The Oneida County Bar Association • New York   

Newsletters > 2009 Newsletters > January 2009

 

OCBA TO RECEIVE 2008 AWARD OF MERIT FOR LAW DAY AND "ART OF INNOCENCE"

     The Oneida County Bar Association been selected to receive the 2008 Award of Merit from the NYS Conference of Bar Leaders, according to an announcement last week by Frank Ciervo, Director of Bar Services for the NYSBA. The award acknowledging statewide recognition to the professional and public service programs sponsored by local bar associations, is granted based upon “the effect of the project on the bar and/or the public, the ingenuity and creativity in planning the project, and the overall quality of the project.” The award recognizes the 2008 OCBA programs promoting public awareness of wrongfulconvictions, including the Law Day and the Art of Innocence Programs. The latter program, a multimedia collaboration with the Munson Williams Proctor Arts Institute in cooperation with the Innocence Project in NYC, featured three exonerees and two film producers, and a live cast production of the play, The Exonerated. Law Day featured exoneree Roy Brown and IP Director Madeline deLone.


President’s Column
“We-Wii” -- (no, its not Happy New Year in French, read on)

     Happy New Year to you all (did you know “we” have approximately 430 members) and welcome to another exciting year for the Oneida County Bar Association. Yes, I said exciting, at least it can be if you choose to get involved (“Wii”). 

     First, I would like to formally welcome and thank the great line-up of officers and directors who volunteered to serve our Association in 2009: Officers: Frank J. Furno, 1st Vice President; Peter M. Hobaica, 2nd Vice President; Elizabeth B. Snyder, Secretary; Peter A. Karl, III, Treasurer; and Lawrence W. Golden, Past President.  Directors are: Paula J. Eannace, Mark A. Wolber, Kenneth L. Bobrow, Doreen M. St. Thomas, Joseph A. DeTraglia, Joseph P. Giruzzi, Robert F. Julian, Donald R. Gerace and Michael H. Stephens.

     Second, I would like to thank all who served as Chair of any Committee in 2008 and those who will be serving in 2009. It is so important to have committed leaders. Last but not least, thank you to each member, we could not accomplish our goals without each and every one of you.

     Upon review of the existing OCBA Committees, I learned that nearly 150 members were active in some manner last year. I hope this year even more members will be energized to become or stay involved. By now you should have received the 2009 descriptive list of the many OCBA Committees for which you may be able to participate. If not, please call Diane at the Bar Office.
 
     While thinking about my first column as the 2009 President, the resonating theme was “We-Wii”. I also Googled the term “association” which listed a variety of definitions. One being “a group of organisms (plants and animals) that live together in a certain geographical region and constitute a community with a few dominant species.”  Some members may believe this definition is fitting, however, it is not my choice for us. Another definition is “a pop music band from California”, sounds fun, but also not appropriate for us. I prefer the definition of “a group of individuals who voluntarily form a body to accomplish a purpose.” It is exciting when “we” accomplish a purpose. “We” who belong to one of the most honorable professions should be proud to be part of the body of the OCBA. “We” who have chosen to be lawyers should desire to become, or remain, committed to the missions of our Association including promoting reform and improvement in the law, elevating the standards of integrity, competence and courtesy in the legal profession, and positively influencing the quality of life of our community.  Our Association has existed since 1906. It was not created by one person and it has not functioned over the years because of one person. As the 93rd President of our Association I may be looked upon as the head, but as we all know it is impossible for a head to survive or to be effective without a body. To be most effective we need a whole body, and the various parts must interact (“Wii”). The officers and directors could be considered the arms and legs, but if they aren’t walking and reaching out, we can’t move. And if the fingers and toes (members) aren’t working properly, the arms and legs cannot function in the manner for which they were created. A body can accomplish great works without a toe or a finger, but it doesn’t make it complete and is just not the same. I can hear some of my colleagues now asking the other “are you a toe or a finger?”, and that would be productive because you are interacting. The next question however should be “how are you serving in the Bar Association this year?” As for me, I promise to work this year to improve upon organizing the various parts of the “body”, provide members explanations regarding any concerns, and keep you informed of the opportunities available to become or stay involved with OCBA. It takes a whole body to accomplish the purpose for which we were created. I have heard a number of lawyers make statements that the Bar Association doesn’t do anything. First, I would say, you’re wrong. Second, I would say that you are the Association. If you are not involved, I urge you to get involved in some aspect. There is no small part. I think you’ll be pleasantly surprised at how rewarded you’ll feel even if you are serving as a toe or a finger. The Association is about all of us belonging to an honorable profession as an interactive group (Wii), and the Association is what “we” all make it. Let’s strive to accomplish our mission together, and never forget there is honor and dignity in being a lawyer.

God Bless you in 2009 – Theresa M. Girouard


LEGAL BRIEFS

  PARKING AVAILABLE: Hage & Hage, LLC has card-access parking places available in its parking lot on the corner of Elizabeth and Charlotte Streets across the street from the Oneida County Courthouse. The monthly cost is $35 plus tax. For additional information contact Hilary at 797-9850.
  OFFICE SPACE: Professional office space available, 400 N. Washington St., Rome. Office is within walking distance of Courts and City Hall. Shared use of copier and fax if needed, and use of large conference room. Three large offices, two upstairs and one on main floor. Building is handicap accessible. Please call Andrea Dodge (315) 336-8330.
  OFFICE SPACE for rent available immediately. Approximately 1000 square feet, Middle Settlement Road, New Hartford. Rent negotiable, if interested call David Hartnett at 735-6487 ext 242. 
  EXPERIENCED LEGAL SECRETARY seeking part-time flexible position with local law office. Please call Barb Pallas at (315) 225-2132.


ABA LEGAL OPPORTUNITY SCHOLARSHIP FUND

Applications for the ABA LEGAL OPPORTUNITY SCHOLARSHIP FUND for the 2009 - 2010 academic year are now being accepted. The Scholarship Fund is intended to encourage racial and ethnic minority students to apply to law school and to provide financial assistance to the scholarship recipients.  The Scholarship Fund will award $5,000 of financial assistance annually to each scholarship recipient attending an ABA-accredited law school. An award made to an entering first-year student may be renewable for 2 additional years, resulting in financial assistance totaling $15, 000 during his or her time in law school.  An application may be downloaded from the ABA website, http://www.abanet.org/fje or you may contact the Bar office for a copy. Completed scholarship applications must be received no later than March 2, 2009.


NEW RULES OF PROFESSIONAL CONDUCT

 As many New York lawyers know by now, Chief Judge Judith Kaye announced that effective April 1, 2009, New York will adopt new Rules of Professional Conduct. Culminating several years of study by both the New York State Bar Association, which proposed the changes, and the New York Unified Court System, which adopted them, the State will end almost forty years under the old Code of Professional Responsibility.  Many lawyers are wondering what this will mean for them in the day-to-day practice of law, and the answer is not simple. On the one hand, New York has already adopted a great deal of the content of the ABA Model Rules, even while retaining a different format. In this sense, many lawyers will have to learn the new format, although lawyers who have graduated from law school since 1983 when the Model Rules were adopted were taught the Model Rules format in Professional Responsibility classes. For other, recognizing that DR 4-101 is now Rule 1.6 may take some work, although the principle of confidentiality will remain the same. On another level, however, the New York rules will include some nuanced changes that may require further education to understand. Where DR 4-101 described confidences as “privileges and secrets,” Rule 1.6 uses the terminology “information relating to the representation.” While privileged information is by definition related to the representation of a client, the connection to secrets may or may not be as clear. Further compounding this interpretive question is the fact that the New York Rules as adopted differ not only from the old New York Code, but also from the ABA Model Rules and the version of the Rules proposed to the Courts by the State Bar Committee on Standards of Attorney Conduct. As ethics experts parse the language of the newly adopted rules, lawyers can expect to see a proliferation of articles, publications, CLE programs and Web sites on the changes.   A copy of the Part 1200- Rules of Professional Conduct is available at the Oneida County Bar Association Office.  The New Code is also available for download from the New York State Bar Association’s website at www.nysba.org


NOTICE FROM THE CLERK OF ONEIDA COUNTY

Effective January 1, 2009 Land Document Recording Fees have changed. The new Fees are: $45.00 + $5.00 per page 


ADDITIONAL BUSINESS PLANNING FOR 2009
By Richard G. Compson, Esq.

2009 Medicaid Regional Rates (GIS 09 MA/001)

     The NYS Department of Health has just published the 2009 Medicaid Regional Rates for Calculating Transfer Penalty Periods for 2009 on January 14, 2009,
effective January 1, 2009.
     The regional rate for calculating transfer penalty periods in the Central Region is $6,938.00.
     These rates are in accordance with 96 ADM-8, “OBRA ‘93 Provisions on Transfers and Trusts” and 06 OMM/ADM-5, “Deficit Reduction Act of 2005 -
Long-Term Care Medicaid Eligibility Changes”, and are based on average nursing home costs in the Central
Region.
     The Medicaid income and resource rates for 2009 announced, on December 2, 3008, in GIS 08 MA/035 include:
 •The institutionalized spouse is allowed $50/month income, and $13,800 in resources.
  •The community spouse is allowed $2,739 for the Minimum Monthly Maintenance Needs Allowance (MMMNA).
 •The Community Spouse Resource Allowance (CSRA) minimum remains $74,820, and the Spousal Share goes up to $109,560.
H.R. 436-New Proposed Estate Tax Provision
     “The House of Representatives introduced H.R. 436 to amend the Internal Revenue Code of 1986, as amended to repeal the new carryover basis rules in
order to prevent tax increases and imposition of compliance burdens on many estates that would benefit from repeal, to retain the estate tax with a
$3,500,000 exemption and other purposes.”
Sec. 1. The act may be cited as the “Certain Estate Tax Relief Act of 2009". - (continued on page 6)
 
Sec. 2. a.  The estate tax of the Internal Revenue Code of 1986 is Retained.
 b. The “Sunset” shall not apply.
Sec. 3 a. The applicable exclusion amount is $3,500,000.00
 b. Freeze the maximum estate tax 45% (for estates valued at less than $10,000,000.00). An additional tax 5% and phase out of the unified
credit (for estates valued at $10,000,000.00).
 c. The effective date for this section shall apply to estates of decedents dying and gifts made after December 31, 2009.
Sec. 4. No valuation discounts shall be allowed for non-business assets and no minority discounts will be allowed if the transferee and members of his
family have control of the entity. The effective date for this section shall apply after the enactment of this act.
     H.R. 7327, “The Worker, Retiree, and Employer Act of 2008" (WHERA)
     WHERA suspends, just for 2009, the 50% excise tax imposed on a taxpayer for failure to take a Required Minimum Distribution (RMD). As a result, no RMD is required for calendar year 2009 from any IRA or defined-contribution employer-provided qualified retirement plan (within the meaning of section 414(i)).   The next RMD will be for calendar year 2010. This suspension applies to both lifetime distributions to employees and IRA owners and after-death distributions to their beneficiaries.
     Beginning January 1, 2010, non-spouse beneficiaries finally will be able to take advantage of the PPA 2006 provisions and roll over from a qualified plan into an Inherited IRA. In the Inherited IRA, the non-spouse beneficiary can use his or her own life expectancy to determine the RMD.  This can significantly reduce the amount that the beneficiary must withdraw each year, thereby deferring income tax and allowing the account balance to continue to grow income-tax free. (See  pg 7)
     There are numerous pitfalls for the unwary in these roll-overs. 
     Here are some planning tips to help you avoid them:
     1. Make sure that the transfer is DIRECTLY from the plan Trustee to the Inherited IRA Custodian or Trustee. Any distribution to a non-spouse
beneficiary is a taxable distribution. 
     2. Unless the beneficiary is a surviving spouse, the Inherited IRA must remain in the name of the deceased participant. The Inherited IRA should be
titled like this: Participant, deceased, IRA f/b/o Beneficiary.
     3. DO NOT re-title the qualified plan in the name of the non-spouse beneficiary. That will be treated as a taxable distribution.
     4. DO NOT transfer from the qualified plan to an existing IRA in the non-spouse beneficiary’s name. That, too, constitutes a taxable distribution.
     5. A non-spouse beneficiary must begin taking RMDs from the Inherited IRA by December 31 of the year following the year of the participant’s death.
Note: this is different from a rollover to the surviving spouse’s own IRA, whereby the surviving spouse can defer taking RMDs until the April 1 after attaining
70 ½ (but faces penalties for withdrawals before reaching age 59 ½ ).
New York State Tax Changes for  Tax Years 2008 & Thereafter
     In an effort to increase income, New York State has changed the taxation of LLCs, LLPs, and corporations for taxable years beginning on or after January 1,
2008.
     a. LLC/LLPs: The fee payable is now based on gross receipts instead of the number of members of partners. Multiple-tier LLC/LLPs will be taxed at
each separate tier, with no credit for the fee paid by the lower tier entity.
     b. Corporations: For taxable years beginning on or after January 1, 2008, the fixed dollar minimum tax for both C and S corporations has been revised
and will be based on the New York States receipts of the corporation.
Richard G. Compson is the Chairman of the Oneida County Bar Association’s Trust, Estates and Elder Law Committee, and a partner in the firm of Compson,
Eannace & Pierro, PLLC.
 

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