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“I give because it is the right thing to do. Everyone deserves equal access to our legal system.” of Fox Rothschild LLP

Making a Difference

With Legal Aid of Southeastern Pennsylvania’s Annual Giving Campaign PAGE 26

New Matter CCBA Officers Craig Styer, President Bill Wilson, President-Elect Christine Zaccarelli, Vice President Mary-Ellen Allen, Treasurer Patrick McKenna, Secretary New Matter Committee Charles DeTulleo, Editor Rami Bishay Mark Blank, Jr. Keith Boggess Brian Doyle J. Stoddard Hayes Mary LaSota Andrew Lehr Deborah Lewis Shannon McDonald John McKenna Kim Denise Morton Mary Wade Myers Kevin Ryan Karyn Seace Alan Vaskas Bill Wilson CCBA Staff Wendy Leeper Executive Director Emily Boulanger Communications & Event Manager COVER ART SPONSORED BY: West Chester Business Improvement District The Chester County Bar Association’s quarterly publication, New Matter, has been provided to Bar Association members for four decades. A valuable aspect of CCBA’s membership, New Matter aims to provide our members with information pertaining to current issues facing the practice of law, historic legal issues, continuing legal education opportunities, Chester County Bar Association activities, programs, meetings and functions, practice tips and procedures for attorneys, and items of personal interest to our membership. The opinions expressed in this material are for general information only and are not intended to provide specific legal or other advice or recommendations for any individuals. The placement of paid advertisements does not imply endorsement by the Chester County Bar Association. All rights reserved. No portion of this publication may be reproduced electronically or in print without the expressed written permission of the publisher or editor.




Making a Difference



The 2015 Fall Bench Bar Conference ...... 6

President’s Message................................... 4

Immigration Removal, Socks, & Compliance with Supreme Court Decisions........................................... 8

From the Archives New Matter—July 1981...............................11

Citizenship Day in Chester County........ 10 Zahner is a No Brainer............................ 12 Are You a Procrastinator?....................... 14 Groundbreaking Medicaid Case Changes Landscape................................. 20 United Way of Chester County 2015 Campaign Kickoff & Awards Ceremony................................ 30

YLD Details.................................................18 Save Our Environment.............................23 In Our Community.....................................26 The Blank Page..........................................28 Featured Member Profiles Basel & Colleen Frens................................... 31

Your Ideas!


If you have an idea for an article, or would like to submit content, please contact Emily Boulanger at or (610) 692-1889. PUBLISHER: Hoffmann Publishing Group 2921 Windmill Road, Suite 4 Sinking Spring, PA 610.685.0914 x201 GRAPHIC DESIGNER: Brittany Fry

FOR ADVERTISING INFORMATION: Tracy Hoffmann ON THE COVER: Chester County Historic Courthouse, photograph by Timlyn Vaughan of Timlyn Vaughan Photography.

President’s Message

Craig A. Styer, Esquire President


t is hard to believe that this is my last President’s Message. The year has flown by and my term as President of the Association will soon end. As near as I can tell, I haven’t caused the Association to go off the tracks in the past year, which is a good thing. Thanks to the efforts of many—our active membership, the Board of Directors, and, of course, Wendy and the wonderful staff at the Association—we have had another great year.

Recently, I read a Law360 article about a lawyer who called another lawyer a “squirrel” in an email. Perhaps not surprisingly, the lawyer who received the email did not take kindly to be referred to as a “squirrel” and filed a motion for sanctions with the court, which the court granted. The article quoted Jayne Reardon, the executive director of the Illinois Supreme Court Commission on Professionalism, stating, “This kind of thing does take up time and undermines the administration of justice. There is also a big concern out there that it’s bringing down the legal profession in the eyes of the public.” Reardon continued by noting that judges and lawyers often point to the spread of email as a driver of the breakdown in manners. The Law360 article reminded me of Judge Mark Tunnell’s campaign for a return to civility in the practice of law in Chester County during his term as President of the Association in 2003. In his April 2003 President’s Message, Judge Tunnell stated, “Civility, or its absence, has really become an important quality-of-life issue to many practitioners. Civility is not a weakness. It is a strength. How can we preserve a shared respect for each other and the clients we serve in an adversarial system? We long observed rules of professional courtesy—unwritten principles they were. I believe that it is high time to recapture them, write them down, and mutually pledge to follow them.” Judge Tunnell continued with a quote from Justice Sandra Day O’Connor who stated, “I believe that the justice system cannot function effectively when the professionals charged with administering it cannot even be polite to one another. Stress and frustration drive down productivity and make the process more time-consuming and expensive. Many of the best people get driven from the field. The profession and the system itself lose esteem in the public’s eyes…In my view, incivility disserves the client because it wastes time and energy—and energy that is better spent working on the case than working over the opponent.” Over a decade later, I believe it is time to reaffirm our pledge to civility in the profession in Chester County. While I strongly believe that most of our members exhibit professional behavior in their practice, all of us have encountered attorneys, like the practitioner above, who engage in personal attacks and general nastiness, disguised as “zealous advocacy” for their clients. We, as members of the Association, must reaffirm our pledge to practice law with civility so that, as Judge Cody noted in her remarks at our recent Fall Bench Bar Conference, justice prevails. Thank you for allowing me to serve as President of the Association this year, and I know that we will be in good hands with Bill Wilson as our next President.


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CCBA Feature

The 2015 Fall Bench Bar Conference Gaylord National Resort, National Harbor, MD

hour and dinner, included a delicious dinner in the very beautiful and impressive Old Hickory Steak House, one of the restaurants in the resort. Following dinner, we all migrated to the top floor of the resort at the Pose Rooftop Lounge where we enjoyed cocktails, dancing and even a photo booth, which was a huge hit!

The Conference got kicked off by a Thursday Ethics CLE regarding malpractice. Although the topic may be on Saturday we enjoyed breakfast again the serious side, things were rather lively and heard from the Chester County with the open bar that we enjoyed while Commissioners regarding the state of the we learned what to do and what not to do. Courts and the County. Following that, we Following that we had a wonderful cocktail heard from Laurie Besden, Esquire, who hour and a very delicious dinner buffet on is associated with Lawyers Concerned for By Rami Bishay, Esquire our usually casual Thursday evening. The Lawyers, where she described her incredfestivities really started to heat up when ible personal story of addiction and how opefully you were able to partake we went on a pub crawl after dinner. Many she helps attorneys now who suffer from in this year’s Fall Bench Bar of us enjoyed the different bars, the local serious problems. The Conference ended Conference at Gaylord National scene, the dueling pianos and you can’t with a few raffle drawings. resort, which was held September 24th–26th forget the mechanical bull that some of in beautiful National Harbor. If you were us, including myself, tried to ride! YIKES! For those of you who have attended this unable to attend, here is a brief summary past Bench Bar conference, I am preaching Friday started with breakfast and an to the choir. For those of you who have never of what you missed. unbelievable and captivating CLE with Joe attended a conference, it is a great opporPistone (the real Donnie Brasco) speaking tunity for you to meet fellow attorneys in about the state of today’s mafia and living your area of practice as well as attorneys who with the mafia as an undercover agent. practice in other areas of law. It is also a great That was followed by the all important and opportunity to get to know our wonderful useful Common Pleas Court update and Judges in a different environment. Judge’s breakout sessions. After lunch, we either played golf or had some free Next year we are headed to Skytop, in the time where we enjoyed some beautiful Poconos, which I understand unof the hotel amenities, which derwent a multi-million dollar renovation included a mini Olympic (not the Poconos but Skytop). Between size pool, hot tub and work the usual great selection of CLE classes, out facility. the wonderful resort we will be attending and the opportunity to get to know new Our formal night, members as well spend some time with which is the Friday members you already know, definitely do evening cocktail not miss next year’s Conference!


Photo Captions (Left):  I’m a Fox! - Ben Nevius  I’m not going anywhere - Rami Bishay  It’s On! - Brian Nagle & Graceann DiAndrea  Look Mom, no cavities! - John Fiorillo  Urban Cowboy - Jamie Goncharoff  What is wrong with this thing? - Pat Moccia


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Photo Booth Fun at our 2015 Fall Bench Bar Conference

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CCBA Feature The arguments in the case, as often is true in modern cases in which the courts review the actions of administrative agencies, revolved around the application of the Court’s 1984 decision in Chevron v. Natural Resources Defense Council, Inc., holding that the courts must defer to an agency’s reasonable interpretation of an ambiguous statute. Cases involving Chevron deference necessarily require careful analysis of the statute in question to determine whether the text is ambiguous, which triggers deference to reasonable agency interpretations of the statute.

Immigration Removal, Socks, & Compliance with Supreme Court Decisions By Shannon K. McDonald, Esquire


few months ago the Supreme Court of the United States decided Mellouli v. Lynch, an immigration removal case which focused on a lawful permanent resident facing removal based on a misdemeanor drug conviction from Kansas. The conviction was for possession of paraphernalia: Mr. Moones Mellouli illegally possessed four tablets of Adderall and hid them in his sock. The government began removal proceedings and forced him to leave the United States.

conviction to be grounds for immigration removal, the conviction must relate to a substance that is defined as controlled under federal law. Kansas does have a number of drugs that are considered controlled there, but actually aren’t controlled substances under federal law. The charging document and plea agreement in Mellouli’s criminal case failed to identify the specific controlled substance related to the paraphernalia that served as the basis for his conviction and thus did not make it clear that the substance was controlled by The case was interesting to the Supreme federal law. Nonetheless, the immigration Court and immigration practitioners court and Board of Immigration Appeals because it brings out an interesting point (BIA), with the approval of the court of of state law as it pertains to federal im- appeals, ordered Mellouli deported from migration law. In order for a state drug the United States.


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Justice Ruth Bader Ginsburg wrote for a majority of the Court, which included all but Justices Clarence Thomas and Samuel Alito. The opinion carefully marches through the statutory language and agency interpretations and concludes “that Mellouli’s Kansas conviction did not trigger removal under” the immigration statute. The Court reiterated its adherence to the “categorical approach” to removal under criminal statutes, which requires that all of the convictions under a statute must trigger removal without a need for inquiry into the facts of the individual case. Of course, with Mellouli, if we look at the particular case, it is clear he was in possession of a substance which is considered controlled under federal law, but without looking as far as the sock, we cannot tell whether the substance was controlled because it is not defined in the plea. SCOTUS fur ther obser ved that “Congress and the BIA have long required a direct link between an alien’s crime of conviction and a particular federally controlled drug.” Recognizing that Kansas law regulated nine substances not included in the federal controlled substances lists, the Court found that the government’s emphasis on the “relating to” language in the immigration statute to justify removal for a conviction in connection with a substance that was not clearly regulated by federal law was a “sweeping interpretation [that] departs so sharply from the statute’s text and history that it cannot be considered a permissible reading.” In rejecting the government’s position, the majority stated Continued on page 9

Continued from page 8 that “[t]he incongruous upshot [of the government’s argument] is that an alien is not removable for possessing a substance controlled only under Kansas law, but he is removable for using a sock to contain that substance. Because it makes scant sense, the BIA’s interpretation, we hold, is owed no deference under the doctrine described in Chevron.”

thereby leaving open the possibility of reinstituting the proceedings against Mellouli at some point. In contrast, Mellouli wants to ensure that the proceedings are dismissed with prejudice. Mellouli, having found SCOTUS amendable once, went back to the Court, and requested a stay.

Mellouli seeks to have Justice Alito, who disBy all rights, that should have ended agreed with the majority’s the discussion and Mr. Mellouli should rejection of the removal order in Mellouli have been deemed back to LPR (Legal v. Lynch, to issue a stay to allow Mellouli Permanent Resident) status. The case was to pursue efforts, including possible manreturned to the U.S. Court of Appeals for damus, to require the U.S. government the Eighth Circuit, which, without notice to dismiss the removal proceedings with or briefing, remanded the case to the Board prejudice. Mellouli claims that the court of Immigration Appeals (BIA) for further of appeals is violating the Court’s ruling by proceedings consistent with the Supreme remanding for the BIA to come up with a Court and now the Circuit Court’s opinions. way for justifying removal under the drug The U.S. government ultimately an- provisions of the removal statute when the nounced that it planned to dismiss the Court has already ruled that Mellouli is not removal proceedings without prejudice, removable under its provisions. Efforts to

circumvent the Court’s ruling did get Justice Alito’s attention. Justice Alito requested a response by the Department of Justice and is expected to consider the stay. The nature of Mellouli’s concerns, and the great potential harms he faces, offer insights into why removal matters differ from the ordinary civil matters handled by the courts. All in all, the struggle between the Justice Department and Moones Mellouli might seem like small potatoes. One might legitimately ask, however—as many did as the United States pressed a minor drug paraphernalia involving a sock all the way to the Supreme Court—why the U.S. government is taking such tough litigation positions to no apparent greater end and during a time when punishments for drug possession across the country are being reformed. New Matter


CCBA Feature



wenty-three legal permanent residents (LPR) in Chester County are looking forward to soon becoming U.S. citizens thanks to over a dozen local volunteer attorneys along with paralegals and support staff who participated in this year’s Citizenship Day program “Step Up to Citizenship.” It is a collaborative effort by multiple organizations in the Philadelphia region to support and assist qualifying immigrants through the naturalization process to become U.S. citizens. It is one of many citizenship initiatives across the nation that was run during the week of September 17–23 to coincide with Citizenship Day which celebrates the anniversary of the signing of the Constitution in 1787.

The program was held at St. Rocco Church in Avondale. Over two days LPRs learned about the citizenship process, fee waiver eligibility, the English language In partnership with various organizations and civics test requirements. If they met and private law firms, The Pennsylvania the eligibility requirements for citizenImmigration and Citizenship Coalition ship, they were matched with a volunteer (PICC) and the law firm of Sweet & attorney who helped them complete and Paciorek were instrumental in outreach file the application. Once the application efforts and organizing the Step Up to is processed, the attorney prepares the Citizenship program in Chester County. application for and accompanies him or When asked about her role in helping her to an interview with U.S. Citizenship coordinate this program in Chester County, and Immigration Services (USCIS). At immigration attorney Lindsey Sweet stated: the interview, the LPR will be questioned about his or her application for citizenship and must take an English and civics test. If the LPR’s application is approved, he or she will attend a naturalization ceremony and officially become a U.S. citizen. I was motivated to participate Becoming a U.S. citizen is an important in Citizenship Day because I step in the lives of LPRs. It enables them Aspiring citizens are extremely grateful know from what I see in my to vote and serve on a jury. They can for the legal advice and services they receive travel with a U.S. passport which enables through the Citizenship Day program. own practice that legal fees and them to obtain assistance from the U.S. Although the program is only in its second access to honest legal advice are government if necessary. U.S. citizens year in Chester County, it has been succommon barriers to citizenship generally get priority when petitioning cessful and well received by the community. applicants in our area. Pro Bono to bring family members to the country As more people come to know about this service is extremely important to permanently. Government agencies require initiative and utilize the services available, me personally and I know that U.S. citizenship for certain jobs. A U.S. citthe program is sure to enjoy continued izen’s right to remain in the United States success for years to come. many Lawful Permanent Residents cannot be taken away. Many financial aid in our community have put off grants, including college scholarships and citizenship for years due to these funds given by the government for specific barriers. While this is only the purposes, are available only to U.S. citizens. second year that Citizenship Day has reached Chester County, we Many LPRs who are eligible to become citizens do not take the necessary steps to have had increased success each do so because they are of low income and / year and I have potential applicants or have language barriers that inhibit their already asking about next year. access to information about becoming a citizen. Many LPRs cannot afford legal

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services, nor can they afford the cost of the application nor are they aware of the availability of fee waivers.

By Deborah Lewis, Esquire

From The Archives (   New Matter  —  July 1981)

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CCBA Feature

Zahner is a

No Brainer E

lder law attorneys of the Third Circuit rejoice! A significant victory occurred recently in the case of Zahner v. Secretary, Pa. Dept. of Human Services (3rd Cir., Nos. 14-1328, 14-1406, Sept. 2, 2015). In this case, the Third Circuit upheld the use of very shortterm Medicaid qualified annuities as a permissible medical assistance planning eligibility strategy.

By Karyn L. Seace, Esquire

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The Deficit Reduction Act of 2005 significantly limited the strategies that were available to help a client qualify for medical assistance. (Medical assistance is a program that has a component that covers the cost of long term care for eligible people. The program seeks to maintain a fine balance between providing funds only to those most in need, while not impoverishing their spouses. It is governed by a multifaceted and comprehensive set of rules that changes regularly.)

is automatically considered a “gift” which must be explained away (doctor, lawyer, plumber, electrician, etc.) or paid back. If the gift is not paid back, the client will incur a “penalty period.” The penalty period is calculated by the “divisor,” which changes periodically. Essentially, the penalty period equates to a number of days that the client has to pay privately for the cost of the nursing home. The difficulty is that the penalty period does not start until a client either has $2,400.00 (if monthly income is on the “high” side) to his name, or a total of $8,000.00 (if income is on the “low” side—$2,198.00 or below) to her name. Knowing all of the above, it is easy to see why annuities have remained an integral part of the strategy used by competent elder law attorneys, to cover the cost of the nursing home during a period of ineligibility, because of a penalty resulting from gifts to children or grandchildren.

All too often our clients wait until they Zahner litigated the use of short anare on the nursing home stairs to come to nuities of 12 to 18 months for clients us for help. Many do not realize that there with life expectancies of eight to 10 years. is a five-year look back period where they Both clients were denied eligibility on the are made to account for every transaction, grounds that they had more resources to and every asset (even if jointly owned), their name than they were allowed. The for all five years. Under the rules, any payment to a person of $500.00 or more Continued on page 13

Continued from page 12 clients actually sued the Department of Human Services seeking both injunctive and declaratory relief. Below are some of the upsides to the decision:  The client does not have to get

back the original investment, plus interest. Broker fees are acceptable and not a part of the consideration as to whether the annuity is actually an “investment.”

 There is no set timeframe

for a payout. (However to be Medicaid compliant, it still must be actuarially sound.)

 Community Spouses (the spouse

 The motive for utilizing an

annuity is not determinative.

Thankfully, now elder law attorneys can use short-term annuities provided the statutory safe harbor requirements are met. They are no longer scoffed at as “sham transactions” used to qualify the client for medical assistance without first using all of the client’s resources to pay the nursing home. Allowance of the use of shorter term annuities really does open the door for clients with more limited resources to use all of the available medical assistance strategies. Now use of annuities is available to even those clients who do not have large nest eggs—a no brainer.

who is not in the nursing home) irrevocable, nonassignable annuities may not be treated as an “available resource.”

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CCBA Feature

Are You a

Procrastinator? By Ellen Freedman, CLM


admit that I am a procrastinator of the first order. If procrastination were a martial art, I would have earned my black belt long ago. If there is a task that I don’t want to do, or I think will be very difficult to do, I am creative beyond imagination in finding endless other things to do other than the task at hand.

Procrastination is a common characteristic of highly motivated and intelligent people. I have seen procrastination at work in law firms for twenty years. In its simplest form it’s harmless. For example, one particular managing partner rarely visited me in my office. On the rare occasion when he would show up in my office, he would sprawl out in a chair with his feet propped up on my desk and ask, “What’s new?” I knew his secretary would be tracking him down shortly to get him back to work. He needed the break. I understood. And it always brought a sympathetic smile to my face. At its most destructive, procrastination can lead to malpractice or alienation of the client. I remember a young associate who had to file a complicated brief. He spent weeks wandering the office, meandering in and out of offices talking to people. He spent lots of time on the phone on personal calls. He frequented the lunchroom to microwave popcorn. He chatted with support staff. In short, he did everything but start drafting the document. At the zero hour he worked around the clock in the library. But realizing that it was too late to do the

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brief, he spent the time frantically trying to find cause to enable him to delay the inevitable deadline. He came up with a limp argument which did not pass muster with the court. His procrastination would have resulted in a malpractice suit had the client been less gracious. Yes, we all procrastinate on occasion. Some of us are worse than others. What you may not realize is that the act of procrastinating can cause additional stress, which is often actually greater than that of tackling the difficult task you are avoiding. And the last thing we need in our lives is additional stress. Law firm environments are stressful enough. Studies have proven that stress can have a negative impact on our health. The fact that our medical policies cost more and are more prohibitive than for many other industries bears that out. In addition, Employee Assistance Plans (EAPs) experience a much higher utilization rate in the legal industry. No doubt about it—we’ve got more than our fair share of stress. And if there is a particularly stressful—difficult—task to do and you procrastinate, the additional stress can actually make it even LESS likely that you will begin the task at hand. It becomes a vicious cycle.

What usually holds us back from starting a project is a perception of the presence of one or more of these factors: 1.

the project is overwhelmingly complex


the project requires a great deal of time to complete


the project does not have

Here are some ideas I’ve read about and a clear starting point tried over the years which seem to work well. They don’t all work at all times. But usually all you need is a kick start to overcome the 4. the project is unpleasant procrastination blues. One of these ideas Continued on page 15 will likely give you the jolt you need. Continued from page 14 Think about the last time you procrastiNowadays there is software which can nated. It’s highly likely that one or more of assist the attorney in the outlining and/or these factors was evident. Let’s deal with thought/knowledge management process. them one at a time. Three products have gotten honorable mention in legal internet chat groups:

Project Complexity really trans-

deadlines and demands we can’t imagine accomplishing something which requires a large block of time. As a result, we devote no time at all to the task. To overcome this factor, select small parts of the project to complete as time allows. Chip away at the project in 15–30 minute increments; one piece at a time, as time permits. There’s no rule that the project needs to be completed in its entirety in one sitting, although we often get that idea into our heads. At some point, after a number of key parts of the project are completed, your perception of the remaining time demand will sufficiently change so as to no longer be cause for further procrastination.

lates into a perceived lack of knowledge BrainForest: about the project. There is a fear that something important will be missed or BrainForest/benefits.html handled incorrectly. The fear can be overcome through project mapping. That’s a ActionOutline: fancy way of saying that you should spend some time outlining the project into its swlib/lpad/actout.html various parts. Attorneys are particularly good at outlining. It seems to promote thought in a very organized, beneficial way, NoteMap: and reveals where there has been deficient thought and planning. In doing so, you can Project Starting Point is somegreatly simplify the project by providing times not obvious on a lengthy or highly clarity and organization. This will in turn complex project. As a result, one is simply provide confidence that you understand Project Time, or the lack thereof, is unable to get started, even if one is ready to and have mastered the complexity that has frequently the culprit in law firm procrasbeen causing the procrastination. tination. Our lives are so crammed with Continued on page 17

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| 15 Continued from page 15 do the work on the project and has the time available. This is a more subtle factor than lack of understanding or lack of time. Most of us believe that there is a clear beginning and end to each assignment. It is one of those logical thoughts which just makes sense. But when you can’t clearly figure out where to start, and it is interfering with getting the project underway, you are best to start anywhere. As Washington D.C. consultant Margaret S. Spencer said in her “Overcoming Procrastination” article in Oregon’s In Sight, “We lose sight of the fact that just starting anywhere is better than not starting at all.” So pick a part, any part, of the project and get started. Eventually you will accomplish enough to figure out what might have gotten missed at the beginning, if anything, and you will get that done, too. Consider tackling what you believe to be the toughest part of the project first. The result is like removing the cork from the bottle—the rest of the project flows freely thereafter.

Project Unpleasantness

is perhaps the hardest factor to overcome. We rarely if ever want to deal with unpleasant tasks. Who does? Who needs the additional stress? The longer one delays, however, the worse the unpleasantness can become. In order to get past this factor, negotiate

“We lose sight of the fact that just starting anywhere is better than not starting at all.”

with yourself to arrange a suitable reward for doing the work. For example, block out the morning to start or complete the task. Arrange to hold off calls and interruptions as you work. Follow up with a round of golf, or a massage or movie, etc., in the afternoon as your reward. In order to earn your afternoon reward, you must complete or make substantial progress on the project in the morning. Stick to the deal; no work, no reward. Margaret Spencer suggests a unique approach I have not heard of before called “Drive Yourself Crazy By Doing Nothing.” She suggests that you assemble all the materials for the project on your desk, in an organized fashion, and then just sit looking at it and do absolutely nothing for exactly seven minutes. She states, “By the end of the seven minutes, you’ll be itching to start.” Of

course, the simple fact that the project is already broken down into segments and organized can be cause enough to overcome procrastination. And seven minutes of doing absolutely nothing but stare at unfinished work can seem like a lifetime in a fast-paced law firm, and leave one eager to start on the work. If you find that you frequently procrastinate, try to map out the project, start on it at any point, preferably the most challenging point, complete parts in small time increments, and if necessary make a deal with yourself to provide rewards for completion of substantial parts of the project. Don’t be determined to get it perfect from the start. A lawyer’s tendency to be a perfectionist can slow progress to a crawl. There’s time to correct and polish it up later as part of the overall review. The most important thing is to just get started.

A version of this article originally appeared in the 9/99 issue of the Pennsylvania Bar News. ©2005 Freedman Consulting, Inc. The information in this article is protected by U.S. copyright.

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YLD Details

A Successful Birth Certificate Clinic

& More to Come

By Eric C. Closs, YLD Member


n July 22, 2015, the first pilot birth certificate clinic program was launched in Chester County. The program was a success and forty-two (42) homeless and low-income residents were assisted in obtaining birth certificates. The birth certificate seekers gathered at Safe Harbor, a homeless shelter in West Chester, where they were greeted by Young Lawyer’s Division (“YLD”) members, members of Legal Aid of Southeastern Pennsylvania, and other members of the Chester County Bar Association. The volunteers sat down with applicants and filled out birth certificate applications for them. Afterwards, applicants shared doughnuts, fruit, and other snacks provided by Safe Harbor as they chatted in Safe Harbor and outside.

The applicants being helped were diverse and included chilThe birth certificate clinic was executed in a dren, the elderly, and the physically disabled. All applicants were partnership between Legal Aid of Southeastern born in Pennsylvania. Non-Pennsylvania natives are planned to Pennsylvania, Safe Harbor, and Chester County’s be included in a birth certificate clinic at a future date. A birth YLD. Legal Aid, and its Pro Bono Director, Christine certificate clinic specifically for veterans is being planned for the Zaccarelli, Esq., were essential in the planning and execution immediate future. Volunteers are currently needed for the veteran’s of the clinic. Besides sitting on the planning committee, Ms. clinic and all interested parties are encouraged to attend. If you are interested in volunteering, would like to refer a veteran to Zaccarelli helped manage intake on the day of the program. the clinic, or simply would like more information, please contact Legal Aid submitted the applications to Pennsylvania Vital YLD Member Eric Closs at or Legal Aid Records afterwards. Pro Bono Director Christine Zaccarelli at Safe Harbor and its Director, Glenn Fricke, were partners on A legal representative is one of the enumerated individuals the project. Safe Harbor provided clinic space, food, and coorwho is able to request a birth certificate in Pennsylvania. This is dination efforts. Mr. Fricke not only assisted on the day of the why, in obtaining a birth certificate, it is useful to have the assis- clinic, but was a part of the clinic planning process. The clinic tance of a lawyer volunteer. Volunteers are particularly helpful would not have been possible, or so well-executed, without their for homeless individuals, who are often left without the funds, generous support. know-how, or surrounding support to apply for a copy of a birth certificate on their own. Continued on page 19

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New Matter Continued from page 18 Thanks is also owed to George D’Ambrosio of Reger Rizzo Darnall for his dedicated, hands-on efforts, as well as his sage thoughts and advice. Mr. D’Ambrosio was critical throughout this project. The pilot clinic was sponsored by Buckley Brion, Fox Rothschild, Gawthrop Greenwood, Goldberg Meanix McCallin & Muth, MacElree Harvey, and Reger Rizzo Darnall. The law firm sponsors generously split the costs of the application fees in order to provide this service at no cost to the individuals. YLD would also like to thank many of its members who volunteered their time on the day of the program. This is the only birth certificate program in Chester County, probably our County’s first program as well, and the clinic partners hope to carry on the program to help many more individuals in the future.

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CCBA Feature

Groundbreaking Medicaid Case CHANGES LANDSCAPE

By Janet M. Colliton, Esquire


ust as I was proverbially speaking on my way out the door for vacation, a groundbreaking Medicaid case was decided that establishes a “safe harbor” for Medicaid planning. The case is a Pennsylvania case from the federal Third Circuit Court of Appeals but has implications throughout the country. It is one in which organizations to which I belong, the National Academy of Elder Law Attorneys (NAELA) and the Pennsylvania Association of Elder Law Attorneys (PAELA), have been deeply involved. The question was whether Congress really meant what it said when it carved out an exception in the Medicaid rules. Anabel Zahner v. Secretary Pennsylvania Department of Human Services answered the question whether a specific planning tool known as a DRA compliant immediate annuity can be safely used for Medicaid

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planning. It is important especially for spouses for planning because, for many of our clients, the most significant question after determining that her or his spouse is going to be properly cared for in a nursing home is, “How can I survive if all of his (or her) income is going to go to the nursing home to pay for care?”

Spousal Medicaid immediate annuities are different from the kind of product that is usually thought of as an annuity. An immediate annuity is one where assets are converted into an income stream paying income to the beneficiary usually on a monthly basis. These products, in their specific Medicaid forms, have been used for several years by planners but there had been What many average consumers do not some questions. Can they be short term, realize and is typically ignored is that giving the spouse at home at least enough Medicaid residents do pay for their care— income to equal what she or he has lost? even while on Medicaid. They contribute Or do they have to be longer term giving a their monthly income. What a wife, in tiny monthly income not enough to cover particular, may experience along with the expenses? If all the rules are followed, will transfer of her spouse to a nursing home, the Courts follow the rules as written or is loss of his income which may have been will other rules be applied? needed to meet regular expenses of daily living. Although some at-home spouses The Medicaid rules are specific about with especially low income may be able to the terms of a Medicaid DRA compliant claim on the nursing home spouse’s income, this can come with other problems. Continued on page 21 Continued from page 20 annuity—they have to be irrevocable, non-assignable, actuarially sound not exceeding the actuarial life of the individual, name the government as a potential beneficiary and so on. This is not the kind of planning for amateurs or someone who works with one once or twice a year. Because this is a financial product, insurance carriers are involved. The rules need to be followed. However, when done correctly they provide a much appreciated sense of financial security for a spouse already reeling from the need to move his or her spouse to a nursing home for care. The Zahner decision answers these questions provided planning is done before assets are exhausted to the point that there is little available to plan. Planning cannot begin effectively when most of the assets have been spent, even if they were spent for care.

There is another use. This insurance product can also be used for what are known as gifting annuities. Usually we use gifting annuities to handle gifting that was done previously without knowledge of the Medicaid rules. Here is some explanation.

“How can I survive if all of his (or her) income is going to go to the nursing home to pay for care?�

The five-year lookback period for Medicaid has become a major source of confusion. However, there can be ways to correct mistakes. Grandparents routinely effects and, in some cases to prevent penalty give money to children to tide them altogether. Medicaid immediate annuities through difficult times or to grandchildren are not the only answer and Medicaid is to help them pay for college. All of these not the only tool for long term planning. are gifts under the Medicaid rules and can If there are questions, go for help. This new result in penalties if assistance is needed. decision provides some needed certainty Large contributions to church or charities going forward. can also result in penalties. Annabel Zahner et al. v. Secretary If gifting can result in penalties, the Pennsylvania Department of Human Services, kind of immediate annuity addressed in (3rd Cir, 2015). C.A. Nos. 14-1328, 14-1406, the Zahner case can be used to soften the Filed 9/2/2015).

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“The ecological & economic importance of the Chesapeake Bay is well-documented. As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things.�

Save Our Environment

EPA’s Bay TMDL Permit {the New Chesapeake Bay Pollution Diet} Upheld in 3d Circuit Decision: Farm Bureau Challenge is “Long on Swagger, but Short on Specifics”


wo years ago, I wrote about the Pa. Middle District federal court decision that relates to the Obama Administration’s (and the states’) renewed efforts to improve water quality in the Chesapeake Bay, and reduce the pollution that enters the Bay from various sources (air deposition, point-source discharges, and non-point water discharges).

By John R. Embick, Esquire

On December 29, 2010, U.S. EPA issued a permit setting “Total Mass Daily Loading” (“TMDL”) loading limits for the Bay, and asserted its authority to take such action under the Federal Water Pollution Control Act (“Clean Water Act,” or “CWA”). The TMDL permit establishes pollution loading shares for the Bay tributary states (Maryland, Virginia, West Virginia, Pennsylvania, New York, and The main effort involved the establish- Delaware (as well as D.C.)), and addresses ment of a “pollution diet” for the Bay, and pollution loadings of sediment, phosphorus the “diet” affects all of those six states (and and nitrogen. This TMDL permit constiD.C.) which are tributary to the Bay. A tutes the “pollution diet.” huge part of Pennsylvania, extending from the Maryland border all the way north The “meat and potatoes” of the to the New York border, is located in the Chesapeake Bay TMDL permit are the Chesapeake Bay watershed. The watershed limits for pollutants, and the states’ plans to is so vast (encompassing 64,000 square control the discharge of pollutants. The Bay miles) than even a portion of western TMDL requires, overall, a 25% decrease Chester County lies in the watershed in nitrogen loadings, 24% reduction in basin (you can see watershed boundary phosphorus loadings, and 20% reducsigns on the Pennsylvania Turnpike, for tion in sediment loadings, and allocates instance). And, of course, many Chester reductions between point sources and County Bar members recreate in and upon non-point sources of pollution. EPA leaves the Bay waters (and in doing so probably to the states the problem of attaining the add “point-source” pollution), especially during Bar Sail. Continued on page 24 New Matter

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Save Our Environment Continued from page 23 reductions, and the states’ attainment plans are called “Watershed Implementation Plans” or “WIPs.” The loading allocations are, in part, the product of a very complex, mega-sized water quality model of the Bay.

were permitted to intervene, including the home builder associations, and several environmental groups. Interestingly, no participant state (or D.C.) challenged the TMDL permit. Farmers and agricultural groups are particularly upset because the One key feature of the TMDL process is pollution allocations likely will require the legal underpinning for EPA’s authority far more effort and expense to reduce to establish a TMDL permit with pollu- non-point discharges (e.g., run-off ) from tion allocations. EPA takes the position agricultural operations and fields. that when a state reports that waters are “impaired” (i.e., not meeting water quality The suit raised challenges, among othstandards), EPA is authorized to set a er things, to: (1) EPA’s authority to set

Rambo ruled in favor of EPA on every issue. In providing a detailed background of the case, she wrote that “The ecological and economic importance of the Chesapeake Bay is well-documented. As the largest estuary in the United States, the Chesapeake Bay is essential for the well-being of many living things.” On July 6, 2015, the 3d Circuit upheld the lower court. Writing for a unanimous three-judge 3d Circuit panel, in the case of American Farm Bureau Federation, et al. v . U.S. EPA, et al., Doc. No. 13-4079, Judge Ambro upheld the “careful and thorough opinion of the District Court.” Slip Op. at p. 60. On appeal, the court found that the Farm Bureau challenge presented a classic case of Congressional intent and statutory interpretation, and turned on the meaning of “TMDL.” Unfortunately, “TMDL” is not defined in the CWA (the TMDL provision is found at 33 U.S.C. § 1313(d)(1)(C)), and the Act does not provide any guidance as to how a TMDL is to be created.

TMDL permit for the impaired waters (if the state does not take action). The Bay and many of its tributaries are impaired waters. Less than two weeks after the Bay TMDL was issued, a broad challenge was filed on January 10, 2011, by the American Farm Bureau Federation (and the Pennsylvania Farm Bureau) at Docket No. 1:11-cv-00067 SHR, in the Federal District Court for the Middle District of Pennsylvania (the case was assigned to Judge Sylvia Rambo). A number of parties

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pollution loading allocations in TMDL permits (i.e, the U.S. may only ask for implementation plans from the states, and does not have the authority to impose limits); (2) the underlying science justifying the pollution reductions (i.e., the Bay water quality model is defective); and (3) the length of the public comment period (i.e., the public comment period was too short for meaningful public participation). On September 13, 2013, ruling on cross summary judgment petitions, Judge Sylvia

The Farm Bureau interprets the words “total maximum daily load” as unambiguous. The Farm Bureau contends that a TMDL can consist only of a number representing the amount of a pollutant that can be discharged into a water body. In issuing the Chesapeake Bay TMDL, the EPA (1) included in the TMDL allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants (including point-sources and non-point sources of pollution), (2) promulgated target dates for reducing discharges to the level the TMDL envisions, and (3) obtained assurance from the seven affected states that they would hit the targets. These latter actions exceeded EPA’s authority under the CWA, according to the Farm Bureau. Circuit Court Judge Ambro turned to Chevron v. NRDC, 467 U.S. 837 (1984), for guidance in establishing whether EPA had the authority to “fill in the gaps” left by Congress. Slip Op. at p. 29. Continued on page 25 Continued from page 24 Following Step 1 (is the intent of Congress ambiguous?) of the Chevron analysis (Chevron, 467 U.S. at 842–43) Judge Ambro found that the term “TMDL” was sufficiently ambiguous. In particular, the court found that the word “total” was susceptible to numerous interpretations, and that EPA was authorized to “fill in the gaps.” Accordingly, EPA legally could (1) account for point and non-point sources of pollution, (2) set forth schedules in states with progress toward achievement of water quality standards and (3) assess whether a state will meet the goals of pollution reduction. Slip Op. at. p. 53. In assessing Step 2 (is the agency’s inter“The Chesapeake Bay TMDL will require pretation arbitrary, capricious, or manifestly sacrifice by many, but that is a consequence contrary to the statute? (Chevron, 467 U.S. of the tremendous effort it will take to at 844)), Judge Ambro reviewed a host of restore health to the Bay—to make it once supporting material (e.g., statutory provi- again a part of our “land of living,” Robert sions, legislative history, case precedents, Frost, The Gift Outright line 10—a goal etc.) to find that EPA’s approach satisfied our elected representatives have repeatedly Step 2 of the Chevron test. endorsed.” Slip Op. at P. 60.

In describing the Farm Bureau’s continuing struggle (they have indicated that they will request a review by the U.S. Supreme Court), representatives of the Farm Bureau stressed that the Farm Bureau is not challenging EPA’s power to set the limit, but rather they are resisting the limits EPA placed on the various pollution sources (i.e., the substantial pollution burden derived from non-point pollution sources, largely attributed to agricultural activities). Curiously, John Mueller, Farm Bureau vice president of litigation, was quoted as conceding that the current clean-up plan for the Bay must be implemented: “It’s the only way the bay is going to get cleaned up.” York Dispatch, 9/28/2015, by David Weissman ( farm-bureau-challenging-epa-authority-chesapeake-bay-pollution).

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In Our Community

Making A Difference

By Brian J. Doyle, Esquire


he courthouse is a confusing and intimidating place to enter for the average adult. For a fourteen-year-old mother, it is terrifying. She came to court to confront her child’s thirty-year-old abusive father. He had told her that if she asked for help, nobody would believe her, and her baby would be taken from her. The criminal justice system had not succeeded in holding the father accountable for all he had done. The mother’s family is part of an underrepresented community, and English is not spoken at her home. She and her family had no money to hire an attorney, but she was not alone.

Pro bono attorneys stood beside the mother throughout the court process, to help her in obtaining a Custody Order, which limits father’s contact with the child to supervised visits, and a Final Protection From Abuse Order. Pro bono work is an opportunity to change the course of lives for people like this young mother and others of many backgrounds.

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Low-income qualifies a person for Legal Aid or Access to Justice. Income reflects not only economic status, but also social marginality, education, health, family situation, or other personal challenges. Domestic abuse, for which no one seeking protection is turned away, affects people of all economic and social classes. Having the ability to offer our expertise pro bono to these clients through Legal Aid ensures that the justice available through our courts reaches all parts of our community. I have volunteered my time as a pro bono attorney with Legal Aid since shortly after I passed the bar exam in fall of 2014. I went to law school with the vague idea that I would use what I learned to help people. The vagueness faded as I progressed through school and discovered concrete opportunities to help. In my second year, I volunteered in Philadelphia Family Court where I assisted in drafting PFA petitions for some of the fifty Continued on page 27 Continued from page 26 new petitioners each day of the week. In my third year, I became a certified intern with my law school Civil Clinic where I helped a scared fourteen-year-old girl with custody of her infant daughter. I carry these experiences with me as I move on in my career. I am inspired by the decisions of my clients to make significant changes in their lives, and I am thankful that I have the opportunity to advise them as they do. It is immensely fulfilling to see the relief and appreciation on clients’ faces as they turn a corner in their life, having achieved a new beginning, safety, or an opportunity for their children. Pro bono clients often have nowhere else to turn for help. They are ready to hear advice that is sometimes as difficult to give as it is to take: entering rehab, breaking-off unhealthy relationships, stepping back from a parental role under certain circumstances. Setting aside the fee is a liberating experience because it leaves the attorney in the position to practice giving realistic, candid, and tough advice without the risk the client will take his or her business elsewhere. In this sense, the impact of the pro bono attorney is truly life changing for the client, for the client’s children, and for our community. If you have questions about pro bono opportunities with Legal Aid of Southeastern Pennsylvania or would like to volunteer your time, even for a single case, please contact Christine Zaccarelli by phone (610) 436-4510 or via e-mail (


Upcoming Events For more details on all upcoming meetings and events, go to:


Nov. 18 �������������� Stively Inn of Court from 5–8pm at Radley Run Country Club

Nov. 26 �������������� Happy Thanksgiving


Dec. 10 �������������� Memorial Service & Annual Meeting from 4–6pm at Historic Courthouse Courtroom 1

We are once again asking members of the

Bar Association and the public to participate in our annual Giving Campaign to help

raise funds for Legal Aid of Southeastern

Pennsylvania (LASP). LASP works tirelessly for those less fortunate in our community


Jan. 1 ������������������ New Year’s Day Jan. 18 ��������������� Martin Luther King Jr. Day Jan. 22 ��������������� President’s Dinner at Waynesborough Country Club

who are in need of legal representation.

By supporting Legal Aid of Southeastern

Pennsylvania, you are also supporting our

mission of providing Chester County citizens with equal access to the justice system. To donate, please contact Emily Kollhoff at

610.692.1889 or

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The Blank Page

Fifty Years Ago By Mark Blank, Jr., Esquire


INETEEN SIXTY-FIVE—what a year! Where were you? That is, if you were. We know that Jackson Browne was 17 (“Running On Empty”). Where was I? Well, where wasn’t I? Cruising up and down the same old strip in my Pontiac Catalina Convertible, or strolling down Bourbon Street in the Big Easy. Most of all, however, I was in the study lounge with my head buried in a book.

for four days. Riots for six days in Watts resulted in 34 dead, more than 1,000 injured, nearly 4,000 arrested and $175,000,000.00 in damages. Commander in Chief Johnson escalated the war in Vietnam. A tropical storm (Hurricane Betsy) ravaged New Orleans, the worst in its history until Katrina forty years later. Kim was born.

As for events of the year, Dr. Martin Luther King, Jr. and 2,600 others were arrested in Selma, Alabama, during a three day demonstration. Federal indictments were lodged against Deputy Cecil Price and thirteen others for the deaths of Goodman, Schwerner and Cheney a year before. The indictments were dismissed by the United States District Court for the Southern District of Mississippi, which was reversed by the Supreme Court of the United States in United States vs. Price, 383 U.S.787(1966). Medicare began on July 1. Three men were sent adrift into space

In film: Doctor Zhivago (Omar Shariff ); The Sound of Music ( Julie Andrews); HELP! (The Beatles).

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In Pop Music: The Beach Boys, Help Me Rhonda, California Girls, Barbara Ann; The Beatles, HELP!, Yesterday, Paperback Writer; Barry McGuire, Eve of Destruction; The Fortunes, You’ve Got You’re Troubles, I’ve Got Mine; The Yardbirds, Heart Full of Soul; The Four Tops,The Same Old Song (Writer’s Note: Literally); Jan & Dean, You Really Know How to Hurt a Guy; The Kinks, Set Me Free; The Byrds, Turn, Turn, Turn; Bob Dylan, Like a Rolling Stone; Simon & Garfunkel, Sounds of Silence; Lee Andrews and The Hearts, The Cold Gray Dawn; Barbara Lewis, Baby, I’m Yours; Etc. Continued on page 29

Continued from page 28 In Sports, the Phillies did not win the World Series, but the Los Angeles Dodgers did. The Eagles did not win the National Football League Championship, but the Packers did. University of Michigan defeated Oregan State in the Rose Bowl. (Maybe Judge Shenkin was there to watch it.) In the Supreme Court, Estes vs. Texas, 381 U.S. 532 (1965), overturned the conviction of Billy Sol Estes on Fourteenth Amendment Due Process grounds based on the pretrial and trial publicity. Per Justice Clark, with Justice Harlan concurring. Justices Black, Brennan, Stewart, and White dissented. Estes set a precedent for Sheppard vs. Maxwell, 384 U.S. 333 (1966), in which the Court, in reversing the conviction of Dr. Sheppard, did a thorough analysis in balancing the free press with the right to a fair trial. In Griswold vs. Connecticut, 381 U.S. 479 (1965), the Court held that Connecticut’s laws which prohibited the sale, dissemination (and literature relating to) birth control devices/ paraphernalia to be unconstitutional. In so doing, the Court

stated that there is a constitutional right to privacy. Per Justice Douglas, with Justices Black and Stewart dissenting. Griffin vs. California, 380 U.S. 609 (1965), held that a prosecutor commenting on a defendant’s refusal to testify violates the defendant’s Fifth Amendment rights. Per Justice Douglas, with Justices Stewart and White dissenting. In Albertson vs. Suberversive Activities Control Board, 382 U.S. 70 (1965), the Court held that members of the Communist Party of the United States could not be required to register with the government. Justice Brennan delivered the opinion of a unanimous Court, with Justice White not participating. Although it was not the happiest year of my life, I must concede that it was quite a year.

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CCBA Feature United Way of Chester County 2015 Campaign Kickoff & Awards Ceremony

2015 Partner Agency of the Year — Legal Aid of South Eastern Pennsylvania


egal Aid of South Eastern Pennsylvania has been a model service partner in their everyday work providing legal assistance to the community and furthering their outreach through United Way’s Financial Stability Center, by way of monthly legal clinics and educational workshops. Their legacy includes a long list of anecdotes about their commitment and passion to the community. Legal Aid of SEPA has also always been willing to step up and engage with other providers in Chester County to share their expertise and experience, ensuring that everyone is operating at their fullest potential. Pictured Left to Right: Charlie Kochka, United Way of Chester County Board Chairman; Christine Zaccarelli, Legal Aid SEPA Pro Bono Director; Rachel Houseman, Legal Aid SEPA Managing Attorney for Chester County Division; Elizabeth Wood Fritsch, Legal Aid SEPA Executive Director. (Photo credit: Greg Zeller Photography)

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Lynn Snyder receives her award for 28 great years of being a Family Court Master.

CCBA Featured Member Profiles

By Stephanie Deviney, Esquire

Basel & Colleen Frens Where do you live?

Colleen: Borough of West Chester Basel: Borough of West Chester

What was your first job?

Colleen: First paying job was a bank teller. First legal job after law school was for the Solicitor’s Office for the U.S. Department of Labor. Basel: First paying job was working a cherry picker on my uncle’s orchard in Michigan. First legal job was a judicial clerk for Judge Ott.

What word best describes you? Colleen: Joyous (Basel said this about her). Basel: Inquisitive.

Where would we find you on a Saturday afternoon?

What is your greatest extravagance?

Colleen: CrossFit membership. Basel: A camera (Fujifilm x100t).

Favorite vacation destination: Colleen: Scotland Basel: Japan

Who is the living person you are most interested in meeting? Colleen: Russ Roberts Basel: Elon Musk

Favorite type of food? Colleen: I do not discriminate between good food. Basel: Japanese food.

Colleen: Doing the NY Times Sunday crossword or taking a walk (depending on the time of year). Basel: Puttering around.

What is the last book you read?

What is your favorite way to spend free time?

What is your favorite TV show?

Colleen: Reading and working out. Basel: Reading and working out.

Colleen: 1Q84 by Haruki Murakami Basel: Ghost Fleet by P.W. Singer

Colleen: Breaking Bad/Murder She Wrote/The Wire Basel: The Wire

Do you have any goals that have yet to be achieved? Colleen: Not guilty verdict and an unassisted pull-up. Basel: 50 foot handstand walk.

What is a little known fact about you?

Colleen: None. All facts have been disclosed. Basel: I spent a semester of law school in Japan.

What website do you visit most frequently?

Colleen: Basel:

What would you be if you were not a lawyer? Colleen: National Park Ranger. Basel: Fly fishing guide.

What do you like best about the Chester County Bar Association? Colleen: I like that it gives me the opportunity to get to know other attorneys in Chester County outside of the courtroom. Basel: The camaraderie it builds among the members of the bar and bench.

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New Matter Winter 2015  
New Matter Winter 2015