July 15, 2016

Welcome to the July 2016 Issue of Electronically In Touch

We are pleased to submit the July 2016 edition of Electronically In Touch. This issue consists of an article regarding practice tips for drafting professional contracts, as well as an article regarding estate planning.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 1st of each month.

The Officers of YLS and the Editor of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

A Message from the Chair of the Young Lawyers Section


I was recently asked why I'm so involved with the New York State Bar Association. Most people ask implying that they don't have the time yet I wonder how any young lawyer can afford not to be involved.

NYSBA has given me a great network of other attorneys who I can call up when I have questions along with a referral network. Having someone who I could call to get information about a Judge I might be appearing in front of for the first time has been invaluable. Additionally this network has provided me support and guidance in the business of law and in developing my career.

NYSBA has also provided me with opportunities to demonstrate my leadership skills and improve my public speaking. For someone who is naturally shy, every program I have volunteered at has provided me opportunities to reach out to experienced attorneys, not only getting to know them but also become comfortable making that first call and publically introducing them at the event.

We have plenty of opportunities to become more involved in the Young Lawyers Section of NYSBA. Please let me know if you are interested in becoming more involved so that you too can build your network and leadership skills.

Erin K. Flynn
Erin.K.Flynn@gmail.com

When Less is More: The Pitfalls of Saying Too Much in Professional Contracts


By: Eric Cheng, Esq.

Design and other professionals often incorporate their practices in an effort to avoid individual liability. They also add well-crafted limitations of liability and indemnification clauses in their form services contracts to avoid responsibility for problems that arise in the execution of the plans. These strategies are especially important for practitioners in jurisdictions where a design professional may be exposed to liability disproportionate to the limited scope of services, such as where co-defendants have no insurance coverage or are underinsured. It is also common for plaintiffs to sue the professional individually to attempt to circumvent favorable clauses in the professional corporation's standard contract for services.

Certain states frown on attempts by a professional to avoid personal liability. In New York, for example, each shareholder, employee or agent of a professional services corporation is statutorily personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him/her or by any person under his/her direct supervision and control while rendering professional services on behalf of such corporation (N.Y. BSC. LAW ยง 1505). Other states, such as Louisiana, however, allow design professionals to avoid individual liability by providing their professional services as a corporation. Nevertheless, language in the drawings and plans may still expose the practitioners to individual liability.

A Case in Point

The background of Harbor v. David Shoring, Inc., La: Court of Appeals, 4th Circuit 2015, is straightforward: the owner hired the defendant contractor to elevate his home. The engineering firm prepared elevation plans. The plaintiff was dissatisfied with the outcome and sued the contractor, the engineering firm and the individual engineer. The engineer moved to dismiss the claims against him individually and the trial court granted the motion.

On appeal, however, the award of summary judgment to the individual was reversed by the Court of Appeals of Louisiana, which found that a question of fact was created by the engineer's statement in the plans that "I have prepared and reviewed these plans for this specific location and have approved them as a professional engineer and bear the liability that comes with that approval."

Although the Court did not explicitly indicate which part of the statement created an issue of fact, it is logical to assume that the Court focused on the second part of the statement. After all, engineers' stamps bear the name and license number of individual engineers and a stamp on the plans represents that the engineer prepared and reviewed the plans and approved them. It would be counter-intuitive for the Court to hold that simply reiterating what the stamp denotes is sufficient to trigger individual liability. We therefore believe that it was the extra tail that the engineer added, i.e., that he "bear[s] the liability that comes with that approval," that caused the Court to conclude the engineer assumed individual liability despite the protections provided by his execution of the contract in his corporate capacity.


Takeaway

As a matter of good practice in preparing plans and drawings, non-descriptive superfluous language should be avoided. Such language, as is used in Harbor, may void carefully prepared limitations in a services contract. There are certainly beneficial disclaimers and other exculpatory language that can apply on different occasions. In this instance, however, the entire statement in question created no benefit for the engineer and actually added the possibility of liability, thereby nullifying the potential benefit of his carefully chosen business format.

Eric Cheng, Esq. is a Partner at Wilson, Elser, Moskowitz, Edelman & Dicker LLP focusing on insurance coverage matters arising out of professional liability and employment discrimination claims. This article was previously published in the Professional Liability Advocate located at www.professionalliabilityadvocate.com/2015/11/when-less-is-more-the-pitfalls-of-saying-too-much-in-professional-contracts


Local and State Government Law Section Liaison Update


By: Sarah E. Simpson, Esq.

The Local and State Government Law Section is a home for both public and private sector attorneys who practice municipal law. The Section provides substantive updates to members through its publication, The Municipal Lawyer, and continuing education programming. Young lawyers involved in the practice of municipal law have the opportunity to network and get to know many of the best practitioners in New York by attending Section events and continuing education courses. Municipal law is a fairly niche practice, which makes these relationships invaluable.

The field of municipal law encompasses a wide range of issues, including, but not limited to, land use, zoning, contracts, tax law and legislation. The Section is having its' annual meeting in Saratoga Springs from October 21-22, chaired by Bernis Nelson, Natasha Phillip and Spencer Fisher, with presentations on recent developments in local government law. This year's topics will include public procurement procedures, local regulation of medical marijuana, zoning for solar and clean energy, as well as presentations on the Boreali Doctrine (separation of powers) and a review of recent decisions by the U.S. Supreme Court and the New York State Court of Appeals that affect local government. Recent initiatives in the Section leadership include review and comment on proposed pro bono regulations for public sector attorneys, as well as efforts to expand our Section membership to include practitioners in the public sector, following the Section's renaming and expansion in 2015.

The Young Lawyers Section has allowed me to become more deeply involved with this section as a liaison, including serving as a representative on the Executive Committee. The attorneys who are part of the Section provide each other with real world insight and assist one another with tackling novel issues that are increasingly part of local government law practice. We welcome everyone to join us, get involved with the Section and learn about the cutting edge legal issues facing local communities throughout New York State.

Using Insurance to Enhance Estate Plans in Today's Changing Environment


By: Michael J. Greenberg, Esq.

Reprinted with permission from PIA Management Services Inc.

Some agents are under the impression that insurance policies and estate planning documents (Wills, Trusts) are somehow separate and distinct parts of personal planning. In fact, a comprehensive estate plan often integrates insurance products to maximize tax savings, protect government benefits and provide for loved ones. This article discusses three recent market trends and example cases of how estate planning documents and insurance can be used together.

Life Insurance Trusts for Estate Tax Minimization and Business Succession Planning

A recent national trend is for states to either eliminate their Estate Tax or to increase the exemption level (the higher the exemption amount, the fewer estates subject to tax). Meanwhile, the Federal exemption level is currently $5.45 million and is increasing every year based on inflation. This trend means that fewer people will be responsible for paying either State or Federal Estate taxes in the future. However, for those families with taxable Estates above either the state or federal level, or both, developing an estate plan to decrease or minimize the hit of such taxes is still a major concern. In order to pay these taxes, beneficiaries of an Estate could be forced to sell assets of the Estate.

Life insurance within an Irrevocable Life Insurance Trust would help pay for or avoid Estate Taxes and avoid forcing family members from having to sell important assets, especially those that are less liquid such as a family business, investment property or vacation home.

Some believe that all life insurance is not included in the insured's taxable estate. However, that is only true if the policy is owned by an individual other than the insured or by an entity such as an Irrevocable Life Insurance Trust. Ownership by an individual other than the insured results in the insured losing all control over the ultimate disposition of the insurance proceeds at the time of the insured's death as this individual can change the identity of the ultimate beneficiary. In contrast, a life insurance trust allows the insured to design the terms and conditions or to whom and in what manner the life insurance proceeds will be paid at the time of the insured's death. In addition, once inside this Trust, the money can be distributed to beneficiaries outside of Probate, will not be included in the taxable Estate of the deceased, and can provide the liquidity necessary to pay Estate taxes and avoid selling businesses and real estate.

Long Term Care Insurance and Asset Protection Planning

According to the U.S. Department of Health and Human Services, the population aged 65 and over is projected to be 83.7 million by 2050, almost double its estimated population of 43.1 million in 2012. This projected growth will present challenges to policy makers and programs, such as Social Security, Medicare, and Medicaid, which in turn impacts the insurance industry.

Medicaid is the nation's top payer of long-term care services in nursing home facilities. In order to qualify for Medicaid an applicant must remain below certain income and assets levels. Nursing home Medicaid counts all assets that are owned by the applicant when applying for care as well as all assets that have been transferred or given away in the previous five years.

A Medicaid Asset Protection Trust allows the creator of the Trust to receive income from the Trust, maintain control of the assets in the Trust, and continue to live in his or her own residence during the five year period. This is a much better option than transferring assets directly to a loved one or friend, who even with the best intentions could lose the money in a divorce or lawsuit.

In order for people to utilize a Medicaid Asset Protection Trust for receiving nursing home care through Medicaid, any asset placed into the Trust must be in there for the five year look back period. If the Trust creator requires assistance before five years have lapsed, the family will either need to pay out of pocket, which is incredibly expensive, or Medicaid maintains the right to seize assets to pay back the state.

A long-term care policy, which is the only type of insurance which pays for non-skilled custodial care at home or in a nursing home, combined with a Medicaid Asset Protection Trust, will allow the family to withstand the long look back period and receive the care a sick or disabled family member requires. Long-term care policies, though expensive, can save hundreds of thousands of dollars down the line. For those worried about investing thousands of dollars a year for a product they may never use, insurance companies are now offering hybrid Long-Term Care/Life Insurance Policies. These hybrid products can still provide a payout after death for those individuals that do not require Long-Term care during their lifetimes.

Second-to-Die Life Insurance Policies for Special Needs Planning

The Centers for Disease Control and Prevention (CED) has reported that the prevalence of autism spectrum disorder (ASD) among children in the United States has increased by 119.4 percent from 2000 (1 in 150) to 2010 (1 in 68). This increase has major implications for families in providing for disabled loved ones when they are no longer around to support them. One of the most important tools for families to protect loves ones that that are disabled is a Special (or Supplemental) Needs Trusts. These Trusts provide special needs individuals with money and assets that can be used to enhance their lives while at the same time not disqualifying them from the many government benefits that they may be entitled to, including housing. This Trust can provide for education, healthcare, vacations, electronics, and many other life enhancing items and opportunities.

A common worry for parents with a disabled child is providing for the child once both parents pass away. The purpose of a Second-to-Die life insurance policy for the parents is to provide for such child's needs for the rest of the child's life as the insurance does not pay out until both parents are deceased. These policies are less expensive than policies on a single individual's life and therefore an affordable option to use to fund the Special Needs Trust at the specific time when the funds are needed.

Clients considering any of these three options should work with both their insurance agent and Estate Planning, Elder Law, or Special Needs attorney. They need to ensure that their insurance policies and estate planning documents are working together as part of a comprehensive plan that can achieve their goals.

Michael J. Greenberg, Esq. is an Estate Planning, Elder Law, and Special Needs Planning attorney at Keane & Beane, P.C. in White Plains, New York. He is a member of the Trusts & Estates, Elder Law and Special Needs, and Young Lawyers sections of the New York State Bar Association as well as the National Academy of Elder Law Attorneys (NAELA). Mr. Greenberg received his law degree from Emory University School of Law and his undergraduate degree from Williams College. He is admitted to practice law in New York, New Jersey, Connecticut, and Florida. You can follow him on Twitter @MJGElderLaw or email him at mgreenberg@kblaw.com.

Entertainment, Arts, and Sports Law Section Liaison Update


By: Anne LaBarbera, Esq.

My appointment as the Liaison of the Entertainment, Arts, and Sports Law Section became effective on June 1, 2016. Much of what I have to report took place before that but I have been an EASL member for longer. There have been lots of exciting events as EASL is one of the more active and vibrant sections. I suppose given that we are all entertainment oriented and many of us are producers, if nothing else, the one thing entertainment lawyers know how to do is to produce events.

Here are somethings we have done recently:
1. There was a pro bono clinic held in February 2016 in Lower Manhattan that was sponsored by the section. I believe the clinics are held several times per year in more than one borough of New York City.

2. On June 8, 2016, an entry level CLE for Entertainment Law was held. I would like to receive feedback from any YLS members who attended the CLE so that I could give feed back to EASL about how it was received by young lawyers. Also, if anyone did not have an opportunity to attend, but would like this to be repeated, please let me know, as I could pass that information along to EASL.

3. I am in possession of the minutes from the Annual Meeting from January. The two main topics were Music Rights Management (emphasis on digital and metadata) and destruction of cultural property at World Heritage sites.

4. There was an EASL Executive Committee meeting on June 23, 2016. A variety of topics were discussed, including at least one event for the NYSBA annual meeting.

Upcoming Events:
1. Additional pro bono clinics in New York City are upcoming. I will try to post announcements in the YLS blog area when they come out.

2. A CLE will be offered at Comic Con on October 6,2016 and October 9, 2016. The CLE will be a great introduction for any attorney interested in adding this area of law to their practice. Additional information will be provided.

Additional CLE's and events will be posted in the future, so keep an eye on the YSL blog.

Questions or Comments to:
Anne LaBarbera
EASL Liaison for
109 South Warren Street
915 State Tower Building
Syracuse, New York 13202
315-748-5411 phone
315-714-4111 fax
annelabarbera@gmail.com

5th Annual Super-Sized Networking Event


The Young Lawyers Section, in partnership with the Risk Management Association - Young Professionals, Nassau County Bar Association - New Lawyers Committee, Association of Certified Fraud Examiners, LI Chapter, and The Maurer Foundation for Breast Health Education Inc. - Young Professionals invite you to the 5th Annual Super-Sized Networking Event on August 11, 2016 from 6:00 p.m. to 8:00 p.m. at Crest Hollow Country Club located in Woodbury, New York 11797.

The cost is $50.00 per person and includes passed hors d'oeuvres, dinner, and premium open bar.

You can register at CPE.NYSSCPA.ORG/PRODUCT/27088

Recommended Upcoming Events


July 26, 2016


RightsTech Summit
- Live Program

A one day executive leadership conference focused on furthering technology innovation pertaining to rights management and licensing across multiple media verticals. Five CLE credits will be provided.

Cost: Half Day- $399 EASL and IP Members, $499 Non-Members; Full Day- $799 EASL and IP Members, $899-1,099
Time: 9:00 a.m.

www.nysba.org/store/events/registration.aspx?event=EASLRTS16

August 16, 2016

Superior Legal Writing Bootcamp for Transactional Attorneys- Video

Legal instructor, William Bernhardt walks through his ten step process to achieve superior legal writing with a transactional framework. The program consists of lectures and hands-on writing exercises to help you improve our writing skills. Seven CLE credits will be provided.

Cost: $125 for NYSBY Members
Time: 9:00 a.m.

www.nysba.org/store/events/registration.aspx?event=0EF9Z

A full list of all New York State Bar Association Events can be found at www.nysba.org.
*The full event description and details are located on the NYSBA Events page.

Join the Young Lawyers Section


Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!
Are you interested in volunteering for a Section Committee? Please email Megan O'Toole at motoole@nysba.org and Tina Rothaupt at trothaupt@nysba.org and indicate the committees you wish to join.

Disclaimer


Electronically In Touch is the electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member-driven publication that encourages YLS members to write articles. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison at srgrandison@gmail.com by the 1st of each month.

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