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Bar Briefs May 2007
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Bar Briefs
May 2007• Volume 25 • Number 11


"Purpose and Politics"

From the President
by Jacob M. Femminineo, Jr., MCBA President

"Membership: Its More Important
Than a Discount on a Yugo"

From the Executive Director
by Rick R. Troy, Executive Director

Circuit Court Corner
by Keith Beasley

"On the Beach"
Elder Law
by Alan Polack

"Associationss Belly Up to the Bar
(Associations That Is) Firms that
Promote a Culture of Such Outside
Participation Reap Valuable Long
Term Benefits"

Feature Article
by Lynn Howell, Special to the National Law Journal


"The Contempt of Court Power:
A Guide for Those Who Wield It
and Yield to It"

From the Young Lawyers Section
by Eric Lundquist, Jr.

From the President
"Purpose and Politics "
by Jacob M. Femminineo, Jr.

Article I, Section 2 of the Macomb County Bar Assocation By Laws states the following:

Purpose. The purpose of this association is to advocate and promote the legal profession by providing quality service to all members and the public.

In promoting my goals as President, I believe that I have always kept the purpose of the MCBA in mind. I have been involved with the MCBA since 1996 when I became a Young Lawyer Director. Every President of the MCBA that I have served under has kept and promoted the MCBA with our purpose in mind.

Politics is not part of our purpose.

Every President before me has always said how proud they were of the relationship there was between the bench and the bar.
Derailment.

The relationship between the Bench and the MCBA is now strained. It needs to be fixed. It needs to be rectified. It is amazing how good relationships can exist for long periods of time and simply be ruined by one simple action.

Who really is in charge of the MCBA? How do decisions get made? What are the protocols that are in place?

Good questions. I am happy to say that by the time this is published, a special task force will have met and reported to the entire Board in regard to the questions I posed above.

In setting forth goals as President, it was my presumption that the purpose of this organization would always be put first. It saddens me greatly that this did not happen and that it happened when I was President.

Some very concerning problems need to be addressed by this organization. These problems are going to exist long after the time of my Presidency.

I believe that fresh initiatives and changes are needed. We are neglecting the needs of the next generation of the members of our association. As the first Gen X President, I am receiving great resistance. If I am receiving resistance as President, what are we really doing for our Gen X members?

The role of our Board of Directors is simply not something to be used as a future resume stuffer. Work needs to be done and in doing the work, deviations from the norm have to be realized and initiated.

There is some major repairs that need to be made between the bench and the MCBA. It disappoints me greatly that the relationship deteriorated during my Presidency. I am hoping that the special task force is going to take the appropriate steps to correct the political mistakes we have made as an organization.

The MCBA needs to seriously look at the direction it is going.

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From the Executive Director
"Membership: Its More Important Than a Discount on a Yugo"
by Rick R. Troy

I found out last week that I was voluneteered to serve as a chaperone for my daughter's 8th grade going awy aprty. Now, as the son of a small town in northern Michigan the concept of an 8th grade going away party struck me as odd. Such a party was not in my history of experience. My 54 classmates and I never really said goodbye. We just moved into the bigger end of the building. I do recall an end of the year assembly though where the principal and teachers gathered us all into the cafeteria to say their good byes and wish us well. It was at this assembly that I recall a motivational speaker.

To be honest, I do not recall much of the speaker’s presentation. I vaguely recall it as a pep talk about what he said was going to be “the best years of our lives”. Then in an attempt to excite us for the future he chose two students from the crowd, including yours truly, to lead our classmates in a cheer. It seemed silly. It felt ridiculous, yet within the span of two minutes the entire cafeteria was filled with voices screaming;

“to BE Enthusiastic
you have to ACT Enthusiastic”

The message resonates with me still. And its application is true. Pause and think about someone whom you feel is successful in their chosen endeavor. Ever notice that they are almost always excited…, enthusiastic?

As we all know, most membership associations offer tangible benefits to their dues paying members. These “direct” benefits are usually of the discount variety. As you may have discerned from my past articles, we have implemented a strategy to bring you tangible benefits that assist in reducing your every day cost of doing business. For several of these benefits we have taken the collective purchasing power of 1320+ members of the MCBA and joined with 800 other membership associations throughout the country. Do the math. 800 x 1300 = 1,040,000 people! And using the MCBA as a sample is very conservative because we are considered a small association! We use this purchasing power to tap into quality services and products that businesses use every day. These services and products are then brought to you in an easy to use format with friendly people that understand that your time is your money.

Currently, the MCBA has 19 member(s) firms using its credit card acceptance program. All report saving money over their previous merchant account program and they have seen an increase in receivables. More members are using the Conference Calling program and recently a few members have even taken advantage of the powerful Career Center. Every month we add members to the Office Supply Program too!

Other direct benefits come from local providers, like Telegration. This company recently began saving an MCBA member $60 a month on her two telephone line office. Again, do the math: $60 x 12 = $720.00. That equals 4 years of MCBA dues, just by switching telephone plans. And, get this, she didn’t even have to change phone companies! Yes, just two lines! What about your office?

One of the most visible direct benefits of MCBA membership is the Lawyer Referral Service (LRS). Yes, it costs an additional $175 to join the LRS, but what you get is clients delivered to your door. We tackle the marketing and database management, we field the telephone calls and we keep you up to date on the referrals that you’ve received. In March we referred 575 cases out. An interesting statistic is that 88 of those were people who have used the service before and happily returned. As we prepare for the new fiscal year it appears likely that we will expand our print and online marketing efforts which will mean even more opportunity for LRS members. Because I wish for you to also consider some of the “indirect” benefits of membership, space doesn’t allow me to share all of the “direct” benefits of membership,

Ever think about how individual lawyers learn and grow? Prosper and thrive? Well, they don’t do it by being a hermit! Lawyers, or any professional for that matter, improve their lives and the lives of their profession and their community through the power of association.

Through association people become familiar with one another. Familiarity breeds civility. Social networking events are the vehicle that delivers familiarity.

I witnessed a most unfortunate exchange in the hallway of the Circuit Court this week. Two attorneys walked out of a courtroom and one immediately began to berate the other. It escalated to the point where the attorney was screaming, “You lied, I sent those to you last week!” The exchange went on and on. The look on the faces of the public in the hallway was sheer bewilderment. If I could read minds I’m sure I would have heard them ask, “these are attorney’s?” Within moments it became clear that the two attorneys had never met. Can unfamiliarity breed incivility? Can such behavior harm the profession? You decide.

Through association, leaders emerge. Did you know that the average length of time an MCBA Board member serves is nine years! It is a lot of time and responsibility. I have yet to serve under a President of this bar association that hasn’t placed the goals of the organization first. In 2004 a group of past and present Board members gathered for a day long retreat. It was here that they charted the course of the MCBA. Their direction of where the organization was headed was captured in categories of Programs and Services, Public Policy, Image and Identity, Membership, Finance, and Structure and Governance. Most of the goals outlined in these categories have now been met. Some goals are in the works, and still others, such as renovating the MCBA office, were not even on the radar back then, yet have been accomplished. Service to members is a benchmark of associations. And the leadership doesn’t stop with board members, it includes dozens of volunteer committee and task force members.

Through association, leaders arise to help the profession and the community at large. The MCBA, like most bars, have a long history of helping the community. With programs like the Lawyer Teacher Partnership, Law Day, Legally Speaking, and the dozens of small projects carried out by our Young Lawyers and Legal Assistant Sections, this Association has touched thousands of lives in Macomb County, all in the name of Macomb lawyers. In the early 1990’s several lawyer leaders envisioned a Bar Foundation to continue providing for the collective good of the public. The Macomb County Bar Foundation has accomplished much and is primed to continue to aid Macomb County citizens in the name of Macomb Lawyers.
Can any association please all members with every action or offering? Absolutely not.

But the benefit of membership is using your benefits. The benefit of membership is using your benefits. All together now
The BENEFIT of MEMBERSHIP is using your BENEFITS.


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Circuit Court Corner
by Keith Beasley, Court Administrator

Court Appointed Attorneys

Reminder: Court appointed attorneys need to stay in compliance with Local Administrative Order 2006-3 (the order is available on our Web site) by remaining a current member of the MCBA, by attending annual CLE seminars, and maintaining a Macomb address with the State Bar. Also, notify Judicial Aide if you move or change your phone number so that you can be contacted for appointments and/or paid for your services.

Please note that the Request for Payment of attorney fees form has been updated as of March 7, 2007. The newest version of the form is available on the Court’s web site in several places: forms directory and the Departments page, Court Administration.

Child Support Orders

Domestic attorneys should know their judgments should refer to a USO ‘Uniform Support Order’ for child support. The judgment should not attempt to control child support. The FOC has struggled with judgments which conflict with USOs or missing USOs. Effective immediately, the FOC will enter Uniform Child Support Orders as the controlling order. If there is a difference in the Judgment/Order from the USO, the USO will control. If a Judgment/Order is submitted without a USO, a letter will be sent to the entering source advising that a USO must be entered before the Order is placed on the FOC system. If you have questions, call Friend of the Court, Lynn Davidson or Nancy Budka at 469-5750.

Effective Date of Section 7411 Status

We are modifying the timing of making our Court files non-public when a criminal case is deferred and later dismissed under Section 7411 of the Public Health Code. Our practice has been to make them non-public earlier than the State Police – at the time of deferral. Henceforth, the records will not be made non-public until the deferral period is completed and the cases are dismissed.

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Elder Law
"On the Beach "
by Alan Polack

We, like the survivors in Mevil Shute's doomday story have bee nwaiting for the fallout from a holocaust to reach out shores. This time, the fallout comes not from nuclear fission but from the enactment of the Deficit Reduction Act (DRA) in 2006. As a result, on July 1, 2007 at 12:01 a.m., serial divestment will die. One of the most reliable and useful tools for Medicaid planning I ever saw will be executed and the executioner is the Michigan Department of Community Health which will enact changes to their Program Eligibility Manual (PEM) Item 405 effective on July 1st. The change will require the Department of Human Services (DHS) workers to aggregate all transfers made during the look back period and to assess a single penalty for the aggregated amount. In other words, divestment penalties will no longer begin and end in the calendar month in which the divestment was made. In addition, the workers will have to assess divestment penalty periods as short as one day, which means that penalty periods will no longer be rounded down. For example, under the current policy, a gift of $5,938 would result in a one month penalty. If the gift exceeds that amount, the excess would be rounded back down to $5,938 unless it was at least twice as much as $5,938. Now the excess over $5,938 will be penalized at a daily rate.

In other changes, the DCH will extend the look back period for divestment penalties from 36 months for most transfers to 60 months for all transfers. In addition, the divestment penalty will now start on the date in which the individual is eligible for Medicaid and is otherwise receiving institutional level care either in a long term care facility (nursing home) or receiving Medicaid services at home. Under the current rule, any divestment policy began in the month of the transfer. I predict that this particular rule change will cause a lot of problems because patients will lose Medicaid eligibility who have no money to pay and who have not made any gifts in the last 5 years before applying for Medicaid.

There will be some changes in the asset rules. No one can be eligible for Medicaid to pay for long term care services if his or her equity interest in their homestead is greater than $500,000. The current policy places no limit on home equity. Pure endowment life insurance contracts will not be considered life insurance and the purchase of same will be considered divestment. The purchase of life estates may have countable value under some circumstances. Under the current rules there is no policy regarding the purchase or sale of a life estate.

There is some good news. Unlike the DRA, the new rules do not negatively impact actuarially sound annuities. I have discussed these annuities several times in the past as they have been quite useful. They will continue to be useful for both single individuals and married ones. There is also a new rule which will allow individuals to purchase a promissory note, loan or mortgage if (1) the repayment schedule was actuarially sound and (2) the payments are made in equal amounts during the term of the agreement with no deferral of payments and no balloon payments and (3) the note, loan or mortgage must prohibit the cancellation of the balance upon the death of the lender. In other words, it appears the state may allow transactions between parents and children which resemble a private annuity. We’ll see.

The new rules will no longer require Social Security recipients to provide documentary evidence of U.S. Citizenship when applying for Medicaid. Receipt of Social Security will provide the necessary verification of U.S. Citizenship.

Finally, the rules have changed the computation of the patient pay amount. For years, individuals with guardians have been allowed to deduct $60 per month for the expense of having a guardian. That amount is being reduced to $45 a month. This change will drastically impact professional guardianship services and, of course, does not reflect reality. Knowing that the state wishes to save money, it should eliminate guardian expenses for family members and increase those expenses for professional guardians.

All of the above changes are proposals. They are subject to a public comment period. Anyone wishing to make a comment can contact the Michigan Department of Community Health.


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Feature Article
"Associates Belly Up to the Bar (Associations That Is) Firms That Promote a Culture of Such Outside Participation Reap Valuable Long-term Benefits "
by Lynn Howell, Special to the National Law Journal

On every partner's wish list is a productive, well trained, business-generating, self starting, professionally developed associate who is an expert in his or her area of practice. Now—in the days of ever-escalating first year associate salaries, signing bonuses, increased operating costs and pesky companies’ raiding seasoned associates—just how does a firm with a 2,400-hour billable requirement hold on to associates?

One of the easiest ways is to follow the time-honored tradition of involvement in bar associations. Bar involvement helps improve associates’ loyalty and sense of confidence in their abilities. Establishing a “balanced professional life” for associates and partners will yield long-term benefits in client generation and lawyer retention.

The failure to encourage associates and partners to work on bar association projects together has produced a marked decline in professional development. The time spent on these non-billable projects allows partners and associates to work together on something that is not just important, but is also fun.

Brian Melendez, (former) Chair-Elect of the American Bar Association’s Young Lawyers Division and a member of Minneapolis’ Faegre & Benson, LLP, says “The force that most directly shapes the culture of the bar for a young lawyer is the firm in which he or she practices.” Developing a firm culture of active bar participation by both partners and associates sets the standard by which the young associate is socialized into the legal community. Melendez, further states “A firm shapes its culture by whether it pays its associates’ dues, whether it funds associates to attend bar meetings and conferences, and whether its own partners and managers are visibly active.” Ultimately, a firm must demonstrate that it values and rewards active membership and participation in the bar association.

Cough up the dough

Over the past 10 years, many firms have decreased both their financial and professional support of the bar association participation by associates. The levels of support range from reimbursing mandatory bar dues to allowing associates to choose one or two associations to join. But failing to allow multiple lawyers to get involved in the same association limits both the firm’s effectiveness and the value to be gained from affiliations with bar associations.

To effectively develop a firm’s presence in a bar association, at least two members of the firm should attend and be actively involved in the same bar section or committee; this will generate a positive buzz about the firm within the ranks of the association. Good work and consistent attendance will create a positive image of the firm in the eyes of other association members.

Of course, an associate is less likely to leave a demanding, yet professionally nurturing, law firm environment as long as the compensation factors are within an acceptable range. But just as law schools have placed more emphasis on nurturing professional excellence, law firms, too, must change their approach to managing the professional development of their future partners. To that end, they should provide encouragement and feedback in more demonstrative ways than in the past. With all the emphasis on revenue generation, however, the ability of the well-meaning partner to offer this kind of encouragement to associates is limited. Mentoring programs at law firms vary in scope and participation levels. In many cases, after their first year in practice, associates are left to find professional encouragement on their own.

Bar association as mentor

With the proper encouragement, associates can develop effective mentoring relationships with senior members of the bar while working on committee projects. This involvement not only reaps an educational and professional recognition for the associate and the firm, but it also allows other lawyers to give feedback and encouragement to the associate.

Many partners, especially those responsible for supervising more than one associate, find it difficult to provide evenhanded encouragement to all the associates in their department. This can deprive some associates of the professional encouragement needed to develop into stars and remain at the firm.

“By encouraging bar association involvement by associates, both the firm and the associate benefit by allowing the associate to develop strong mentoring relationships with senior members of the bar. These relationships ultimately will help the firm reap new clients,” said Kendall Butterworth, (former) chair-elect of the State Bar of Georgia’s Young Lawyers Division in a recent interview.

Why would a partner at one firm, who works in the same practice area, be a safe mentor for another firm’s associate? Many partners feel that the informal mentoring relationships developed while working on bar projects allow attorneys to become professional friends. A mentor from outside an associate’s firm may also have expertise not shared by the associate’s colleagues.

Additionally, a senior member of the bar simply will want the associate to succeed and, generally will refer smaller cases to the associate when conflicts prohibit the mentor, him or herself, from handling the case.

Many bar associations have formal mentoring programs that provide mentors—and, in a few cases peer mentors—to new lawyers and law students. Bar associations at the national, state and local levels have both administrative and substantive committees. Every associate should be encouraged to play a part on a substantive committee that handles matters important to the firm.

Worth the time

Why would a firm want a top associate to spend valuable time in bar association work? For one thing, many lawyers see the name, firm affiliation and topic of all of the articles in the bar journals and newsletters. Well-placed articles that demonstrate the expertise of the firm’s associate will ultimately generate business from other lawyers.

The development of the law is a goal that most lawyers share, but not all lawyers do their part slogging in the trenches. Lawyers are not only charged with helping the indigent through pro bono service, but they are also charged with shaping and improving the law. By supporting a culture of “professionally balanced lives,” a firm can reap the benefits of client development, stay on top of the law and improve the loyalty of its associates.

Associates’ loyalty improves when they receive not merely accolades from the bar associations but, more importantly, accolades from the firm for their hard work. Recognizing the leadership skills they develop while participating in bar association work and praising their improvement in substantive work increase their professional confidence and satisfies their need for a nurturing environment—which, in turn, can reduce the risk that associates will look for satisfaction from other potential employers. A happy associate is less likely to leave a firm that fully supports his or her professional goals, and as associates see the benefits of bar association work, they will be more likely to stay at a firm that supports their professional development.

A real bargain

Bar involvement is a bargain compared to other costs associated with professional development. For example, in most cities, a lawyer can attend a bar luncheon once a month for an entire year for less than $200; most bar associations committee work is done during lunch hour conference calls. On the other hand, what many firms spend on for-profit conferences can easily top $1500 per session, not including lodging and food. Generally, at these conferences, long-standing professional relationships are not formed because the attendees are not working toward common goals, as they would be if they were working on bar association projects. Many of the same topics that are covered at conferences are covered during bar association meetings.
Bar association work is also an inexpensive way to advertise a firm’s image. For example, when a firm puts an associate in charge of it’s efforts for Law Week, that associate may end up working with as many as 15 lawyers on the bar committee setting up the Law Week events. In many cases, the firm’s name-and the associate’s-will appear in the event’s advance publicity materials. Furthermore, because many of these events are devoted to public service, they are often covered by the popular press. The attention that the firm and the associate garner from such positive press not only improves the firm’s profile in the community, but also stimulates positive feedback to the associate.

When time is money

Time is money, but the need to create a long-term commitment to developing the professional habits of future partners is a need that must be reckoned with. Failure to properly socialize young lawyers will only prove detrimental to firms and their clients.
Ultimately, a firm raises its own future partners. Even if it does not have the time to mentor its own associates, the firm should encourage them to participate in the mentoring programs of bar associations, and it should praise them for their efforts in helping promote the firm’s image within the bar.

If it takes a village to raise a child, one can also say that it “takes a bar association to raise a lawyer.”

Lynn Howell is General Counsel for ActionCoach Inc. (formerly Action International) in Las Vegas NV and has served as Counsel to the Cleveland Bar Association.

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From the Young Lawyers
"The Contempt of Court Power: A Guide for Those Who Wield It and Yield to it"
by Eric Lundquist, Jr.

I am always aware that a judge has the power to throw me in jail. Instantly. Easily. His or Her Honor would just give the word to His or Her court officer, and suddenly I’ll be in the same cell as my client whom I was just arguing with. I can also be fined, the amount of which perhaps decided on a whim by the judge. I was reminded of this recently when I heard some (perhaps apocryphal) stories about a judge who took to instantly fining people for being late to his court. More on that later. This got me thinking about the contempt power, what it is, and what its limits are. I looked it all up, and what I found would be of interest to both lawyers and judges.

First of all, what exactly is the contempt power? MCL 600.1701 holds that virtually anybody having business in “the supreme court, circuit court, and all other courts of record” may be held liable for a list of thirteen potential contemptuous violations. Space limitations prevent me from listing them all, but here are the highlights:

“Disorderly, contemptuous, or insolent behavior, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings or impair the respect due to its authority.” MCL 600.1701 (a).

“Any breach of the peace, noise, or disturbance directly tending to interrupt its proceedings.” MCL 600.1701 (b).
Disobeying any lawful order of the court. MCL 600.1701 (g).

“The publication of a false or grossly inaccurate report of the court's proceedings, but a court shall not punish as a contempt the publication of true, full, and fair reports of any trial, argument, proceedings, or decision had in the court.” MCL 600.1701 (l).

So, your wife just called you in open court on the cell phone that you forgot to turn off. This does not go unnoticed by the judge, who has no sense of humor about such things. Now what? MCL 600.1711 holds that “when any contempt is committed in the immediate view and presence of the court, the court may punish it summarily by fine, or imprisonment, or both”. (Emphasis added). MCL 600.1711 (1). Note that this applies only when the offense is in the immediate view or presence of the court. If the behavior occurs outside of the courts immediate view or presence, the court “may punish it by fine or imprisonment, or both, after proof of the facts charged has been made by affidavit or other method and opportunity has been given to defend”. MCL 600.1711(2). Thus, if the judge wasn’t a witness or wasn’t present when the alleged contempt was committed, then there are procedures that must be followed.

The affidavit or mysterious “or other method” mentioned in MCL 600.1711(2) must be prepared and state the facts of the contemptuous behavior, and if there is no affidavit “or other method”, jurisdiction does not attach. See In Re Wood 82 Mich 75 (1890). The good news is that you will have some opportunity to defend yourself, or at least make a record for an appellate court. My own opinion is that MCL 600.1711(2) may also apply to failed drug tests and inaccurate information given for a pre-sentence investigation report, both being things that I have seen a judge use to hold someone in contempt. I know for a fact that in both of those instances, no affidavit “or other method” was prepared in compliance with the statute.

Now, what are the potential penalties for contempt? Thanks to an amendment to MCL 600.1715, effective March 30, 2007, the penalties are significantly more severe than previously. Pursuant to this amended statute, a judge can now sentence you to $7,500.00 in fines and/or 93 days in jail for contempt, a far cry from the previous 30 days and $250. That’s not all: The judge may also now sentence a person to probation for contempt in the same manner as if they had been convicted of a misdemeanor. See MCL 600.1715(1) as amended. This may bring to mind an argument for court appointed counsel.
What is of particular use for lawyers on the front line is that, if a court holds you in contempt for being absent or tardy in their court, Michigan case law holds that this is contempt committed outside the immediate presence of the judge. In Re McHugh 152 Mich 505 (1908). If you are like me, and often have several courts to cover in any given morning or afternoon, and you simply can’t make it on time to an appearance, be advised that a judge cannot summarily sentence you for contempt. Instead, the court must first follow the specific procedure and give you a chance to defend your actions.

As I said earlier, I have personally witnessed some judges levy fines to or jail individuals for contempt committed outside of their presence without following the procedure mandated by law. While it’s probably little consolation to the person being led to the holding cell, in my opinion those rulings and others like it were illegal and should have been appealed or, if an extreme case, the Judicial Tenure Commission notified. My own experience suggests that our judges in Macomb County have generally exercised thoughtful restraint when it comes to the contempt power, but some appear to exercise it noticeably more than others. Hopefully, this article will let everybody know what the rules are should contempt rear its ugly head in a courtroom near you. After all, we must all abide by the rules, regardless of which side of the bench we sit.

Eric Lundquist, Jr. is a partner in Becker & Lundquist, PLC. His current goal is to ride a motorcycle in all 50 states. He has 20 states to go…

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