The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Wednesday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is the state Supreme Court ruling that “highly reckless” conduct is an affirmative defense in products liability cases. As reporter Zack Needles writes, it requires defendants to show that a plaintiff’s highly reckless conduct was the sole or superseding cause of the plaintiff’s injuries.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes that attorneys may become mandated reporters of child abuse if one of the recommendations suggested by a task force created in the wake of the Jerry Sandusky and Archdiocese of Philadelphia priest sex-abuse scandals is passed into law.

Below the fold on Page 1, reporter Gina Passarella writes that a federal court refused to disqualify William Pietragallo from representing a defendant in a case in which he had previously contemplated representing the plaintiff.

In more Regional News on Page 3, Zack Needles writes that Spector Gadon & Rosen has started an energy and environmental practice group with the addition of environmental lawyer Kermit L. Rader, who will chair the group.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In this week’s GC Mid-Atlantic column on Page 5, Julie A. Uebler writes about what employers can do to decrease the risk of employment litigation.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about planning in an uncertain planning environment as we come to the end of 2012.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to email any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal and Pa. Law Weekly

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is a look at whether Pennsylvania is being forced to decide the Restatement issue it is facing. As reporter Amaris Elliott-Engel writes, after the Third Circuit said for the third time that the Restatement (Third) of Torts governs products liability cases in the state, some attorneys said the federal appeals court seems to be trying to force the issue.

Below the fold on Page 1, reporter Gina Passarella writes that employees of West Penn Allegheny Health System have been barred by collateral estoppel from filing a class action in state court when a Pittsburgh federal judge already ruled against certifying a collective action in a similar suit by the same plaintiffs.

In more Regional News on Page 3, reporter Saranac Hale Spencer writes that key claims against Prevacid, a heartburn drug, have survived in a federal lawsuit.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Health Care Law column, Vasilios J. Kalogredis and Karilynn Bayus write that hospitals are beginning to feel the effects of quality initiatives.

In a Supreme Court column on Page 7, Stephen A. Miller and Thomas M. O’Rourke write a look into the effect of the ¬Wal-Mart Stores v. Dukes case and expansion of “rigorous” review.

Today’s lead story in PLW is a look at campaign fundraising in the attorney general race. As reporter Ben Present writes, Kathleen Kane has bolstered her coffers, narrowly outpacing David Freed.

Below the fold on Page 1, Ben Present writes that a Commonwealth Court en banc panel allowed General Motors to unilaterally suspend an injured worker’s benefits without the required paperwork because the man had taken a voluntary retirement package.

On Page 3, reporter Zack Needles writes that the Superior Court has blocked the discovery of past surgical notes in a medical malpractice suit.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about violating attorney-client privilege when a client’s financial situation changes; Caren E. Morrissey’s Family Law column in which she writes that mental health records should be discoverable in custody matters; and Peter J. Bietz’s Trusts and Estates column, in which he writes that attorneys may need to change their practices after the EGTRRA’s sunset.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is the third in reporter Amaris Elliott-Engel’s series on products liability, as she writes about how the role of settlement has been growing in products liability cases.

Also above the fold on Page 1, reporter Saranac Hale Spencer writes that the insurance trust fund for the Miami police officers’ union has brought a class action suit against AstraZeneca for its drug Nexium and the manufacturers of its generic versions. The suit, filed in the Eastern District of Pennsylvania, alleges AstraZeneca paid the generic companies to keep their drugs off the market.

Below the fold on Page 1, reporter Gina Passarella writes that a Lehigh County judge took issue with the uptick in law agencies’ use of child pornography laws to prosecute teens who “sext.”

In more Regional News on Page 3, Saranac Hale Spencer writes that a Middle District judge awarded more than $1 million in attorney fees to members of the funeral industry who won their suit against the state Board of Funeral Directors and took the defense to task for their approach to the litigation.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Health Care Law column on Page 5, Vasilios J. Kalogredis and Karilynn Bayus write about a New Jersey Supreme Court ruling on providers’ discovery obligations.

In a Trusts and Estates column on Page 7, Robert H. Louis writes about the importance of planning over the next four months.

Today’s lead story in PLW is the state Supreme Court ruling that tax collectors’ pay must be reasonable, a ruling plaintiffs counsel called a “watershed moment” for Pennsylvania’s elected tax collectors, as reporter Zack Needles writes.

Below the fold on Page 1, reporter Ben Present writes that attorneys have said there was no ethical breach for a Dauphin County judge with political ties to state Senator Jeffrey E. Piccola. The judge presided over one of the estates that Piccola worked on in his work with an “heir-hunting” firm.

On Page 3, Zack Needles writes that the state Supreme Court has agreed to take up the question of whether a government entity is a “person” subject to lawsuits under the Unfair Trade Practice and Consumer Protection Law.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he writes about lawyers waiving future conflicts; Brandon Swartz’s Personal Injury column on hand injuries; and David Mandelbaum’s Environmental Law column on the Act 13 decision.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Friday morning round-up of stories in today’s edition of The Legal Intelligencer. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story this morning is U.S. Supreme Court Justice Sonia Sotomayor speaking as part of the dedication ceremony yesterday for the University of Pennsylvania Law School’s new building, Golkin Hall. As reporter Gina Passarella writes, Sotomayor was quiet on the topic of health care, but did speak about her regret that she never took a clerkship and the benefits she sees in them.

Also above the fold on Page 1, reporter Amaris Elliott-Engel writes about the latest in the priest sex-abuse case, as a 30-year-old alleged victim underwent intense cross-examination yesterday by defense attorney William Brennan.

Below the fold on Page 1, Gina Passarella writes that Dechert has opened an office in Almaty, Kazakhstan with the hire of Chadbourne & Parke’s attorneys there. Dechert made a similar move in 2009, starting a Moscow office by hiring a team of partners from the same firm.

Also below the fold on Page 1, reporter Saranac Hale Spencer writes that the U.S. Court of Appeals for the Third Circuit has ruled an imprisoned man’s Fifth Amendment rights weren’t violated when he was denied parole for refusing to admit to sexually assaulting his daughter as part of a state-mandated treatment program.

In more Regional News on Page 3, reporter Zack Needles writes that Thomas More Marrone, the former head of Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig’s complex litigation and class action department, joined the Philadelphia office of Pittsburgh-based Caroselli Beachler McTiernan & Conboy.

Also on Page 3, a former Cozen O’Connor associate was hit with a 30-month suspension for sham billing practices.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

In a Trusts & Estates column on Page 5, Robert H. Louis writes about solving the unfunded pension puzzle for law firms.

In a Commentary on Page 7, Christie B. Tillapaugh writes about how being a mother has made her a better lawyer.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is the Pennsylvania Supreme Court hearing redistricting arguments on Monday, as the justices heard appeals to the state Legislative Reapportionment Commission’s final decision on new districts for the House and Senate. As reporter Ben Present writes, Justice Joan Orie Melvin, who reportedly received a target letter from an investigating grand jury recently, remained on the bench for the arguments. The most substantial arguments came from an attorney representing a band of citizens led by an Allentown piano teacher, along with the lawyer for Senate Minority Leader Jay Costa, D-Allegheny, the lone objector on the five-member commission.

Also on Page 1 today, reporter Amaris Elliott-Engel writes that a court hearing Monday in the Philadelphia grand jury investigation into alleged sexual abuse by priests was held over whether any evidence of prior “bad acts” can be admitted at trial. The Philadelphia District Attorney’s Office has charged the priest’s supervisor, former personnel director for the Catholic Archdiocese Monsignor William Lynn, with two counts of endangering the welfare of a child for allegedly failing to move two accused sexual offenders to new assignments.

Today’s Regional News continues on Page 3, as reporter Gina Passarella writes that the Commonwealth Court has ruled that workers’ compensation judges have no vested rights in pay increases, finding that Pennsylvania’s WCJs had no recourse to collect on a rescinded raise.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5 is today’s Legal Marketing column, in which Stacy West Clark writes about marketing items your firm should have on its priority list, beginning with deciding on a plan.

In a look at the U.S. Supreme Court, Stephen A. Miller writes on Page 7 about the case of United States v. Jones, in which a narcotics defendant challenged the admission of evidence at his trial obtained from a GPS device installed on his car without his knowledge or a warrant.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW comes from Ben Present, who writes that the Penn State scandal highlights the statute of limitations debate that continues to carry on.

On the bottom of Page 1, Ben Present writes that a Clearfield County judge has granted the motion of a corporate methadone clinic and its doctors to file an interlocutory appeal, stemming from claims by the estate of two third-party women who were killed by one of the clinic’s patients in a car crash.

On Page 3, reporter Zack Needles writes an open records story, as the Commonwealth Court has ruled that e-mails sent between borough council members are public record and therefore subject to public disclosure under the state’s Right-to-Know Law.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he tackles whether lawyers can accept work product from law students; Brandon Swartz’s Medical Malpractice column, which takes a look at diagnostic testing technologies; Jeff Jubelirer’s Public Relations commentary; and articles about state police being denied immunity after allegations of beating a prisoner and a Philadelphia judge removing trustees from two trusts worth $27.9 million.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal (and DLW)

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look.

But more about Delaware in a bit … let's get to today's Legal.

Topping the front page is a 3rd Circuit decision by U.S. Courthouse Correspondent Shannon P. Duffy: On the heels of an about-face by the Justice Department, the 3rd Circuit ruled that the new, more lenient sentencing rules for crack cocaine must be applied retroactively so that every defendant sentenced after the law was passed will benefit. The issue of precisely who should benefit from the Fair Sentencing Act of 2010 is one that has splintered the circuits, but Tuesday’s decision is the first to be released since the government’s 180-degree turnabout.

Also sharing top billing on the front, senior staff reporter Gina Passarella covers the oral arguments in a case with local interest. A panel of Pennsylvania Superior Court judges appeared skeptical of defunct law firm Wolf Block's argument Tuesday that a former partner's claims for severance payments should be heard in confidential arbitration rather than in Philadelphia Common Pleas Court.

Today's Page 3 story is a "From the Chief" column by The Legal's Editor-in-Chief Hank Grezlak: "When I think of models for leadership, I don’t often think of lawyers. Too much second-guessing, too much timidity, too often a lemming-like mentality and a horrible fear to do anything new or that goes against conventional wisdom. However, in these tumultuous times, I actually think lawyers have a lot to offer in terms of helping us out of this political and financial mess."

As always, our People in the News section is on Page 2, as well as a Letter to the Editor regarding the CJD by Shira Goodman and Lynn Marks of Pennsylvanians for Modern Courts. The top stories from our sister publications across the country make up the Page 4 National News section.

Today's contributed columns are the "Bankruptcy Update" by Christopher M. Winter and Michael Lastowski of Duane Morris, and our weekly "GC Mid-Atlantic" page.

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

In the top slot, Jeff writes: "The 3rd U.S. Circuit Court of Appeals reversed a federal district judge's opinion and ruled that the Indian River School District's tradition of opening its board meetings with a Christian prayer is unconstitutional."

One do-not-miss trusts and estates article deals with a woman who attempted to adopt her adult ex-husband in an effort to increase her children's inheritance.

And finally, Jeff writes that a Delaware Superior Court judge has ruled that convicted murderer Steven Shelton should be removed from death row. The judge is set to resentence him later this fall on lesser charges connected to the crime after it was revealed the state's star witness against Shelton was tainted and may not have been competent to testify.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider. As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this newsletter weekly. You can also follow us on Twitter at @delbizcourt.

Top stories there include:

- A Q&A with Emilie R. Ninan, the managing partner for Ballad Spahr's Wilmington office.

- A ruling by Chancellor Leo E. Strine Jr. that a hedge fund breached its contractual obligations and fiduciary duties by not returning the $40 million seed money to its original investor, saying the money was not returned for the "selfish reason" of wanting to continue to collect management fees.

- A ruling by the Delaware Chancery Court stating that it does not have the personal jurisdiction to settle a dispute between two foreign companies, even if the entities' disagreement involves a venture incorporated in Delaware.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal and our Delaware coverage!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Estate Planning for Digital Assets

By Robert H. Louis
Special to the Legal

An article in Estate Planning for Texas Professionals by Gerry W. Beyer and Kerri M. Griffin raises some interesting issues about planning for digital assets, a topic that probably hasn't yet occurred to many estate planners. In our increasingly digital and online world, it might be time to think about this new class of assets.

What are digital assets? The authors define them as "any online account that you own or any file that you store on your computer or that you store in the cloud." (Note to self: cloud?) This includes more familiar accounts like Gmail and Hotmail; sites for storing pictures and videos; online banking and investment accounts; domain names; social networking accounts such as Twitter and LinkedIn; virtual businesses; and other forms of assets mentioned by the authors that, apparently, rarely come to the attention of estate planning lawyers.

Most of these probably have little value, but there are exceptions. The authors mention that the late composer Leonard Bernstein wrote part of his autobiography online and protected it with a password that so far no one has been able to guess, meaning that this work might be lost forever.

Why should one have a plan for digital assets? The authors suggest that knowing what types of accounts a decedent had will make an executor's task easier, and they analogize it to the problems people have in dealing with the things accumulated by hoarders. In addition, having a plan minimizes the chances of identity theft and prevents the loss of any online assets. To the extent that a decedent has "told his/her story" online, that seems worth protecting.

Various online services have their own rules about the ownership of and access to the accounts of a decedent, and the authors provide a helpful summary of those rules for a number of those services. How can estate planners help? It seems unwise to put this information into a will, which eventually becomes a public document, but the authors suggest a separate trust-type document that might contain all of the relevant information plus instructions on what to do with the digital assets. There are also companies, more than a few, that will manage the afterlife of online accounts. Like many new businesses, there should be some concern about the survival of such companies, though.

One of the authors, Beyer, a law professor, has also written extensively on estate planning for pets, another topic that is becoming more important to many individuals. As the nature of the assets that people own and wish to pass on changes, it's important to think about the issues that arise in respect of such assets, and how estate planners can make life, and afterlife, simpler.

Robert H. Louis is a partner and co-chairman of the personal wealth, estates and trusts department at Saul Ewing. His practice includes estate, tax and retirement planning for individuals and closely held businesses. He is a fellow of the American College of Tax Counsel and a graduate of the Wharton School and the Harvard Law School. Louis can be reached at [email protected] and 215-972-7155.

MontCo Pro Bono Opportunity Tomorrow: Wills For Heroes Needs Your Help!

By Jaime Bochet
Of the Legal Staff

We at the Legal know how important pro bono work is, both for attorneys and for the communities they serve. We devote an entire publication to it every other year, as well as a page in the paper each month, working in collaboration with  local public interest groups and bar associations.

If you've been thinking about getting involved but aren't sure how to begin, the Montogmery Bar Association has you covered. Wills for Heroes has scheduled an event this Saturday, March 26, for the Norristown Police Department at the Human Service Center in Norristown (1430 DeKalb St.). Several lawyers and paralegals are needed to help at this time.

Wills for Heroes is a pro bono program that provides free wills, living wills and financial powers of attorneys to first responders and their spouses/partners. At the conclusion of their one-hour appointments, first responders and their spouses/partners are able to leave with notarized, legal documents.

You do not need to practice trust and estate law to volunteer, and a mini-course will be offered from 9 to   11 a.m. that morning to familiarize you with all the information you'll need to know. Several lawyers well-versed in estate planning will also be on hand to answer questions that may arise. Following the training session for new volunteers, Wills for Heroes events typically run from 11 a.m. to 5 p.m.

For more information, contact Lisa Shearman, Esq. by calling 215-576-1730 or e-mailing [email protected].

Jaime Bochet is the Magazines & Supplements Editor for The Legal Intelligencer. Follow her on Twitter at http://twitter.com/#!/JaimeBochetTLI or e-mail [email protected].

What Baseball Teaches Us About Wealth Planning

By Robert H. Louis
Special to the Legal

The arrival of pitchers and catchers for spring training signals the beginning of what we hope and expect will be an exciting year for the Phillies. We're tempted to look around the league to see how other teams are doing. How about those Mets? Word has reached us of a troubling development out of New York, a suit against the team owners by the trustee seeking to recover improper payments made by one Bernard Madoff.

According to a reliable newspaper, the trustee charged with unraveling Madoff's wrongdoing, Irving Picard, has sued the Mets owners to recoup investment returns they received from extensive investments with Madoff over a period of many years. It's just a series of allegations at this point, but the trustee claims that the owners received investment returns that were fictitious; and that they should have realized that such consistent, high-level returns were simply not attainable. Their relationship with Madoff was sufficiently close, the suit alleges, that when they took over full ownership of the team, they offered him a chance to become a part-owner (which he declined).

Among the uses made of Madoff’s services was the investment of deferred income to players and managers, contingent on performance and longevity. It's claimed that the owners decided to try to make some money on the deferrals with Madoff's help, relying upon his long track record, with average returns of 18 percent per year and little fluctuation. It's not known whether any of those deferred payments will be endangered by the discovery of Madoff"s phony investment returns, but the articles suggest that the owners might have to sell the entire team and not just the 25 percent they announced would be offered for sale.

As lawyers, we do not give our clients investment advice or choose their investment advisers for them. But our work is made easier when our clients employ reputable investment advisors, as well as skilled accountants and other professionals. We can stress to clients that the best result for them will be achieved when advisors know and interact with each other, and have mutual confidence. On this basis, it seems appropriate that when a client introduces someone new into the relationship, we suggest a full exchange of information among the advisers, the effect of which could be to raise concerns if the new adviser is not forthcoming.

Postscript: The President’s budget proposal, just issued, assumes that the recent changes in federal estate law will not continue in effect beyond 2012. This has a significant effect on the planning that should be done right now. More on this later.

Robert H. Louis is a partner and co-chairman of the personal wealth, estates and trusts department at Saul Ewing. His practice includes estate, tax and retirement planning for individuals and closely held businesses. He is a fellow of the American College of Tax Counsel and a graduate of the Wharton School and the Harvard Law School. Louis can be reached at [email protected] and 215-972-7155.

Estate Planning for Pets

By Robert H. Louis
Special to the Legal

The care of our pets after we are gone is a matter of concern for many people, but there steps that can be taken to arrange for the needed care.

Many people reacted with amusement or anger when it was revealed that Leona Helmsley had left a trust for her dog ("Trouble") in the amount of $12 million. A judge later reduced the trust to $2 million, still probably enough for a nice lifestyle for the dog's remaining days.

But many people without billions to dispose of have concerns about the care of their pets after they are gone. Numerous websites and blogs discuss pet care issues, and there are several ways of ensuring the care of pets after the owners have passed on. The simplest is just a memorandum an owner may leave, asking someone to care for the pets. More formally, the owner may leave a bequest to an individual with the request that the funds be used to care for the pets.

A provision may also be placed in a will, naming an individual as the beneficiary of trust funds to be used for the care of pets. In addition, Pennsylvania has adopted the provision of the Uniform Trust Act permitting the setting up of trusts for the benefit of pets. Such a trust can benefit pets that are living during the settlor's lifetime, and must end when the last such pet has died. The trust may be enforced by the trustee or, if there is no such person, by a person appointed by a court. If the court determines that the amount set aside in trust exceeds what is needed, it can order the balance returned to the settlor or the settlor's successors in interest. For those concerned about the well-being of their pets, a trust established under the Uniform Trust Act may be the surest way to satisfy those concerns.

Robert H. Louis is a partner and co-chairman of the personal wealth, estates and trusts department at Saul Ewing. His practice includes estate, tax and retirement planning for individuals and closely held businesses. He is a fellow of the American College of Tax Counsel and a graduate of the Wharton School and the Harvard Law School. Louis can be reached at [email protected] and 215-972-7155.