February 19, 2014

Re: Contracts, February 2014

Once in a while, I wish the NYSBA would advocate for something that makes life easier for its members. Peter Siviglia picks on the escrow clause of the standard Bloomberg contract complaining that it leaves loopholes for attorneys and suggests it should be tightened. Pick and choose your battles better, Pete. Leave it to advocates for consumers rather than taking space in a lawyer's journal. NYSBA too often does not advocate for its members, but throws red meat to a public that usually already is predisposed to hate lawyers. Lawyers do not have to be part of the aparatchik of social engineers.

Francis McQuade, Esq.

November 21, 2013

Re: "Beat it." November-December 2013

Robert W. Wood, Esq., is rather more sanguine than I about the outcome in Estate of Michael J. Jackson, Deceased, John G. Branca, Co-Executor and John McClain, Co-Executor v. Com'r., Docket No. 017152-13, in his article "Jackson Estate Says 'Beat It, IRS'.", Nov/Dec 2013.

While I haven't any hard statistical evidence to give independent support to this conclusion, I must agree with James Edward Maule, who stated the case almost 15 years ago in Instant Replay, Weak Teams, and Disputed Calls: An Empirical Study of Alleged Tax Court Judge Bias, 66 Tenn. L. Rev. 351, 353, 401 (1999). According to Mr. Maule, the IRS rarely loses in Tax Court, opinions are rarely appealed (in Tax Court, an opinion states the law, or what non-Tax Court practitioners would call a decision; a Tax Court decision fixes the amount of tax due, if any, or what the non-Tax Court practitioner would call a judgment), and even if appealed, are rarely overturned in the Circuit Courts of Appeal.

Few courts see more valuation cases than Tax Court. And the sums involved run into the hundreds of millions. See, for example, Eaton Corporation (transfer pricing; arms'-length valuation), 140 T. C. 18, 6/25/13 ($368 million, plus interest); and the plethora of fa├žade easement cases (e.g., Dunlap; Scheidelman; Gorra). Although Second Circuit did overturn Scheidelman I, the taxpayer lost in Scheidelman II.

And of course a case that settled, but excited considerable interest in the art world, Estate of Ileana Sonnabend, Docket No. 649-12, which settled a $65 million deficiency for $1.3 million, the case of the prohibited eagle. There the issue for trial would have been the worth of a work of art that could not be sold, bartered or exchanged without incurring criminal penalties.

Moreover, Tax Court is no stranger to valuing a person's image. See Retief Goosen, 137 T. C. 1, 6/9/11; cf. Sergio Garcia, 140 T. C. 6, filed 3/14/13. Garcia is interesting for its contract with Goosen, a "global icon" as contrasted with a "brand image".

I will await the outcome of Jackson with interest, but much less certainty than Mr. Woods' article suggests.

The cases cited can all be found on the Tax Court website, Use either the link for Opinion Search or Docket Search. Tax Court's website is user-friendly.

Lewis C. Taishoff, Esq., EA
Visit my Blog:

November 7, 2013

Comments about the September 2013 Journal

Re: September 2013 NYSBA Journal issue on the Future of Legal Education and Admission to the Bar.

Below is a slightly edited version of an email conversation between Dave Schraver, president of the New York State Bar Association and the Hon. Barry Kamins.


I wanted to raise an issue with you concerning legal education which I know will be one of your priorities in the coming year.

My sister-in-law is in charge of medical education at Hofstra Medical School, i.e., she is in charge of teaching academics how to teach medical students.
As she has explained it to me, there is currently a major transformation in medical education and the model for educating doctors is changing for the first time since 1910. Every medical school is or is about to adopt to this changing model of how we train medical educators to train future doctors.

Why couldn't you propose a similar topic for discussion this year--how do we prepare legal educators to make sure they are giving our students the best education especially when they are now teaching the "millennial generation, those born between 1982 and 2005? As we know, just putting an academic in front of a classroom in law school and having him or her lecture has been the model forever. We need to develop a model for training legal educators to cope with the challenges of the new generation. They listen differently and learn differently than we did. I know--I have been teaching at law school for the last fifteen years and have seen the change.

Hope to be able to discuss this with you.



I would be very interested in talking with you about this and bringing you current with what we/our Committee on Legal Education and Admission to the Bar are doing.



I enjoyed reading the September issue of the Bar Journal and found many of the articles quite interesting, including William Sullivan's article on linking licensing to a performance-based curriculum. However none of the articles addressed the point I raised with you: we need to address how we prepare legal educators to teach the law students of today's new generation. The issues in the Journal--curriculum, clinical education, licensing, bar exam--all focus on the students and not on the teachers. While the medical profession has taken this issue head on and it has become a national one (see my prior email) it may be that its time has not yet come for our profession. I'm hoping our Committee can address this in a meaningful way.



I'm glad you found the September issue interesting. By copy of this reply to our excellent co-chairs, Eileen Kaufman and Eileen Millett, I invite them to review our email chain and ask them to include your point in the Committee's work. Thanks for your interest in these issues. I look forward to seeing you.

Best regards,

Re: Prof. Adele Bernhard's article "Should Skills Training Be Required for Licensing?"

I enjoyed your article in the NYSBA Journal on "Should Skills Training Be Required for Licensing?"

I wanted to send you a quick note on the following regarding my time in London and how skills training is required for attorneys in the United Kingdom.

After graduating from law school years ago I went on to London where I received an LL.M. in Entertainment Law from the University of Westminster (I am an entertainment attorney in NY).

In the UK, after law school, to become an attorney, the individual must then go on to complete a one year "practicals" course to take what they have learned in law school (an LL.B. Degree) and learn to apply it to the practice of law. One program is for solicitors and another for barristers. After finishing the course they then go on to a pupilage (which is extremely competitive to attain) with a law firm before being "called to the bar." One of my classmates wanted a pupilage with a large firm so after she completed an LLB, she earned a BBA, an MBA and then entered an LL.M. program in International Law.

Many students who receive an LLB choose not to become attorneys in the UK - choosing either to go to the U.S. to practice or use the law degree in another area such as business or politics.

Many of my classmates in the UK (I was the only American accepted that year) were surprised that after school and passing the bar there were no other educational requirements to become an attorney in the U.S. I explained that some U.S. states have CLE requirements but many do not, which further surprised many of my classmates.

When I returned to the U.S. many of my professors (who were not familiar with the UK system) began to think about how we can incorporate a similar program to teach the "real life" practice of law into school classrooms.

Thank you for your time.
Best regards,
Ethan Bordman, Esq., MBA, LL.M.

Re: Edna Wells Handy's article "Blacks, the Bar Exam and Lean Six Sigma"

What a wonderful article in the NYS Bar Journal. Some day I would like to tell you the story of the Boddie Petition made to the NY Ct. of Appeals with respect to the Bar Exam. So proud of you.
Sol Wachtler.

September 4, 2013

Constitutional Revision: Democracy-Building in Vietnam

Re: July/August, 2013 Issue
Constitutional Revision: Democracy-Building in Vietnam

To be fair, the editorial board needs to find a person knowledgeable enough to further write about the above subject, but who lacks the bias or whose bias runs in the opposite direction from that of Professor Katz.

Professor Katz' use of the well-known rhetorical device of anticipating and trying to cut off criticisms, viz., "I don't want to shill for the Vietnamese Communist Party; [but] . . . ," likely would be found as ineffectual by most readers in light of a further publication as advised above.

On a more personal note, I would like to believe that Professor Katz would be well enough read on the subjects of the history and modus operandi of the communist parties of various nations, so as to be familiar with Ghita Ionescu's The Break-up of the Soviet Empire in Eastern Europe (Penguin Books, Ltd. 1965). However, since her essay leads me to conclude she is unfamiliar, I do her the service through your good offices to include an extra copy of a few pages therefrom for her review.

A single party communist state like Vietnam can have no "democratic" "constitution" as a matter of definitions and as a matter of actual government practices and procedures.
Unlike the Florida Bar Journal, your publication does not publish letters to the editor. However, I would appreciate your breaking tradition by publishing this one.

Very truly yours,
Robert S. Schwartz

Editor's Note: The Journal Blog is unable to publish the author's enclosure but refers readers to the citation provided. The author particularly directs the reader's attention to the first section of the first full paragraph on page 155.

July 1, 2013

DSM-V and the Law

To the Forum:
The incredibly well researched and written article by Dr. Gordon
Cochrane on "The Diagnostic and Statistical Manual of Mental Disorders"
(DSM-V) (June 2013, p. 20) should be read by every practicing attorney in the United
States. I hope it can be shared far and wide.

When I clerked for Judge Edward Allen Tamm, (US Ct of Appeals [TECA],
Washington, D.C., he made a statement that was either sua sponte or
copied, no matter, that his experience on the Bench of the US District
Court and then on the US Ct of Appeals, lead him to believe the human
animal is the only species on earth, that when caged and controlled,
does damn well as it pleases.

This succinctly states what Dr. Cochrane sets out in his review of the
DSM-V, urging all of us in the legal profession to understand the
subjective aspects of being human, not framed in objective coordinates
we all hope exist. This leads to an understanding of our judicial system
that is framed around people, not laws. If we want to change the law, we
argue for an exception or expansion, or we seek a new decider of the
facts and/or law, that is we seek a change of venue, a new Judge, even a
new jury, or in the legislative arena, we seen a new election, all the
more with the Presidency.

Dr. Cochrane's discussion of PTSD is especially vital to all us from the
Vietnam era. I have several friends with PTSD seeking cures from the
unknown cause of their affliction, learning the rallying must be around
a Higher Power, and hoping for a justice system that will have people
who believe them and bring proper assistance when needed.

Thomas R. Napton, Esq.
Abbeville, S.C.

May 9, 2012

Re: Land Banking, TIF Amendments and the Tax Cap, May 2012 Journal

Tucked among the endnotes in my article in the May issue, on Land Banking, Tax Increment Financing (TIF), and the Tax Cap, was the important news that, as part of this year's Budget amendments, the Governor and legislative leaders amended the TIF law to correct its most glaring defect--by authorizing school districts to opt-into and participate in TIF-funded redevelopment plans. It is now up to the municipalities, developers, and attorneys who spent many years fighting for this change to make sure that this newly invigorated law is put to good use. TIF financing is especially useful to pay for infrastructure improvements and site preparation costs on blighted properties--including brownfield sites (and Brownfield Opportunity Areas), land bank holdings, and flood-damaged infrastructure.

Kenneth S. Kamlet
Hinman, Howard & Kattell, LLP
Binghamton, NY

May 2, 2012

May 2012 Poll Question

This month's poll question is excerpted from the Attorney Professionalism Forum's question for the next Journal. The question raised several sticky issues that we'd like our readers to weigh in on. We'd also like our readers to submit their own ideas of "sticky" situations, for future Forums. The Forum will publish its answer in June.

When we decline a representation, do we have a duty to provide a no-engagement letter or to warn the person about statutes of limitations that may apply to his or her case?

What if that party provided me with confidential information during that initial consultation?

Can information acquired that way create a conflict that would prohibit me from taking some future litigation?

Do I risk malpractice exposure, if I decline a representation although the person did have a viable claim and, if the person later pursues it on his or her own, finds that the claim is time-barred?

One of my partners met someone at a party who talked with her about a potential litigation. By coincidence, I had met the opposing party and had set up a meeting in our office to take the case. What do we do?

March 30, 2012

March-April 2012 Poll Question

The President's Message in this issue outlines the current discussion on non-lawyer ownership of law firms and touches on the differences between the ABA's current movement toward allowing "NLOs" and the NYSBA's long-held position against non-lawyer ownership. Are the ethical potholes too numerous to consider such a change? What are your thoughts?

Re: Mr. Gerhart and Scribes

My sister, Kay Landon, and I read the article concerning my father, Eugene C. Gerhart's, role in forming and sustaining the Scribes organization with great interest. We know that he would be honored by Mr. Spivey's kind remarks concerning his efforts throughout his career to "raise the bar" of legal writing through greater clarity.
Dad loved words, used precisely. At Harvard Law, he coined the phrase, "Erudite neologism and the employment of sesquipedalian nomenclature tend more to the obfuscation, than the elucidation, of the law's conundrums." That issue persists today.
We thank you for the tribute to his efforts, and Robert Landon II for sending it to us.
Virginia G. Mason

February 29, 2012

Re Race to the Finish Line: Legal Education, Jobs and the Stuff Dreams Are Made Of


Thanks for your comments. I appreciate your observations on the existence of "ageism" in the marketplace. I also think that many traditional legal employers have difficulty appreciating the value of multi-credentialed individuals like you. My point was that the JD is a versatile field, and that over time legally-trained individuals fare well in the job market. I didn't mean to suggest that the current market for lawyers, but that when the legal job market dries up, lawyers often find jobs in other fields. I would think that your background as a CPA combined with legal training would help you, if not in large firms, then in other work settings. The economic pressures on individuals are very real, and I did not mean to minimize their significance, but rather to offer readers a ray of hope. I hope things work out for you.

Gary Munneke

Dear Professor Munneke: I read your above noted Article with great interest. As a Pace Alum, not the law school but undergraduate & grad school, I am always interested in writings by Pace Professors.

To that end, I am a non-traditional law grad, having gone to Law School (NY Law School) at the age of 60. To some, not too bright a choice but my goal in attending law school was aspirational. I wanted to practice Elder law. Unfortunately to date, I have been unsuccessful in finding employment (welcome to the club).

You discuss about finding a job with Big Law (for me any law firm would be great) and the future marketplace. I cannot be as optimistic as you since my time line going forward is shorter than most other law grads. And in my case, I suspect AGEISM is alive and well in the legal community. I would be more than willing to accept a position (any position!!!), at much less salary than other attorneys, forgo benefits, etc. Is anybody listening??

And the additional burden, as you mentioned is the ever present loans that I have to pay back-- yet no source of revenue. I have a family to support, household, etc. Given the present economic outlook in general I am fearful by the time things start to improve, I will be a "statistic" if you get my meaning. Is this what they meant when they say become an Attorney and help the underserved--which I would gladly do--but not as a pure volunteer. That does not pay the bills, or put bread on the table, etc.

Not a whiner, but do you have any magic elixir, etc. I am a former financial executive, have a CPA and an MBA in Finance, would love to use all these tools plus my law degree to help--truly help and get some compensation in return. Answers, recommendations, etc.????


Brian Gorman, Esq., CPA
Bar certified --NY and NJ