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Donald R. Gerace, President 258 Genesee St., Suite 302 Utica, NY 13502 Phone: (315) 724-4901 Fax: (315) 724-6010 diane@oneidacountybar.org www.oneidacountybar.org

OFFICERS Donald R. Gerace President

Your 2014 Board of Directors Election of Officers & Directors for 2014 At the Annual Meeting of the Oneida County Bar Association membership the following slate of officers and directors for 2014 was approved.

Joseph P. Giruzzi First Vice President Kenneth L. Bobrow Second Vice President Paula J. Eannace Secretary George C. Murad Treasurer

President: Donald R. Gerace

First Vice-president: Joseph P. Giruzzi

Second Vice-president: Kenneth L. Bobrow

Secretary: Paula J. Eannace

Joseph A. DeTraglia Past President DIRECTORS David A. Bagley Michele E. DeTraglia Steven J. Huntzinger Joseph H. Hobika, Jr. G. Kevin Ludlow Chelsea L. Selby Michael D. Callan Paul M. Deep Jennifer A. Logue

Treasurer: George C. Murad

Past President: Joseph A. DeTraglia

David A. Bagley

Michelle E. DeTraglia

Steven Huntzinger

Joseph H. Hobika, Jr.

G. Kevin Ludlow

Chelsea L. Selby

Michael D. Callan

Paul M. Deep

Jennifer A. Logue

Executive Director: Diane Davis

The OCBA shall: • • • • • • • • • •

Maintain the honor and dignity of the profession of law; Promote suitable reforms and necessary improvements in the law; Facilitate the administration of Justice; Elevate the standards of integrity, professional competence, and courtesy in the legal profession; Cultivate and cherish the spirit of friendship among the members of the Association; Foster other kindred purposes; Cultivate the science of jurisprudence; Promote reform in the law; Influence positively the quality of life of the community; Cultivate a spirit of good fellowship among members.

TABLE OF CONTENTS President’s Message .......................... 2 Welcome New Members.................... 2 Retirement Notice ............................. 2 Coats from Counselors ...................... 3

Classifieds ................................................. 3 Searching for Will ..................................... 3 Member Spotlight .................................... 4 Hirshfield Joins Foley Law Firm .............. 4 Frequently Used Telephone Numbers .... 3

Retaining Fees and Domestic Relations Matters by Anthony Gigliotti...................... 7 Dues Renewal ............................................. 12 Over 50-Years Luncheon DVD ................... 12 Calendar of Events ..................................... 12


JANUARY 2014

PRESIDENT’S MESSAGE By Donald R. Gerace, Esq.

Thank you for allowing me to serve as your President this year. I am humbled by the Honor and look forward to a good year for our Association. I extend immense gratitude to our immediate Past President, Joseph A. DeTraglia, for all of his hard work and strong leadership this past year. Joe made it a successful year and exceeded his stated goals of ensuring continuation of the Bar Association’s positive image with the public and ensuring that we were serving our members well as an effective organization. Many thanks to Keith Eisenhut, Steve Deery and Dean Gordon for their yeoman’s service as Board Members the past three years. Their thoughtful words and wise guidance in helping govern our Association deserve great appreciation and recognition.

Looking forward, we are fortunate to have a Board that represents all areas of practice in our County for the coming year. It is my hope that all attorneys in Oneida County (civil, criminal, government and judicial) join our Association in order to benefit from all it has to offer in meeting its mission goals. I believe the most important goals of our Association are the maintenance of honor and dignity in our profession and the cultivation of a spirit of good fellowship amongst our members. Much of the work of our Bar Association is performed by volunteers who chair and participate on committees that benefit all attorneys in the County and help our Association positively influence the quality of life in our community and vocation. Well-deserved thanks is given to our members who have helped make our events a success. I ask that each of us try to participate on a committee, attend at least one event or contribute in some way this year to help us move ahead.

We are implementing a mentoring program and new assigned counsel requirements which will allow our younger members to benefit from our more seasoned members’ experiences. Please take advantage of these opportunities to strengthen our profession. Many thanks to our Executive Director, Diane Davis, for her tireless work on behalf of our Association. New and current members please contact Diane at 724-4901 or diane@oneidacountybar.org or myself directly at 735-7509 or drgerace@ yahoo.com with any suggestions, questions or concerns. Thank you all for your anticipated good will and support in making 2014 a banner year for our Association.

Retirement Attorney Jacquelyn M. Asnoe

Welcome New Members Thomas Buckel, Esq. Legal Services of Central NY, Inc. 255 Genesee Street, 2nd Floor Utica, NY 13501 793-7105 Fax: 732-3202 tbuckel@lscny.org

Lisa Taber, Esq. The Mattacola Law Firm 217 North Washington Street P.O. Box 725 Rome, NY 13442 334-5050 Fax: 334-5060 lisa@themattacolafirm.com

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As many of you are already aware, effective January 1, 2014, Attorney Jacquelyn M. Asnoe has closed her private law practice. Any original abstracts in her possession have been turned over to Allied American Abstract Corporation. Allied American Abstract Corp. 430 Court Street #2, Utica, NY 13502 (315) 733-0636 All original wills have been delivered to Attorney Charles Crandall as have all of her case files. Attorney Charles Crandall 410 North Main Street, Herkimer, NY 13350 (315) 866-1445


ONEIDA COUNTY BAR ASSOCIATION

Bar News

Coats from Counselors Oneida County Bar Association 258 Genesee Street, Suite 302 Utica, New York 13502 Re: Oneida County Bar Association Coat Drive Dear Members: As part of the Oneida County Bar Association Coats from Counselors Program, on December 18th the Oneida County Bar Association delivered over 50 coats to the General William Floyd Elementary School in the Holland Patent school district. This was year 4 of the program. In prior years, coats were provided to JFK Middle School in the City of Utica school district, Strough Middle School in the City of Rome school district and Camden Middle School in the Camden school district. Each coat was tagged and decorated by interns at the Oneida County Bar Association office and McDonald’s generously included free dessert certificates for each recipient. Through the generosity of certain members of the Bar Association who were unable to purchase coats due to the requests being filled, each coat was accompanied by a matching hat and, in some cases, scarves and gloves. As the years have gone by, the program has gotten better and more efficient and there has been no less need. Next year we will again look forward to delivering coats to a school in our county.

Oneida County Bar As sociation 258 Genesee Street, Su ite 302 Utica, New York 13502

This effort would not have been as successful without the diligence of the Oneida County Bar Association Board of Directors, Diane Davis as Executive Director of the Oneida County Bar Association, Paula Eannace at the Law Library, and numerous others who were generous and timely with their purchase and delivery of the coats.

Dear Oneida County Ba

Very truly yours, SAUNDERS KAHLER, L.L.P. Camille T. Kahler

4coa3ts

collected!

r Association:

I cannot thank you eno ugh for all of the beauti ful coats and hats that you provided for over 50 of our students at General William Floyd Elementa ry.Your generosity was gre atly appreciated.You pu t warm smiles on many chi ldren’s faces and made their Christmas extra spe cial. Thank you again for you

r kindness.

Sincerely, Mrs. Kristin Casab Principal General William Floyd Elementary Sch

ool

Searching For Will

Classifieds SECRETARY/RECEPTIONIST is seeking a full-time position. HCCC Associates Degree. Resume on file at the Bar office or you may contact Dana Celio at (315) 717-8615 or dcelio283@gmail.com

LEGAL SECRETARY LEGAL SECRETARY seeking a part-time position. Resume on file at the Bar office or you may contact Amber Webb at (315) 219-2773.

PARALEGAL Moving to this area seeking full-time position. Resume on file at the Bar office or you may contact Angela Williams at (315) 761-9786 or awilliams0513@gmail.com

Searching for the Last Will and Testament of Nancy E. Nelson, deceased November 23, 2013 and resided at 612 South Street, Apt A-606, Utica, NY 13501. If you have any information please contact Kathryn A. Snell at (315) 735-4162.

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JANUARY 2014

Member Spotlight LISA TABER, ESQ.

INTERESTING LINKS Judicial Peach - A Lawyer’s Recipe Page www.judicialpeach.com NYSBA Legislation Watch OCBA mission is to promote reform in the law Visit the site >>

Year of admission: 2013 Where do you currently work? The Mattacola Law Firm Where is your hometown? Albany, New York Where did you go to Law school? Western New England University School of Law Where did you go to Undergrad? Plattsburgh State University of New York Why I joined the Bar Association? I joined the OCBA to make new connections with local attorneys and become more involved in the community.

Attorney Benjamin Hirshfield Joins The Foley Law Firm, LLC Ben Hirshfield is joining the Foley Law Firm, LLC, with offices in Old Forge and New Hartford. Ben was an ADA in Massachusetts for a number of years and brings his criminal law experience to the firm. Ben will be splitting his time between the two offices. Benjamin Hirshfield, Esq. The Foley Law Firm, LLC 4305 Middle Settlement Road New Hartford, NY 13413 369-3544 Fax: 369-6433 ben@centralnewyorklaw.com

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LawyerS Assistance Committee If you feel you might have a problem with alcohol or substance abuse, or you have a colleague who is in need, or if you are just curious, call the Oneida County Bar Association’s Lawyers Assistance Committee, Tim Foley 369-3544 or 724-4901 or Patricia Spataro of the New York State Bar Committee, 800/255-0569. All calls are strictly confidential guaranteed by §499 of the Judiciary Law.

Frequently Used Telephone Numbers District Attorney’s Office ................... 798-5766 Public Defender’s Office-Criminal .... 798-5870 Public Defender Office-Civil ............. 266-6100 U.S. District Court Clerk’s Office ...... 793-8151 Fourth Department ............................. (585) 530-3100 OCA Attorney Registration ................ (212) 428-2800 Lawyers Assistance ............................ (800) 255-0569 NYS Bar Association ......................... (518) 463-3200 Supreme Court Clerk ......................... 266-4200 Surrogate’s Court ............................... 266-4550 Oneida County Court Clerk ............... 266-4234 Utica City Court Clerk ....................... 266-4600 Rome City Court Clerk ...................... 337-6440 Oneida County Clerk ......................... 798-5794 NYS Attorney General ....................... 793-2225 Oneida County Attorney ..................... 798-5910 Oneida County Law Library .............. 266-4570


ONEIDA COUNTY BAR ASSOCIATION

Bar News

Is giving through The Community Foundation of Herkimer & Oneida Counties right for your clients? 1. 2. 3. 4. 5. 6. 7.

Do I have clients who care deeply about the local community? Do they give to more than one charitable cause? Are they interested in creating a personal or family legacy in the community? Are they considering the creation of a private foundation, but concerned about cost and administrative complexity? Would they like to stay personally involved in the use of their gift dollars? Do they want to receive maximum tax benefit for their charitable contributions under federal law? Do they place a priority on sound financial management of their contributions?

Because to us you’re more than a customer. You’re a friend of the family. Utica Office C/O Oneida County Clerk’s Office (315) 732-2341 utica@stewart.com

If you answered yes to any of these questions, your clients would benefit from knowing more about our local community foundation. We’d be happy to help you make an introduction.

Wampsville Office C/O Madison County Clerk’s Office (315) 363-2192 wampsville@stewart.com Syracuse Office (315) 472-4761 syracuse@stewart.com

The Community Foundation of Herkimer & Oneida Counties, Inc. 1222 State Street . Utica, NY . 13502 (315) 735-8212 . www.foundationhoc.org

© 2014 Stewart.

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JANUARY 2014

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Bar News

Retaining Fees and Domestic Relations Matters by Anthony J. Gigliotti, Principal Counsel* Fifth Judicial District Attorney Grievance Committee Appellate Division, Fourth Department Years ago, lawyers initiated professional services with a client’s check, (or cash payment), and a handshake. In those days, the most prominent rule governing new engagements was the prohibition against charging fees below set minimums. The forces of “consumerism” and the changing culture of our profession have ushered in the era of “full disclosure, confirmed in writing.” Rules dictating how and where to deposit fees and a client’s money have also complicated the daily office routines. This article highlights important documentation requirements related to the initiation of professional engagements in domestic relations matters and the rules regarding the deposit of fees and other client payments. A retaining fee is the payment made by a client upon engaging a lawyer’s services. Typically, the requested payment includes the anticipated, minimum cost of the lawyer’s services and anticipated costs which will be incurred. Such “retainers” are normally paid to the attorney in a single personal check. The following hypothetical illustrates the steps which must be taken upon the receipt and expenditure of such payments from clients. At an initial consultation, Attorney Smith agreed to represent a perspective client in a divorce matter. Smith then requested a payment of $5,000 from the client “in order to get started.” Smith explained that $4,500 will be applied to his fee for professional services and $500 will be used to pay filing fees. Smith also cautioned the client that if the proceeding became contentious, additional charges would be required. The client promptly issued a personal check for $5,000, payable to Attorney Smith. Upon receiving the client’s retaining fee, Smith provided the client with a fully executed Retainer Agreement that complies with the requirements found at 22 N.Y.C.R.R. §1400.3, and the Statement of Client’s Rights and Responsibilities, as set forth in 22 N.Y.C.R.R. §1400.2. The attorney promptly deposited the client’s check into his attorney trust account. Within a reasonable time after the deposited funds were collected by the Smith’s bank,

Smith withdrew the $4,500 designated in the retainer agreement as an advanced fee payment. When attorney Smith filed the Summons and Complaint he paid the filing fee from the client’s funds on deposit with an attorney trust account check payable to the Court. In addition to the bank records generated by the foregoing transactions, Smith’s office staff created an individual client account record identifying the date, source and description of each item deposited to Smith’s attorney trust account, as well as the date, payee and purpose of each withdrawal or disbursement therefrom. At least every 60 days, Smith issued billing statements to his client, itemizing the fees charged, the costs paid from client funds, and the services performed. After being fully compensated at the conclusion of the divorce case, Smith provided the client with his file, retaining both paper and electronic copies for his records. Divorces are one of several domestic relations matters defined as such in § 1.0(g) of the Rules of Professional Conduct, hereinafter referred to as RPC. In addition to matrimonial actions, matters returnable in Family Court involving custody, visitation, maintenance, child support or alimony are included in the definition of domestic relations matters. Attorney Smith complied with § 1.5 (d)(5) (ii) of the RPC by executing the Retainer Agreement and Clients’ Rights’ Statement, required upon collecting a fee in all domestic relations matters. Because lawyers must file a retainer agreements with the Supreme Court in matrimonial actions, compliance with the foregoing RPC is self-enforcing. Lawyers are less vigilant about executing Retainer Agreements in domestic relations matters returnable in Family Court. Regrettably, lawyers who do not comply with the requirements of RPC § 1.15(d)(5)(ii) are often denied any payment for their services by Arbitrators and Judges who strictly enforce the words “. . . shall not . . . collect any fee in a domestic relations matter if a written retainer agreement has not been signed, etc.” See: Hunt v. Hunt, 273 A.D.2d 875, 709 N.Y. S.2d 744 (AD, 4th Dept., 2000).

In New York, absent any written agreement characterizing the funds otherwise, the $4,500 fee paid to Smith became the lawyer’s property upon receipt. Smith properly deposited the $5,000 check into his attorney trust account to safeguard the client’s $500 until needed to pay filing fees. If Smith subsequently failed to withdraw his $4,500 fee, he would have risked a charge of commingling his funds with those of others being maintained in his attorney trust accounts, in violation of § 1,15(a) of the RPC.. Therefore, Smith properly disbursed $4,500 by attorney trust account check, payable to himself, soon after verifying that the deposited funds had been collected by his bank. See: Matter of Sullivan, 253 A.D.2d 999, 678 N.Y.S.2d 169 (AD 3rd Dept., 1998) While Rule 1.15(e) requires all disbursements from an attorney trust account to be by check and to named payees, the Rule also allows for electronic bank transfers only with the prior written approval of the party entitled to the proceeds. Attorney trust account checks may not be issued to cash. Cash withdrawals or transactions using an ATM card are similarly prohibited. Smith would also be prohibited from paying a personal obligation from his $4,500 without first redepositing it into his business account. In re Cronk, 52 AD 3d 54, 856 NYS2d 186 (AD 2d Dept., 2003) Why do some New York lawyers mistakenly assume that the funds paid as advanced fees must be maintained on deposit in attorney trust accounts until “earned?” When asked, many lawyers express a desire to self-regulate draws against advanced fees. Unlike New York, a majority of states actually mandate the deposit and maintenance of retainer fees into attorney trust accounts until “earned.” New York lawyers can avoid commingling and selfregulate withdrawals by establishing a separate business account into which advanced retainer fees may be deposited and held until the services are rendered. Smith also complied with § 1.15(d) of the RPC which sets forth, in 8 subparagraphs, the records and contemporaneous account entries that are required to be maintained and

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JANUARY 2014

preserved for 7 years after the events that they record. Interestingly, §1.15(d) contains the only reference in the RPC to records which must be maintained and preserved for a specified time period. Briefly stated, these include: (i) records of all deposits into and withdrawals from attorney trust accounts, specifically identifying the date, source and description of each item deposited, as well as the date, payee and purpose of each withdrawal or disbursement; (ii) source of all funds deposited into attorney trust accounts, the manes of all persons for whom the funds are or were held, the amount of such funds, the description and amounts, and the names of all persons to whom such funds were disbursed; (iii) copies of all retainer and compensation agreements with clients; (iv) copies of all statements to clients or other persons showing the disbursement of funds to them or on their behalf; (v) copies of all bills rendered to clients; (vi) copies of all records showing payments to lawyers, investigators or other persons, not in the lawyer‘s regular employ, for services rendered or performed; (vii) copies of all retainer and closing statements filed with the Office of Court Administration; and (viii) all checkbooks and check stubs, bank statements,

pre-numbered canceled checks and duplicate deposit slips. Regrettably, compliance with the bookkeeping requirements of Rule 1.15(d) is the “Achilles Heel” of many law office operations. Ask yourself, are my records of attorney trust account transactions limited to entries in check registers and, possibly, written notes in file jackets? Many lawyers familiarize themselves with the foregoing requirements only after enduring the disciplinary investigation which inevitably follows dishonored check incidents. Such investigations require the production of all such attorney trust account records for 6 months prior to the issuance of the dishonored check. RPC § 1.15(j) also subjects lawyers to disciplinary action for failing to produce such records to a disciplinary authority. By issuing billing statements to his client at least every 60 days, Smith complied with the clause in his Retainer Agreement, which is mandated by 22 N.Y.C.R.R. §1400.3. Periodic billing statements lessen instances of fee disputes and keeps clients reasonably informed about the status of their matters, as required by § 1.4(a)(3) of the RPC.

Attorney Smith’s example also illustrates a forward thinking document management plan. Once the client’s divorce is concluded and Smith is fully compensated, the client is entitled to receive all file documents, including all work product, which the Court of Appeals has determined to be the client’s property. See: Sage Realty v. Proskauer, Rose, Goetz 91 NY2d 30, 666 NYS2d 985 (Ct. App. 1997) Attorneys may retain copies of file material, at their own expense, for a variety of personal and professional reasons. Electronic storage options should be fully investigated to insure confidentiality and reliability. The preservation of original wills and title abstracts may be a welcomed benefit to clients. However, the clients should be given the choice, after consultation, of the means by which such documents are to be safeguarded. *Anthony J. Gigliotti has been counsel to the Fifth District Attorney Grievance Committee in Syracuse, New York since 1996, and regularly lectures lawyers and law students on legal ethics and the disciplinary process.

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JANUARY 2014

Help Leave a Legacy with Impact A bequest to the Masonic Medical Research Laboratory (MMRL) will create an invaluable and lasting legacy that will be international in scope and benefit. In recent years, the MMRL has become an international center for genetic screening of cardiac arrhythmia diseases, especially those contributing to sudden death syndromes, including sudden infant death syndrome (SIDS). The MMRL is blazing new trails in the development of safe and effective drugs for atrial fibrillation, addressing one of the greatest unmet medical needs facing our society. With its recent inauguration of a Stem Cell Center, the MMRL is making rapid progress in the creation of human models of disease focused on development of innovative therapies and cures. Our ability to accelerate discovery and bring to fruition the promise of medical research depends on the generosity of benefactors interested in leaving a lasting legacy that will benefit family, friends and the generations to come. To plan a gift or bequest contact Ronald P. Kamp, Director of Development Cardiac Research Institute at MMRL 2150 Bleecker Street x Utica, NY 13501-1787 1-888-888-6675 x Development@mmrl.edu www.mmrl.edu Federal Tax ID Number 13-5648611

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Bar News is published monthly by the Oneida County Bar Association Diane M. Davis, Editor

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We welcome the submission of articles, announcements or topics of general interest to the membership.The OCBA may edit as needed. Any suggestions, criticisms or encouragement are also eagerly solicited and gladly received.Address all communications to: Oneida County Bar Association 258 Genesee Street, Suite 302, Utica, NY 13502 Email: diane@oneidaountybar.org

Contact Us ONEIDA COUNTY BAR ASSOCIATION 258 Genesee St., Suite 302 Utica, NY 13502 Phone: (315) 724-4901 Fax: (315) 724-6010

diane@oneidacountybar.org www.oneidacountybar.org

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JANUARY 2014

ADVERTISE IN BAR NEWS! Bar News Advertising Rates and Deadlines If you wish to advertise in the monthly newsletter, the rate schedule is as follows: Full Page (8.5”x11”) ................................. $300.00 Half Page (7.5”x4.75”) .............................. $200.00 Quarter Page (3.5”x4.75”) .......................... $100.00 Business card (3.5”x2.5”) ............................ $50.00 Classified (column line) ......................... $5.00/line If an advertiser signs on for the full year, one month would be free. We will add an interactive link to your website on the e-mailable version of the newsletter. Circulation includes approximately 450 Law offices and Courts from Oneida, Herkimer and Lewis Counties. Our newsletter is also placed on our website. We would appreciate your submitting a camera ready ad. All ads should be submitted by the tenth of the month. Please contact me if you have any questions. Thank you, Diane

DUES RENEWAL – 2014!! Have you paid your 2014 dues? You can pay by check or credit card. Call Diane at 724-4901.

committees As a reminder, the Committee lists are compiled by the President each February. Service is from March 1 of current year to February 28 of the following year. Please check off the committee(s) you would like to be engaged in for the year on the bottom of your dues renewal form. Committees available are: Continuing Legal Education Grievance & Ethics Real Property Courts & Judiciary Lawyers Assistance Local Fee Disputes District & State Bar Liaison Pro Bono Bylaws

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Estates Trusts & Elder Law Program New Lawyers Family & Domestic Relations Public Information & Education Disability Law Mentoring Program: - Join as a Mentor - Join as a Mentee

Calendar of Events April 29, 2014 Tuesday, Lawyers in the Classroom

April 30, 2014 Wednesday, Annual Legal Line, 5-6:30 at ECR International, Utica

May 1, 2014 Thursday, Annual Law Day, Radisson Hotel Utica Centre

50 Over 50-Years Luncheon DVD Now Available

The DVD of the Association’s October 25, 2013 Over 50-Years Luncheon is now available to watch. If you would like to borrow it, please contact Diane at the Bar Association office. Thank you to Ricardo J. Mauro and Lawrence W. Golden for their diligent work in putting the DVD together.

OC Bar Newsletter | January 2014