PBA RPPT Section Newsletter, Winter 2013

The Winter, 2013 Newsletter (Issue No. 72) of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association, was published on February 28, 2013, and will be mailed to members in printed form.  It will be available to the public in PDF format for a limited two-week period through a link to the PBA's website.

A recent email from the PBA to members noted the availability of this Newsletter (24 pages), among a few other section newsletters recently published:

PBA Real Property, Probate and Trust Law Section: Newsletter, Winter 2013 – Includes "Estate and Trust Tax Changes for 2013," "Inheritance Tax Return Correction Procedures Clarified," "New Law for Disposing of Abandoned Personal Property Left by the Tenant at the Leased Premises"

This is the index to the Newsletter:

Both "dirt" (Real Property Law Division) and "death" (Probate & Trust Law Division) lawyers in Pennsylvania can benefit by reading the articles in this issue.

A vibrant and committed new team of editors, drawn from both Divisions, worked on this issue.

Two key PBA staff members continue to oversee publication efforts at the PBA.  Amy Kenn, who worked on the Newsletter years ago and who recently resumed involvement following the birth of her daughter, and Michael Shatto, who remains the RPPT Section's liaison after so many years, assure smooth functioning in its production.

My good friend and fellow Section volunteer, Mark B. Hammond, Esq., of Chambersburg, PA, officially "retired" as an editor from production of the Newsletter last year.  Both the Section's leadership in the Chair's Report, and me personally here, thank Mark for his years of services on many issues of the Newsletter.  

After continuous involvement in the Newsletter since 1978, I transitioned into a new role as "Editor at Large", with intention of further contributions as I can be helpful.

After thirty-five years, the Newsletter, to me, is like my grown child, not needing me as much, but still a source of tremendous joy and pride in the fulfillment of its dual purposes:  Disseminating information and facilitating connections for lawyers who are involved in these two areas of law practice in Pennsylvania.

"Professional Felicity" of Lawyers

The Eighth Annual Goldberg Lecture Series will be held on Thursday, October 16, 2008, with Arthur T. Donato, Esq., of Media, PA, presenting on two topics -- "Can Justice Be Found in the USA Patriot Act?" and "The Key to Professional Felicity."

According to Merriam-Webster's online dictionary, "felicity" is a term that derives from the 14th Century, and means:

• 1 a: the quality or state of being happy; especially : great happiness (felicity)
• 1 b: an instance of happiness
• 2: something that causes happiness
• 3: a pleasing manner or quality especially in art or language (felicity with words)
• 4: an apt expression

Early in 2008, the Christian Science Monitor published two articles about happiness -- "Actually, happiness isn't within" (01/07/08) by Eric Weiner, and "Yes, you can be happy at work" (01/22/08) by Alexander Kjerulf.

Mr. Weiner writes that "some cultures are simply better at producing happy citizens than others."

The self-help industry has it wrong. Social scientists studying happiness (or subjective well-being, to use the academic term) have found that external factors – quality of government, social interactions and, to an extent, money – determine our happiness more than anything else.

In other words, happiness does not reside inside of you. Happiness is out there. * * *

Among other factors, he links happiness to trust:

Trust of others is another prerequisite for a happy nation, and that is a troubling fact for fans of American happiness.

In 1960, 58 percent of Americans felt most people could be trusted. By the 1990s, only 35 percent held that view.

Indeed, given our economic and military muscle, the US occupies a modest spot on the atlas of bliss. We are not as happy as we are wealthy. * * *

Mr. Kjerulf notes that "[t]he concept of happiness at work is alien to most American workplaces [but it] doesn't have to be that way." He considers the different approaches of most employers in America versus those in Europe, and then advises:

Make no mistake: Happiness at work is on the march. It just seems that many Americans are stuck a little harder in the "work is unpleasant – that's why we get paid to do it" mentality.

So my advice to American managers and employees is this: Make happiness at work your top priority. It will make work more fun, it will make you happier in life, and it will make you more successful.

Blogger Arnie Herz noted these articles, and applied these principles to lawyers in his posting, "The ongoing inquiry into lawyer happiness" (01/24/08), which contained many useful links.

As Sue Shellenbarger (pdf) writes in an article on Lawyers Opening Up About Depression, studies have found that about “19% of lawyers suffer depression at any given time, compared with 6.7% of the population as a whole.”

While some might question the exact correlation between career stresses and depression, it seems that it’s well accepted that the “practice of law, with constant conflict and billing pressures, can take a toll.” * * *

The basic orientation or mindset of lawyers itself can present a problem, according to Martin E. P. Seligman, Ph.D., Professor of Psychology at the University of Pennsylvania, Director of the Positive Psychology Network, and a former President of the American Psychological Association, who wrote an article, "Why Are Lawyers So Unhappy?"

He wrote that "Positive Psychology sees three principal causes of the demoralization among lawyers."

• First is pessimism, defined not in the colloquial sense (seeing the glass as half empty) but rather as the pessimistic explanatory style. * * *

• A second psychological factor that demoralizes lawyers, particularly junior ones, is low decision latitude in high-stress situations. Decision latitude refers to the number of choices one has – or, as it turns out, the choices one believes one has – on the job. * * *

• The deepest of all the psychological factors making lawyers unhappy is that American law is becoming increasingly a win-loss game. * * * American law has similarly migrated from being a practice in which good counsel about justice and fairness was the primary good to being a big business in which billable hours, take-no-prisoners victories, and the bottom line are now the principle ends. * * * [Emphasis added.]
  

In his authored handout for the second presentation, entitled "Even Happiness Isn't Enough -- The Key to Professional Felicity", Mr. Donato returns to the professional oath that each attorney swore upon bar admission for guidance in practice by individuals.

The presentations will begin at 3:00 pm and last until 5:00 pm at the Crowne Plaza Hotel, at 23 South Second Street, Harrisburg, PA.

The Goldberg Lecture Series in Law was established in 2000 in memory of Harrisburg lawyers Arthur L. Goldberg and Harry B. Goldberg. The annual presentation is sponsored by the Dauphin County Bar Foundation, with the assistance of the Dauphin County Bar Association, 213 North Front Street, Harrisburg, PA 17101. The law firm Goldberg Katzman, P.C. also supports the Goldberg Lecture Series.

Past annual presentations have featured topics of: effective trial court advocacy (2001); wrongful imprisonment (2002); presentation of the complex civil case (2003); the USA Patriot Act (2004); the role of an independent judiciary (2005); practical alternative dispute resolution (2006), and roles & functions of the Pennsylvania Attorney General's Office (2007).

Pursuant to Pennsylvania's Mandatory Continuing Legal Education Rules for Lawyers, this program will provide two hours of substantive credit for all participants who attend the entire session. Attendees for the second hour of presentations will receive "ethics" CLE credit. There will be no fee for the session.

To make an attendance reservation, click the graphic above for contact information.

Update: 10/15/08:

For another view about the happiness of lawyers in practice, see: "Va. Law’s Class of 1990: Happy in their Careers, but Less So in BigLaw" (10/15/08) posted on the American Bar Association Journal's Law News Now by Debra Cassens Weiss:

Reports of unhappy lawyers tell of problems with depression, alcoholism, divorce and suicide. But the reports appear to be exaggerated, if the Virginia School of Law’s 1990 graduating class is any guide.

A study finds the group is largely contented with their careers and their lives, albeit less so if they work for big law firms. The study (PDF) found 81 percent of grads responding to a 2007 survey were satisfied with their decision to become a lawyer, and 86 percent were satisfied with their lives more broadly.

Both men and women reported similar levels of satisfaction. * * *

PBA RPPT's Summer 2008 Newsletter Issued

On September 19, 2008, the Pennsylvania Bar Association's Real Property, Probate & Trust Law Section released its most recent bi-annual Newsletter (No. 65, Summer 2008) for members. At 72 pages, this issue is the longest ever published by the Section.

The contents of this issue of the Newsletter include:

• Report: From the Section Chair (p. 1, by Jill R. Fowler)

• Photo Gallery: RPPT Section Annual Meeting, June 4-5, Hershey (p. 2)

• Report: Vice-Chair, Probate & Trust Law Division (p. 4, by Bridget M. Whitley)

• Report: Vice-Chair, Report, Real Property Law Division (p. 5, by William “Chip” Mackrides)

• Update: Recent Developments in Probate & Trust Law (p. 7, by Stanley J. Lehman & Cynthia K. Rarig)

• Announcements: List of Upcoming Courses from PBI, and PBA Midyear Meeting (p. 10)
  

• Update: Recent Legislation (p. 11, by Steven Loux, of the PBA Staff)
  

• Article: PA Uniform Trust Act Amendments -- SB 1203 (p. 19, by Daniel B. Evans)
  

• Article: Reformation for Mistake Under Uniform Trust Act (p. 21, by Daniel B. Evans)

• Article: Realty Transfer Taxes -- New Regulations Do Not Stand Scrutiny (p. 23, by Daniel B. Evans & Anna O. Sappington)

• Article: Realty Transfer Taxes -- New Regulations Would Tax Assignments of Purchase Agreements (p. 25, by Harris Ominsky)
  

• Article: New Realty Transfer Tax Regulations Raise a Ruckus (p. 27, by By Philip B. Korb)
  

• Article: Prudent Practices for Investment Advisors Published (p. 29, by Neil E. Hendershot)

• Article: IRS Proposes Final Preparer Penalty Regs (p. 30, by Neil E. Hendershot)
  

• Article: Firefighters, First Responders and Free Wills (by p. 32, by Neil E. Hendershot)

• Article: Evans’ Book on Estates Practice Updated (p. 33, by Neil E. Hendershot)

• Article: PBA RPPT Section Honors Chief John Murphy (p. 34, Neil Hendershot)
  

• Listserv Summaries: Probate & Trust Law Postings (p. 35, by Mark B. Hammond)
  

• Listserv Summaries: Real Property Law Postings (p. 62, by Mark Hammond)

• Roster: RPPT Section Leadership List (p. 70)

• Roster: RPPT Committee List (p. 71)

I serve as the Newsletter's Executive Editor. Mark Hammond is the Assistant Editor, and Patricia Graybill, of the PBA's Publications Department, is Staff Editor.

Our Section's Newsletter has been, over the twenty-five years that I have edited it, a quality publication produced by Section members, with reliable and relevant content regarding this practice area.

This issue of the Newsletter was mailed to Section members within the past few days, and was posted in PDF format in the Members Only area of the PBA website on September 19th for viewing and downloading.

However, unlike past issues, it will not be posted publicly right now. Last Friday during the monthly Section Leadership Conference Call, a new policy was adopted for online posting of Section newsletters, effective immediately.

The current Newsletter will not be available until six months after issuance, when it will be posted publicly until replaced by the next issue. All issues remain available to Section members in the Section's Newsletter archives on the PBA website.

So, to get a copy now of the current Newsletter, sign up to be a PBA RPPT Section member, or connect with an attorney who is.

Read Blog Posts Quickly

On July 18, 2008, c/net sent its AnchorDesk Newsletter with a posting asking "Are you suffering from information overload?", by Holly Jackson.

The Information Overload Research Group held its first conference in New York this week.

Dedicated to researching and solving problems caused by the constant flow of information, the nonprofit consortium calls information overload "the world's greatest challenge to productivity." [Links added.]

The newsletter referenced an online editorial posted by BNet entitled "Coping with Information Overload":

You know it all too well: The amount of information available to us wherever we go is increasing rapidly and perpetually.

As a result, we’re all expected to absorb and respond to more information than ever before. The reasons are very familiar:

• New technology making information available at all times everywhere;
• Expectations for instant gratification for virtually every need;
• Fewer people in the workplace to deal with all the work;
• More work being done by outside firms — increasing the burdens of communication (and the likelihood of miscommunication).

But most of us have had to deal with this tremendous influx of information and distractions without any preparation, training, or time. Often, we find it difficult to process the flood of information — we feel as though we’re drowning, struggling to find time for more important tasks.

The good news is that there are steps you can take to keep your head above the information torrent. * * *

That excellent article concluded with a brief list of online articles offering advice, mainly related to email, however:

• “Overcoming information overload” (01/07/00), posted by Infoworld

• “Five Simple Techniques for Surviving Information Overload” posted by Marlborough Business Association

• “Dealing with Information Overload” posted by IntranetJournal
  

• "Tips for Overcoming Email Overload" by Kaitlin Duck Sherwood, posted by Overload.com

See also: Information Overload Resource Center's listing on this topic.

If you work as an estate planner, fiduciary, trust & estate lawyer, or related professional, you likely experience "information overload" everyday, from various sources.

The Internet contributes to the overload. One comment in response Holly Jackson's question, "Is information overload a hindrance?", posted on July 18, 2008, said:

I think it's both a blessing and a curse. You can find out almost anything, you can contact people halfway across the world. * * *

But because of all the information out there, I always feel like there is more I can read, more I should read, than I have time for. It's sometimes hard to pick and choose the best from all that's out there.

Blogs -- if you read them -- contribute to the overload, but also provide beneficial information; and so you may wish to be aware about their periodic postings.

As alternatives to an RSS Feed from individual blogs or to your personal, periodic checks at a blog's site, you could consult a compiled list of blog postings on focused topics.

Various online services now provide updated summaries of recent blog postings on the topics of elder law, trusts & estates, and related matters.

Check out these selective lists of recent blog postings:

• Blawg: Latest Posts from Elder Law Blawgs

• Justia: Elder Law Blog Posts

• LexMonitor: Articles in Channel: Probate & Estate Planning

• Topix: Estate Planning News

• USLaw: Elder Law Blog Posts

PBI's 11th Annual "Elder Law Institute"

On Thursday & Friday, July 24-25, 2008, the Pennsylvania Bar Institute will present its 11th Annual Elder Law Institute at the Hilton Hotel & Towers, in Harrisburg, PA.

An email message sent by PBI on June 9, 2008, promoted the 2008 Elder Law Institute:

After more than a decade in the making, the Elder Law Institute has distinguished itself as the best elder law conference around the country. The hundreds and hundreds who attend it each year give it rave reviews. * * *

The backbone of the Institute is the wide-reaching choice of workshops on the most timely and important elder law topics of 2008. You select the sessions that appeal to you most and that will help you to represent your clients better.

Recognizing the complexity of elder law practice, our curriculum helps to prepare you to handle all kinds of challenging elder law issues. In short, it's all covered! * * *

Our impressive faculty is drawn from both inside Pennsylvania as well as around the country. You won't find a better, more informed faculty anywhere.

The Pennsylvania elder law bar is known around the country for having some of the most forward-thinking and informed elder lawyers in the country. It is truly a faculty beyond compare! * * *

PBI's webpage regarding the 2008 Elder Law Institute lists faculty for the sessions:

Dana M. Breslin, Esq., CELA, Pappano & Breslin, Brookhaven

Prof. Lawrence A. Frolik, University of Pittsburgh School of Law, Pittsburgh

Sally L. Schoffstall, Esq., Schoffstall & Focht, Orefield

Linda M. Anderson, Esq., CELA, Anderson Elder Law, Media

Mary Jane Barrett, Esq., CELA, Harkins and Harkins, Philadelphia

Thomas D. Begley, Jr., Esq., CELA, Begley & Bookbinder, PC, Moorestown, NJ

Steven G. Blum, Esq., Steven G. Blum & Associates, Swarthmore

Robert J. Breslin, Jr., Esq., Pappano & Breslin, Brookhaven

Henry A. Carpenter, II, Esq., CELA, Bucks County Elder Law LLC, Yardley

M. Francesca Chervenak, Esq., Managing Attorney, Pennsylvania Health Law Project, PIttsburgh

Robert Clofine, Esq., CELA, Law Office of Robert Clofine, York

Andrew A. Coates, Esq., Office of Legal Counsel, PA Department of Public Welfare, Philadelphia

Trisha E. Cowart, Esq., Elder Law/Consumer Protection, Carlisle

L. Christian DeDiana, Esq., CELA, DeBernardo, Antoniono, McCabe, Davis & DeDiana, P.C., Greensburg

Thomas J. Dempsey, Jr., Esq., Pittsburgh

J. Paul Dibert, Division Chief, Inheritance Tax Division, PA Dept. of Revenue, Harrisburg

Robert C. Gerhard, III, Esq., CELA, Gerhard & Gerhard Law Offices, Glenside

H. Amos Goodall, Jr., Esq., CELA, Goodall & Yurchak, PC, State College

Vicki Gottlich, JD, LLM, Center for Medicare Advocacy, Inc., Washington, DC

Julian E. Gray, Esq., CELA, Springer Bush & Perry, PC, Coraopolis

Carol Sikov Gross, Esq., CELA, Sikov & Love, PA, Pittsburgh

Martin J. Hagan, Esq., Law Firm of Martin J. Hagan LLC, Pittsburgh

Alissa Eden Halperin, Esq., Managing Attorney, Pennsylvania Health Law Project, Philadelphia

Marielle F. Hazen, Esq., CELA, Hazen Elder Law, Harrisburg

Kathleen D. Hendrickson, Esq., President, Achieva Family Trust, Pittsburgh

Thomas M. Lilly, J.D., CLU, Futurecare Associates Inc., Pittsburgh

Jeffrey A. Marshall, Esq., CELA, Marshall, Parker & Associates, LLC, Williamsport

Guy F. Matthews, Esq., Eckell Sparks Levy Auerbach Monte Rainer & Sloane, PC, Media

Dionysios C. Pappas, Esq., Vasiliadis & Associates, Bethlehem

Professor Katherine C. Pearson, Dickinson School of Law of the PA State University, Carlisle

Rene Reixach, Jr., Esq., Woods Oviatt Gilman LLP, Rochester, NY

Kemp C. Scales, Esq., CELA, Titusville

Jacqueline J. Shafer , Esq., High Swartz LLP, Norristown

Elizabeth W. Shapiro, Esq., Community Legal Services, Philadelphia

Thomas M. Snedden, Director, PACE & PACENET, Pennsylvania Department of Aging, Harrisburg

Julieanne Steinbacher, Steinbacher Law, P.C.

Steven L. Sugarman, Esq., Steven L. Sugarman & Associates, Berwyn

Andrew G. Sykes, Esq., Sykes Elder Law, LLC, Pittsburgh

Scott E. Townsley, Esq., Third Age, Inc., Exton

Vicky Ann Trimmer, Esq., Mette, Evans & Woodside, Harrisburg

Stanley M. Vasiliadis, Esq., CELA, Vasiliadis & Associates, Bethlehem

Bruce Vignery, Esq., AARP, Washington, DC

Pamela Walz, Esq., Elderly Law Project Community Legal Services, Philaldephia

Ellen R. Wase, Esq., Wase & Wase, Philadelphia

Richard P. Weishaupt, Esq., Community Legal Services, Philadelphia

Leslie Wizelman, Esq., CELA, Law Offices of Leslie Wizelman, Wyalusing

These astute, experienced presenters will teach on a variety of elder law topics:

• Year in Review
• Medicaid – The Basics
• Family Care Agreements – Basics & Tax Issues
• Medicare Parts A, B, C & Medigap
• Ins and Outs of "Over 55" Housing (in Community Associations)
• Medicare Appeals & New Hospital Discharge Rules
• Using Real Estate as a Planning Technique
• Nuts & Bolts of Administering Supplemental and Special Needs Trusts
• Medicaid – The Basics
• Pennsylvania’s New Assisted Living Law & Proposed Regulations
• Avoiding Medicaid Mistakes
• Long Term Care Insurance – Advising Your Clients on the Pros and Cons of the New Partnership Program
• CCRCs: Growth, Financial Stability & Accountability
• Stretching Income for Seniors
• Marital Medicaid Planning
• Ethical Dilemmas in Representing Clients with Diminished Capacity (ETHICS)
• Defending Nursing Home Claims
• Ethical Dilemmas in Representing Clients with Diminished Capacity (ETHICS)
• Tax-Smart Long Term Care Planning
• Clinical Eligibility for Home & Community Based Care
• Marital Medicaid Planning
• Medicaid – Calculating for Annuities, Monthly Income and Spend Down
• Paths to Prescription Coverage: Medicare Part D & PACE
• Victims & Abusers: Protecting Older Adults from Financial Exploitation, Including Abuse of Powers of Attorney (ETHICS)
• What Is Pennsylvania Doing Under the DRA? 2008 Update
• How to Obtain a Guardianship in Pennsylvania
• Getting a Handle on Variable Annuities
• Finding the Federal Courthouse & Staying There Once You Find It: Federal Court Litigation for the Elder Law Attorney
• Pharmacology 101 for Lawyers: Is Your Client Getting Quality Institutional Care?
• Utilizing Public Benefits in Special Needs Planning
• Common Substantive and Procedural Pitfalls in Elder Law Practice (ETHICS)
• Get a Fair Hearing at the Fair Hearing
• Orphans’ Court Update
• Social Security & SSI Basics
• Medicaid – Calculating for Annuities, Monthly Income and Spend Down
• Trimmer on Taxes: A 2008 Update on Taxes Affecting the Elderly
• Planning for Distribution of Special Needs Trusts Beyond the Life Care Plan
• Common Substantive and Procedural Pitfalls in Elder Law Practice (ETHICS)
• Nursing Home or Personal Care Home Admissions Contracts: Basic Information for Your Clients
• Tips for Preparing Error-Free Inheritance Tax Returns
• Deciding What to Do with IRAs: The Choices, Tax Consequences & Timing
• Gray(ing) Areas of Elder Law
• Veterans Benefits: An Introduction and Practical Guide to the Veterans Pension Program
• Life Insurance & Life Settlements

For the first time, the course materials prepared for the 2008 Elder Law Institute will be available on a fully-searchable CD-ROM, as an alternative to the standard printed books.

During the 2008 Elder Law Institute, supportive exhibitors or vendors will offer displays:

• Achieva Family Trust
• Comfort Keepers
• George T. Bisel Company
• Interactive Legal
• Keystone Guardianship Services
• Merrill Lynch
• Pennsylvania Care Management

PBI's 2008 Elder Law Institute is co-sponsored by the Elder Law Section, of the Pennsylvania Bar Association.

That Section is dedicated -- as stated in one of its five mission strategies -- to "[p]romote the improvement of the practice of Elder Law through legal education and ethical guidelines." See: PA EE&F Law Blog posting PA Elder Law Section's "Strategic Plan" (04/28/08).

"Another triumph, my dear."
-- Bob Cratchit, commenting on his wife's plum pudding,
in the movie adaption of Charles Dickens'
"A Christmas Carol" (1984)

Wilkes' New Dean of Law School Planning Initiative

On May 7, 2008, Wilkes University issued a Press Release, entitled "Wilkes Takes Big Step to Creating New Law School -- Announces Dean of Law School Planning Initiative". The named dean is Loren ("Chip") D. Prescott, Jr., now of Harrisburg, PA.

Wilkes University announces that Loren D. Prescott Jr. has been appointed dean for the Wilkes University Law School Planning Initiative.

Prescott, who has served as vice dean and professor at Widener University School of Law, Harrisburg, Pa., will lead efforts to develop plans for northeastern Pennsylvania’s first law school. Preliminary plans call for enrolling between 80 and 100 first-year students in fall 2010.

As dean, Prescott will also complete an in-depth market analysis of enrollment trends, of the parameters for the law school library, and develop a trailblazing curriculum that answers many of the critiques of legal education today. He is scheduled to submit the final plans for the law school for consideration by the Wilkes Board of Trustees at its April 2009 meeting.

“If feasible, the addition of a law school represents a great opportunity for the revitalization of Wilkes-Barre and the region. Wilkes’ mentoring culture is uniquely suited to training a new generation of attorneys skilled in the practice, not just the theory, of law,” said Tim Gilmour, president of Wilkes University.

“Chip Prescott brings both experience and vision to this initiative. We’re honored to have a leader of his caliber to lead the effort.” * * *

I learned about this appointment in an email message sent by Chip on May 7th. I was surprised, and pleased.

When I first learned about the proposal to create a new law school in the Wilkes-Barre / Scranton area, to join eight existing law schools in Pennsylvania, I was skeptical. See: PA EE&F Law Blog posting New Law School at Wilkes University? (03/06/07).

My concerns were not founded in the ability of Wilkes University to create an academically suitable law school, or the need in Northeastern Pennsylvania for graduate-level education, or the economic benefits that a law school might bring in that region, or even the capability of Wilkes to attract qualified, committed faculty and eager, tuition-paying law students into a new law school.

No, my concern was simple: Where would more law school graduates find jobs once educated?

My updates to that posting reinforced my concerns, to which I urged studied consideration:

The "job market" and the implied promise made to law students when they pay (or borrow) the tuition necessary to attend law school -- that further education will increase their employment opportunities -- should be one of the elements to be considered by those charged with examining a new law school at Wilkes University.

By February of this year, the concept for a new law school, as sketched by the Wilkes University Board of Trustees, was embodied in its search for a designing dean. See: PA EE&F Law Blog posting Proposed Wilkes Law School Seeks Dean (02/06/08).

I was pleasantly surprised by the pragmatic, innovative approach adopted for the proposed new law school, as evidenced by its reliance upon a detailed report, entitled "Educating Lawyers: Preparation for the Profession of Law" (2007), issued by the Carnegie Foundation.

I concluded by noting that, "[w]ithout question, the format for an effective institutional legal education is changing." I became hopeful that such a new law school could, indeed, meet not only the needs of a university, a region, and an economy in Pennsylvania, but also of students who would become prepared, by a legal education, to function productively while paid adequate compensation.

Now I learn that Chip Prescott will be the one to guide this new law school into being.

"Well, bust my buttons! Why didn't you say that in the first place? That's a horse of a different color! Come on in!"

My skepticism had paralleled that of the gatekeeper to the grand, Emerald City in the 1939 movie, The Wizard of Oz:

[Reaching the gate into the Emerald City, Dorothy and her friends ring the bell. A Gateman appears through a porthole.]

Gateman: Who rang that bell?!

All four: We did!

Gateman: Can't you read?!

Scarecrow: Read what?

Gateman: The notice!

All four: What notice?

Gateman: It's on the door, as plain as the nose on my face! It's a [Realizes there is no notice] Oh-- Oh... [Hangs a notice on the door, then disappears]

All Four: [Reading the notice] "Bell out of order. Please knock." [Dorothy knocks on the knocker, and the Gateman reemerges]

Gateman: Well, that's more like it! Now, state your business.

All four: We want to see the Wizard.

Gateman: [Nearly falls out of his porthole from shock] The Wizard?! But nobody can see the Great Oz! Nobody's ever seen the Great Oz! Even I've never seen him!

Dorothy: Well, then — how do you know there is one?

Gateman: Because he, uh... You're wasting my time!

Dorothy: Oh please, please sir. I've got to see the Wizard. The Good Witch of the North sent me.

Gateman: Prove it. * * *

Once Dorothy displays the Ruby Slippers, the Gatekeeper says, "Well, bust my buttons"; and she, with her companions, are ushered into the Emerald City, where they prepare to do their longer & harder work.

Chip Prescott is as special as Dorothy Gale in that movie, The Wizard of Oz.

He does not wear Ruby Slippers (thank goodness), but he radiates personal characteristics that gleam just as brightly. He is honest, intelligent, resourceful, devoted, reliable, sensitive, social, respectful, and funny. He is one of the finest people I've encountered. I am privileged to consider him my friend.

He understands the need for practical legal education, responsive to the changing needs of our citizens and also targeted at graduates' productive employment.

Just as Dorothy possessed the necessary desire and qualities to perform her mission with the support of her companions, which resulted in growth and goodness in the lives of those she touched in that movie's fantasy, Chip Prescott possesses the commitment and character to materialize a new law school with the support of Wilkes University and the host that will join the effort, which will benefit Pennsylvanians in reality.

I congratulate him on his acceptance of this new challenge; and I congratulate the folks at Wilkes University for selecting him.

Scarecrow: What have you learned, Dorothy?

Dorothy: Well, I—I think that it, that it wasn't enough just to want to see Uncle Henry and Auntie Em — and it's that — if I ever go looking for my heart's desire again, I won't look any further than my own backyard. Because if it isn't there, I never really lost it to begin with! Is that right?

Glinda: That's all it is! * * *

...

Glinda: Then close your eyes and tap your heels together three times. And think to yourself, 'There's no place like home'.

* * *

Update: 05/27/08:

On May 27, 2008, The Citizens Voice, in Northeastern PA, published an extensive, complimentary article about Chip Prescott, entitled "New dean of Wilkes law school initiative ready for the challenge", by Caleb Sheaffer:

This summer, Loren D. “Chip” Prescott Jr. has many things on his plate.

The first is cleaning his office of 18 years at Widener University School of Law in Harrisburg.

The second is starting as the appointed dean for the Wilkes University Law School Planning Initiative. He’s also becoming a grandfather and completing work on a doctorate in public administration.

Last, he is meeting with a consultant in Chicago to discuss the accreditation process for a law school that four years ago was only an idea.

It’s a law school that Prescott hopes will open its doors at Wilkes University by 2010, graduating its first class by 2013. It’s also a law school that Prescott sees as a bold move by Wilkes University, which will benefit Wilkes-Barre and Northeastern Pennsylvania upon its completion.

“The biggest challenge is this involves the creation of a new institution,” Prescott said. “In higher education, the opportunity to create an institution is unusual.”

Prescott, 52, of Harrisburg, starts the job as dean of the Wilkes University Law School Planning Initiative on June 2. He will be responsible for presenting a complete plan for the law school to the Wilkes University Board of Trustees by April 2009. * * *

Answers: English "Legalese" vs. "Plain English"

For the answers to the Quiz: English "Legalese" vs. "Plain English", posted here on April 14, 2008, I refer to the online listing of offensive legal phrases in "Eschew, Evade, and/or Eradicate Legalese", by Prof. Eugene Volokh, of the UCLA Law School.

He listed "some common clunkers, and their simpler, more readable replacements -- "legalese" -- that should be shortened, replaced, or deleted.

The replacements aren't always perfect synonyms, but 90% of the time they're better than the original.

Warning: Some of these changes also require some grammatical twiddling of other parts of the sentence.

In my quiz drawn from his listing, I avoided questions where the sole answer would be "deletion", but that option should be considered often.

Here are the answers, which you can confirm on his web page:

1. "a large number of" -- many
2. "adjacent to" -- next to or near
3. "any and all" -- all
   
4. "at the present time" -- now
   
5. "cease and desist" -- stop
   
6. "circumstances in which" -- when or where
   
7. "concerning the matter of" -- about
   
8. "due to the fact that" -- because
   
9. "during the time that" -- while
   
10. "in reference to" -- about
    
11. "is desirous of" -- wants
    
12. "it is apparent that" -- clearly
    
13. "negatively affect" -- hurt, harm, or decrease
    
14. "null and void" -- void
    
15. "on a number of occasions" -- often or sometimes
    
16. "on the part of" -- by
    
17. "prior to" -- before
    
18. "provided that" -- if or but
    
19. "referred to as" -- called
    
20. "render assistance" -- help
    
21. "said" (as an adjective) -- the or this
    
22. "subsequent to" -- after
    
23. "the case at bar" -- this case
    
24. "the manner in which" -- how
    
25. "until such time as" -- until

Now, go forth, and write simply.

Update: 04/16/08:

This post was referenced by Roni Deutsch on The Tax Lady Blog, where she had listed this Blog on her short "Blogroll". See her posting dated April 16, 2008, entitled "Latest Good Reads".

Quiz: English "Legalese" vs. "Plain English"

The UK Telegraph posted an article recently entitled "How English became English", by Kate Colquhoun, dated April 4, 2008, in which she reviewed a new book, The Secret Life of Words (Apr., 2008, 432 pages), by Henry Hitchings.

Language is about more than communication.

Its history weaves into itself the stories of empire and politics, culture, economics, fashion, horticulture and even cooking. Mutating along with our evolving lifestyles, it vibrates with the echoes of all our society has ever been. As Henry Hitchings powerfully demonstrates in his astonishing new survey, it "enables an archaeology of human experience".

The British have always been magpies. Invaded and as invaders, we have "borrowed" copiously from old and new languages - more than 350 of them, according to Hitchings. So English is the great whore of all languages, a hybrid hotchpotch of words accumulated like treasures each time a new thing, concept or technology cries out for a word to give it definition. * * *

In her review, she briefly noted development of certain traditional legal terms as a part of the English language.

The subtle interrelation of our culture with those of other nations is embedded throughout English and there are plenty of surprises: who knew that * * * mortgage literally means "death grip" . . . ? * * *

[L]inguistic doublings such as "last will and testament", "keep and maintain", "goods and chattels" each originally ensured that the legal point was understood -- whoever you were.

Traditional legal writing became viewed in this century, instead, as complicated and unclear -- nearly a secret code. In 1914, the term "legalese" was coined to describe such writing in the extreme, according to an article about "Legal Writing", posted by Wikipedia.

The characteristics of classical legal writing include:

• Authority (legal citations)
• Precedent (prior similar rulings)
• Vocabulary (technical writing, of four types)
• Formality (in a standard style)

The movement away from classical legal writing, and towards a "concise, mainstream, reader-friendly style", is represented by the "Plain Language" approach for legal writing, which is part of a broader "plain language movement" by scholars.

Pennsylvania's statutory guidance for "plain language" was described in an article, entitled "The Pennsylvania Plain Language Law: Keeping Contracts Simple" (Dec., 1999), posted by FindLaw.

The federal government promotes "Plain Language" at a website, which provides information through "Plain Language Legal Examples".

Very recently, on February 28, 2008, the Chairman of the U.S. Securities & Exchange Commission, Christopher Cox, testified extensively before the Subcommittee on Contracting and Technology, of the Committee on Small Business, of the U.S. House of Representatives, on the topic "Plain Language — The Benefits to Small Business".

He described that federal agency's efforts to promote "plain English initiatives".

I am delighted you're focused on this topic. As the champions of small business in the Congress, you have hit the jackpot in focusing on the importance of using plain language in government rules, regulations, and paperwork. The time and money that is wasted on translating legalese into plain English is dead weight economic loss. It benefits no one, and harms millions of consumers who pay for it.

Of course, while you are leaders in this effort, you are not the first mavericks in Congress to take up the battle for clearly written legal rules. In fact, the very first reported appearance of the word "gobbledygook" was in 1944, when it was coined by a Congressman actually named Maverick.

U.S. Representative Maury Maverick was a Texas Democrat who wrote a memo that banned all "gobbledygook language" from his office. He said he made up the word to imitate the noise a turkey makes. And to show you just how serious he was about plain English, he added in his memo, "Anyone using the words 'activation' or 'implementation' will be shot." * * *

The Chairman noted:

At the SEC, we're taking plain English to the next level. In addition to using plain language in our writing, we're directly helping people to understand our rules, and the laws we administer. As one part of this effort, we've published the SEC's own "Plain English Handbook." * * *

So, how good are you at writing in "plain English"?

I now offer a quiz of twenty-five questions, with the answers drawn from a reputable source (circa 1993).

For each set of words below, pick a word or phrase that would be more concise, mainstream, and reader-friendly.

1. "a large number of"
2. "adjacent to"
3. "any and all"
4. "at the present time"
5. "cease and desist"
6. "circumstances in which"
7. "concerning the matter of"
8. "due to the fact that"
9. "during the time that"
10. "in reference to"
11. "is desirous of"
12. "it is apparent that"
13. "negatively affect"
14. "null and void"
15. "on a number of occasions"
16. "on the part of"
17. "prior to"
18. "provided that"
19. "referred to as"
20. "render assistance"
21. "said" (as an adjective)
22. "subsequent to"
23. "the case at bar"
24. "the manner in which"
    
25. "until such time as"

I will reveal the answers in my next Blog posting.

Update: 04/15/08:

For the answers to this quiz, see: PA EE&F Law Blog posting Answers: English "Legalese" vs. "Plain English" (04/15/08).

Update: 04/16/08:

This post was referenced by Roni Deutsch on The Tax Lady Blog in her posting dated April 16, 2008, entitled "Latest Good Reads".

PA Lawyers & State Consumer Protection Laws

On January 29, 2008, the electronic newsletter of the Disciplinary Board of Pennsylvania highlighted an important court decision that exempts attorneys in Pennsylvania from application of the Commonwealth's Consumer Protection Act.

Since that communication was public, and since I still cannot find it on its website yet, I repost that message in full for educational purposes (with some links added).

Supreme Court Rules Consumer Protection Act
Does Not Apply to Attorney Misconduct

The Supreme Court handed down a major decision in the case of Beyers v. Richmond et al. No. 38 EAP 2006, decided December 28, 2007 [PDF, 16 pages]. The case apparently does not have an Atlantic Reporter number at press time, but the opinions may be read at the AOPC Web site. Links are provided with the discussion of the opinions.

The issue was whether the [Pennsylvania] Unfair Trade Practices and Consumer Protection Law [PDF, 13 pages] (UTPCPL), 73 Pa.C.S. Sections 201-1- 209-6, applies to an attorney's conduct in collecting and distributing settlement proceeds.

An attorney within a firm had misappropriated settlement proceeds, and the client brought an action against the responsible attorney and his firm on counts of negligent supervision, negligence, conflict of interest and breach of fiduciary duty, violation of consumer protection laws (UTPCPL), assumpsit in the form of forfeiture of attorneys' fees, and fraudulent misrepresentation.

The trial court found in favor of the client on all counts, including treble damages under the UTPCPL.

The Superior Court affirmed the judgment of the trial court, and adopted its reasoning, holding that appellants' actions did not arise from the practice of law, and therefore appellants could not use their profession as a shield from the application of the UTPCPL.

The majority opinion, by Justice Fitzgerald, held that application of the UTPCPL under these circumstances would encroach upon this Court's exclusive power to regulate the practice of law in this Commonwealth. The Court noted a statutory issue that led the Superior Court of Pennsylvania to hold that the UTPCPL does not apply to treatment provided by another category of professionals: physicians. Observing that the misappropriation of client funds is directly addressed by the Rules of Professional Conduct, the Court held on constitutional grounds that action under the RPC is the exclusive remedy for such conduct, and that the UTPCPL does not create a separate remedy for the same conduct.

Chief Justice Cappy wrote a concurring opinion, in which he noted, "Because the issue of the UTPCPL's applicability is resolved on statutory grounds, any discussion of the constitutional grounds for the majority's holding is unnecessary." He thus concurred in the result and the opinion only to the extent it discussed the statutory applicability, but not to the extent it addressed constitutional issues. Justice Baer joined in the Chief Justice's opinion.

Justice Eakin filed a dissenting opinion, joined by Justice Saylor, in which he argued, "The UTPCPL is not a law directed at regulating attorneys; rather, it is a law of general applicability. Appellants should not be exempted from the reach of the UTPCPL simply because of their status as attorneys." Justice Saylor filed a separate dissenting opinion in which he added that "core functions of legal representation were not implicated by Appellant's ancillary activity regarding the handling of the settlement proceeds...[as] this conduct does not involve the exercise of legal judgment."

Proposed Wilkes Law School Seeks Dean

On February 3, 2008, an article entitled "Recruitment for Dean of Law School initiative intensifies" was posted by The Beacon, sponsored by Wilkes University (Wilkes-Barre, PA), which provided an update about that University's proposed new law school.

The article noted that "a definite decision has not been made to start a law school, but choosing a dean to lead the decision-making process brings the university one step closer to doing so."

I previously noted the proposal for a new law school in Wilkes-Barre, PA, in my PA EE&F Law Blog posting "New Law School at Wilkes University?" (03/06/07), updated thereafter.

The recent article reported at length about the current dean-selection process, and about the law school being envisioned. I include a few excerpts here:

In approximately two weeks, Wilkes University plans to begin scheduling campus visits for finalists of the Dean of Law School Initiative Search, according to Dr. Reynold C. Verret, Provost. * * *

According to the prospectus for the Dean of Wilkes Law School Initiative, "[l]ate last spring [2007], after preliminary studies and consultations, the faculty and the trustees endorsed a recommendation from the Provost to move the law school initiative into a final phase." The "final phase" essentially consists of three parts: a detailed academic plan, a financial plan and a dean to aid in the creation and presentation of both plans. * * *

The prospectus also stresses the importance of being able to communicate, plan, budget and manage effectively and willingly embrace diversity. * * *

Responsibilities of the dean would include creating a "compelling, marketable vision for legal education," developing a five-year financial and academic plan for the law school, assisting in the final decisions about the school and inevitably becoming and acting as the founding dean of the school if and when it is approved and launched.

"We are on track in our plan for a law school that will distinguish Wilkes and address issues for legal education outlined in a recent report by the Carnegie Foundation (Education Lawyers: Preparation for the Profession of Law, 2007)," said Verret. Paying close attention to the Carnegie report, which addresses the criticisms of legal education, the prospectus states that Wilkes has the ability and opportunity to rise above any "inattentions," such as practitioner concerns or ethics and civility within the profession.

"Wilkes has a concept of not creating what is being called a 'me too' law school, but one that has a distinctive curriculum. We'll be perceived in the marketplace as innovative, so one of things that we're looking for is someone willing to think outside of the box and willing to create the current model of law school education and has ideas of how to do it better," said Browne. * * *

With the nearest Pennsylvania law schools in Philadelphia, Harrisburg and Pittsburgh, it's possible that 75-100 graduate students will enter the program in the first year. * * *

If all goes according to plan, the dean of the law school will be chosen by this summer. The dean's plan should be approved by spring of 2009 and the first class of law students at Wilkes University may begin their first semester in the fall of 2010. * * *

A very detailed description of the proposed law school at Wilkes University, and the expectations of its Dean, are set forth in a document posted by Academic Search, Inc., entitled "Wilkes Law School Initiative -- A Prospectus for the Search" (PDF, 10 pages), dated October 2, 2007.

The "recent report", referenced both in the article and also in the Prospectus, regarding changes in legal education to be more effective, was entitled "Educating Lawyers: Preparation for the Profession of Law" (2007), issued by the Carnegie Foundation:

The Foundation's two-year study of legal education involved a comprehensive look at teaching and learning in American and Canadian law schools today.

Intensive field work was conducted at a cross-section of 16 law schools during the 1999-2000 academic year.

The study provides an opportunity to rethink "thinking like a lawyer" — the paramount educational construct currently employed, which affords students powerful intellectual tools while also shaping education and professional practice in subsequent years in significant, yet often unrecognized, ways. * * *

That report's table of contents is available from the publisher's Web site. See also the report's Summary of the Findings and Recommendations (PDF).

The report was the subject of commentary in articles and blog postings last year. See:

• "Ahead of Our Time", by Dean Emily A. Spieler, of Northeastern University Law School (Summer, 2007).

• "A Plea for Real-World Training in Law Schools" (Word format, 4 pages), posted by The Chronicle of Higher Education and made available by the Legal Marketing Blog.
  

• "All Rise. Welcome to Law School" (PDF format, 4 pages), by Katherine Mangan, originally posted by The Chronicle of Higher Education and made available by Touro Law Center.

• "Educating Lawyers", by Hillary A. Sale, posted by SSRN.

Without question, the format for an effective institutional legal education is changing.

Update: 05/20/08:

On May 7, 2008, Wilkes University issued a Press Release, entitled "Wilkes Takes Big Step to Creating New Law School -- Announces Dean of Law School Planning Initiative". The named dean is Loren ("Chip") D. Prescott, Jr., now of Harrisburg, PA.

Chip is a good friend of mine. His appointment reassures me about the future of the proposed new law school. See: PA EE&F Law Blog posting "Wilkes' New Dean of Law School Planning Initiative " (05/20/08).