It Is a Wonderful Life By Anthony J. Bellanca, President of the
Macomb County Bar Association
MCBA News By Rick R. Troy, Executive Director
of the Macomb County Bar Association Circuit Court Corner By Keith R. Beasley, 16th Circuit Court
Administrator
It Is a Wonderful Life by Anthony J. Bellanca, MCBA President
?All of us are familar with the holiday movie wherein Jimmy Stewart, in exasperation over the stress and misfortunes which he has faced all his adult life, makes a wish that he had never been born, but Clarence, his angel, shows him what his town would be like if he had not been there. If we reflect upon it, without lawyers, we might still be a colony, as lawyers like Thomas Jefferson, James Madison, Abraham Lincoln and countless, countless others working for individuals and sitting as judges have insured that the rights of individuals were protected. Without lawyers, our country would be Potterville or worse. Lawyers have and continue to contribute significantly to our country’s greatness. I, for one, am proud and grateful.
It is well understood that we are in the midst of a crisis in our economy. Homes have been lost, jobs have disappeared, businesses shattered. Measurable too is the effect that it has had on the practice of our profession. However, based wholly upon the strong and thoughtful planning of your Bar Association, it will continue to thrive and to grow notwithstanding the challenges that lie ahead.
Task forces and the Long Range Planning Committee were hard at work months ago in developing a new strategic plan for the future of the Bar. We have been given the tools to assure continued success and growth in service to you, our members.
I can say without hesitation that the Board of Directors and Executive Committee of this Bar Association, your officers and the past president (as well as our gifted staff) have the talent, devotion and ability to bring the Macomb County Bar Association to even higher achievement. Part of the strategic plan is to identify, cultivate and bring to the leadership of your Association, the untapped resources of many, many of its members who have yet to become involved in what is truly the finest professional organization in Michigan.
As we reaffirm the greatness of our organization, your leadership understands that it is never a given. It has developed over a period of more than 100 years and those who nurtured it during that time have provided us with the opportunity for even greater professional success.
At the beginning of my term as your President, I am humbled by the trust and confidence which you have bestowed upon me and am mindful of the sacrifices and hard work of those who have preceded me in this office. Eighty previous presidents have taken the oath to advance this Bar Association and I am grateful too to those men and women who have so devotedly helped this Association to the point where it is well recognized not only in the State of Michigan, but also nationally as an example of a volunteer bar that provides so much to the profession, its members and to the community. I appreciate and thank Art Garton for his service to the Association, as well as the generosity and cooperation which he has shown to the staff, the committees and the members at large.
I ask every lawyer to consider becoming active in the Association. Get involved! You have much to offer and there is room for all. We live in an age where life is far from perfect, but we, as lawyers, practice a profession which continually strives to make it better. We, as an association of lawyers, have the tools to make it so. Life is tougher now than ever, but compared to life without our legal system ------- It’s a Wonderful Life!
MCBA News
By Rick R. Troy, Executive Director of the Macomb County Bar Association
Dear Members,
If you have not reserved a seat for the Installation Ball, please contact the Bar office right away. This year we have moved the event to Villa Penna. Please join your colleagues for an elegant evening and be a part of the installation of Anthony Bellanca as your 81st President.
Apparently I touched a few nerves with my June 2009 Bar Briefs article, “Cynics, Over Here!”. Several members contacted me after the article was published. Let me be clear that the message was in complete support of attorneys that take on criminal appointment work.
I stated that the “system”, take it as government in general, or our court system specifically, has the ability to access money by taking more out of its constituents wallets. Further, I suggested that when it comes to money, “the system,” neglects one of its most important parts, the appointed criminal defense lawyer.
As an off-beat example of how “government” has the ability to drum up more money, I offered an article written by veteran Michigan lawyer Roberta J. F. Wray, titled “An Update on Driver Responsibility Act”, wherein she poses a good question; Why is it the “drivers responsibility” to relieve the state from its economic distress?
In these times of economic stress it is interesting to witness how states are raising money at the expense of the legal community. It is also inspiring to learn how bar associations are advocating for their members.
Take for example the Governor of Connecticut who recently attempted to take $2 million from the state’s client security fund and put it into general funds. The Connecticut Bar Association filed suit and with the support of the bar prevented the seizing of money that compensates clients from dishonest lawyers. In May, the Connecticut House of Representatives voted 139-3 in favor of a bill to restore the funds.
In Minnesota, lawyers are facing an attempt to tax legal services to aid the state’s general fund. Clifton Barnes writes in the American Bar Association’s Bar Leader magazine, “some Minnesota politicians have suggested that a sales tax on legal services is fair because users of the judicial system should be expected to support that system”. Quoting Leo Brisbois, President of the Minnesota State Bar Association, the author continues, “an adequately funded third branch of government is a societal obligation, and not the obligation of only those individuals who find themselves in the courts, often brought there by the acts of others.”
Number eight of the eleven principles of a Public Defense Delivery System, as adopted by the State Bar of Michigan Representative Assembly; “There is parity between defense counsel and the prosecution with respect to resources and defense counsel is included as an equal partner in the justice system. Public defense should participate as an equal partner in improving the justice system. There should be parity of workload, salaries and other resources between prosecution and defense in criminal cases in which the accused has been provided counsel at public expense. Assigned counsel should be paid a reasonable fee, taking overhead into consideration, and should be reimbursed for expenses. Where they exist, contracts with private attorneys for public defense services must never be let primarily on the basis of cost; and should specify performance requirements and the anticipated workload, and provide for contingencies such as excess cases, high profile or complex cases and funding for expert and investigative services.”
From an advocacy of the profession point of view now is not the time to acquiesce to the excuses of a poor economy for an improved and properly funded public defense system. On the contrary, now is the time to point out that a properly represented defendant saves the public money. Isn’t the fact that there is an Innocence Project to begin with enough evidence to prove that the public loses more than just money with a broken public defense system? n
Circuit Court Corner By Keith R. Beasely, 16th Circuit Court Administrator
Purpose of Case Evaluation
The MCBA Civil Practice Committee discussed the idea of making a statement on the purpose of case evaluation for several months before the 2009 Bench-Bar Conference. At the conference, some participants expressed the thought that the purpose of case evaluation is to determine a realistic jury verdict value for the jurisdiction. After the Conference, the MCBA Civil Practice Committee discussed this and concluded that this was not correct. They recommended to Chief Judge Caretti that the following statement of purpose of case evaluation be disseminated to the Bar. Chief Judge Caretti agreed. Therefore, evaluators should be guided by the Committee’s statement:
“The purpose of case evaluation is for the case evaluators to arrive at a dollar figure the panel believes best represents the settlement value of the case before them.”
Judge Edward Servitto, who participated in the discussion at the conference, asked that the following be published:
‘Initially, having attended and participated in the conference, I disagree with the representation that the participants expressed the opinion that the "purpose" of case evaluation is to determine a realistic jury verdict value.
Rather the opinion given was that an award given should reflect a realistic verdict or judgment amount. The failure to give a realistic award would and does negate the potential for sanctions and does not facilitate settlement before trial.
Obviously, the competent case evaluator will adjust the amount of the award keeping in mind the parameters allowed for sanctions, cost of trial, strength of legal position and other factors necessary to fully evaluate the case.
Therefore I totally disagree with the Chief Judge and the proposed bar brief publication that the purpose of case evaluation is to award a "settlement value", suggesting that would it be something other than a value which reflects a realistic judgment amount.
I recognize that the entire process is subjective and it is impossible to precisely predict an ultimate judgment. None the less evaluators should not arbitrarily place a value that they believe is a settlement value. Such a practice often times results the arbitrary practice commonly referred to as "splitting the baby" which defeats the purpose of achieving a realistic award that facilitates settlement and encourages unnecessary trials.
My opinions of the purpose of a case evaluation award reflecting a realistic judgment amount as provided above is the same opinion given at the conference and I would invite any comments as to why it is an incorrect application of the court rule or why it requires any further explanation. A publication which simply states that the purpose of case evaluation is to establish a "settlement value" sends the wrong message to evaluators, is incomplete and incorrect. I remind you that consideration of a realistic verdict or judgment was only one consideration discussed when evaluating a case in the 1 hour conference, and your single statement as to settlement value is not appropriate to alleviate any confusion someone may have regarding their evaluation responsibilities.’
Case Evaluation Waiting Area
We have made a change which ought to make your case evaluation days more pleasant. We are using our extra conference room or rooms as a waiting area for attorneys on case evaluation days. This is quieter and more comfortable than our front lobby. I think it will be better because we have had growing traffic at the front counter and the noise was disruptive for staff. It will be easier for the panels to collect the attorneys for their hearings as well.
Professional Employer Organizations (PEO), Employee Leasing Companies and Temporary Staffing Agencies By Seth Seidell, General Counsel & President of Human Capital LLC
Many professionals, including attorneys and accountants, have asked the questions many times, which is: What is a professional employer organization (PEO) and how does the PEO industry differ from leasing companies and temporary staffing agencies? This article will give a brief synopsis of the three business classifications.
Professional Employer Organizations
Professional employer organizations enable businesses to cost-effectively outsource the management of human resources, employee benefits, payroll and workers’ compensation. Businesses today have no expertise in managing increasingly complex and burdensome employee related matters such as health benefits, workers’ compensation claims, payroll, payroll related taxes, and unemployment insurance claims. Companies contract with a PEO to share these responsibilities and provide expertise in human resource management. This allows the PEO client to concentrate on the operational and revenue-producing side of their operations. Once a client company contracts with a PEO, (usually for one year or more) the PEO will then co-employ the client’s worksite employees. A PEO normally acts as an administrative employer or secondary employer of the co-employee and the client will continue to run its business as usual, including the ultimate right to hire, fire and discipline employees. The client retains ownership of the company and control over its day-to-day operations which may include items such as product development and production, business operations, marketing, sales, and service. Depending on the situation, and the specific employment legal issue involved, and whether it is a federal or state law issue, the co-employers (PEO and client company) may or may not share the risk of the co-employment scenario.
A PEO delivers these services by establishing and maintaining an employer relationship with the employees at the client’s worksite and by contractually assuming certain employer rights, responsibilities and risks. The IRS has accepted the right of a PEO to withhold and remit federal income and unemployment taxes for worksite employees and all W2’s are issued under the PEO’s name. In addition, many states statutorily recognize PEOs as the employer of record or co-employer of worksite employees for purposes of workers’ compensation and state unemployment insurance taxes. Many services that PEOs offer to its clients help improve employment practices, compliance and risk management to reduce liabilities and perhaps future employment litigation. PEO clients include many different types of businesses ranging from white, grey and blue collar workforces, including union facilities. In essence PEOs may help businesses ensure compliance with state and federal laws and regulations, improve risk management practices, control costs, save time and paperwork hassles, reduce turnover, attract better employees, provide enhanced benefit opportunities to employees and enhance employee morale.
How are PEOs different from employee leasing arrangements?
Unfortunately, some government agencies have misclassified PEOs as employee leasing companies. A PEO or co-employment arrangement involves all or a significant number of its client’s existing worksite employees in a long-term, non-project related, employment relationship. In a PEO relationship, if the client discontinues services with the PEO, the co-employee will cease being co-employed with the PEO and will continue their employment with the client company as if nothing happened.
In contrast, a leasing or staffing service provider supplies new workers on a temporary or project-specific basis. These leased employees return to the staffing service for reassignment after completion of their work with the client company.
How are PEOs different from temporary staffing services?
Like a leasing situation, a temporary staffing service recruits employees and assigns them to clients to support or supplement the client’s workforce in special work situations, such as employee absences, temporary skill shortages or seasonal workloads. In general a temporary assignment is usually very short term, unlike a leasing arrangement which could last much longer. Traditionally, these workers represent only a small fraction of a businesses workforce.
For a more in depth review of PEOs visit the National Association of Professional Employer Organizations at www.napeo.org.
Seth Seidell is a member of the MCBA and General Counsel and President of Human Capital, LLC., a PEO in Lathrup Village, MI which has been in existence since 1997.
For example, wage and hour laws of a given state may find the PEO client liable for wage claims and not the PEO whereas under Federal and State FMLA laws there may be joint responsibility between the PEO and client depending on the facts involved. It is important to note that each branch of government, case law, statutes and the contract between the parties may control who the liable party is. Michigan currently recognizes the PEO for state unemployment and workers’ compensation.
Examples of PEO services may include, but are not limited to: employee handbooks, employee screening, disciplinary and termination assistance, performance review assistance, ADA and EEO compliance and training, written job descriptions and job grades, FLSA and wage and hour auditing, training programs and seminars relating to employment laws, government compliance audits, benefit and payroll compliance issues and processing, personnel file upkeep, OSHA guidance, and federal and state employment law compliance issues, etc.
Its Not to Late to Make a Difference By Stephen Becker, Becker & Lundquist PLLC and Tara Fowler, DHS Premanency Planning Specialist
Foster Care - Change a Lifetime! A few of you may have seen people wearing these light blue ribbons or wristbands to signify their support for National Foster Care Awareness Month in May. National Foster Care Awareness Month is over however, it’s not too late to make a difference in children’s lives.
All should agree that every child needs and deserves a safe, nurturing and stable family. However, it is at times the case that life within a parental home is deemed unsafe and children are placed in a licensed foster home or with a relative. Unfortunately, it also sometimes means that the child is removed from their neighborhood, friends, school, or religious and cultural ties. As one would imagine, this only adds to the trauma of being removed from the parental home. No matter their age, from toddler to teen, all youth in foster care need a meaningful connection to a caring and supportive adult. Without this vital component in their surroundings, too many of these neglected and/or abused youth will end up facing life’s challenges without the support and encouragement they are warranted.
To put it into a graspable frame; Michigan’s foster care system currently serves almost 17,000 youth. A major dilemma with the foster care system at this time is the need for more foster parents! Many people just don’t know that it is needed, how to begin the process, or if they qualify. Well, regrettably, National Foster Care Awareness Month is just not enough to publicize this crisis. If you read this article, post it up on the wall, hand one out in the elevator or think about helping a child yourself. The community as a whole needs to step it up and take more responsibility for our states children and young adults.
While lacking homes is a main pressure point, even tougher is placing teenagers in appropriate settings. Nearly half of the young people in foster care, in the United States, are over the age of 10. This is the age in which children are the most vulnerable to start drug use, not excelling in school and engaging in acting out behaviors. The State of Michigan is in desperate need of individuals that are willing to take teenagers into their home and guide them into adulthood and independent living.
Each year, 26,000 young people in the United States “age-out” of foster care, most without the appropriate resources, family connections, skills or options they need to live healthy adult lives. Even if adoption or long term care is not an option, providing a home and guidance for young adults can make a world of difference to their lives. You have a lot to offer our youth and they are ready and waiting to meet you.
Feel as though you can make a difference? Contact Macomb County, or your local Department of Human Services department and request information on how to become a licensed foster parent! (586) 469-7700. There are also private agencies all over the State of Michigan in which this can be done as well.
Stephen Becker is a Partner in Becker & Lundquist, PLC. He practices in the areas of criminal, civil, bankruptcy, juvenile and family law. Stephen is also an avid hockey fan. Go Wings!!!!
Tara Fowler, has worked for the State of Michigan Department of Human Services for three years. She is currently specializing in finding permanence for teens.
An Appeal You Can Benefit From By Eric Lundquist, Becker & Lundquist PLLC
We need your help!
As lawyers, we hear that a lot, but the good news with this plea is that ultimately, it will benefit you. You see, the MCBA Communications Committee has taken it upon itself to re-work macombbar.org into something of perhaps greater use to our members. We will provide more links to places like michiganlegislature.org, ICLE.org and other frequented websites that we use in our profession. We hope to provide one stop shopping for useful information such as docket information, phone numbers, court filing requirements, etc. We will give you access to sentencing guidelines, regulations, and other statutes.
In other words, we want macombbar.org to be your first stop when you need answers. But, in order to provide the answers, we need to know what the questions are. So, what do want to see at macombbar.org? Substantive law? Court rules? Court information? Judge’s quirks? Useful phone numbers (if so, to where)? Forms? Technical information? Jury awards?
Also, if you have used macombbar.org in the past, what do like about it? What do you dislike about it? Does it need a tweak or massive rebuilding? Does it need anything at all? What should stay? What should go?
I would also like to take this opportunity to invite you all to contribute to Bar Briefs through the writing of articles. Articles should be about 1200 words long and discuss a topic that we, as lawyers, should find helpful and relevant. For instance, you could write about a discussion of a particular statute you’ve had experience in, or observations you’ve made that have helped you. Again, the object is to give the membership something they can really use. Law review type articles contemplating the legal cosmos are not really what we are after. Of course, if you have an interesting take or experience that transcends the nuts and bolts of the law, we are interested in hearing about it. For instance, I recently had the chance to tour the home of Abraham Lincoln and it really got me thinking about our profession and how some aspects of it haven’t changed a bit. That may (although I am biased) make an interesting article. If you are interested in submitting an article, please contact MCBA Associate Executive &?Communications Director Dawn Fraylick at dfraylick@macombbar.org for the details.
So, please contact me with all the answers and suggestions you care to share at eric lundquistjr@gmail.com. All serious suggestions will be given serious consideration for adoption. The opportunities are there for you to make a difference in yours and other members’ practices. Seize the day! nEric Lundquist, Jr. is a partner in Becker & Lundquist, PLC. He practices in the areas of bankruptcy, estate planning, unemployment appeals, and criminal law.
