January/February 2017 Volume 27/Number 3
Frederick
Law Olmsted
and
Abraham
Lincoln
Remedies to
Keep an LLC
Alive
An Interview
with Jan
Schlichtmann
Ethical
Considerations
in Litigation
Funding
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Join Us for a Night of Fun
and Inspiration As We
Celebrate These Stars of
Our Legal Community
Thursday, April 13, 2017 • 5:30 p.m. - 10:00 p.m.
Aqua Turf Club • 556 Mulberry St, Plantsville
This year’s stars include:
Henry J. Naruk Judiciary
Award
Justice Richard A.
Robinson
Connecticut Supreme Court
Distinguished Public
Service Award
E. Patricia Llodra
First Selectman of Newtown
Charles J. Parker Legal
Services Award
Shelley White
New Haven Legal Assistance
Citizen for the Law Award
Anne Stanback
LGBT/Civil Rights Activist
Citizen of the Law Award
Peter Arakas
Attorney at Law
Edward F. Hennessey
Professionalism Award
Louis R. Pepe
McElroy Deutsch Mulvaney &
Carpenter LLP
John Eldred Shields
Distinguished Professional
Service Award
Dwight H. Merriam
Robinson+Cole
Tapping Reeve Legal
Educator Award
Sudha Setty
Professor of Law, Western
New England University
School of Law
Young Lawyers Section
Vanguard Award
Shari-Lynn Cuomo Shore
Wolf & Shore LLC
The Hon. Anthony V. DeMayo
Pro Bono Award
Richard W. Callahan
Law Office of
Richard W. Callahan
Daniel J. Foster
City of Waterbury
Corporation
Counsel’s Office
Eileen Jenetopulos
Law Office of Eileen
Falsey Jenetopulos LLC
• Beer Tasting with Local
Craft Beers
• Cordial and Dessert Pairings
• Music and Dancing
NEW
A special ceremony
honoring attorneys
practicing 50 years in
Connecticut!
Register today!
Visit www.ctbar.org/2017Celebrate
or Call (844)469-2221.
Show your support of this year’s stars by
becoming a sponsor. Contact Natalie Jackson
at [email protected] or (860)612-2035 for
more information.
Bret Kupfer
ACCEL Law Group PC
Headline Sponsor:
Edward M. Kweskin
Wofsey Rosen Kweskin
& Kuriansky LLP
Gold Sponsor:
MCLE is easy with the CBA
Introducing the
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• Meet all your MCLE needs—
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•Register for Seminars
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Professional Development Journal
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2
Connecticut Lawyer January/February 2017
ctbar.org
Visit www.ctbar.org
CONTENTS
FEATURES
13
22
Capitol Update
By Bill Chapman
Learn all about this year’s
legislative session.
14
CBA at the American Museum of
Tort Law: An Interview with
Jan Schlichtmann
By Eric Hard
The opening of the country’s first law
museum, the American Museum of Tort
Law in Winsted, has raised the profile of
this area of the law to the public through
nationally-known advocates. The second
interview in this three-part series on
lawyer advocates is with trial lawyer
Jan Schlichtmann
18
Don’t Throw the Baby Out with the
Bath Water: Remedies to Keep an
LLC Alive
By Anthony R. Minchella and Robert Pattillo
This article discusses Connecticut’s
current Limited Liability Act and advises
two solutions on how to keep an LLC alive
and resolve the underlying problem in a
dissolution action.
24
Litigation Funding: Ethical
Considerations for the Plaintiff’s
Lawyer
By David P. Atkins and Marcy Tench Stovall
This article addresses some of the ethical
concerns a lawyer should consider in
connection with funding arrangements
between a litigation client and a third
party funder.
COLUMNS
President’s Message...................... 4
A Message from the
Executive Director.......................... 7
Time to Go Pro Bono.................... 28
Building Your Practice.................. 29
Supreme Deliberations................. 30
Young Lawyers............................. 34
DEPARTMENTS
Upcoming Education Calendar.......6
News & Events................................8
Peers & Cheers..............................10
Court Decisions.............................32
Frederick Law Olmsted, the Civil
War, and Abraham Lincoln
By Hon. Henry S. Cohn
Frederick Law Olmsted, known as the
“father of American Landscape
architecture,” was born in Hartford, had
lifelong ties to Connecticut. This article is
about a lesser-known period in Olmsted’s
life, 1861-1863, when he was the general
secretary of the United States Sanitary
Commission, the predecessor of the
American Red Cross.
Connecticut
LAWYER
2016-2017 Officers
Monte E. Frank, President
Karen DeMeola, President-elect
Jonathan M. Shapiro, Vice President
Sylvia K. Rutkowska, Secretary
Vincent P. Pace, Treasurer
Emily Graner Sexton, Assistant Secretary-Treasurer
William H. Clendenen, Jr., Immediate Past President
Connecticut Lawyer Advisory Committee
Elizabeth C. Yen (Chair), Myles H. Alderman, Jr., David
Austin, Frank S. Berall, Thomas Chapman, Joseph A.
Cipparone, Dean M. Cordiano, Jeffrey C. Dannenberg,
Proloy K. Das, Brian J. Donnell, Steven J. Errante, Emily
A. Gianquinto, Theodore W. Heiser, Noah Jon Kores,
Charles D. Ray, Daniel J. Roberts, Fred D. Sette, Gregory
A. Sharp, Jeffrey M. Sklarz, Bolesh J. Skutnik
Have an idea for an article? Contact [email protected].
All suggestions are welcome.
Connecticut Lawyer Staff
Executive Director: Douglas S. Brown, [email protected]
Editor: Alysha Adamo, [email protected]
Communications Associate: Leanna Zwiebel,
[email protected]
Graphic Designer: Dan Anderson, [email protected]
Advertising: Natalie Jackson, [email protected]
Copyright 2017 by the Connecticut Bar Association. All
rights reserved. The copying, duplication, transferring,
reproducing, reusing, or reprinting of the Connecticut
Lawyer is strictly prohibited without permission. Publication of advertising does not imply endorsement of
products, services, or statements made concerning them.
All advertising copy is subject to approval. The editor
reserves the right to reject advertising. The goal of the
Connecticut Lawyer is to provide a forum for the free
expression of ideas. The opinions and positions stated
in signed articles are those of the authors and not those
of the Connecticut Bar Association. The Connecticut Bar
Association welcomes the submission of articles by its
members. For editorial guidelines, please e-mail
[email protected].
Manuscripts accepted for publication become the property of the Connecticut Bar Association. No compensation is paid for articles published.
The Connecticut Lawyer (ISSN 10572384) is published
six times per year by the Connecticut Bar Association, 30
Bank Street, New Britain, CT 06051-2276. CBA membership includes a subscription. Periodicals postage paid at
New Britain, CT, and additional offices.
POSTMASTER: Please send address changes to
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PRESIDENT’S MESSAGE
Your Voice at the Capitol
By Monte E. Frank
Monte E. Frank is the 93rd president
of the CBA. He is a principal in
Cohen and Wolf’s Litigation and
Municipal Groups, representing
business and municipal clients
in the state and federal courts in
Connecticut on a wide range of
matters. He works from the firm’s
Danbury and Bridgeport offices.
As I write this, the 2017 legislative session
in Hartford is underway. Bill Chapman,
our government and community relations manager, and CBA lobbyists, Bobby
Shea, and Melissa Biggs, are reaching out
to sections for positions, scouring bills,
meeting with lawmakers, and trying to
make sense out of the constantly changing landscape in the Connecticut General
Assembly. After serving as the chair of the
Legislative Policy and Review Committee
for two years and now as your president,
I am amazed at how much the association
accomplishes for our members and the
people of Connecticut through our efforts
at the Capitol. We will remain active this
session to make sure that our concerns
are heard and our legislative agenda is
pursued.
Legislative Agenda
4
Connecticut Lawyer January/February 2017
In the past couple years, the CBA scored
big wins at the legislature and we are now
seeing our prior positions become law, including the new LLC Act, updated Power
of Attorney Act, Digital Assets Act, Veteran
Owned Small Businesses Act, legal aid
funding, and the Civil Gideon Task Force
report, to name a few. For this session,
our sections and committees have worked
hard to achieve authorized positions
which are summarized in our published
legislative agenda at ctbar.org/Legisla-
tiveAffairs. It includes positions to make
Connecticut’s legal structure more business friendly; to assist our veterans; to oppose a sales tax on legal services; and advance positions from elder law, family law,
trusts and estates, and others. I anticipate
that the new Opioid Addiction Task Force,
chaired by Ralph Monaco, to have legislative positions as well. Finally, as you read
this, many of our section and committee
leaders will have testified at the general
assembly. I am grateful for their leadership and service to the CBA.
Budget
In this legislative session, like the last one,
the state budget consumes practically everything at the general assembly. We have
attempted to move our bills without attaching a fiscal note where possible. We
have also been strongly advocating that
any state budget decisions related to judicial branch spending reductions should be
made thoughtfully and with concern for
the special role of the courts in the lives
of Connecticut citizens. We have encouraged legislative leadership to seek out and
listen to advice from the attorneys who
work in the courts every day. Attorneys
representing clients with cases before
the courts have the most practical knowledge of where efficiencies can be realized
without diminishing service and eroding
Visit www.ctbar.org
the rule of law. As conditions improve, we
will ask Governor Dannel Malloy and the
general assembly to revisit spending reductions made to the judicial branch during the last legislative session. Funding
should be restored if that is what is necessary to ensure a properly functioning
court system and access to justice for all.
However, we must also do our part in improving the economy. That is why I have
challenged our sections and committees
to come up with ways to improve the business climate and spur growth. The new
LLC Act and the Veterans Owned Small
Businesses Act are two examples where
we have succeeded. There are many more
proactive items in the works. We can
also be a constructive partner in creating a more efficient or lean government.
To move this forward, I have asked VicePresident Jonathan Shapiro to chair a task
force on business regulation.
evictions targets the state’s most vulnerable citizens. The task force responsibly
addresses the added societal cost of offering these additional legal services with a
series of funding recommendations and
by laying out a multi-year strategy for
wider implementation. Congratulations to
former CBA President Bill Clendenen and
UConn Law School Dean Timothy Fisher
for their leadership. However, now comes
the hard part, as we press the legislature
Please check back with me, your section or committee legislative liaison, or
Bill Chapman for updates on our activities at the General Assembly. You can all
follow Bill on Twitter @CTBarLeg or me
@montefrank1, although my tweets fail to
compare to the president’s. Hey, I am just
trying to make the bar great again. CL
We are pleased to announce that
Jonathan A. Kaplan has become
a Member of our Firm.
Jonathan A. Kaplan
Member
 Litigation  Bankruptcy
Judicial Reappointments
860.424.4379 | [email protected]
© Pullman & Comley, LLC
This year, 34 judges were up for reappointment. I spent a day with the Judiciary Committee listening to the questioning
of judges and also offered my own testimony as to the importance of an independent and impartial judiciary. Our judges
should decide cases based on statutes,
regulations, and case law and not based
on whether their rulings will subject them
to ad hominem attack by disgruntled
litigants. If Judicial Canons are violated,
grievances should be filed. If a judge errs
on the law, appeals should be pursued.
None of the judges that were up for reappointment had a grievance sustained
against them. They have served honorably
and with integrity.
to adopt the task force’s recommendations.
pullcom.com
@pullmancomley
BRIDGEPORT
203.330.2000
HARTFORD
860.424.4300
STAMFORD
203.324.5000
WATERBURY
203.573.9700
WHITE PLAINS
914.705.5355
Civil Gideon
On December 15, 2016, the Connecticut
Task Force to Improve Access to Legal
Counsel in Civil Matters issued its final
report and recommendations. I am proud
to have served on this task force. The final report of the task force can be found
on our Access to Justice Resource Page at
ctbar.org/justice. The Connecticut Bar Association supports the findings of the task
force. The recommendations offer a series
of steps that can be taken immediately to
help civil litigants most at risk of being denied adequate legal assistance. The focus
on restraining orders, child custody, and
Connecticut Lawyer January/February 2017
5
Spring 2017 Education Programs
Essentials
Seminars
April 4
CHRO: How to Bring or Defend an
Employment Case
March 28
DCF Insider Tips for the Criminal and
Family Attorney
April 6
The Essentials of Evidence Workshop
March 31
Advanced Evidence Issues: ESI, Social Media,
and Cellphones
April 26
The Essentials of ADR: How to Make Court
Mediation Centers Work for You
May 10
The Essentials of Client Communications
Workers’ Compensation
April 28
Ethics in Workers’ Compensation
Conferences
April 6
End of Life Decisions: The Interplay of
Individual Autonomy, the Courts, and
Medical Providers
May 17-19
The Litigation Section Retreat
June 12
Connecticut Legal Conference
6
Connecticut Lawyer January/February 2017
April 7
The I-9 Form & Immigration Compliance Under
the New Administration
April 19
Welcome to Tribal Court
April 20
The New Connecticut Uniform LLC Act
Law Practice Management
March 22
The Legal Entrepreneur
April 5
Diversity and Inclusion: How to be an
Inclusive Leader
April 18
Marketing Your Practice Online: How to Tap the
Potential and Avoid the Pitfalls
For more information or
to register, visit
www.ctbar.org/educationportal
or call us at (844)469-2221
Visit www.ctbar.org
A MESSAGE FROM THE EXECUTIVE DIRECTOR
CBA Sections Now
Offering CT CLE
By Douglas S. Brown
Douglas S. Brown is the executive director
of the Connecticut Bar Association.
Don’t lose sleep over Connecticut’s new
MCLE rule, because the CBA has the answer. You can meet your MCLE obligation
with our free on-demand archive of CLE
programs. You can also purchase access
to programs online and in-person at a
discount. And all of your CBA CLE is automatically tracked in your very own professional development journal. But wait,
there’s more!
Did you know that you can now earn Connecticut CLE at our section meetings?
That’s right, many of our sections have
qualified the education content at their
meetings for CT CLE credit. Now the education programs that our sections do at
their meetings, whether it’s a formal presentation or less formal dinner speakers,
can qualify for Connecticut CLE credit. If
you’re a member of a section, take a look
at our updated meeting notices, which
will tell you whether the meeting qualifies
for credit and how much credit it qualifies
for. When section members attend one of
these meetings and sign in, the approved
number of hours will appear in their professional development journal on the CBA
website automatically.
Our sections are communities of practice
where lawyers come together to learn,
collaborate, serve, and make the connections they need to grow their practice and
advance their careers. Sections are also
where we influence legislation and policy
at the state and national level. They also
provide a forum where members come
together and build relationships that can
last a lifetime.
Our “Celebrate with the Stars” Awards
Celebration is on April 13 at the Aqua Turf
Club in Southington. We are honoring a
truly amazing group of professionals and
we are recognizing our colleagues with 50
years of practice in Connecticut.
Our Connecticut Legal Conference and
CBA annual meeting will be on Monday
June 12 at the Connecticut Convention
Center in Hartford. We have an outstanding line-up of 40 programs. This year, if
you register for a full day, you can earn
your 12 CT MCLE credits from the conference--earn six CLE credits in-person during the day, and access an additional six
credits from conference materials available on-demand through our new Education Portal. The CLC is our premier event
and a tremendous opportunity to network
and build relationships with over 1,000 of
your colleagues.
I look forward to seeing you at an upcoming event, especially at the awards dinner
and the legal conference.
The CBA is your time-trusted source for
the highest quality, most relevant, and informative CLE in Connecticut. CL
Connecticut Lawyer January/February 2017
7
Connecticut Bar Association
&
News
Events
Task Force Recommends
Improving Access to Civil
Legal Counsel
Through the leadership of former CBA President Bill Clendenen and UConn Law School
Dean Timothy Fisher’s, the Task Force to Improve Access to Legal Counsel in Civil Matters was created. The task force, which is made up of judges, lawyers, state politicians,
educators, law enforcement officials, and those who work in support services departments, recommends a series of steps that can be taken immediately to help civil litigants
most at risk of being denied adequate legal assistance. The focus on restraining orders,
child custody, and evictions targets the state’s most vulnerable citizens.
The task force responsibly addresses the added societal cost of offering these additional
legal services with a series of funding recommendations and by laying out a multi-year
strategy for wider implementation.
To see the task force’s final report, you may visit our Access to Justice Resource Page at
ctbar.org/Justice. CL
Updike Kelly & Spellacy PC
Sponsors Lunch at Capitol Summit
Updike Kelly & Spellacy PC sponsored the lunch for High School, Inc.
students at the Capitol Summit, Raising Capital for your Business. High
School, Inc. is a college prep school for
the Hartford Public School students
in grades 9-12 and who are interested in insurance and financial services
industry careers. The mission of High
School, Inc. is to grant students the
education and skills needed to pursue
higher education in these industries.
At the Capitol Summit, the firm was
able to learn about each students’
High School, Inc. students who participated in the
family
and where they wanted to atCapitol Summit.
tend college, law school, and medical
school. Hartford high school students were introduced to ways on how to fund a startup or existing business and learned the tips to succeed. The sponsored lunch was held
at Black Eyed Sally’s where students learned more about being a lawyer and the legal
steps necessary to help run a business. CL
8
Connecticut Lawyer January/February 2017
State Comptroller
Kevin Lembo
Visits a Tax Law
Section Meeting
State Comptroller
Kevin Lembo
State Comptroller Kevin Lembo
attended a CBA
Tax Law Section
meeting, where
he
discussed
the state budget
process and the
short-term and
long-term outlook of the budget.
Comptroller Lembo stated, “To get to
a stable and predictable government
requires a commitment, to live within
our means, to be true to our word, and
to be good partners. Government has
the potential to be a powerful player in
the economy. The way that government
functions best is by using available resources to improve the life and work of
as many people as possible.”
CBA secretary-treasurer of the Tax Law
Section, Dan Smolnik, said of Comptroller Lembo’s presentation, “He pulled
back the curtain on the state budgeting
process and inspired us all to become
more engaged in government. Our
members were delighted with his presentation.” You can also view an interview with
Comptroller Lembo about this year’s
legislative session on the Capitol Update
video series at ctbar.org/legislative.
If you are interested in joining a section, visit ctbar.org/sections today! CL
Visit www.ctbar.org
Volunteers Needed
for National High
School Mock Trial
Championship
Civics First CT will be the host of this
year’s National High School Mock Trial
Championship, held May 11-13 in Hartford. High School students throughout the
country will convene in Connecticut’s capital to compete, and volunteers are needed
to help at this special event.
Real Property Section Volunteers
with Habitat for Humanity
The Real Property Section recently spent a day volunteering at Habitat for Humanity in
New Haven. Habitat for Humanity is a nonprofit organization that helps eliminate poverty housing through the creation of home ownership opportunities for low-income
working families. Real Property Section Executive Committee member Jane E. Ballerini
says the section commits to a day of volunteering with the organization on a yearly
basis.
This year, the section volunteer attorneys worked on two homes. The volunteers
completed the sub-floor of the kitchen and entry way of one house as well as installed scaffolding, put up shingles, assisted in moving hundreds of pounds of equipment, and drove a backhoe. It was a successful build and a wonderful opportunity for
the section to give back to the community in which they practice! CL
Lean more about volunteer opportunities
at
2017nationalmocktrial.
org or e-mail nationals@civicsfirstct.
org. The deadline to submit your interest in volunteering is April 15.
The Connecticut Bar Association is the
proud sponsor of Judges Reception, to be
held on May 12. All volunteer judges of the
National High School Mock Trial Championship are invited to attend this reception.
CL
(L to R) Alex Ricciardone, John Diakun, Dominick
Neveux, Jane Ballerini, Adrienne Roach, and Dina
Tornheim.
(L to R) Dominkick Neveux, Alex
Ricciardone, and Jane Ballerini.
ABA Approves Refugee Resolution Sought by Connecticut
CBA President
Monte E. Frank
Presenting
Resolution 10B.
port for the establishment of laws, policies, and practices that ensure access to legal protection for refugees, asylum seekers, torture
victims, and others deserving of humanitarian refuge (“Protection
Seekers”).
FURTHER RESOLVED, That the American Bar Association urges Congress to adopt additional legislation and to appropriate adequate
funding for refugee applications and processing.
The American Bar Association’s House of Delegates has “unanimously” adopted the Connecticut Bar Association’s proposed
resolution concerning refugees, asylum seekers, torture victims, and others deserving of humanitarian refuge.
Resolution 10B garnered broad support with the New York
State Bar Association, the Section on International Law, the
Section of Civil Rights and Social Justice, and the Center for Human Rights joining as co-sponsors. Other ABA entities and bar
associations also supported. ABA APPROVAL OF RESOLUTION 10B:
RESOLVED That the American Bar Association reaffirms its sup-
FURTHER RESOLVED, That the American Bar Association urges Congress to adopt legislation to mandate that refugees receive an appropriate individualized assessment in a timely fashion to determine
their eligibility as such, and that neither national origin non religion
be the basis for barring an otherwise eligible individual in making
such determination.
As an additional resource, visit ctbar.org/Resolution10B to view
a video from the ABA of the CBA’s presentation of Resolution
10B, which includes floor speeches from CBA President Monte
Frank, Connecticut State Delegate to the ABA Daniel Schwartz, and
CBA Past President and ABA Board of Governors member Barry
Hawkins. CL
Connecticut Lawyer January/February 2017
9
Peers & Cheers
E-mail [email protected] with submissions for the Peers & Cheers section.
Kenneth C. Baldwin of Robinson+Cole has been appointed to the Board of Directors of the nonprofit organization The First Tee. This nonprofit is dedicated to
teaching young individuals life skills through the game
Kenneth of golf.
Baldwin
Patrick
Begos
Robinson+Cole’s Business Litigation Group welcomes Patrick W. Begos as a partner in their Stamford office. Attorney Begos has nearly 30 years of
commercial and insurance litigation, arbitration mediation, and negotiation experience.
Attorneys Dan A. Brody, Timothy P. Larsen,
Kathryn N. Mullin, and
Diana E. Neeves have
been welcomed into
Timothy Kathryn
Diana
Dan
Larsen
Mullin
Neeves Robinson+Cole as new
Brody
associates. These new associates focus on business litigation, insurance, environmental, and real estate practices.
Robinson+Cole attorneys Christine E. Bromberg, Alaine
C. Doolan, and Jonathan H. Schaefer volunteered at Junior
Achievement Day at Parkville Community School in Hartford to
teach approximately 75 students in kindergarten through second grade a curriculum focusing on financial literacy, entrepreneurship, and workforce readiness.
Dana
Bucin
Murtha Cullina LLP has expanded its business services through its new Immigration Practice Group due to
the addition of artner Dana R. Bucin. Attorney Bucin
represents clients with a wide range of employmentbased and family-based immigration matters.
Murtha Cullina LLP has elected two new
partners, Dena M. Castricone and Joseph
B. Schwartz. Attorney Castricone assists
skilled nursing centers, physician groups,
Dena
Joseph and senior living communities with regulaCastricone Schwartz
tory, compliance, and risk management issues. Attorney Schwartz represents businesses and individuals
in all phases of local land use approval and complex real estate
litigation.
Burt
Cohen
Eric
Daniels
10
Murtha Cullina LLP Partner Burt Cohen has been
named president of the Lawyers Collaborative for
Diversity. Their mission is to enhance diversity and
inclusion in the Connecticut legal community for attorneys of color and women to practice law.
Robinson+Cole attorney Eric D. Daniels is chairing
the 90th Anniversary Human Relations Award Banquet, hosted by the National Conference for Community and Justice. Attorney Daniels has previously led
other major fundraising events for several Hartfordarea nonprofits.
Connecticut Lawyer January/February 2017
Stephen E. Goldman of Robinson+Cole has been
appointed to the Board of Directors of The Village for
Families and Children. This nonprofit organization is
one of the first in the country to provide homes for
Stephen neglected children.
Goldman
Julie
Mahaney
Madiha
Malik
David
Menard
John
Parese
Locke Lord has promoted Julie Mahaney to Partnership level. Attorney Mahaney practices insurance
regulatory and general corporate law.
Litigation Associate Madiha M. Malik has joined
Murtha Cullina LLP. Attorney Malik represents clients in a wide range of employment law and commercial litigation.
David A. Menard, Murtha Cullina LLP partner, has
been elected to the firm’s executive committee. Attorney Menard is a member of the firm’s Corporate Law
Practice Group as well as chair of the firm’s Entrepreneur Group.
Buckley & Wynne has announced its new partner,
John M. Parese. The firm is now named Buckley Wynne & Parese.
Litigation attorney Sandy T. Roussas was invited to
join the Claim and Litigation Management Alliance
(CLM) of Neubert Pepe & Monteith. CLM consists of
insurance companies, corporations, corporate counSandy sel, litigation and risk managers, claims professionals,
Roussas and attorneys.
Ryan
Sullivan
Joshua
Weinshank
Holler Law Firm LLC announced the promotion of Ryan
Sullivan as managing attorney of closing operations.
Attorney Sullivan will help coordinate closings for all
of the firm’s private purchases, sales and refinances,
and all REO foreclosure purchases and sales.
Cramer & Anderson LLP has named Joshua Weinshank partner. Attorney Weinshank focuses his practice in the areas of trust and estate planning, elder law,
and trust and probate administration.
Kristen L. Zaehringer of Murtha Cullina LLP has
been appointed to the Federal Grievance Committee
by the Judges of the United States District Court for the
District of Connecticut. Attorney Zaehringer is part of
Kristen the firm’s Litigation Department as well as the Labor
Zaehringer and Employment practice group.
Visit www.ctbar.org
Bring your
game
with an LL.M. in Tax or Business.
The University of Alabama School of Law offers LL.M. programs in taxation and business transactions.
Renowned professors and practitioners teach courses live from across the country. Earn your advanced degree
online and gain championship status.
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Online Programs
Alternative Dispute Resolution Practice
For more information, please contact:
Robert L. Holzberg, Chair
860.424.4381
[email protected]
David P. Atkins
203.330.2103
[email protected]
Anne C. Dranginis
203.330.2246
[email protected]
Appellate Judge Anne C. Dranginis
(Retired)
Judge Robert L. Holzberg (Retired)
Andrew C. Glassman
860.541.3316
[email protected]
Judge Lynda B. Munro (Retired)
Providing mediation, arbitration and related ADR services in:
• Complex civil matters including personal injury, employment,
construction, environmental, probate, insurance, financial
and business transactions
• All family and matrimonial matters, including financial,
custody and parenting disputes
James T. Shearin
203.330.2240
[email protected]
• Appellate matters in state and federal courts
@pullmancomley
BRIDGEPORT
203.330.2000
HARTFORD
860.424.4300
STAMFORD
203.324.5000
WATERBURY
203.573.9700
Gregory F. Servodidio
860.424.4332
[email protected]
Ronald C. Sharp
203.330.2148
[email protected]
• Medical, legal and accounting practice and business
organization breakups
pullcom.com
Lynda B. Munro
203.330.2065
[email protected]
WHITE PLAINS
914.705.5355
H. William Shure
203.330.2232
[email protected]
Connecticut Lawyer January/February 2017
11
12
Connecticut Lawyer January/February 2017
Visit www.ctbar.org
Capitol
Update
Bill Chapman is
the CBA’s legislative lobbyist and
government affairs
administrator.
Follow Bill on
Twitter @CTBarLeg
By Bill Chapman
The 2017 Legislative Session began on
Wednesday, January 4 at 10 a.m. and will
end at midnight on Wednesday, June 7.
This year’s session brings us incredible
changes to the legislative landscape in
Connecticut. We have a republican president. We have a governor that is likely
in his last term. Our senate is in a tie
creating Senate co-chairs plus a Senate
vice-chair in all of the 25 legislative committees. The House has a new Speaker
and majority leader with the potential
at any time for four democrats to flip
their votes to join republicans on issues.
CAPITOL UPDATE NEWSLETTER
Some primary issues hoping to be resolved in this session are pensions and
union givebacks, school funding related to
a lawsuit, forecasting the transportation
crisis from bridges to FastTrack to UBER
to railcars, and municipal aid to cities and
towns.
CBA This Session
There are a number of issues the CBA is
proposing or keeping its eyes on, including the Right to Civil Counsel, Increased
penalties for the threatening of judges,
right to carry, attorneys who are prohibited from practicing law. There are also a
Check your inbox every Monday for your Capitol Update in the CBA’s Weekly Docket newsletter during this year’s legislative session for a recap of the
past week at the Capitol and the Legislative Office Building as well as what
to expect during the coming week.
CAPITOL UPDATE VIDEO SERIES—NEW
Stay current as the CBA’s legislative lobbyist, Bill Chapman, guides you
through the 2017 legislative session with latest news, interviews, CBA position updates, and more in a brief video each week. Interviews include:
CBA President-elect Karen DeMeola
State Comptroller Kevin Lembo
Elder Law Section Lobbyist Melissa Biggs
State Representative Stephanie Cummings
Louise DiCocco, CBIA
State Representative Steven Stafstrom
State Senator John Kissel
Visit ctbar.org/capitolupdate to view the latest newsletters and videos.
couple of issues that have arisen such as
assisted suicide and restoring the death
penalty. There are a few bills proposing
the legalization of marijuana and a host
of bills regarding opioids, neither which
would have been on the table five years
ago.
The CBA still has numerous issues for
which sections have positions to oppose
or support. We will continue to monitor
the judicial branch budget. This session
we also plan to make technical corrections
to bills that have already passed, such as
the recent LLC Act, the CT Business Corporations Act, and the Power of Attorney.
Sometimes you either have to update the
acts or clean them up. We are also proposing a Benefits LLC bill and the revised uniform arbitration act, along with a couple
of other bills that didn’t make it in past
years.
Since there will be so much focus on the
budget, unions, health care, municipal,
and education aid, there may be little time
for any other issues. So we will continue
to work to get support for our issues and
protect ourselves from other issues that
may affect the practice of law and the legal
community. CL
Connecticut Lawyer January/February 2017
13
CBA at the
American
Museum of
Tort Law:
Eric Hard is a
litigator and general
practitioner at the
West Hartford law
firm of Cohen Burns
Hard & Paul.
An Interview with
Jan Schlichtmann
By Eric Hard
14
Connecticut Lawyer January/February 2017
Visit www.ctbar.org
Connecticut Lawyer contributor Eric Hard chatted with
Attorney Jan Schlichtmann, portrayed by John Travolta in the movie A Civil Action,
who represented families of children poisoned by environmental contamination
in Woburn, MA. He was a featured speaker at the Spring Awakening, the reopening of
the American Museum of Tort Law in Winsted, along with other guest speakers,
including consumer advocate Ralph Nader and trial lawyer Mitchell Garabedian (his work
was depicted in the movie Spotlight). With concerns awakened among civil libertarians
and others about the recent presidential election, the lessons offered by each of these
advocates may provide some clues as to how to keep constitutional liberties in the
public discourse and connect people to popular and well-known lawsuits.
This is the second interview in a three-part series.
EH Where did you grow up?
JS Cochichuate, a little suburb west of
Boston.
EH Is there any part of your education that you credit for your approach to law?
JS I went to the University of Massachusetts, where I took a business class
with John Monseigneur, a lawyer
who looked at the law from all different sides, including the poor and
defenseless, to measure how the law
works. What is law to people who
have no power and influence? I was
interested in philosophy. I did not
expect to become a lawyer. I did end
up working for the American Civil
Liberties Union, and saw lawyers
represented people with no power,
giving people respect, vindicating
their rights. There was a good, smart
judge presiding in that Rhode Island
court, so I saw the legal system at its
best.
EH It is easy to be cynical.
JS Equal justice under the law can happen, but it takes real courage, constant effort. Working with the ACLU
inspired me to go on to law school.
EH What motivated you to take on a
case of the magnitude of the Woburn Massachusetts toxic tort
child cancer case?
JS Good, bad, ugly—all the reasons
people get captured by something.
I was young, ambitious, successful,
I really liked personal injury law. I
liked contingent fee practice, I liked
working for people, mastering science, engineering, investigating
the past. One of the Woburn mothers asked a colleague for help—my
name came up. She came to me, told
the story, I met with the families, but
I realized it was not something that
I could do. It was way too complex,
too big. I tried to get other lawers
involved; they wanted nothing to do
with it. I went out to San Francisco
for a convention. Ralph Nader came
to a group of attorneys and said that
there are cases out there that we
must take as lawyers, and we need
to form an organization to support
that project. He asked each of 200
lawyers to contribute $1,000 each,
and the Trial Lawyers for Public Justice was formed. When I returned to
Boston, I had a phone call from Rony
Roisman, just hired as Executive Director of the Trial Lawyers for Public
Justice. He wanted my help with the
Woburn contamination case.
EH It clicked in your head.
JS It was almost like the case found
me. I was fascinated by the families.
The mothers, for instance, would
not take no for an answer. The Trial Lawyers for Public Justice gave
us the emotional courage to take it
on, because we had all these other
lawyers with whom to work. Without Ralph Nader and that group, it
would not have happened.
EH You have to be a risk taker, to do
this sort of law. JS Where it hasn’t been done before,
and you are feeling your way, these
are cases that are done on faith.
That’s why having a support structure is so important. The fact that
these families needed representation forced us to do it.
EH What was the difference between
bringing a case like that and religion? JS I flew all over the country to meet
with people with special expertise,
to see if I could put together this
puzzle. The big challenge of this case
was that it touched on so many different disciplines. When the judge
broke the case into three phases,
it was so detrimental to our case,
to show that Jimmy Anderson’s or
Robby Robbins’ cancer was caused
by chemicals in the water, you had
to review dumping history, health
histories. By breaking the trial up,
the judge forced a multidimensional
problem to be seen through a onedimensional lens. I didn’t appreciate
how devastating that would be. Because I had dumping histories, firsthand accounts, pictures, historical
facts. At the end of all that process, at
defense counsel’s urging, the judge
required the jury to determine the
month and the year that each chemical reached the wells, as if it were a
Connecticut Lawyer January/February 2017
15
bus or a train station. It was a challenge for the jury.
16
EH There was also a Rule 11 motion. JS W.R. Grace’s counsel asked the judge
to rule on whether I had violated the
ethical rule of bringing a case with
insufficient evidence. The judge said
he was very familiar with Rule 11,
it had just been revised, and it was
time to take some of the garbage
out—looking straight at me. Attorney Cheeseman said he wanted to
call as his first witness Jan Schlichtmann. I refused to take the stand,
telling the judge that, if I did so, I
cease being a lawyer for my client,
and I become a witness, concerned
about my own protection, and I
cannot represent my client, which
means I must withdraw, depriving
my client of representation. If you
use Rule 11 to destroy a lawyer’s
representation of his client, you are
allowing the defense—regardless
of the merits—to prevent the case
from being tried.
EH Did you come up with that idea at
that moment? JS I knew instinctively that I could not
take the stand. I stood my ground.
I did have that ACLU experience,
which gave me some sensitivity to
this issue.
EH Is that an inherent weakness in
Rule 11 altogether? JS Rule 11 demonstrates the fundamental fallacy of the Federal Rules
of Civil Procedure. The rules turn in
on themselves. Rule 1 says that all
the rules should be construed for
the just, speedy, and inexpensive
determination of every action, and
every subsequent rule puts that rule
to the lie. At that time as well, discovery was flourishing, leading to a
very costly investigative process. We
are now seeing the virtue of reining
some of that in.
EH What was the biggest obstacle to
proving liability in the Woburn
case? JS Not allowing the whole case to be
tried. We spent ten months on the
first phase. In order to connect the
conduct with the illnesses, you had
Connecticut Lawyer January/February 2017
to show the conduct going into the
water, the water going into the wells,
the wells going around the city, the
exposure, and the health histories.
Each one of those levels was tremendously expensive to show. You can’t
understand this case, and you can’t
find liability, causation, and damages, unless you hear the whole story.
We had far more of a case in science,
medicine, and engineering than we
were able to get through the court
room door. A one-dimensional, pale
imitation was given to the jury for
them to figure out what happened.
We were given a truncated, cartoon,
one-dimensional keyhole approach.
EH Particularly after you’ve been
boring these people to tears for
ten months. JS And that’s what we do in the law.
Woburn was merely the law writ
large. The scale of Woburn took all of
the foibles and fictions that permeate our practice and blew them up
to a grand scale, where we could see
them. It happens every day in every
court house in the country. We have
major problems with establishing
the truth.
EH There is also a concern with moving things along, managing the
docket.
JS That’s right. They are not truthbased, not truth-friendly.
EH Has the situation changed at all
for toxic tort since that time?
JS Back then, the knowledge was thin,
but the law was good. Now, as the
science has become richer, the law
has become poorer. We’ve become
really good at using these procedural devices to bleed out the right to
jury trial, the right to have the story
told to a jury. Restrictions on expert
witnesses, for example.
EH How do we tell whether a toxic exposure has led to cancer? JS You will tend to see a particular type
of cancer, a particular disease or
syndrome becomes evident. As opposed to a noisy expression of cancers. If it’s there, you can find it, with
the right digging.
EH How has the science improved? JS You can go on the Internet now and
find out in an hour what it took
us months to do in the library, go
through the journals. Everything
was extremely expensive and took
a lot of time. The technologies, the
engineering expertise, all of our insights into immunology and toxicology, have grown by orders of magnitude. The science, the medicine, the
engineering, has developed by leaps
and bounds.
EH What was your best day working
on the Woburn case? JS After we came to the settlement with
W.R. Grace, talking with the families,
the journey gave them some economic tools to dig out of the rubble
of their experience. That event, and
the day that the Center for Disease
Control announced the results of
their study, that the families were
right that the contamination caused
the illness. All the years of stress
seemed worth it.
EH So, over time, this experience
helped you move from playing the
one lone hero to a more collaborative approach?
JS It was a very painful experience. I
was bankrupted by it—financially,
physically, spiritually. It forced me to
look at my life and figure out what
is important, who I am. It is a very
rich experience that informs my life
every day.
EH Early in the book, A Civil Action,
your Porsche is repossessed,
which helps take readers right
into the story. There was a writer hanging around with you for
years.
JS He showed up around 1984-85, the
case finished in 1989, and he then
wrote the book, which he finished
around 1995. We became great
friends. We spent half that time
working on the case, and half that
time reflecting on what had happened.
EH How many people get to have a
good friend who then turns them
into an icon?
JS It was very therapeutic, a transforVisit www.ctbar.org
mative experience. I have had a lot of
joy talking with others about what I
learned. That is probably the greatest treasure I have. I get to talk to
young and old. I recently spoke with
some 8th graders who had read the
book, seen the movie, they had lots
of wonderful questions.
EH What are the sources of motivation for today’s youth? Are they
different than when you were
young? JS Think about it. In 1970, I was 19.
Twenty million people came out,
and in the next two years, foundational laws were passed in that miracle period—the Clean Air Act, the
Clean Water Act, the Environmental
Policy Act, the Endangered Species
Act. These were all the iconic acts
that we have spent the next half century trying to undo.
EH During the Nixon administration,
no less. JS There is an important lesson there,
because these achievements arose
from cross-party collaboration,
enlightened members from both
parties understanding the importance of preserving wilderness,
and environmental health. Then, it
was burning rivers, and dumps and
smokestacks. Now, the metaphor
has become a burning planet. The
scale of what we must now do has
changed. Technology and its impacts
are now worldwide. We must catch
up with it. And we must work together. What kind of community life
do we want to have? That is our challenge. And it is the challenge of the
young. When I speak to them, at the
end of the talk, one or two of them
will approach me and say, “I want to
be a lawyer too.”
EH What are you most proud of? JS The understanding. We learned a
lot about steps we can take that can
improve the health of a community,
on a very fundamental level. That,
and pushing for better laws. It was
collaborative and collective effort
by many people, including scientists
who have used Woburn as a stepping
off place for later work in toxicology
and other fields. I recently received
a request from people in Flint, MI,
asking what can we do? The struggle continues, and the scale has increased. Decaying infrastructure,
cost cutting, ignoring risk, harm falling upon children. That is unacceptable. We can’t exist as a community
in that way.
EH Didn’t ancient Rome decline in
part from lead in the water pipes? JS Very much so.
EH What is the role of alternative
dispute resolution—ADR—in the
area of toxic torts? JS ADR is everything, because we can’t
afford these protracted battles, with
a system that drags things out and
distorts the facts, or prevents the
facts from coming out. The only way
we can do it is to sit around the table, talk to one another, try to understand the past, and figure out what
should be done about it. Everything
else is just wasting resources, time,
money, in the hopes of somehow
taking advantage of an event, but not
really learning from it or engaging
in a healing process that must take
place in a community that wakes up
to that kind of nightmare. We have
to approach this differently. We cannot approach this as combatants.
EH What do you think are the long
term prospects for the practice of
law, as a vocation? JS We have problems of environmental scale that threaten our existence,
and the law has got to be there for
us. The sad truth is that the law
has been going backwards, not forwards. If you want to be a lawyer,
there must be passion, you must follow that passion in the law, because
that is the only thing that is going
to allow you to get through each of
the days of being a lawyer, which are
quite challenging. You have to keep
your soul, and you have to deal with
people who are at their worst, sickened by conflict. Chief Justice Berger
said that we should be healers of
law. An unlikely source, perhaps,
but he saw something, and he tried
to get other lawyers to see it as well.
We get sick from litigation. We need
to heal our clients—even more so if
they are a community suffering from
an environmental catastrophe.
EH Do you believe that most people,
regardless of their side on an issue, would prefer to do good? JS There is no us against them. There
is only us. We’re a community locally, we’re a community regionally,
as a nation, as a planet. We have to
look at problem solving in a collective way. One part of the community against another part is disunity.
That’s going backwards, it’s not
building. When we disempower ourselves economically, we disempower
ourselves philosophically, politically,
and spiritually.
EH You and attorney Mitchell Garabedian, the “Spotlight” attorney
that uncovered child abuse and
corruption within the Catholic
church, each tried to do something that had not been done before. JS Taking on entrenched interests.
EH When you appeared before Judge
Skinner, did you feel like an outsider? JS I felt it to the bone. No question.
When you take on power on behalf
of people with far less power, it is
always that way. To power, you are
an outsider, unless you have power.
From the point of view of the disenfranchised, it is easy for them to
feel that they have no stake in the
community. It is the challenge of the
lawyer as citizen, when people come
for help, to improve our society’s understanding of this basic truth. We
have to solve our problems by being
honest, we must come together to
find out what actually happened, to
ensure it does not occur again. We
need a legal institution that honors
that process, rather than one that
simply serves power. A legal system
that sees the law as something that
civilizes power, so that there can be
justice. Cure abuse, help power become something better than it was.
The alternative is authoritarianism. CL
Connecticut Lawyer January/February 2017
17
Frederick Law Olmsted,
the Civil War, and
Abraham Lincoln
The Honorable
Henry S. Cohn
is a judge trial
referee of the
Connecticut
Superior Court.
By Hon. Henry S. Cohn
In 2016, along with commemorations of
the 100th anniversary of our National
Park System, were several programs and
published works devoted to Frederick
Law Olmsted, known as the “father of
American Landscape architecture.” Olmsted was born in Hartford, had lifelong ties
to Connecticut, and his ashes are interred
in the family plot in Hartford’s Old North
cemetery. Olmsted’s in-state achievements include Bushnell Park in Hartford,
Beardsley Park in Bridgeport, Walnut Hill
Park in New Britain, and Hubbard Park in
Meriden. Out-of-state Olmsted projects
include Central Park in New York City, the
campus of Stanford University, and the
Biltmore Estate in Asheville, NC.
18
This article is about a lesser-known period in Olmsted’s life, 1861-1863, when
he was the general secretary of the United
States Sanitary Commission, the predecessor of the American Red Cross. During
these years, Olmsted had several contacts
with Abraham Lincoln. His reaction to
Lincoln parallels those of his aunt by marriage, Harriet Beecher Stowe, and of other
prominent Hartford citizens.
Connecticut Lawyer January/February 2017
Olmsted From His Birth to 18611
Frederick Law Olmsted was born on April
26, 1822 on Ann Street in Hartford, a city
that had relied on the assistance of the six
generations of Olmsteds who had come
before him, the earliest arriving in Hartford in 1636. Olmsted’s career did not
have a spectacular start. He spent several
months at Yale, but did not graduate. He
then spent a year traveling to China, working as a deckhand on a boat. He also enjoyed working outside on his uncle’s farm
in Genesco, NY, and he began to show his
characteristic perseverance, determination, and imagination after his father
bought him a 125-acre farm on Staten Island.
While living in New York state, he visited
Hartford frequently. He became engaged
to Emily Perkins, Harriet Beecher Stowe’s
niece, but their engagement failed. Subsequently, in 1859, he married Mary Perkins,
who was a cousin of Emily’s and recently
widowed by the death of Olmsted’s brother John. He and Mary raised his brother’s
three children, and they had two of their
own. Two of his sons followed him into
the landscape design business.
Throughout the 1850s, he traveled to the
Southern states, reporting for the New
York Times and writing under the pseudonym “Yeoman.” In the late 1850s, his extensive descriptions of the Southern way
of life were published in three volumes,
and then, just as the Civil War began, in
a one-volume edition entitled The Cotton
Kingdom.
According to On Common Ground, “[I]n
1857, Olmsted overheard a conversation
about Central Park, which at the time was
little more than an open field [and pigsty] in the middle of New York City.” He
began to consider the function of public
parks in an urban setting, looking at the
role of open space in the midst of high-rise
buildings and squalor. He and an experienced architect named Calvert Vaux won
a national contest for the design of Central Park, which they called “Greensward.”
Olmsted became the superintendent of
his successful Central Park project. K.M.
Kostyal, in the April 28, 2015 issue of MHQ
Magazine, writes: “The superintending of
the park’s development had taught Olmst-
Visit www.ctbar.org
ed how to handle recalcitrant work crews
and push through projects, even over objections of his superiors.”
Olmsted’s Appointment to the
Sanitary Commission
On April 12, 1861, the South attacked Fort
Sumter. Olmsted had just had a falling-out
with the Central Park Board and, being
a patriot, he wished to contribute to the
Union military effort. He had, however,
recently suffered a severe injury in a fall
from a horse, had not fully recovered, and
walked with a limp. An alternative to being a soldier had developed in the field of
public health, and it gave Olmsted a role
on the battlefield.
In 1861, the concern for public health was
coming into its own. Rudolf Virchow, a
German physician and one of the founders
of the social medicine movement, noticed
a connection between Europe’s typhus,
typhoid, and cholera epidemics, and the
industrial slums. Based on Virchow’s research, the American Medical Association
called for improvements in sanitation systems and water purity. Olmsted also understood these concerns as he traversed
the packed streets and crowded tenements of lower Manhattan and saw the
placement and lack of drainage of outdoor
latrines.2
Meanwhile, patriotic women were forming soldier relief societies. One of these
was the Women’s Central Association of
Relief, which was formed by a group of
New York society women. They contacted
Henry Whitney Bellows, a minister of the
All Souls Church, to further their cause.
Bellows went beyond assisting this one
group and united such societies throughout New York State and other Northern
states into a “Sanitary Society” to serve
at Union Army camps. In June 1861, Lincoln reluctantly signed an executive order
forming the U.S. Sanitary Commission.
Lincoln was cool to the idea of the commission, viewing it as a “fifth wheel” that
would interfere with the regular Army’s
Medical Bureau.3
Bellows wanted the Sanitary Commission
to act as a central headquarters to provide
information to harried army surgeons
about good medical practices and to clean
up pestilent barracks hospitals. He assembled a board of expert physicians, scien-
tists, military personnel, and attorneys.4
Bellows needed a chief executive officer,
which he called a general secretary, to
serve as an administrator. He turned to
Olmsted.
In Genius of Place, Justin Martin writes:
The reverend [Bellows] had in mind
Olmsted, who at thirty-nine was eight
years his junior. Bellows was familiar with Olmsted’s work because, as a
sometime journalist himself, he had
written an article about Central Park for
the Atlantic. Olmsted, in turn, had once
approached Bellows about contributing
to Putnam’s Magazine [where Olmsted
was an editor]. The reverend was also
a founder of the Century Club, which
counted Olmsted as a member. Bellows
described Olmsted as ‘long-headed,’
a high compliment that implied prescience and foresight. . . . [N]othing in
Olmsted’s background really qualified
him to run a medical commission. Then
again, nothing had prepared him to design a park. America was still in the grip
of a pioneer spirit that valued derringdo over narrow specialization. This was
doubly so with the outbreak of war; a
kind of all-hands-on-deck attitude was
now in sway. On June 20, 1861, Olmsted
was offered the job and immediately accepted. In a letter to his half-sister Bertha, he described his new post: ‘It is a
good big work I have in hand, giving me
absorbing occupation and the sort of
connection with the work of the nation
without which I should be very uncomfortable.’
Olmsted at the Helm of the
Sanitary Commission, 1861-1863
On June 26, 1861, Olmsted traveled to
Washington, DC. Along the way, he saw
military camps in Maryland, and after
checking in at the Willard Hotel, left to
inspect twenty camps in the D.C. area. He
was shocked by what he saw. The camps
were overcrowded and filthy. Toilet facilities consisted of open pits without the
required daily coverage with sand or any
other drainage. There were no standard
uniforms. The food and medical care were
abysmal. Olmsted wrote to the Army command, who ignored him.
Olmsted was in on July 21, 1861, Olmsted was in New York City when the open-
ing land battle of the war was fought in
Manassas, Virginia, next to a small stream
called Bull Run. On his return to Washington the next day, Olmsted analyzed the
disastrous loss that the Union suffered
at the First Battle of Bull Run. He wrote
a scathing report blaming the failure of
Union officers to direct their soldiers.5 He
also found dire failures in the lack of clean
water, good food, and opportunity for rest
for the soldiers. Olmsted’s report was
quickly quashed by his Army superiors.
Immediately after the loss at Bull Run, Olmsted entered into a bruising battle with
the Military Bureau and U.S. Surgeon General Clement Alexander Finley. Finley, who
Olmsted called a “blockhead,” believed
in standard approaches and was not interested in Olmsted’s new ideas. For example, when Olmsted learned that injections were available to prevent malaria, he
asked Finley to begin inoculations of the
soldiers. Finley refused, and Olmsted arranged for private funding to institute the
preventative measure.
Olmsted attempted to convince Secretary
of War Simon Cameron and President Lincoln to relieve Finley of his duties, but his
efforts failed until Massachusetts Senator
Henry Wilson introduced legislation to reorganize the Medical Bureau. Finley then
resigned and Dr. William Hammond, a talented physician, became Surgeon General.
Bellows, seeing the removal of Finley, was
impressed with Olmsted’s drive and administrative ability. Olmsted wrote to a
friend that the Sanitary Commission had
one goal: “A simple desire and resolute
determination to secure for the men who
have enlisted in this war that care which
it is the will and duty of the nation to give
them.”6
By April 1862, Olmsted had taken steps to
improve conditions at the District’s general hospitals. In the Virginia campaigns
of that year, he set up floating field hospitals on ships. The ship Webster had four
surgeons, 20 male nurses, four female
volunteer nurses, and three carpenters.
The ships were packed with soldiers who
were wounded or suffering from typhoid
fever and other diseases.7
Two major battles at which the Sanitary
Commission supported the troops were
Connecticut Lawyer January/February 2017
19
Antietam and Gettysburg. The Battle of
Antietam occurred on September 17,
1862, and played a role in Lincoln’s issuing his Preliminary Emancipation Proclamation. It was the costliest battle ever
fought on U.S. soil. On July 1, 1863, the
Sanitary Commission began preparing for
battle at Gettysburg by bringing in supplies and setting up at the front relief stations stocked with fresh food. Writing to a
friend on July 19, 1863, Olmsted recalled:
…that our force was considerably the
smaller. I was all over the ground yesterday. The field and all distances are
much larger than I had supposed. The
hills, except on the extreme left of our
line, are gentle elevations. If the Hillhouse hill in New Haven were cleared of
wood, it would bear some resemblance
to them. . . . I found plenty of evidence of
terrible fighting. . . . [Bodies were being
shipped North. Horses are only partially
buried.] I came here [to Baltimore] last
night from Gettysburg, being twelve
hours on the way, most of the time in a
dirty hog-car with a lot of dead Pennsylvanians and wounded rebels.
Gettysburg was the last battle during
which Olmsted served as general secretary.
Olmsted and Lincoln
During the 1861 to 1863 period when Olmsted was in Washington, he had several
contacts with President Lincoln. Like his
Hartford friends and relatives, he was initially skeptical of Lincoln, but became a
strong supporter of the president. As with
Harriet Beecher Stowe, one factor in this
revised attitude was Lincoln’s issuance of
the Preliminary Emancipation Proclamation on September 22, 1862, but Olmsted
changed sooner than Stowe.
While he was in Washington, Olmsted’s
first known statement on Abraham Lincoln was in a letter to his father in August
1861:
20
I saw the President this morning walking hastily with two or three other loafers to the War Department. He looked
much younger than I had suppos’d,
dressed in a cheap & nasty French black
cloth suit just out of a tight carpet bag.
Looked as if he would be an applicant
for a Broadway squad policemanship,
Connecticut Lawyer January/February 2017
but a little too smart and careless.
Turned & laughed familiarly at a joke
upon himself which he overheard from
my companion en passant.
A month later, he was critical of Mary
Lincoln, calling her a “thin specimen of a
Western woman.”
Olmsted’s tone changed later in 1861. He
wrote that “Old Abe . . . grows in our respect. A straight forward, shrewd, quaint,
ready and rough old codger.” He and his
Sanitary Commission board met with Lincoln on October 17, 1861, in the effort to
remove Surgeon General Finley from office. While Lincoln declined to assist him,
Olmsted reported to his wife that Lincoln
“appeared older, more settled (or a man of
character) than I had before thought. He
was very awkward & ill at ease in attitude,
but spoke readily with a good vocabulary,
& with directness and point. Not elegantly. ‘I heerd of that,’ he said, but it did not
seem very wrong from him, & his frankness & courageous directness overcame
all critical disposition.”
Similarly, Olmsted wrote to his 14-yearold stepson, John: “He is a very tall man.
He is not a handsome man, not graceful.
But he is good. He speaks frankly and truly and straight out just as he is thinking.
Commonly he is very sober but sometimes
he laughs. And when he laughs he laughs
very much and opens his mouth very
deep. He did not look proud nor cross but
a good sort of fellow.”8
Although he did not meet with Lincoln
again, he wrote to him on March 8, 1862,
giving his thoughts on integrating former
slaves that had been freed by the Union
Army into Northern society. On July 6,
1862, he wrote again to Lincoln to urge
him to appeal to the public to rally increased enlistment in the army. Then, in
1864, as Lincoln’s re-election was hotly
contested within the Republican Party, Olmsted attacked Lincoln’s opponents and
declared: “I am for Lincoln.”
Olmsted Leaves the Sanitary
Commission
In August 1863, Olmsted resigned from
the Sanitary Commission. He had soured
on a portion of the board that felt he was
pushing ahead only for self-aggrandize-
ment. The board had restricted his discretion in making expenditures. Olmsted was
immediately offered a post as a superin-
tendent of the Mariposa Estate in the Sierra Nevada foothills, Bear Valley, CA, the
location of a huge gold mine.
Olmsted had an amazing run with the San-
itary Commission, multiplying astronomically the number of physicians and hospitals in military service and improving
battlefield conditions. He also established
a link between public parks, architecture,
and public health that was to become ap-
parent as he continued with his landscaping design work.
Looking to individual reactions to Olm-
sted’s work at the Sanitary Commission,
K.M. Kostyal concludes: “As for Olmsted’s
personal achievements in the Civil War, his
greatest accolades came from the wounded and ill, the hungry, thirsty, despondent
men he helped in the field. After Antietam
one soldier wrote: ‘I would rather have Mr.
Olmsted’s fame than that of any general in
this war since its beginning.’” CL
Notes
1. This section is based on A. DeLana and C.
Reik, eds., On Common Ground: A Selection
of Hartford Writers (1975).
2. T. Fisher, Frederick Law Olmsted and the
Campaign for Public Health, placesjournal.
org, November, 2010.
3. J. Martin, Genius of Place: The Life of Frederick Law Olmsted (2012).
4. Id.
5. A major exception to this dereliction of
duty was the heroism shown by Joseph
Roswell Hawley. His bravery led to his
1865 election to Connecticut Governor;
subsequently he served four terms as a
Senator from Connecticut.
6. The Papers of Frederick Law Olmsted, Volume 4, December 21, 1861.
7. J. Martin, supra; L. Roper, FLO (1973).
8. These letters were written on October
17 and 19, 1861, and are included in The
Papers of Frederick Law Olmsted, Volume 4.
This article was prepared with the assistance
of Attorney Henry Cohen of Columbia, MD.
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Connecticut Lawyer January/February 2017
21
Don’t Throw the Baby
Out with the Bath Water:
Remedies to Keep an
LLC Alive
By Anthony R. Minchella and Robert Pattillo
Connecticut’s current Limited Liability
Act allows a judge to dissolve an LLC upon
application by a member “whenever it is
not reasonably practicable to carry on the
business in conformity with the articles
of organization or operating agreement.”1
It does not expressly allow the court to
grant any other remedy if the LLC members are in conflict. In other words, it’s
all or nothing—the court either dissolves
the LLC and “throws the baby out,” or the
LLC continues its dysfunctional operation.
This article advises two solutions to keep
the LLC alive and resolve the underlying
problem in a dissolution action.
Dissolution is, of course, a very drastic
remedy.2 It’s a death knell to a company
that is likely providing jobs, tax revenue to
local and state government, and possibly
even critical products and services.
22
Connecticut Lawyer January/February 2017
Typically, the dispute that brings LLC
members to court is a squabble over distributions or control—frequently, claims
that ignore the overall good of the company. The LLC is often a small, familyowned business, and these disputes can
turn out to be more personal than about
operating the business. When members
cannot set this baggage aside, and work
out their differences, one of them runs to
the courthouse and files an action to dissolve the LLC, usually just to gain leverage
for a negotiated buyout. But what if the
other members do not agree to a buyout,
or make unreasonable demands? What if
the operating agreement lacks a divorce
clause?
The first possible solution is a courtordered buyout. If an LLC member is
faced with defending an expensive dis-
Anthony R. Minchella and
Robert Pattillo of Minchella & Associates LLC in
Middlebury, CT. Minchella
& Associates LLC represents LLC members and
corporate shareholders in
arbitrating, mediating, and litigating membership and shareholder disputes.
Robert Pattillo graduated
from the University of Connecticut School of Law in
2015, and is admitted to
practice law in Connecticut and Massachusetts.
During law school, Rob
clerked for Minchella &
Associates, and certified as a legal intern
under the Connecticut Practice Book.
solution action, he should be allowed to
buy the other member’s interest at a fair
price. Connecticut courts should, and
likely would, order a remedy that makes
more sense—an election to purchase the
other member’s (usually the dissenting
member’s) interest. Other jurisdictions,
including New York, have recognized an
equitable power to order a buyout of the
complaining party’s ownership interests
even in the absence of statutory authorization.3 Some jurisdictions expressly
provide for this buyout option in their
LLC Act.4 Connecticut’s Corporations Act
allows a buyout at “fair value” of all shares
owned by the shareholder petitioning for
judicial dissolution.5 Members of an LLC
should have the same opportunity.
Our newly enacted Uniform LLC Act
(“CULLCA”), which goes into effect on July
Visit www.ctbar.org
1, 2017, will likely make this remedy easier to obtain. It doesn’t expressly authorize
a buyout, but it does permit the court to
“order a remedy other than dissolution”
upon application for judicial dissolution of the LLC. The statutory grounds in
CULLCA, for dissolution or some other
remedy, require that the managers or
members controlling the company have
acted or are acting in a manner that is:
(A) illegal or fraudulent; or (B) oppressive
and was, is, or will be directly harmful
to the applicant.6 This new section, combined with Connecticut courts’ equitable
powers, and authoritative, though not
binding, caselaw from sister states, should
allow the court to order more prompt,
less-expensive resolutions to LLC member
disputes short of dissolution.
CULLCA also creates a second possible solution. It expressly permits a member to
go to court and have a member expelled,
a provision that does not exist under the
current act. There are three bases for expulsion:
1. The member engages in wrongful
conduct that has or will adversely and
materially affect the LLC;
2.The member materially breaches
the operating agreement or his or her
duty in a willful or persistent manner;
or
3.The member engages in conduct
in the LLC’s affairs that makes it not
reasonably practicable to carry on the
LLC’s affairs with the person as a member.7
Accordingly, if a court finds that an LLC
member meets one of the three conditions, it must grant the remedy of expulsion. The first two appear straightforward, and the final condition includes the
same “reasonably practicable” language
as the current LLC Act; thus, Connecticut
caselaw, though sparse, will provide some
guidance on its meaning, as should caselaw under the Uniform Partnership Act,
which uses the same “reasonably practicable” language.8
New Jersey has enacted a Revised Uniform Limited Liability Company Act
(RULLCA), containing the same provi-
sion. The New Jersey Supreme Court, in
a recent case where an LLC filed an action to expel a member, set forth a sevenfactor test to assess whether an LLC can
“reasonably” carry on, notwithstanding a
member’s conduct:
1. the nature of the LLC member’s conduct relating to the LLC’s business;
2. whether, with the LLC member remaining a member, the entity may be
managed so as to promote the purposes
for which it was formed;
3. whether the dispute among the LLC
members precludes them from working with one another to pursue the
LLC’s goals;
4. whether there is a deadlock among
the members;
5.whether, despite that deadlock,
members can make decisions on the
management of the company, pursuant
to the operating agreement or in accordance with applicable statutory provisions;
6. whether, due to the LLC’s financial
position, there is still a business to operate; and
7. whether continuing the LLC, with
the LLC member remaining a member,
is financially feasible.9
Because Connecticut does not have a
strong body of caselaw providing guidance for the meaning of “reasonably practicable,” this New Jersey case may be helpful in analyzing expulsion under the new
Act. Cases interpreting and applying the
meaning of “reasonably practicable” under the Uniform Partnership Act should
also help lawyers involved in these types
of cases.
If you bring an LLC dissolution action before the new Act goes into effect, and seek
to avoid “throwing the baby out with the
bathwater,” quickly file a motion or election to buy interests, after including an
equitable claim for buyout in the complaint. When defending such an action,
try to avoid pre-answer motion tactics,
which only delay the proceedings (unless
of course such motions are necessary),
answer the complaint with a counterclaim
for equitable buyout, and then file a simi-
lar motion. Or, after the new Act goes into
effect, attempt to settle the dispute, then
seek to expel the opposing member so the
company can remain intact. CL
Notes
1. Conn. Gen. Stat. § 34-207.
2. The trial court has discretion to order
dissolution or not. Brennan v. Brenna Associations et al., 293 Conn. 60, 79 (2009).
Therefore, if the trial court orders dissolution, that determination is subject to the
difficult to overcome “abuse of discretion”
standard. Id.
3. See, e.g., Mizrahi v. Cohen, 961 N.Y.S.2d 538,
542 (N.Y. App. Div. 2d Dept. 2013) (While
“[t]he Limited Liability Company Law
does not expressly authorize a buyout in a
dissolution proceeding . . . [n]onetheless,
in certain circumstances, a buyout may
be an appropriate equitable remedy upon
the dissolution of an LLC.”), leave to appeal
dismissed, 992 N.E.2d 421 (N.Y. 2013); In re
Super. Vending, LLC, 898 N.Y.S.2d 191, 192
(N.Y. App. Div. 2d Dept. 2010); Lyons v. Salamone, 32 A.D.3d 757, 821 N.Y.S.2d 188 (
1st Dep’t 2006). But see, Kassab v. Kasab,
137 A.D.3d 1138, 1140, 27 N.Y.S.3d 680,
682–83 (N.Y. App. Div. 2016) (“Here, since
. . . the petitioner failed to state a cause of
action for the judicial dissolution of the
LLC pursuant to Limited Liability Company
Law § 702, there is no basis to invoke the
equitable remedy of a buyout.”).
4. States that offer express statutory buyout
guidelines in their LLC statutes include
California (Cal. Corp. Code § 17707.03(c)
(1) (West)), Florida (Fla. Stat. Ann. §
605.0706 (West)), Illinois (805 Ill. Comp.
Stat. Ann. 180/35-1(b)), Minnesota (Minn.
Stat. Ann. § 322B.833(2) (West)), North
Dakota (N.D. Cent. Code Ann. § 10-32.150(2) (West)), and Utah (Utah Code Ann. §
48-3a-702 (West)).
5. Under Conn. Gen. Stat. § 33-900, when a
shareholder petitions for judicial dissolution, other non-petitioning shareholders
or the corporation itself may buy out that
interest and have the matter dismissed.
Within ten days after commencement of
the dissolution proceeding, the corporation must notify all shareholders of the
right to purchase petitioner’s shares, and
if the parties cannot agree on a fair price,
the court, upon application, will stay the
proceeding under § 33-896 and determine
a fair value.
6. Uniform Limited Liability Company Act,
2016 Conn. Legis. Serv. P.A. 16-97 (H.B.
5259) (WEST), Section 56(b).
7. Uniform Limited Liability Company Act,
2016 Conn. Legis. Serv. P.A. 16-97 (H.B.
5259) (WEST), Section 54(5).
8. Conn. Gen. Stat. §34-555(5).
9. IE Test, LLC v. Carroll, 226 N.J. 166, 183
Connecticut Lawyer January/February 2017
23
Litigation Funding:
Ethical
Considerations
for the
Plaintiff’s Lawyer
By David P. Atkins and Marcy Tench Stovall
24
Connecticut Lawyer January/February 2017
Marcy Tench
Stovall and David P.
Atkins are attorneys
in the Professional
Liability Practice
Group of Pullman
& Comley LLC.
Both concentrate
on the representation of lawyers and
law firms, as well
as practitioners in
other professions,
in malpractice
and professional
liability actions and in licensing
and disciplinary proceedings. They
also routinely assist professionals,
including lawyers, resolve disputes
over partner departures and practice group dissolutions. Attorney
Stovall has chaired the CBA’s
Standing Committee on Professional Ethics since 2014.
Visit www.ctbar.org
This article addresses some of the ethical concerns a lawyer should consider in
connection with funding arrangements
between a litigation client and a third
party funder. Below is a sample situation.
Your firm appears for Pureheart, Ltd in
prosecuting a billion dollar trade secret
misappropriation action. Faced with the
mounting fees your firm is charging to
prosecute its claims in litigation that is
increasingly bitter and protracted, the
now cash strapped Pureheart contacts
Wellspring Capital Group LLP. Wellspring
holds itself out as a “specialized commercial litigation financing fund” that
will advance a plaintiff’s litigation costs,
including attorneys’ fees, in exchange
for a percentage stake in the plaintiff’s
recovery.
The dollars Wellspring provides will be
used to pay the client’s outstanding legal
fees and expenses, as well as anticipated
litigation costs, including expert witness
fees. But Pureheart’s obligation to repay
Wellspring is entirely contingent on its
recovery by way of settlement or by judgment. Hence, Wellspring readily acknowledges that in the absence of a recovery, it
will lose its entire investment.1
Pureheart is about to sign an investment
agreement with Wellspring under which
Wellspring will advance $750,000 on a
non-recourse basis, making its advance in
exchange for payment of 40 percent of any
recovery paid to Pureheart. No recovery
means that Wellspring will be paid zero.
Pureheart—which currently owes your
firm approximately $125,000 in fees and
advanced costs under the firm’s hourly
billing arrangement—asks for your advice about the funding deal Wellspring
proposes.
Should your firm’s representation of
Pureheart include giving advice to the
client about the funding arrangement?
If so, does the contemplated deal trigger any of your firm’s obligations under the Rules of Professional Conduct?
Duties of Loyalty and Conflict
Free Representation
Rule 1.7(a)(2) of the Rules of Professional Conduct (RPC) provides in part:
A concurrent conflict of interest exists if . . . there is a significant risk that
the representation of one or more clients will be materially limited by the
lawyer’s responsibilities to . . . a third
party person or by a personal interest
of the lawyer.
To the extent a lawyer affirmatively advises a litigation client to accept a thirdparty’s funding proposal, the lawyer must
consider whether the client might later
claim that in encouraging the client to
take the deal, the lawyer and his law firm
were “materially limited by . . . a personal
interest”: the firm’s own financial position. After all, in the Pureheart case, one
obvious impact of the client closing the
deal would be an immediate pay down
of the client’s large account balance with
the firm and the likelihood that future invoices likewise will be covered. Thus the
deal directly benefits the lawyer and the
law firm, a fact that may affect the advice
the lawyer gives. And the funding arrangement also may have another consequence:
even if the client succeeds in obtaining a
favorable judgment or settlement its recovery will be substantially limited by its
obligation to pay Wellspring 40 percent
of the settlement or judgment (a contingency amount in excess of the one-third
fee lawyers customarily charge in contingency cases). In addition, many litigation
funders also require the client to pay periodic (sometimes monthly) “service fees.”
In addressing a lawyer’s obligations in
connection with third-party litigation
funding, the Connecticut Bar Association’s
Standing Committee on Professional Ethics specifically cautioned that a plaintiff’s attorney who participates in such
an arrangement must avoid a “situation
in which the lawyer’s own interest in collecting a . . . fee materially erodes the undivided loyalty which the lawyer owes to
his or her client.”2
Put another way, the law firm prosecuting the Pureheart action must ensure that
the firm’s interest in assuring payment of
its fees does not “materially impair [its]
ability” to advise the client “to consider alternative courses of action that otherwise
might be available to” the client.3
But even with that concern in mind, a lawyer does not necessarily run afoul of the
conflict of interest rules by advising a client about a third-party funding arrangement.
Instead, ethics authorities encourage attorneys who wish to comply with the conflict rules to provide clients seeking advice
on third-party funding arrangement with
complete disclosure of the various interests at stake in giving such advice (including, if applicable, the extent to which the
structure of the loan repayment may favor
the firm’s interest in payment of its fees
over the client’s interest in the recovery),
as well as the risks and benefits of proceeding with the funding proposal. This
is consistent with Rule 1.7(b)(2), which
permits representation notwithstanding
an otherwise disqualifying conflict so long
as: (1) the “lawyer reasonably believes [he
or she] will be able to provide competent
and diligent representation . . .”; (2) “the
representation is not prohibited by law”;
and (3) the “client gives informed consent,
confirmed in writing.”4
Connecticut Lawyer January/February 2017
25
An alternative, and perhaps safer course
for the law firm, is to refer the client to
other counsel for an independent assessment of the pros and cons of accepting the
funding offer.
Lawyer Independence
Rule 2.1 of the Rules of Professional Conduct (“Advisor”) commands a lawyer to “. .
. exercise independent professional judgment” in the representation of a client.
Similarly, Rule 5.4 (“Professional Independence of a Lawyer”) broadly prohibits
“permit[ting] a person who . . . pays the
lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment” in performing those
services. And Rule 1.2(a) (“Scope of Representation and Allocation of Authority
Between Client and Lawyer”) mandates
that the lawyer “. . . shall abide by a client’s
decision whether to settle a matter.”
Like any investor in a “high risk-high reward” deal, the goal of a litigation funder
is to increase the odds that the plaintiff it
is backing not only prevails, but “hits big.”
This, in turn, creates a risk that the investor will want to do exactly what the authors’ Rule 5.4 prohibit: direct, regulate,
and possibly control the course of the litigation. And a provision giving the funder
the right to veto the client’s decision to
accept a settlement agreement, while
permissible between funder and client,
plainly would not be permitted between
lawyer and client under RPC 1.2(a).
26
In a Florida case, the pre-suit agreement
between the plaintiffs and their funder
gave the funder the right to “approve the
filing of the lawsuit” and “control the selection of the plaintiffs’ attorneys.” Relying
on its agreement, the funder also “recruited fact and expert witnesses; . . . reviewed
and approved counsel’s bills; and had
the ability to veto any settlement.”5 This
illustrates the type of agreement that
would require the client to surrender to
the funder certain protections embodied
in the RPC such as the client’s unfettered
right to accept or reject a settlement offer.6 Some funders even have sought to
prohibit a plaintiff from discharging its
current counsel or to substitute a different lawyer without the funder’s written
consent.7 Still others effectively restrict
the client from abandoning its lawsuit.
Connecticut Lawyer January/February 2017
Others condition their delivery of funds
on the client’s agreement to assign to the
funder all of the client’s rights in the cause
of action in the event the client does abandon its claim.8
Even more potentially punitive to the client: a provision authorizing the funder to
refuse further advances in the event the
plaintiff’s counsel makes certain strategic decisions with which the funder disagrees.
The ethical concern arising from a client’s
agreement to such funding terms is the
risk that the deal may affect the lawyer’s
obligations under Rule 2.1 and 5.4 to exercise independent judgement, and under
Rule 1.2(a) to “abide by” the client’s decision to settle.
The Connecticut Supreme Court has long
held, consistent with Rules 2.1 and 5.4,
that counsel assigned—and paid by—a
client’s insurer to defend an insured, owes
its duty of loyalty exclusively to the insured and not to the insurer. 9
RPC 1.2(c) does permit a lawyer, with
the client’s informed consent, to “limit
the scope of the representation.” But the
limitation must be “reasonable under the
circumstances.” For this reason, a client’s
assent to a funder’s otherwise onerous
limitations on the professional judgment
of its counsel may be “reasonable” if the
client is a sophisticated business entity.
Conversely, in the case of significant restraints on the lawyer’s customary obligations of diligence and communication in
the representation of an unsophisticated
client, the scope limitation may not be
“reasonable” within the meaning of RPC
1.2(a). Under these circumstances the
lawyer may not be able to diligently and
competently represent the client, and
would be required to terminate the representation. This is because RPC 1.16(a) requires termination if the client’s proposed
course of action will result in the lawyer’s
violation of other provisions of the RPC.
As is the case with counsel meeting the
duty of conflict-free representation, the
lawyer can most effectively meet his or
her duty of independent professional
judgment by a carefully worded letter
to the client confirming the client’s specific consent to each arguable limitation
on counsel’s judgment. Such disclosures
should include, at a minimum, an express
disclaimer that the lawyer does not, and
will not, represent the client in negotiating the terms of the funding deal on the
client’s behalf.
In addition, the lawyer should obtain the
client’s written acknowledgement that
in the event the lawyer winds up holding
proceeds of any recovery, the lawyer may
be duty bound not to deliver funds to the
client if the funder demands the funds under its agreement with the client.
Moreover, the prudent plaintiff’s counsel
also will write a letter to both the client
and to the funder confirming, among other things, that it is the client and not the
funder, from whom the lawyer will take
direction on key strategic decisions, including most importantly, the decision on
whether to accept a settlement offer.
Duties of Confidentiality and
Protecting the Attorney-Client
Privilege
Not surprisingly, as part of its underwriting process, a litigation funder typically
will require the client to authorize its
counsel to release information otherwise
protected by the attorney-client privilege,
and/or the work product doctrine, as
well as by the lawyer’s duty of confidentiality under RPC 1.6 (“Confidentiality of
Information”). For plaintiff’s counsel, the
concern is obvious: the likelihood the lawyer’s adversary will argue that by sharing
confidential litigation information with a
funder, the client has voluntarily waived
such protections.
Some courts have found waiver under
such circumstances, rejecting a plaintiff’s claim that information provided to
a funder to assist the funder’s due diligence is protected by the attorney-client
privilege under the so-called “common
interest” exception to waiver principles.10
Other courts have held the opposite: that
litigation related disclosures to the funder
are privileged under the common interest
doctrine because the information shared
by the plaintiff’s counsel was for the “limited purpose of assisting” both the client
and the client’s designated funder in their
“common cause” to maximize a recovery.11
Should a plaintiff’s counsel ever facilitate
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such a potential waiver of confidentiality?
Here, again, the most effective tool to
manage the risks for plaintiff’s counsel is
a detailed confirmatory letter to the client.
In such a letter counsel should explain all
the risks to the client in counsel’s compliance with the client’s direction to respond
to the funder’s requests for information.
Ideally, the lawyer will confirm each specific category of information the client has
voluntarily authorized counsel to disclose
to the funder, including ongoing reports
to the funder of material developments in
the prosecution of the action.
Some courts have protected exchanges
with a funder where the plaintiff’s counsel has taken steps to shield, and to limit
the distribution of, such disclosures. Thus,
plaintiff’s counsel should also confirm in
writing—to both the client and the funder
—that counsel’s agreement to make the
requested disclosures to the funder is expressly conditioned on the funder’s pledge
to strictly safeguard all such information
as well as its acknowledgment that it in
fact does share a “common interest” with
the client. The client also should be asked
to acknowledge in writing that its counsel
has fully explained the risk that a court
ultimately might conclude that otherwise
protected information, including assessments of the strengths and weakness of
the claims and defenses and likely verdict
ranges, is not protected and thus discoverable by the defendant.
In its 1999 opinion, the CBA Ethics Committee warned that “to avoid violating
Rule 1.6(a)” the plaintiff’s lawyer “would
necessarily have to have a significant conversation with the client” about whether
the disclosures required by a potential a
funder “might constitute a waiver of the
attorney-client privilege or render discoverable otherwise undiscoverable information.”
Conclusion
The emerging capital market in litigation
funding reflects the demands of both individual tort plaintiffs as well as well heeled,
but budget conscious, corporate litigants.
An individual plaintiff seeking damages
under a contingency fee arrangement may
be in need of cash to pay living or medical expenses. Such clients realize that “the
most valuable asset against which they
can obtain capital is a contingent share
of an eventual judgment of settlement.”12
And a large corporation prosecuting big
dollar commercial claims through a law
firm historically adverse to contingency
fee deals may have discovered that utilizing third party financing provides an
attractive hedge against an uncertain result while minimizing the enormous, and
frequently unanticipated, outlays necessary to fund complex litigation in the 21st
century.
This means that lawyers and law firms
will, of course, need to respond to the
broad array of clients turning to non-traditional means of financing litigation such
as the non-recourse funding described
above. But as in any emerging trend in the
legal services marketplace, lawyers must
pay particular attention to the ethical pitfalls that accompany such changes. CL
Notes
1. Apparently those funders investing in
commercial litigation search for cases in
which they predict the claim value is likely
to exceed the amount of their investment
by a margin of at least 5:1. Agee, “Litigation Financing: A Business Development
Opportunity,” Law Practice at 105 (Nov.Dec. 2014). Some funders offer litigation
financing to defendants in exchange for a
set percentage of the savings relative to
the amount of the claim or demand.
2. CBA Informal Op. 99-42 (1999) “Advance
of Funds to Client by Third Party”
3. Restatement (Third) of the Law Governing Lawyers §125 (“A Lawyer’s Personal
Interest Affecting the Representation of A
Client”) comment c (2000).
4. The authors of Rule 1.7 define “informed
consent” as “the agreement by a person
to a proposed course of conduct after the
lawyer has communicated adequate information and explanation about the material
risks and reasonably available alternatives
to the proposed course of conduct.”
5. Abu-Ghazaleh v. Chaul, 36 So. 3d 691, 693
(Fla. Ct. App. 2009)
6. According to the CBA Professional Ethics
Committee, a lawyer who includes a provision in a client engagement agreement that
alters the fee arrangement in the event
the client rejects a settlement offer the
attorney recommends the client accept (by
converting a contingency based fee into an
hourly one) violates the command of Rule
1.2(a) of the RPC that a “lawyer shall abide
by a client’s decision whether to settle a
matter.” CBA Informal Op. 99-18 (1999)
“Contingency/Hourly Fee Agreement.”
7. Michigan Advisory Op. RI-321 (2000).
8. Agreements that impose such restrictions
on a litigant’s autonomy, or otherwise
require the assignment of the client’s
rights to collect on a judgment, also may
be deemed unenforceable (as between
a plaintiff and a funder) for reasons
unconnected to the lawyer’s professional
obligations; namely, the public policy embodied in the ancient prohibition against
champerty. In the context of an objection
to a Chapter 11 bankruptcy trustee’s
request for approval of a litigation funding agreement, a Bankruptcy court judge
– applying Connecticut law – rejected a
claim by potential defendants that the
arrangement was champertous and thus
enforceable. In re Complete Retreats, LLC,
2011 WL 1434579 (Bankr. D. Conn. April
14, 2011) (Shiff, J.) But in so doing, the
court specifically relied on, among other
things, the facts that the client had not: (1)
assigned to the funder its rights to pursue
the claims; or (2) delegated control of
the litigation to the funder “including the
right to” seek “approval of any settlement.”
Id. at *3. See also, Justinian Capital SPC v.
WestLB AG, 2016 WL 6270071 (N.Y. Oct.
27, 2016) (statutory prohibition on champerty barred a plaintiff from collecting on
promissory notes where it had acquired
the notes for the “sole purpose” of suing
on the notes in place of the original note
holder).
9. Metropolitan Life Insurance Co. v. Aetna
Casualty and Surety Co., 249 Conn 36, 61
(1999) (“. . . even when an insurer retains
an attorney . . . to defend a suit against an
insured, the attorney’s only allegiance is
to the client, the insured.”; the attorney’s
“. . . duty of loyalty . . . remains exclusively
with the insured.’”) (emphasis in original;
citation omitted).
10.Miller UK Ltd. v. Caterpillar, Inc., 17 F.
Supp. 3d 711 (N.D. Ill. 2014); Leader Technologies, Inc. v. Facebook, Inc., 719 F. Supp.
2d 373 (D. Del. 2010). In January 2017,
the U.S. District Court for the Northern
District of California became the first court
in the nation to adopt a policy permitting
defendants to discover the iden-tity of
any outside funder of a plaintiff’s claims.
However, the new rule (embodied in the
District Court’s “Standing Order” on discovery in civil actions) is limited to class
actions.
11. In re International Oil Trading Co., LLC,
548 B.R. 825 (Bankr. S.D. Fla. 2016). Most
courts have rejected, as not calculated to
lead to the discovery of evidence admissible at trial, a defendant’s demand a plaintiff disclosure “. . . the amount of money
sought or received” from the funder “the
details of the [funding] agreement . . . or
how much the funder will receive” in the
event of a recovery. Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d at 742.
12.ABA Commission on Ethics 20/20 “Informational Report to The House of Delegates” (ABA “White Paper”) (Feb. 2012)
at 27.
Connecticut Lawyer January/February 2017
27
TIME TO GO PRO BONO
Putting Your Pro Bono
Foot Forward
By Karen DeMeola
Karen DeMeola is the CBA president-elect and
assistant dean of student life at the University of
Connecticut School of Law
The beginning of this year marked a new chapter in our nation’s
history. After the election in November, I spent significant time
with people both elated and surprised about the election results.
However, there was a collective understanding that things would
change. I was inundated with phone calls, e-mails, drop-ins—all
asking how we can support each other.
ing regulations, and reducing them to plain language our clients
and the general population need, but we also play a critical role
in finding solutions.
Though issues of equality are at the forefront of discourse following the election, we should not forget that these issues have been at the
forefront for decades. The Commission on Human Rights and Opportunities (CHRO), legal services agencies, the judicial branch,
law school legal clinics, and many others play a role locally to
ensure that those with legal needs have access to justice.
It is up to us in our firms, organizations, and our communities to
continue the conversation about access to justice so that we can
determine what people need and how best to communicate solutions. Since November, I have participated in a number of community conversations with lawyers, law students, and members
of my communities. The discussions centered around personal
stories of fear, marginalization, and support. The sharing of personal narratives allowed people to listen by talking through the
issues and finding commonality. Stories connect us to our communities and keep them thriving, and each conversation reminded me about the importance of community development, collaboration between communities, and the need to move beyond the
stories into action.
I have received phone calls from people looking for pro bono assistance with worries about being deported, losing their kids,
and losing health care. The terror in their voices was palpable.
And yet I was reminded the fear is not new. The fear that comes
from being a victim of a hate crime, domestic violence, workplace
discrimination, or simply from being poor is not new. These ills
have plagued our society for years and will likely continue to do so.
The website ctLawHelp.org is a wonderful resource that provides
free legal help for individuals of the greatest need. Information
contains contact information for Statewide Legal Service, a listing of all legal service providers, self-help guides, and checklists
for a variety of legal needs. This website also provides a Pro Bono
Portal for attorneys and others to connect with a variety of organizations providing varied legal services to our neediest. This
is one step. There are countless other steps made by individual
attorneys taking on cases at our courthouses, law students participating in legal clinics, law firm pro bono partnerships, CBA
section pro bono projects, and the judicial branch’s Court Support Services. Each opportunity connects people with attorneys
that can help.
28
Yet, the demand for legal help remains. There are still not enough
resources to provide access to all of those in need. We continue
to ask the questions: How do we provide better service? How do
we advertise existing services, provide efficiencies, and create
solutions to the problem? How do we educate people that they
have legal rights beyond what they might see on television and,
further, that there are options even for those with very limited
financial means? Attorneys play a role in crafting laws, decipherConnecticut Lawyer January/February 2017
The Task Force to Improve Access to Legal Counsel in Civil Matters recently submitted a report to the Judiciary Committee of
the Connecticut General Assembly.1 The report provides a look
into our current programs and offers solutions to create a civil
right to counsel. In so doing, the task force also made a number of
solutions to help provide access to justice. In the coming months
the CBA, including the Pro Bono Committee, will examine the
ways in which we can effectuate some of the recommendations.
Cost will of course be a factor and implementation of some will
mean creative and strategic thinking.
Diversity of thought, identities, practice areas, geography, class,
are all important and are part of our individual and collective
conscious. Or arguably, should be. These demographic and personal identities are what motivate us, shape us, and drive us into
becoming, doing, acting, and experiencing life. They also transform us into amazing zealous advocates who fight for our clients,
ensure the rule of law, and to make sure that all have access to
justice. CL
Notes
1. The Report of the Task Force to Improve Access to Legal Counsel
in Civil Matters Report can be found online at https://www.cga.
ct.gov/jud/tfs/20160729_Task%20Force%20to%20Improve%20
Access%20to%20Legal%20Counsel%20in%20Civil%20Matters/
Final%20Report.pdf. (last visited, January 5, 2017).
Visit www.ctbar.org
BUILDING YOUR PRACTICE
Write Your Business
Gettysburg Address
By Chris Amorosino
Freelance business writer Chris John
Amorosino creates marketing content for
corporations, independent businesses, and
nonprofits.You can reach Chris at
[email protected].
Abraham Lincoln’s Gettysburg Address is
one of the most elegant and well-known
writings in American history. Notice why
Lincoln’s address succeeded so far beyond
all expectations and you can vastly improve your next business communication.
You can write your own business’s Gettysburg Address. Lincoln can teach you seven
key lessons.
1. Cover an important topic. Of
course your business topic won’t be
as critical as Lincoln’s. His address
eloquently describes our national purpose. But do make your business writing of real importance to your audience.
If what you’re saying isn’t new, important, or useful, walk away from your
keyboard and do something worthwhile.
2. Be short. The main speaker in Gettysburg on November 19, 1863 was the
former president of Harvard and the
nation’s leading orator, Edward Everett.
He spoke for two hours. He delivered
13,607 words. Lincoln spoke for three
minutes. He used 272 words in ten
sentences. Make your business writing
brief. No one has ever complained that
a marketing or other business communication was just too darn short.
3. Learn from writing masters. Lincoln deliberately echoed the style of
the Bible. He never mentions the Bible,
but the whole of his speech is suffused
with both biblical content and cadence.
He also adapted techniques used by renowned writers he had read like Senator Daniel Webster and Chief Justice
John Marshall. Know what’s working
for today’s best business writers.
4. Speak your audience’s language.
The vast majority of Lincoln’s words
derived from Anglo-Saxon and Norman
roots. They were words Americans of
the day actually spoke. If you’re writing to young women, write in ways
that reflect how young women speak.
If you’re writing to baseball lovers, consider sprinkling in terms like “out in
left field,” “ducks on a pond,” “batting a
thousand,” and others that your audience knows and appreciates.
5. Be clear. The Gettysburg Address is
revered not only for its brevity but for
its clarity. Lincoln avoided most Greek
and Latin words (they tend to be longer and more complex). Among his 272
words, Lincoln used 204 single syllable
words. Don’t overawe the elocutionist
with protracted, anomalous lexicon.
6. Use rhythm and style. Historian
Garry Wills argues that “Lincoln’s
words acquired a flexibility of structure, a rhythmic pacing, a variation
in length of words and phrases and
clauses and sentences, that make his
sentences move ‘naturally’ for all their
density and scope.” Good business writing has pace. It sounds good to the ear.
Like Roy Peter Clark says, “brevity loves
company—in the form of substance
and style.”
7. Remember there’s no such thing
as good writing. No one knows exactly
where Lincoln wrote his Gettysburg Address. Everyone knows that he edited
and edited and, did I mention that he
edited? When you write your business
message, know that the first draft is
like an evil step-mother to the beautiful
princess of prose you will birth on your
third or eighth or 21st draft. There is no
such thing as good writing; there is only
good rewriting.
The Gettysburg Address is so revered that
it was recited 139 years later to honor the
dead at the 9/11 Commemoration. But
perhaps the greatest tribute to Lincoln’s
writing was what Edward Everett, the nation’s greatest orator wrote to Lincoln the
day after both of their speeches: “I should
be glad, if I could flatter myself, that I came
as near to the central idea of the occasion
in two hours as you did in two minutes.”
CL
Connecticut Lawyer January/February 2017
29
SUPREME DELIBERATIONS
Curcio on
the Block?
By Charles D. Ray and Matthew A. Weiner
Charles D. Ray is a partner at McCarter & English LLP, in Hartford. He
clerked for Justice David M. Shea during the Supreme Court’s 1989-1990
term and appears before the Court on a regular basis. Matthew A. Weiner
is Assistant State’s Attorney in the Appellate Bureau of the Office of the
Chief State’s Attorney. ASA Weiner clerked for Justice Richard N. Palmer
during the Supreme Court’s 2006–2007 term and litigates appellate matters
on behalf of the State.
Any views expressed herein are the personal views of DASA Weiner and do
not necessarily reflect the views of the Office of the Chief State’s Attorney
and/or the Division of Criminal Justice.
The sole issue in Blakely v. Danbury Hospital, 323 Conn. 741 (2016), is “whether
the lapse of a jurisdictional time limitation for commencing suit in a statutory
cause of action gives a defendant immunity from suit, such that an interlocutory
appeal would be permitted to challenge
a decision concluding that the accidental
failure of suit statute (savings statute),
General Statutes § 52-292, saved an otherwise untimely action.” Well doggies! If
that doesn’t pique your curiosity, nothing
will. And resisting what we would have
done—say “no” and leave it at that—Justice McDonald performs yeoman’s work
for a unanimous court and throws in a
surprise at the end to boot.
30
But first things first. The case comes to
us by way of a wrongful death action that
was brought in the name of the estate of
the decedent. Unfortunately, an estate is
not a legal entity with the capacity to sue,
a point rightly raised by the defendant
in a motion to dismiss that was granted
by the trial court. Months later, the suit
was commenced again, this time by the
administratrix of the decedent’s estate.
And while the party might have been correct at that point, the defendant was still
not willing to move the case forward and,
Connecticut Lawyer January/February 2017
instead, filed a motion for summary judgment, this time arguing that: 1) the case
had been filed after the two-year limitation period set forth in General Statutes
§ 52-555, the wrongful death statute; and
2) the savings statute does not apply “to
an action that has been dismissed due to
an attorney’s ignorance of the law.”
The trial court denied the motion, concluding that the plaintiff’s “mistake of
law” in bringing the action in the name
of a party incapable of bringing suit was
a “matter of form” that could be attributable to “mistake, inadvertence or excusable neglect.” Just as a refresher, the savings statute, § 52-592, provides in part
that: “If any action, commenced within the
time limited by law, has failed one or more
times to be tried on its merits . . . because
the action has been dismissed for want of
jurisdiction, or the action has been otherwise avoided or defeated . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause
at any time within one year after the determination of the original action or after
the reversal of the judgment.” Regardless
of what you think of its application here,
we’re all going to have to wait until the
end of the case to find out.
Applying the well-worn maximum “appeal early and often,” the defendant did
just that. The appellate court, not surprisingly, applied the equally popular rule
that the denial of a motion for summary
judgment is not a final judgment and dismissed the appeal. The Supreme Court
took the case and affirmed the appellate
court’s decision. In doing so, the Court
considered, but rejected, the defendant’s
claim that the trial court’s decision was a
final judgment under the second prong of
State v. Curcio, 191 Conn. 27 (1983). To refresh again, under Curcio an interlocutory
order will be considered a final judgment
for purposes of an immediate appeal in
either of two situations. First, where the
order terminates a separate and distinct
proceeding. Second, where the order so
concludes the rights of the parties that
further proceedings cannot affect them.
And why do we call clearly interlocutory
rulings “final judgments” in this context?
If you answered because only “final judgments” are jurisdictionally permissible by
statute in Connecticut, give yourself a gold
star and a pat on the back. At any rate, we
dealt with the first prong of Curcio in our
thoughtful, scholarly, and oft-cited (we
imagine) article on Niro v. Niro, 314 Conn
Visit www.ctbar.org
62 (2014). Here, we bring the same treatment to the second prong of Curcio, as
does Justice McDonald.
The defendant in Blakely argued that the
denial of its motion for summary judgment should be entitled to immediate appellate review because that appeal sought
to vindicate an existing legal right, or at
least a colorable legal right to be free from
suit in the case. That right, the defendant
argued, arose from the jurisdictional nature of the statute of limitations set forth
in § 52-555. According to the defendant,
once that time limitation passed, it was
immune from any further suit, notwithstanding the possible application of the
savings statute. According to the plaintiff,
however, the time limitation in the wrongful death statute made no difference,
because the case was controlled by the
limitation period contained in the savings
statute, which is not jurisdictional.
Our protagonists arrived at this state of
affairs because, as explained by Justice
McDonald, the Supreme Court previously
had determined that, “under the second
prong of [Curcio], a colorable claim to a
right to be free from an action is protected
from the immediate and irrevocable loss
that would be occasioned by having to defend an action through the availability of
an immediate interlocutory appeal from
the denial of a motion to dismiss.” The
basic rationale for this exception is that
obtaining a ruling that the case should
never have been begun only after it is
completely over and done with would be
a bit of a pointless (and expensive) exercise. Conceding this point, the Court has
treated as final interlocutory rulings that
are claimed to have violated sovereign immunity, immunity for statements made in
judicial and quasi-judicial proceedings,
religious institutions’ first amendment
immunity, statutory immunity, the constitutional prohibition against double jeopardy, res judicata, and, in some instances,
collateral estoppel.
In resolving the issue in Blakely, Justice
McDonald first notes that the default rule
is that the lapse of an ordinary statute of
limitations does not result in an immunity from suit. Thus, an adverse ruling on
a statute of limitations defense does not
satisfy the second prong of Curcio under
the default rule. The Court has, however,
characterized a statute of limitations as
“jurisdictional” where the cause of action
is created by statute and did not exist at
common law; i.e., a wrongful death action.
But the pièce de résistence according to
the defendant was the Supreme Court’s
own statement in St. Paul Travelers Cos.
v. Kuehl, 299 Conn. 800 (2011): “While a
nonjurisdictional statute of limitations
merely provides relief from liability, a jurisdictional statute of limitations provides
freedom from suit.” (Emphasis added.)
So where did that come from? Justice McDonald was not sure, but noted that the
“court cited no authority for this proposition, and the resolution of the appeal
was not dependent on that distinction.”
Moreover, “[a]lthough the jurisdictional
distinction in Kuehl may have accurately
reflected that the party invoking the jurisdictional bar had certain legal rights
under the facts of that case, it inaccurately
characterizes this effect as giving rise to
immunity from suit for purposes of Curcio.” The full explanation of all this can be
found in footnote 6 of Blakely. We, however, are fine with the Cliff’s Notes version.
Having crossed this bridge, it was all
downhill for the defendant. First, Justice
McDonald reminds us that, while jurisdictional prerequisites operate as a con-
straint on a court’s ability to entertain
an action, the Court has never held or
suggested that those prerequisites were
intended to confer immunity from suit
on a party. Indeed, if that were the case,
appeals would have to be allowed whenever there is a denial of a motion to end
a case on the basis, for example, of standing, mootness, ripeness, “or any condition
precedent to suit in a statutorily created
cause of action that similarly has been
deemed jurisdictional.” The odds of that
happening are miniscule and, because it is
not going to happen, “the lapse of the jurisdictional time limitation in the wrongful death action in the present case did not
give rise to a right, even a colorable one, to
immunity from suit.” Judgment affirmed.
End of the story? Not quite, because Justice McDonald concludes by tossing this
rock into the pond: “we perforce observe
that a review of our Curcio case law suggests that its standards, particularly with
regard to whether a right is ‘colorable,’
have presented significant difficulties to
litigants and courts alike. It may be that
the time has come to modify or replace
our Curcio jurisprudence.” Despite having
raised the issue, the Court keeps us in suspense, because the fate of Curcio is left to
another day. We doubt that day will bring
an expansion of appeals from interlocutory orders. Stay tuned. CL
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June 12, 2017
Connecticut Convention Center
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Connecticut Lawyer January/February 2017
31
COURT DECISIONS
Highlights from Recent
Superior Court Decisions
Administrative Law
Connecticare Benefits, Inc. v. Wade, 63 CLR
32 (Huddleston, Sheila A., J.), holds that
the provision of the Insurance Statutes
that expressly authorizes an appeal to
court from “any order or decision” of the
Insurance Commissioner, Conn. Gen. Stat.
§ 38a-19(d), overrides the general APA
provision limiting court appeals to rulings
made in proceedings in which a hearing was
required by law, Conn. Gen. Stat. § 1-183(a).
Furthermore, such an appeal may be taken
without exhausting the statutory remedy
of an administrative hearing following any
Insurance Commissioner ruling without a
hearing, Conn. Gen. Stat. § 38a-19(a). The
opinion holds that a decision denying a
health insurer’s request to re-open a rate
case to allow for the submission of newly
available information may be appealed
to court even though no hearing was
required by law and the insurer failed to
exhaust the statutory right to a formal
agency hearing. The opinion also holds
that although a court has the authority
to stay implementation of an agency’s
final ruling in a rate-setting case pending
appeal to court, it has no authority to
grant such a stay pending an appeal from
an agency’s refusal to open a rate decision
which has become final.
An administrative agency’s application for
a court order to enforce an administrative
subpoena issued pursuant to CUTPA’s
subpoena provisions is a special
proceeding distinct from a “civil action”
and therefore may be commenced without
the use of a writ of summons. Rubenstein
v. Reservation Services International, Inc.,
63 CLR 24 (Elgo, Nina F., J.).
32
Trinity Christian School v. CHRO, 62 CLR
889 (Schuman, Carl J., J.), holds that the
availability of an interlocutory appeal to
the Superior Court from an agency ruling
is governed by the same rules applicable
to an interlocutory appeal to an appellate
court from a Superior Court ruling.
Connecticut Lawyer January/February 2017
Civil Procedure
Gilbode v. Waterbury Hospital, 62 CLR
789 (Roraback, Andrew W., J.), holds
that service of process on a corporation
pursuant to the statutory authorization
for in-hand delivery to “the person in
charge of the business of the corporation,”
Conn. Gen. Stat. § 52-57(c), requires
service on an individual with actual and
not mere apparent authority. The opinion
holds that service on a clerk that professed
to the serving marshal to be authorized
to accept service is not sufficient, in
the absence of proof that the clerk was
actually so authorized.
The Circumstantial Defects Statutes may
be relied on to cure errors in process
which may be corrected by amending
the contents of a writ of summons and
complaint, but not to correct historical
facts such as the dates process was
served and physically returned to court.
Anderson v. Bank of America, N.A., 62 CLR
898 (Noble, Cesar A., J.).
Facts recited in a similar healthcare
provider’s
opinion
of
negligence
accompanying a medical malpractice
complaint may be considered for
purposes of determining the sufficiency of
the complaint. Torchia v. Alfonso, 62 CLR
760 (Brazzel-Massaro, Barbara, J.).
The taping of a conference call without
the consent of the other parties to the call
constitutes a violation of the Telephone
Recording Statute, Conn. Gen. Stat. § 52570d (prohibiting the recording of “an oral
private telephonic conversation” without
the consent of all parties to the call).
Therefore such a recording is inadmissible
pursuant to Conn. Gen. Stat. § 52-184a
(“No evidence obtained illegally by the use
of any electronic device is admissible in
any court of this state”). However, the tape
may be used for impeachment purposes
at a deposition. Fischer v. Ulysses Partners,
LLC, 62 CLR 777 (Lee, Charles T., J.).
The following highlights are
provided by the publishers of
The Connecticut Law Reporter.
For copies of these opinions or
information about the reporting
service, call (203)458-8000. All
citations are to the weekly edition
of the Connecticut Law Reporter.
Connecticut has not adopted the “apex
discovery rule” which shifts to the
deposing party, on a motion to preclude
the deposition of a high-ranking corporate
official (an “apex” deponent), the burden
of proving that the deponent has relevant
information and that the information is
unavailable from lower level employees.
NetScout Systems, Inc. v. Gartner, Inc., 63
CLR 2 (Lee, Charles T., J.). The opinion
observes that the Apex Rule is commonly
applied by the federal district courts and
by a slight majority of those state courts
that have considered the issue.
Commercial Law
Commissioner of Revenue Services v.
Coleman, 62 CLR 429 (Santos, Thelma
A., J.), holds that even assuming that a
judgment debtor’s tender to a branch
bank of an exemption claim form
following receipt of a notice of a judgment
execution was inadequate to satisfy the
notice requirement of the Bank Execution
Statute, Conn. Gen. Stat. § 52-367b(e)
(requiring notice “by mail or other
means”), the debtor is entitled to the
return of the exempt portion of the funds
seized because the notice requirement is
merely directory. The debtor tendered a
properly prepared notice of exemption
to a branch employee who improperly
declined to accept it. The opinion also
holds that the bank’s improper release of
the funds may be remedied by an order
directing that the creditor return the
exempt funds directly to the debtor.
Constitutional Law
The statute requiring that firearms
temporarily placed in the custody of
the Department of Emergency Services
& Public Protection while an owner’s
firearms permit is temporarily under
suspension due to pending civil and/or
criminal firearms violations be destroyed
by DESPP if not retrieved (or transferred
to a federally-licensed firearms dealer)
within one year, Conn. Gen. Stat. § 29-36k,
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does not violate the Right to Bear Arms
or the Due Process clauses of the federal
Constitution, as applied to an owner
whose right to possess the weapons
will not be regained within the one-year
holding period. The defendant seeks to
enjoin the destruction or other disposition
of the firearms until the pending charges
are resolved. State v. Jacobsen, 62 CLR 782
(Dyer, Richard W., J.).
Driving Under the Influence
Even double hearsay evidence is
admissible In a DUI license suspension
hearing, provided the evidence is relevant
and supported by an indicia of reliability.
Fersch v. Commissioner of Motor Vehicles,
61 CLR 847 (Schuman, Carl J., J.). The
opinion approves the hearing officer’s
reliance on statements made at the scene
of the arrest by a witness to one officer
and repeated by that officer to a second
officer, admitted in evidence through the
second officer’s testimony even though that
officer’s testimony was hearsay on hearsay.
Education Law
Romano v. Torrington Board of Education,
62 CLR 727 (Pickard, John W., J.), holds
that a person hired as a teacher before
becoming certified, who is terminated
before obtaining certification, may not
recover the difference between the salary
paid and the normal salary for the position
served, because such a payment would
be against public policy as a violation of
the statute mandating that no teacher
may be employed without appropriate
certification, Conn. Gen. Stat. § 10-145(a).
Claims based on allegations that the
defendant school board violated a
student’s right to free education by failing
to protect the child from bullying relate to
the board’s role as an agent of the state in
the implementation of the Anti-bullying
Statute and therefore are subject to
sovereign immunity; however, allegations
that the same conduct deprived the child
of a safe environment relate to the board’s
role as an agent of the municipality and
therefore are subject to the more limited
defense of governmental immunity. Rajeh
v. Hamden Board of Education, 62 CLR 512
(Fischer, Brian T., J.).
Employment Law
Forrest v. Golup Corp., 63 CLR 35
(Dubay, Kevin G., J.), holds that the
2015 amendments to the Connecticut
Minimum Wage Act and the Connecticut
Wage Collection Act making double
damage awards mandatory for plaintiffs
who prevail in wage actions (unless an
employer is able to establish “a good faith
belief that the underpayment of such
wages was in compliance with the law”),
are remedial rather than substantive
statutes and therefore apply retroactively
to pending actions.
Because a statutory cause of action for
an employer’s wrongful termination
based solely on the results of a urinalysis
drug test exists, i.e., the Drug Testing in
Employment Statute, Conn. Gen. Stat. §
51t et seq., there can be no recovery based
on such testing under a theory of wrongful
termination in violation of public policy.
However, because there is neither a
common-law nor statutory cause of action
for an allegedly wrongful termination
based on the results of other types of drug
tests, a wrongful termination claim may
be based on an employer’s insistence that
the plaintiff submit to a hair follicle drug
test. Spears v. Cardinal Health 200, LLC, 62
CLR 880 (Peck, A. Susan, J.T.R.).
Family Law
Lanci v. Lanci, 62 CLR 839 (Shay, Michael
E., J.T.R.), holds that the 2014 amendment
to the statute regulating the appointment
of counsel or a guardian ad litem for minor
children in a dissolution action, adding a
provision that limits such appointments
to situations in which there is no other
option for resolving the parties’ dispute is
a substantive amendment and therefore
applies prospectively only.
Maciulewski v. Maciulewski, 62 CLR 214
(Shah, Rupal, J.), holds that parents of
one of the parties to a marriage dissolution
action who claim an equitable interest in the
marital home arising from a transaction
in which the parents provided the funds
for the purchase of the home are entitled
to intervene as a matter of right in the
dissolution action. The parents claim that
the property is subject to a constructive
trust of which they are the beneficiaries.
A child support obligation under a
dissolution judgment to deposit into a
college savings account “20% of all bonus
income” requires payment of a percentage
of gross bonus income, not net bonus
income after taxes. Keegan v. Keegan, 62
CLR 178 (Ficeto, Anna M., J.)
A marriage dissolution judgment that
is opened, replaced and subsequently
reinstated on appeal is effective when
the appeal becomes final, not when the
judgment was first entered. Therefore
the prevailing spouse may not recover in
contempt from the date the judgment was
first entered for the defendant’s failure
to comply with obligations under the
original judgment. Callahan v. Callahan,
62 CLR 280 (Shay, Michael E., J.T.R.).
Beaudette v. Collette, 62 CLR 331 (dos
Santos, Angelo L., S.J.), holds that a federal
sentence of home detention without a
right to leave the home for employment
purposes constitutes “incarceration”
within the meaning of the statute
requiring that the child support obligation
of an obligor who “is incarcerated . . . be
based on the obligor’s present income,”
Conn. Gen. Stat. § 46b-215e, rather than
on the obligor’s earning capacity.
Holly v. Holly, 62 CLR 421 (Gallagher,
Elizabeth A., J.T.R.), holds that a lien to
secure an outstanding child support order
must be proportionately divided among
any other outstanding support orders
relating other children, including, as in
this case, an interstate support order.
Law of Lawyering
An attorney who resigns while a
presentment for misconduct is pending
and couples that resignation with a waiver
of any right to apply for readmission
or reinstatement in the future, thereby
avoiding the continued prosecution of the
grievance, is permanently and irrevocably
barred from applying for readmission
regardless of whether the attorney
later regains suitability for admission
and regardless of whether disbarment
would have been warranted under the
misconduct charges. Disciplinary Counsel
v. Hickey (Povodator, Kenneth B., J.).
A client lacks standing to appeal a local
grievance panel’s decision that a grievance
challenging the legality of an attorneys
contingent fee agreement lacks probable
cause. D’Attilo v. Statewide Grievance Committee,
62 CLR 688 (Sheridan, David M., J.).
(continued on page 36)
Connecticut Lawyer January/February 2017
33
YOUNG LAWYERS
Networking 101:
Making the Most
of a Networking
Opportunity
By Dana M. Hrelic
Dana M. Hrelic is the Chair of the Connecticut Bar Association Young Lawyers Section
for the 2016-2017 bar year. She is also the
chair-elect of the American Bar Association
Young Lawyers Division for the 2016-2017
bar year. She is a partner at Horton Shields
& Knox PC in Hartford, where she focuses
her practice on Connecticut state and federal
appeals. She graduated with distinction from
the University of North Carolina at Chapel
Hill in 2005 with a Bachelor of Arts degree in
Philosophy and Political Science and from
the University of Connecticut School of Law
in 2008 with a Juris Doctor degree.
Networking is one of the best ways for
young lawyers to build connections,
market themselves, and bring in
business. This is especially true here in
Connecticut, where we are a small but
heavily-connected bar. The thing about
networking, though, is that it can be a
rather intimidating and overwhelming
experience. It can sometimes feel like
everyone in the room knows each other
already and that they have no interest
in meeting or getting to know someone
new. For this reason, it is no surprise that
the urge to skip networking events can
sometimes replace the urge to network
at these events, despite how powerfully
important in one’s career they can be.
This is especially so for new lawyers, who
are learning how to practice law, building
a business and a brand, and trying to fit
into their new legal community, all at the
same time.
The truth, though, is that everyone has
these thoughts. New lawyers are not
alone! Networking can be intimidating and
overwhelming for everyone—even those
of us who have become quite seasoned
34
Connecticut Lawyer January/February 2017
at it—and it is important to remember
that if you break it down, networking can
be simple and even fun. Over the past
few years, I have been fortunate to have
mentors that have guided me through
the process of becoming comfortable
with networking. I have learned that
networking is nothing more than meeting
new people and fostering relationships.
It is less about you and more about
the people you meet. The best way to
approach networking is to realize that
everyone else in the room also wants to
meet new people and build connections—
otherwise they would not be there!
Armed with the knowledge that we are
all in this together, here are some tips
on networking and working a room that
I hope both new and more experienced
attorneys alike will find helpful.
1. RSVP “Yes”
Networking begins with the commitment to attend an event. We all get
dozens of e-mails a week inviting us to
lunches, happy hours, dinners, seminars, panels, etc. The sheer number
of networking events available can be
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overwhelming at times. I have learned
that the best place to start when breaking down the networking barriers is by
picking just one event and saying yes.
RSVP to the organizer to tell them that
you will be there, put it on your calendar, and follow through. You will be
happy you did.
2. Do your research
What kind of event is this and who
might be there? If it is an educational
panel or seminar, find out who the
speakers are and a little bit about
them. If it is a happy hour, consider
who was invited and what the purpose of the event is (i.e., young lawyers
meet-and-greet, a pro bono reception,
etc.). It is always a good idea, no matter what kind of event you will be attending, to think about who will be at
the event and to understand the issues
relevant to the event and the people attending.
3. Prepare an opening question
It is always helpful (and less scary!) to
know what you are going to say when
you approach someone new to start a
conversation. After you say hello and
introduce yourself, be prepared with a
question to get things started. Because
I am almost always at bar association
events, I usually start with, “So where
do you work?” or “What do you do?” It
is a great way to get the ball rolling.
4. Be ready to talk about yourself
What if someone asks you what you do
or where you work? Have your 30-second elevator speech prepared and
ready to go. Being able to talk about
yourself clearly and succinctly is critical in networking situations.
5. Keep your business cards in a convenient place
One thing I have learned is that having business cards with you at a networking event is a futile exercise when
you do not keep them in a convenient,
easy-to-grab place. (That place does
not include the bottom of a large purse
or briefcase!) Nothing is more awkward as you are meeting someone
than when you have to keep saying,
“Hold on, my business card is in here
somewhere, I promise.” I always keep
extra cards in my suit pocket and in my
wallet, making them easy to grab and
hand out. Doing so also provides me
with a convenient place to put any new
business cards I receive.
6. If the large group is overwhelming,
find a way to make it smaller
Look for smaller groups of one or two
people chatting and join them. Your
conversations in a packed room really
can be one-on-one, even if it does not
seem possible at first.
7. Take notes
When you receive someone’s business card, jot down a note or two on
the back about where you met them
and perhaps something specific you
discussed. That will make it easy to remember that person and to follow up
with them at a later date.
8. To that end—follow up!
If someone gives you their business
card, it is because they want you to use
it. Send them a follow-up e-mail a day
or two later to say hello and tell them
how much you enjoyed meeting them.
If you shy away from personal e-mails
after networking events, do not be
afraid to use LinkedIn to connect with
some of the people you met. Afterward,
do not be afraid to check in on your new
connections. Send them a note to say hi,
invite them to an upcoming networking
event, or share something of interest.
Networking is never easy, but it does get
easier the more you do it. Remember: do
not be afraid to say yes, arm yourself with
easily-accessible business cards, and practice
that elevator speech. You will do great.
Happy networking and good luck! CL
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Connecticut Lawyer January/February 2017
35
Court Decisions
(Continued from page 33)
Fees earned under an agreement for
the representation of a plaintiff in the
prosecution of routine foreclosure actions
at a fixed hourly rate may not exceed the
fees awarded by the foreclosure court,
because such a ruling provides a judicial
determination as to the reasonableness of
the requested fee. Rosenberg & Press, LLC
v. Success Village Apartments, Inc., 62 CLR
809 (Kamp, Michael P., J.). The opinion
also holds that under a fee agreement
providing a fixed fee for services provided
by an attorney without any reference to a
fee for services provided by a paralegal, no
fee may be charged for paralegal services.
Pensions and Other Employee
Benefit Plans
William W. Backus Hospital v. Belisle, 61 CLR
927 (Vacchelli, Robert F., J.), presents a useful
discussion of a hospital’s attempt to collect
from employees of a self-funded employersponsored medical plan the difference
between payments made at discounted rates
to which the employer is entitled, and charges
at the hospital’s normal “public” rates. The
hospital argues that because the self-funded
employer had not negotiated a discount
rate for medical services, as authorized by
Conn. Gen. Stat. § 19a-681, and because
the employees had agreed to guarantee
payment of the plaintiff’s “regular charges,”
the hospital is entitled, and even required by
law, to collect the balance remaining after the
employer’s discounted payments.
Real Property
Kepple v. Dohrmann, 62 CLR 294 (Koletsky,
Joseph Q., J.T.R.), holds that the general
rule that a dominant estate owner has
the right to maintain an easement applies
to the special case of view easements,
regardless of whether the owner has been
expressly granted a right to enter the
servient estate to conduct maintenance.
Seeley v. State Farm Fire & Casualty Co., 62
CLR 263 (Huddleston, Sheila A., J.).
36
A condominium association director owes
a fiduciary duty to the association but
not to individual unit owners. Eastburn
v. Imagineers, LLC, 62 CLR 334 (Arnold,
Richard E., J.).
Connecticut Lawyer January/February 2017
A condominium association has no
obligation to prepare an accounting
concerning a particular project at
the request of a unit owner, because
the Common Interest Ownership Act
expressly states that “an association is
not obligated to compile or synthesize
information,” Conn. Gen. Stat. § 47260(g). The association may be required
to provide an accounting that has
already been prepared, but not to create
an accounting in compliance with a
special request. Kobylanska v. Northstar
Condominium Association, Inc., 62 CLR
757 (Tobin, David R., J.T.R.).
General maintenance services are not
lienable under the Mechanic’s Lien
Statute. Yard Group Landscaping, LLC v.
River Highlands Home-Owners Association,
Inc., 62 CLR 261 (Aurigemma, Julia L., J.).
The opinion holds that the statute does
not authorize a lien to secure charges for
general lawn and ground maintenance
services provided under a contract with a
condominium association.
Torts
Castillo v. Johnson, 62 CLR 775 (BrazzelMassaro, Barbara, J.), holds that in an
action for property damage to a motor
vehicle the plaintiff is entitled not only
to the cost to repair the vehicle but also
to any diminished market value resulting
from the fact that the vehicle now has an
“accident history,” even though the vehicle
has otherwise been restored to its original
condition. However, the plaintiff may not
recover more than the difference between
the vehicle’s pre- and post-accident
market values. The opinion presents a
useful elaboration on and limitations of
the rationale for awarding damages in
excess of repair costs on a vehicle involved
in a motor vehicle accident.
Corbin v. HSBC Bank USA, N.A., 62 CLR 451
(Calmar, Harry E., J.), holds that Connecticut continues to follow the Restatement
(Second) of Torts rule that an owner or
possessor of land has no liability to adjoining property owners for harm caused by
the falling of a naturally decayed tree, regardless of whether the property is located
in an urban or rural area and regardless of
whether the defendant had actual or constructive knowledge of the defective condition, Restatement §363(1).
A landlord may owe a duty in tort to evict
a tenant known to pose a danger to other
tenants. Blue v. Dye House Associates, LLC,
62 CLR 299 (Huddleston, Sheila A., J.).
Nolen-Hoeksema v. Maquet Cardiopulmonary
AG, 62 CLR 462 (Frechette, Matthew
E., J.), holds that a third-party claim for
indemnification asserting a malpractice
claim against a medical provider is
subject to the statute of limitations for
indemnification claims and not the usually
shorter statute for medical malpractice
claims. See also Johnson v. D’Appollonio,
62 CLR 482 (Bates, Timothy D., J.), holding
that a defendant’s third-party claim for
indemnification brought against a joint
tortfeasor in lieu of an apportionment
claim is subject to the longer limitations
period of the impleader statute and not
apportionment statute’s shorter period.
Trusts and Estates
Urkiel v. Hamilton, 62 CLR 885 (Pickard,
John W., J.), holds that a Superior Court’s
jurisdiction over a civil action raising
multiple claims against a conservator
is not defeated by the fact that another
Superior Court is exercising limited
jurisdiction over some of the same claims
in an appeal from probate, because the
jurisdiction of the court that is hearing the
probate appeal is limited to matters that
fall within the statutory jurisdiction of
probate courts whereas the court in this
civil action has full jurisdiction over all of
the issues.
Because an action under the Wrongful
Death Statute can only be prosecuted
by the administrator or executor of
the decedent’s estate, Conn. Gen. Stat.
§ 52-555(a), venue for such an action
is limited to a judicial district in which
an executor or administrator (or one
of the defendants) resides, as provided
by the Civil Venue Statute, Conn. Gen.
Stat. § 51-345(a) (establishing venue
in “the judicial district where either the
plaintiff or defendant resides”). There is
no authorization for venue in the judicial
district in which the decedent resided at
the time of death, or in which the probate
court which appointed the administrator
or executor is located. Walsh v. Torrington,
62 CLR 812 (Huddleston, Sheila A., J.). CL
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