record. The General Counsel (also appointed by the President and subject to the advice and consent of the Senate) is responsible for the investigation and prosecution of unfair labor practices. 4 As with many “independent” agencies, the Board has, for the most part, been a reflection of the political process. Over time, the NLRA was amended to reflect changes in public policy, and certainly the Board’s political make up and its interpretation of the law, have changed with the political process we know as democracy. If the Board exceeds its broad grant of authority in interpreting the law our system of jurisprudence allows for challenges to the Board’s authority in court. Of course, the legislative remedy always remains available, lest the Board forget Congress’ present (or future) intent.

Over the 80 years of the Board’s existence, union membership in our nation’s economy has decreased considerably.

Much of the credit or blame (depending on your view) is directed toward the supplantation of union functions by government agencies and laws designed to protect workers. In 2014, private sector workers with union membership consisted of only 6.6% of the workforce, whereas the public sector maintained a healthy 35.7% rate.5 II. WHERE WE’RE GOING, WE DON’T NEED ROADS! The Board began its most recent trip to the future in 2011, when President Obama, unable to push the Employee Free Choice Act legislation through Congress, turned to the Board’s interpretation and rule making authority to advance certain “reforms.” It would not be the first time a President exercised Executive powers to advance policy initiatives through so-called “independent” government agencies. Fortunately, our federal system of checks and balances between the executive, the legislative and the judiciary accommodates this practice and at the same time curbs its abuse.

In 2011, the Board began drafting new rules to implement revised procedures for union election petitions. The changes

were viewed by proponents as necessary to change with the times and streamline the process. Opponents labeled the proposed rules the “ambush” election rules because the combination of the rules significantly shortened the election period, made employee contact information more readily available to unions, deferred legal challenges to voter eligibility until after elections and eliminated certain challenges and appeals to the voting unit.

Initially, the rules were successfully challenged in court because they were approved by a Board that comprised of several “recess appointees,” in violation of congressional rules relating to when the Senate is “in session.”

In 2014, however, the Board was at its full lawful compliment of five members and the new rules were approved and went into effect on April 14, 2015. Some of the material changes are worth noting below.

OUR RESOURCES ARE YOUR

• The period of time between filing a representative petition and the election vote was reduced from 45 days to 21 days.

• The representation hearing (where the voting unit is decided) must generally take place within 8 days of the service of the petition and hearing notice.

RESOURCES.

• Employers must now provide the Excelsior list that lists names, titles, locations, shifts, addresses, home phone numbers and personal email information before the representation hearing; whereas in the past, that information was not required to be produced until after an election was either agreed to or directed by the NLRB Regional Director following a hearing.

The Excelsior list must be produced within 2 days of notice of the petition.

• The Employer must now submit its Statement of Position by noon on the day before the representation hearing, identifying any and all issues with the petition, or Employer is deemed to have waived any and all legal arguments not so raised.

• In the past, the Employer had the legal right to a hearing and to present evidence on voter eligibility, supervisory status and unit composition, inter alia. In the present and future, those challenges are now deferred until after an election (possibly rendering the argument moot).

• In the past, the Employer had the right of appeal from the Regional Director’s decision to the Board before an election took place. That meant an election could not take place until at least 25 days after the Regional Director issued a decision and directed the election. That right no longer exists before the election.

The rules were challenged in federal district court for the District of Columbia, and upheld by that court. A separate challenge was filed in federal court in Texas. Similarly, the District Court upheld the rules. The Texas case is currently pending appeal before the Court of Appeals for the Fifth Circuit. Opponents in Congress introduced repealer legislation immediately (H.R. 1768/S.933) called the Workforce Democracy and Fairness Act, but both bills remain stalled in committee. For the present and foreseeable future, however, employers must be prepared to deal with representation petitions that move a heck of a lot faster than 88 mph toward an election!

Continued on page 16

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Berks Barrister | 15

THE NLRB IN 2015: BACK TO THE FUTURE Continued from page 15 III. “GREAT SCOTT! I THOUGHT WE DIDN’T USE LAWYERS IN THE FUTURE?!”

In early April, 2015, the Board’s General Counsel, Richard F. Griffin, Jr., issued General Counsel Memorandum GC15-06, applying NLRB rulings and interpretation to many common employee handbook provisions.6 This most recent activity marks a continuation of the Board’s scrutiny of otherwise generic workplace policies.

Section 7 of the NLRA grants workers the right, among other things, to “engage in [sic] concerted activities for the purposes of collective bargaining or other mutual aid or protection.” 7 An employer policy, or work rule, that has a “chilling effect on the employee’s Section 7 activity” is considered an unfair labor practice. Policies that expressly prohibit protected concerted activity, such as the union organization, are obvious. In addition to the explicit prohibitions, a rule or policy can be deemed an unfair labor practice if: a. the employee would reasonably construe the rule’s language to prohibit Section 7 activity;

b. the rule was promulgated in response to union or other Section 7 activity; and c. the rule was actually applied to restrict the exercise of Section 7 rights.8

Beginning in 2011 and continuing through 2012, the General Counsel issued a succession of Memoranda and the Board issued several decisions to guide enforcement of Board rules and precedent in the area of employer social media policies. The thrust of this effort was to further protect employees who are engaged in the protected “concerted activity” of discussing the terms and conditions of employment. The Board examined a multitude of employer social media policies, and concluded many were facially invalid as overbroad because the policies on their face, “would reasonably tend to chill employees in the exercise of their Section 7 rights.”9 On the way to the future, the Board reversed time and space by overruling its own 2007 decision that allowed employers to restrict employee use of company email systems for personal, non-company business. In 2015, now an employee may use employer email for “protected concerted activity” during nonworking hours, unless the employer can establish “special circumstances” to justify the ban. 10 Apparently satisfied that the Board had taken employer social media policies back to the future, the General Counsel in 2015 turned his attention to other handbook policies. GC15-

06 addresses eight (8) separate categories of standard handbook provisions. They are as follows: 1. Confidentiality;

2. Employee conduct toward employer and/or a supervisor; 3. Employee conduct toward other employees;

4. Employee communications or interactions with third parties, including the media or government agencies; 5. Employer rules regarding the protection of employer logos, copyrights and trademarks; 6. Photography and recording in the workplace; 7. When employees may leave work; and 8. Conflict of interest.

A thorough analysis of the impact of the General Counsel’s interpretation of each provision is too detailed to address in this space; however, suffice it to say, the report cites NLRB precedent for compliant and non-compliant rules. The Memorandum goes on to discuss distinctions and even offers a sample revision to a handbook for compliance purposes.

Employers should use some extra gigawatts of effort when reviewing and revising handbooks based on the General Counsel’s 2015 Memorandum. Or course, it is always prudent to engage an experienced legal professional to advise an employer as the Board continues to traverse the labor law space-time continuum.

IV. MANIPULATING THE SPACE-TIME CONTINUUM. In August 2015, the Board, in Browning-Ferris Industries of California, Inc. t/a BFI Newby Island Recyclery, 11 went back in time and seemingly created an alternate “2015” by dumping its long-standing “joint-employer” doctrine and replacing it with a new “direct or indirect control” theory. The decision could have major repercussions on employers of all sizes, given the ubiquitous presence of staffing firms in our economy, coupled with the ever-broadening nature of business-to-contractor relationships in a modern economy. The decision came on a party line split vote of three Democrats to two Republicans.

The case involved BFI and Leadpoint, a staffing services company. Their agreement provided, in part, that Leadpoint would be the sole employer and supervisor of workers on a day to day basis. Leadpoint had on-site supervision and HR employees at the facility. Those individuals tested, trained, paid and disciplined Leadpoint’s employees. BFI also had its own

Report of the General Counsel Concerning Employer Rules, GC 15-06, April 6, 2015.

Section 7 of the NLRA provides in pertinent part: employees shall have the right to self-organization to form, join or assist labor organizations, to bargain collectively through representation of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” 29 U.S.C. Sec. 157.

8 Lutheran Heritage Village – Livonia, 343 NLRB 646, 647 (2004).

9 Lafayette Park Hotel, 326 NLRB 824,825 (1998).

10 Purple Communcations, Inc. 361 NLRB 126 (2015).

11 (“BFI”) 362 NLRB 186 (2015) 6 7

16 | Berks Barrister

unionized employees employed at the same facility and the union filed a petition to represent the Leadpoint employees, naming both BFI and Leadpoint as the employer.

On appeal, the Board overruled the Regional Director and concluded that BFI and Leadpoint were a “joint employer” within the meaning of the law. Strangely, the Board even announced that it was effectively traveling back in time by returning to the “traditional” joint-employer doctrine. It established (or re-established) a two-part test: Back in the future, the “old” test required the putative employer to have exerted “direct and significant control over the same employees” or “co-determine matters involving the essential terms and conditions of employment.” Relative to that test was the authority to hire, fire, discipline, direct and supervise. Historically, the control necessarily needed to be “actual, direct and substantial – not simply theoretical, possible, limited or routine.”

In BFI, the Board rejected the requirement that control be “direct and immediate,” opting for the “direct or indirect” test.

Republicans in Congress immediately responded by introducing legislation in both houses, HR 3549 and S. 2015, to repeal the expanded definition handed down by the Board.

The legislation is known as the “Protecting Local Business Opportunity Act.” The Board’s most recent decision has far reaching implications, not only on active working relationships involving employers who engaged subcontracted staffing services. The franchise industry is closely examining this decision. This case may open the door for elections and collective bargaining directly between unions, franchise employers and the corporate franchisor.

V. THE SEQUEL. While the legal appeals of the “ambush” election rules make their way through the appellate courts, as well as the challenge to the Joint-Employer Doctrine, employers must be mindful that, unless and until Congress or the Courts step in to take conclusive action, and despite philosophical, political and bona fide legal objections to its interpretation of the Act, the Board continues to write its own script.

Welcome back to the future.

Kevin A. Moore, Esquire, is the chair of Leisawitz Heller’s Employment Labor Practice Group and is a past chair of the BCBA Employment Law Section.

Western Star

By William W. Runyeon, Esquire The man with no name is not the Virginian, although we do not know his name, either.

As an audience, we flirt with the mass marketing of individualism; still, the murky origins of the hero never lose their certain, lonely appeal; doubtless, a renewal of the knight errant, or erring knight, long since resolved in favor of the knight, because he, at least, learns of the right thing to do, and seeks, often thwarted, to do it.

Our unnamed heroes have the devil’s own time, figuring out the right thing, without squandering their fleeting chance to do it. Perhaps being knighted by an innkeeper still outshines any light on the walk of fame, and the quest of heroes unnamed, something within the storyline, that may vaguely include efforts, and reasons, beyond box office receipts, to find mysterious treasures, or rescue the fair lady, a near goddess, from the mists of oblivion, and each hero, from the downdraft of a soul abandoned.

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Bkissam@GoBerksCounty.com Berks Barrister | 17

Book Review Missoula:

Rape and the Justice System in a College Town

By JON KRAKAUER Reviewed by Leah B. Rotenberg, Esquire Pity non-fiction writers, who are asked to create art and social change all at once. In Missoula, journalist Jon Krakauer heads to the University of Montana to explore a series of sexual assault cases that made the University, local police, and prosecutors the subject of national scrutiny and an investigation by the Department of Justice (DOJ) in 2012. Krakauer’s book recounts several of the assaults and looks at the criminal and civil systems designed to bring justice to the campus and to individual victims.

The book has four main vignettes about sexual assaults at the University: one ends in a confession and a plea deal; two are never charged; and one goes to a jury trial that ends in acquittal.

None of the results are particularly satisfying to the victims of the crimes or to Krakauer himself; even the case that ends in a plea and substantial sentence seems to drag on forever. Attorneys and advocates with experience in the field of sexual assault will recognize this as a depressingly accurate portrait, and Krakauer deserves credit for getting the atmospherics right.

But despite its timely and serious content, Missoula isn’t a particularly gripping read. Krakauer is a westerner and an outdoorsman, and his other books have a distinct sense of place.

In contrast, the events in Missoula could be set anywhere. The book never really explains why the feds chose to take a hard look at the University of Montana, which had a statistically unremarkable crime rate compared to similar campuses.

The perpetrators and victims featured in the book have a generic quality, too. They are all young and many of them are drunk. This being a book that features football players, the men tend to be tall, broad, and fond of being in groups. But there isn’t

18 | Berks Barrister

much character development and it can be hard to remember who is who. Even after two readings, I could only identify the key individuals by what they did or what had been done to them. To be fair, that may be Krakauer’s point—Missoula is just a stand-in for any college town, and sexual assault is a terrible surprise that could be visited on anyone.

If Missoula doesn’t quite work as a distinctive story, it really fails as a piece of journalism that critiques the legal system.

Fundamentally, Missoula can’t be a story about the law because Krakauer seems to dislike most of the attorneys he meets.

The heroes of Missoula are the women who come forward to report that they were assaulted to campus officials or police.

Lawyers—whether gun-shy prosecutors or obstreperous defense attorneys—are just obstacles to justice. The best lack all conviction, while the worst are full of passionate intensity.

On a case by case basis, Missoula does a fine job of outlining why, and even how, police, campus officials and prosecutors should pursue each assault. Krakauer’s reporting assumes that every suspect profiled is guilty and that every case could be charged, tried and won by the prosecution. It’s a reasonable artistic choice; if every probable cause tells a story, why not see what an actual storyteller could make of the facts of a rape case? Krakauer rounds out the book with earnest discussions of misconceptions about the crime of rape and a review of modern understanding of the brain’s response to trauma.

Krakauer has a commendable desire to educate readers about the crime of sexual assault and the experience of victims in the justice system. Assuming that the book’s reports are

accurate, Missoula’s prosecutors needed a swift, hard kick for motivation. They apparently declined to prosecute rape cases that featured eyewitnesses and confessions, which is woefully unenergetic.

But the trouble with Missoula as a policy tract is that it uncritically embraces a two-tiered approach for addressing sexual assault on campus: the civil system used by university tribunals and the criminal system. Krakauer argues that colleges should maintain their current role in punishing sexual assault because criminal convictions are difficult to get. He is aware that the civil system is designed with a lower burden of proof and fewer procedural safeguards than the criminal system. But he regards limits on the rights of the accused as a feature of campus adjudications because they keep “legalistic quibbling from obscuring evidence.” Contrast that with his description of trials in criminal court: “In the adversarial system, it’s more important to follow legal procedure than to speak the truth. Due process trumps honesty and ordinary justice. Trials degenerate into clashes that bring to mind cage fights, characterized by wildly exaggerated claims, highly selective presentation of the facts, and brutal interrogation of witnesses.”

He’s not wrong. But it’s unsettling to have the writer of a 350-page book about rape dismiss criminal trials as inherently unrelated to justice and to endorse a parallel system.

That’s especially true because Missoula is full of cringe-worthy descriptions of university-led investigations and adjudications.

For example, at one point a dean tells a student accused of sexual assault that he cannot discuss his own behavior with other people due to confidentiality concerns. In Montana’s disciplinary hearings on sexual assault, a university administrator acts as prosecutor while the accused student is required to act pro se.

Actual defense attorneys skilled in the evaluation of evidence are permitted in the room, but can’t ask questions or address the “court,” which is a smattering of faculty and students. The lawyers in the book (including the University’s corporate counsel) are palpably uncomfortable with this system, but Krakauer doesn’t pause to consider that they might have a point.

Krakauer also glosses over the significance of the DOJ’s investigation in Missoula and the conflict it created. Using authority granted by various civil rights statutes, the DOJ and U.S. Attorney for Montana investigated whether Missoula’s anemic charging rates in rape cases were the product of gender bias.

Concluding that bias was afoot, the DOJ made a series of general recommendations to police, university officials, and prosecutors for improving the investigation and prosecution of rape. Missoula’s District Attorney Fred Van Valkenburg bristled at the federal intervention, and not without reason. Any U.S. Attorney could write one heck of an abstract report about rape prosecutions— and then return to his or her regular schedule of gobbling up drug forfeiture money with help from professional witnesses.

Krakauer never asks what resources federal officials intended to commit to the task of improving sexual assault prosecutions in Montana or elsewhere. That’s an unfortunate question to

miss. At other moments of crisis in American history—the Lindbergh kidnapping; the drive to desegregate the South; the manhunt for Tim McVeigh—federal officials played leadership roles as actual enforcers of the law and not just as critics of local efforts. In Missoula, the DOJ identified a series of violent, ongoing civil rights violations and responded with some sharply worded memos. Who decided that was good enough?

The law assumes that there will always be conflict between criminal defendants and the system that prosecutes them. But Missoula tracks another phenomenon: conflict between the state and victims of crime. What can you do if you believe that the criminal system can’t, or won’t, protect your rights to safety and dignity? In recent years, that question has resonated from Missoula to Ferguson to points in between. Krakauer’s book settles on a solution, at least for victims of rape on campus: find solace in civil proceedings and raised eyebrows at the federal level.

I hope that readers of Missoula find that solution unsatisfactory.

Leah B. Rotenberg, Esquire, is a partner at Mays, Connard & Rotenberg. She was previously a Berks County Assistant District Attorney and prosecuted sexual assault cases.

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In Memoriam Alan S. Miller

Alan S. Miller, 58, passed away on September 10, 2015. Mr. Miller graduated from Wyomissing Area High School in 1975, received his undergraduate degree from Bucknell University in 1979 and his law degree from the University of Pittsburgh Law School in 1982. Following law school, Mr. Miller began his legal career in private practice before becoming in-house counsel with Gilbert Associates. In his most recent position, Mr. Miller was the solicitor for the County of Berks. Earlier this year, the County Commissioners Association of Pennsylvania named him the Outstanding Solicitor of the Year. Mr. Miller was a member of the Berks County Bar Association and a board member for both the World Affairs Council and the Wyomissing Library.

Mr. Miller is survived by his wife, Kim, and his son, Sam.

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Spotlight on a New Member

By Donald F. Smith, Jr., Esquire

Louis Coffey is president of Coffey Consulting Company, providing services as an arbitrator and mediator of complex business disputes, litigation support as an expert witness and business consultant to entrepreneurs. He was previously a senior partner in the Philadelphia-based firm of Wolf, Block, Schorr and SolisCohen. Lou earned both his undergraduate and law degrees at the University of Pittsburgh.

His outside interests are cycling, ballroom dancing, creative writing, collecting art and fine wines. His life partner is Berks County native Tammy Lutz, and he has three daughters and one son.

Worshipping with the Monks

By Susan N. Denaro, Esquire

It’s rare that I go out for a beer—not that there’s anything wrong with going out for a beer—it’s just often a little too heavy to have more than one. But a recent Sunday brunch in West Reading will have me heading back with a thirst for a good beer instead of my usual shaken not stirred libation.

The other week we were headed to brunch on my favorite block in West Reading when we took the open parking space directly in front of Chatty Monks Brewing at 610 Penn Avenue. Something on its chalk board at the curb made our feet march inside instead of heading to our intended destination.

After being seated on what I assume was an old wooden church pew, the first order of business was to select our drinks.

Based upon the server’s recommendation, my better half, John, opted for its PA Harvest IPA. It is definitively the first IPA I have ever really liked and would drink again because it was not so heavy on the hops that it left a cloyingly fragrant aftertaste on the palate. Wary of the IPA, I opted for a cider (not made on the premises), which was a great pick for a crisp October day. It had wonderfully subtle pear notes to it and was lighter than a traditional apple hard cider. But there was something about that PA Harvest IPA that had me sneaking sips from John’s glass.

What was hard to get my head around was the fact that it was brewed on the premises, on the same little block in West Reading that I have walked since I was a kid. Back in the 1990s, I thought the addition of the Hard Bean coffee shop in the space formerly known as the old Salon Salon Five and Dime was a welcome step forward for the neglected block. However, Chatty Monks’ presence, together with the nearby wine and whiskey bar, now transcends that block to a whole new modern and mandatory destination.

From this great start, we transitioned to our meals and enjoyed a rather non-

7 Chatty Monks Brewing Co. 610 Penn Avenue, West Reading, PA 484-818-0176 Hours: Tuesday 4:00 pm to 10:00 pm Wednesday and Thursday 11:00 am to 10:00 pm Friday and Saturday 11:00 am to midnight Sunday 10:00 am to 8:00 pm

traditional brunch experience than we had planned when we first headed to West Reading. John had the King Cut Panini which was a special of the day. It featured chopped, house-smoked prime rib, caramelized onions and a fried egg.

The creation was held together by melted American cheese and was accompanied by hand-cut fries. It paired well with his quickly vanishing brew and at least he managed to still have an egg for his brunch.

I enjoyed the Forbidden Nachos. It was an overwhelmingly large serving of crispy tortillas, half of which was smothered with the premise-made pulled pork and the other with its spicy chili. The entire plate was then layered with cheddar cheese, jalapenos, chives, cilantro and crème fraiche. In the center of the plate was a small offering of the

homemade salsa which was very tasty considering local tomatoes are no longer at the peak of their flavor. The mound of food was so large that, even with John’s help, I could only eat about a quarter of the serving.

The nachos were righteous. WHEN I have that dish again, I will skip the pulled pork and go straight for the chili. It’s not that anything was wrong with the pulled pork, it’s just that the chili was downright perfect. In order to avoid leftovers, I’ll take more friends along to help manage the serving size.

I remarked to my spouse that the church pew we were seated on seemed somehow appropriate for the worshiping to the food and beer gods at Chatty Monks. Despite the heartiness of our brewed brunch, it was not so heavy that we wanted to sleep it off instead of watching the afternoon football game.

The only disappointment with our brunch experience was that there was no soundtrack of chanting monks playing in the background, but the rare Eagles’ win more than made up for it. The football gods also seemed to be in our favor that day.

Susan N. Denaro, Esquire, is a principal in the Wyomissing law firm of Rabenold, Koestel, Goodman & Denaro.

Berks Barrister | 21

Ronald L. Williams and Venus Hadeed were married on October 25. Ron is a partner at Fox Rothschild.

Proving that he is not a one trick pony, Past President David M. Kozloff of Kozloff Stoudt was inducted into the Wyomissing Football Association Hall of Fame at the homecoming game on October 10.

As part of its 40th Anniversary Celebration Breakfast, Berks Connections/Pretrial Services named Linda Faye Epes as a Life Improvement Ambassador for her long time service on its board of directors and for providing leadership to the agency during its executive director transition several years ago. She is Executive Director of Berks County’s Domestic Relations Section.

Colleen Normile and Marvin Hernandez Rivas eloped to Annapolis, Maryland on September 10, 2015 and were married in a courthouse ceremony.

They are planning a reception in the spring to appease friends and family upset by the eloping. Colleen is a staff attorney in the Reading office of the Community Justice Project.

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On April 25 Sara R. Haines married AJ Clipp at the Reading Public Museum. Sara is with the Rowe Law Offices.

Lauren Marks gave birth to Wyatt Jase Richard Marks on August 4 while on vacation with the family at Rehoboth Beach, Delaware. Lauren is a solo practitioner with her office in West Reading.

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Berks Barrister | 23

ANNUAL DINNER The Berks County Bar Association’s Annual Meeting, held on October 29, featured the elections of a Vice President and two Directors as well as recognition of three 50-year members, and presentations of the LeRoy Hyman Award and Presidential Awards of Merit.

It also featured good food and fellowship!

50-YEAR MEMBERS (L-R): Jack Mancuso, Judge Tom Twardowski and Bill Bernhart

Vice President-Elect Joan London

Adam Levin and Charles Younger

Nicole Manley and Past President Gene Orlando

Gil Mancuso, Mark Merolla, Dan Degler and Mike McGuckin

Assistant Law Journal Editor John Reigle, Board Director-Elect Dawn Palange, Ann Endres, Sharon Gray and Lara Glenn Hoffert

President Pleet with his (L-R) Award of Merit recipients Carol Anne Donohoe, Bridget Cambria and Jackie Kline. They were honored for their tireless representation of those detained in the Berks Residential Center who are seeking asylum and for giving greater exposure to the issues involving detention and the lack of due process

24 | Berks Barrister

Bernardo Carbajal and James Mancuso

SEASONED LINE-UP (L-R): Past Presidents Dick and Dan Bausher, Carl Mantz, ALJ George Yatron, Jeff Elliott and Past President Gene Wisniewski

Zach Morey and Ron Williams Tina Boyd received the Presidential Award of Merit for her hard work over two years as Family Law Section Chair, including the creation of the inaugural Family Law Conference.

Board Director-Elect Dan Nevins and Jennifer Nevins Vice President Kurt Althouse, Ken Millman, and Past Presidents Dave Kozloff and Ed Stock

Continued on page 26

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ANNUAL DINNER

Continued from page 25

Judge Parisi, Sharon Scullin and Jim Rothstein

Kelsey Frankowski, Julie Marburger and Susanna Fultz

Past PBA President Bill Carlucci, Shawn Lau, Robin Levengood, David Eshelman and Mike Boland Past President Fred Mogel introducing the recipient of the prestigious LeRoy Hyman Award for Outstanding Service to the Bar of Berks County Board Director Mary Kay Bernosky, Law Foundation Trustee Franki Aitkin and Law Foundation Vice President Alexa Antanavage

Judge Lieberman, Board Director Jorge Gonzalez and Judge Keller

President Pleet passing the traditional Presidential Medallion to President-Elect Jill Gehman Koestel, whose term begins on January 1, 2016

Board Director Liz Magovern and Mike Gombar

President Pleet receiving an engraved lamp as a small token of our appreciation for his service to the Association.

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Past President Heidi B. Masano upon receiving the LeRoy Hyman Award for her many years of service, including the presidency of both the Association and the Law Foundation (twice), MCLE Chairman for 13 years, past Chairman of the Municipal Law Section, and Past President of the Young Lawyers Section.

At the state level, she has represented the Berks Bar in the PBA House of Delegates for 11 years and continues to hold positions of leadership in the Insurance Fund Trust Fund Board of Trustees and the Judicial Evaluation Commission. She is the current Chairman of the Judicial Independence Committee. Not to be taken lightly, she was on the search committee who recommended that the current Executive Director be hired for the position.

LAW FOUNDATION OF BERKS COUNTY 2015 ANNUAL GIVING CAMPAIGN The Law Foundation of Berks County’s 2015 Annual Giving Campaign is continuing.

As of November 2, 2015, those listed below have graciously given to the Foundation.

If you have not already donated, contributions may be sent to

Law Foundation of Berks County, P. O. Box 1058, Reading, PA 19603.

Bridge Builder ($1000 or more) Donald F. Smith, Jr. (In honor of retiring Judges Antanavage, Boccabella, Keller and Lieberman)

Juris ($500 to $999) Richard A. Bausher

President ($250 to $499) Antanavage Farbiarz, PLLC Tom and Leslie Bell The Honorable and Mrs. John A. Boccabella Brett and Joanne Huckabee Howard and JoAnn Lightman (In memory of the Honorable Arthur Ed. Saylor) Chip Lutz Frederick and Nancy Nice Chuck and Sharon Phillips John J. Speicher (In honor of Donald F. Smith, Jr., Esquire) Jim and Kathy Snyder Sodomsky and Nigrini Riverfront Federal Credit Union Carl and Debbie Sottosanti

Partner ($100 to $249) Franki Aitken George Audi - The Settlement Alliance Mary Ellen Batman Mark S. Caltagirone Jesse L. Pleet Daniel and Deirdre Bausher

Pamela A. DeMartino Merle and Wendy Dunkelberger James A. Gilmartin Frederick K. Hatt (In memory of Lee E. Sapira, Esquire) Chris G. Kraras, White Star Tours Daniel and Jennifer Nevins Paul R. Ober Scott C. Painter James M. Polyak Gary and Karen Rightmire William Rush Peter F. Schuchman, Jr. Edwin L. Stock John M. and Collen L. Stott (In memory of John Bradley, Jr., Esquire) Honorable Mary Ann Ullman Honorable Eugene F. Wisniewski

Associate Honorable A. Joseph Antanavage Connors Investor Services, Inc. Laura Cooper Lynn Feldman Honorable Madelyn S. Fudeman Amy B. Good Barry D. Groebel Darlington Hoopes, Jr. J. Randall Miller Robert Moore The Honorable George C. and Mrs. Yatron

Berks Barrister | 27

Pro Bono Celebration

On October 27, as part of national Pro Bono Celebration Week, the Berks County Bar Association recognized its Pro Bono Team members with a luncheon, an afternoon of free seminars and a concluding reception. The Celebration was extra special with the presence of William H. Pugh, V, President of the Pennsylvania Bar Association, and keynote speaker Dr. Edgar Cahn, the founder of Legal Services Corporation. We salute the members of the Pro Bono Team for helping those in need.

Ann Endres and BCBA Secretary Lisa Siciliano A very attentive group for the free offering of the CLE

Jessica Grater and Kevin Musheno

Beth Auman, Lee Levan and Mike Boland

28 | Berks Barrister

Robin Rovell, Osmer Deming and Steve Otto

Eric Diggan, John Carlson and Tom Beaver

LINEUP OF CELEBRITIES (L-R): BCBA President Jesse Pleet, PBA President William H. Pugh, V, Keynote Speaker Edgar Cahn and the 2015 PBA Pro Bono Award recipients Jackie Kline, Carol Anne Donohoe and Bridget Cambria

Past President Jill Scheidt, PBA President Pugh and Amy B. Good

Gabby Raful, Debbie Sottosanti and Jimmy Lillis

Past Presidents Tom Bell and Heidi Masano

Past President Fred Hatt, President Pleet, Eric Strahn, Deb Franklin and President-Elect Jill Koestel

Barbara Beringer, Chad Rick and Jay Kurtz Board Director Mary Kay Bernosky and Doug Rauch

Berks Barrister | 29

The Streak Continues!

The annual softball game ended with the Youngsters’ Crew again winning over the Seasoned Bunch.

The Commissioner is considering a rules change!

YOUNGSTER CREW (L-R): Kneeling – Julie Marburger, Sara Haines, Mike Wieder and Amy Good.

Standing – “An Unknown Ringer,” Matt Setley, Bill Rush, Chris Muvdi, Sam Adenaike, Chris Garrell, Kevin Musheno and Lance Malcolm

SEASONED BUNCH (L-R): Kneeling – Lisa Siciliano, Greg Henry, Andy Howe, Dan Degler, Eric Taylor and Andrea Mertz. Standing – Kristen Doleva-Lecher, Jay Kurtz, Lisa Ciotti, Tom Twardowski, Ken Millman, Tim Bitting, Mike Kochkodin, Judge Rowley, Judge Fehling, Jay Waldman, Jack Linton and Andrew Muir.

Brian Sherbine is about to drive Julie home from first Hustling Eric Taylor is safe!

Degler connects but is the dribbler enough to score Muir from third?

Catcher Fehling and Batter Setley

30 | Berks Barrister

The Grandstand

Victor Frederick and Pat Barrett

Enjoying the post-game feast (L-R): Osmer Deming, Ken Millman, Pat Barrett and Judge Boccabella

Nicole Manley and Paul Herbein

Chief Youngster Wieder once again hoists the trophy!

Greg Henry is about to pop a one-liner

Elizabeth Ware with Julie Marburger

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Berks Barrister | 31