You are here


Remote work is also a matter of diversity and inclusion

Submitted by Amaris Elliott-Engel on Fri, 06/26/2020 - 16:20

This is a freelance piece I recently wrote for the Rochestser Business Journal:

As much of the working world embraces working from home due to COVID-19, Marisa Zeppieri says she feels a little bit of betrayal that previously many employers refused to provide that accommodation to people with disabilities or chronic illnesses.

“It’s archaic thinking that all positions happen in this 9 to 5 structure,” says Zeppieri, an author, speaker and founder of the LupusChick nonprofit providing support to other people with Lupus.

“You have many people with chronic illnesses or disabilities who are talented but there is no physical way that they can come into office 100 percent of the time, 9 to 5,” Zeppieri says. “With COVID, for me, the whole thing has been bittersweet. In one sense, I am really excited about these great changes that will hopefully impact people who are disabled and chronically ill. You also get a little hint of betrayal when you’re told so often that positions available in your line of work have to be 100 percent in the office but then you see” how employers migrated their workforce to work from home in just a few days due to COVID-9.

Zeppieri says that the number of positions that are now available remotely compared to a year ago are “unbelievable,” and she foresees a lot more opportunity for people who are disabled, chronically ill or have other reasons to work from home.

“If you are disabled or chronically ill you have to ask yourself was it just they didn’t want to go the extra mile” when these kinds of flexible work options weren’t as widely available before, Zeppieri adds.

Calvin Eaton, the founder of 540WMain, a community-based organization that promotes justice for all and who has fibromyalgia, says he does feel optimistic that people with disabilities and chronic illnesses will benefit from a shift in workplace culture that finds that having people work from home is working out fine.

“I do think that there is a lot of ableism that goes on professionally,” Eaton says. “I am happy that tone is changing. The fact it took a pandemic to force us to have real conversations about this speaks to the barriers to how much further we have to go in this culture to see disabled individuals as whole people who bring value and experience.”

Jeiri Flores, a local disability rights advocate who works for an area university, says that being able to work from home every day has had several benefits for her disability.

Flores, who uses a power chair to get around, says that there are multiple reasons that being able to work from home has improved her life.

“During this COVID time it has really canceled out a lot of issues I have had navigating my workday,” Flores says.

Wintertime is the “prison season” for her, Flores says, because she can’t guarantee that her home and her workplace entrances will be adequately shoveled for her to be able get in and out.

Flores also says that she is at greater risk of contracting COVID-19 and it’s important to be able to work from home at this time to protect her health.

Flores also says that transportation for many people with disabilities is an issue because there is limited public transportation in the Rochester area and she has to pay for someone to drive her to and from work because she does not drive. Working from home and meeting with people over Zoom also has been a relief because she is not having to travel to multiple meetings at different sites during the day and paying a great expense to do so, she adds.

“Everything for people with disabilities is super expensive,” Flores says. “It’s called the disability tax.”

Flores said that she also thinks she works harder from home than she ever has in the office.

Allowing employees to work from home and to work feasible schedules has shown employers that employees with disabilities and chronic illnesses “are still able to be vibrant and efficient members of their workforce,” Flores says.

Some employees had “already decided and deemed what people with disabilities can do,” Flores says. “You wouldn’t allow me to have this accommodation because you couldn’t see what I could bring to your company. Now that it is your only solution, now that you see (working from home) in a whole new light, you’re impressed and think that this can be your new norm.”

Flores notes that opening up work-from-home options and flexible hours will change the opportunities for people with disabilities to become employed. She notes that many people with disabilities are living off disability payments, which typically only pay $800 or $900 a month.

“It’s really about leadership pushing themselves to think outside of the box,” Flores says. “It’s about pushing the envelope on what traditional work looks like.”

Luke Wright, a partner at Harter Secrest & Emery who practices in the area of labor and employment, says that “sometimes employers would look at requests to work from home skeptically. There may have been some skepticism about productivity and employers thought some of the essential functions of the job need to be in person. A lot of employers have been surprised how easy the transition has worked and how many employees are able to maintain productivity without physically being in the office and how alternatives have been found for many of the functions thought to be essential.”

Wright also notes that the increased openness to have employees work from home or have flexible hours also may benefit people who want to work from home due to their family situation or their caregiving responsibilities.

Eaton says that opening up workplace culture to allow working from home on a regular basis and allowing for flexible hours is not just about diversity and inclusion but a matter of equity and justice.

“When organizations are starting to really look internally and say, ‘What are our values? Who are we excluding?’ Sometimes the way you’re being as an organization can be so one dimensional and you’re in tunnel vision,” Eaton says. “The disability community has huge spending power. When you look at it across sectors, genders, races there are people who are not part of the conversation until they need to be. If these folks were included at the table, reached out to, we know it will behoove these organization to tap into that sector. They will buy the product. They will buy the service. They will support the organization.”

Amaris Elliott-Engel is a Rochester-area freelance writer.


Continuing education complicates, enriches workers’ lives

Submitted by Amaris Elliott-Engel on Sun, 04/29/2018 - 14:13

Here is a recent piece I wrote for the Rochester Business Journal about the benefits of continuing education despite the demands of busy personal and professional lives:

When Pamela Black-Colton, the executive director of admissions & student services for University of Rochester’s School of Education, was earning her MBA at night, she never went anywhere without her textbook. She would use any spare minute she could find to keep up with her homework.

Black-Colton is not alone in the local area in noting the challenge in balancing an existing career and other responsibilities like a family with continuing education.

But local educational leaders and students say that the challenge can be met.

David Kunsch, program director of St. John Fisher College’s MBA program and assistant professor of strategy, says that he also earned his master’s degree part time at night.

It’s important to set aside the nights you are not in class or one of your weekend days to keep up with the demands of a part-time program like the MBA or the Masters of Science in management offered at St. John Fisher, Kunsch says.

Being able to juggle work and continuing education, whether it’s a degree or some other form of training, “boils down to determination and dedication and discipline,” Kunsch says. “If you don’t have those three things, it’s going to be a tough go.”

Having an understanding partner helps a lot too, Kunsch adds.

Aparajita Verma, a Rochester-based MBA student at the Rochester Institute of Technology’s Saunders College of Business, has been working at local startup, Phello, while attending school. Verma agrees with Kunsch about the importance of having a strong support system in terms of family and friends. “Whenever you are down, they are the people you need to go to,” Verma says.

Verma also says it’s important to keep in mind that the most successful people did not get to their level overnight. “You have to realize it all comes in phases,” she says.

Lindsay Christensen, a mother of two from Geneva who is studying mechanical engineering at RIT, says that the key to her success is time management.

“A lot of times I am left with not being able to start homework or study until after my kids go to bed,” Christensen says. “The sacrifice of sleep really is crucial at this point. The biggest thing is I am very determined and want this for my life and my kids’ lives. I am determined to get my degree and start a profession and be financially stable and happy for our future.”

Christensen also recommends that students consider undertaking some of their continuing education first at a local community college as that was a money saver for her.

Nicole Viggiano, director of the Greece Central School District’s Office of Community Education, recommends that students get their plans in place before they begin their continuing education and know what their schedule is going to look like and what the expectations of their coursework is going to be. The office offers programs in adult education, workforce development and community programs like cooking.

It also is essential to communicate ahead of time with course instructors about other life responsibilities like family duties, Viggiano says.

Diane Ellison, associate vice president of RIT’s graduate, international and part-time enrollment services, recommends that students who are worried about how to juggle continuing education and existing responsibilities sit down with school administrators before assuming that nothing can be adapted for their situation.

She notes that RIT offers certificate programs as well as graduate degrees such as a newly developed graduate program in business analytics. There are short-term programs in which there is an in-person component for one week and the rest is done online, Ellison adds.

Black-Colton suggests that students first take a course as a non-matriculated student to test if they are ready to take a more intensive graduate degree or certificate.

Black-Colton and Kunsch both note that their programs are designed for students to be able to work and take classes at night.

Local educational leaders and students also say that rising to the challenge of working while undertaking continuing education is worth the challenge.

Black-Colton said the value of attending school while working professionally cannot be overestimated because “the things you learn you can put into practice right away, versus things seeming more theoretical until you get into the field.”

Verma says that being in the classroom alone is a safe cocoon. But working, while studying, means “you don’t know what is going to happen in the next hour. You have to be multitasking. You have to be pushing yourself to be better the next day,” Verma says.

Black-Colton also says that, in the crucible of continuing education while working, students often form a group of friends that they never would have met otherwise.

“It really expands your world view,” Black-Colton says.

Undertaking continuing education while still working is a signal to employers that someone is a “cut above in being able to manage a number of things at the same time and do well in all of them,” Kunsch says.

Christensen says that she was miserable working at the job she had before going back to school even though she was paying her bills and things were fine for her family financially. But there is a way forward to juggle the financial burden of college and having a family and a career, she says.

“A lot of people get stuck in their routine and think it’s too late to change it,” Christensen says.

Clinical research facilities help develop new medicine

Submitted by Amaris Elliott-Engel on Sun, 10/15/2017 - 10:54

Here is another recent article I did for the Rochester Business Journal:

Rochester may be known as a leader in imaging and optical science, but a lot of people don’t know about its active presence in medical clinical research by standalone facilities and area hospitals.

Dr. Scott Feitell, a cardiologist and director of heart failure for Rochester Regional Health’s Sands-Constellation Heart Institute, notes that even though it’s not a large city, there is a lot of clinical research being undertaken in Rochester, especially because of the presence of the University of Rochester and the Rochester Institute of Technology.

“Clinical trials are another piece in my toolkit that I can offer patients,” Feitell says. “Even though these treatments are not yet FDA-approved, they can benefit (patients).”

Dr. Matthew Davis, the medical director of Rochester Clinical Research, came to Rochester in 1996 because of the city’s reputation for research. As a clinical researcher, Davis says he gets to see the process new medicines go through, from early testing to, in some cases, fully marketed treatment options.

Rochester’s clinical research sites are often part of a network of such facilities around the country and sometimes even around the world. Their data is funneled into large databases from which conclusions can be drawn based on results from thousands of test subjects.

Clinical researchers in Greater Rochester are currently exploring solutions to things like cardiac problems, cancer, influenza, migraines, depression and other major mental illnesses. All of these studies are enrolling participants. In a few years, some of these studies could result in drugs and devices coming to market to help with such problems, local clinical researchers say.

Solving heart problems

Feitell says there is a lot of good medicine on the market for heart problems. However, patients with heart disease still often end up in the hospital, and their health problems wind up being very costly, he adds.

“The role of research is really looking at patients who come into the hospital with acute heart failure,” Feitell says.

In one study, Feitell and other researchers around the country are testing Entresto, a 2015 U.S. Food and Drug Administration-approved drug, in comparison to another heart drug, enalapril. They’re trying to see how patients respond to Entresto when they receive the drug while in the hospital for acute decompensated chronic heart failure, or the sudden worsening of the signs and symptoms of heart failure.

In another study, Feitell and other researchers are looking at parallax, a potential drug for cardiac patients suffering from heart failure with preserved ejection fraction, or whose hearts beat normally but their ventricles don’t relax as they should. Feitell says that there are not any FDA-approved drugs to help patients with this condition.

“All of the trials so far to date haven’t demonstrated good outcomes,” Feitell says.

A third trial Feitell and other researchers are working on is testing the safety of omecamtiv mecarbil in patients with heart failure. The hope behind this drug is that it will increase the strength of the heart muscle, Feitell says.

The brain: ‘the final frontier’

Dr. Sarah Atkinson, director and principal investigator at Finger Lakes Clinical Research, a standalone research facility that conducts clinical studies specializing in the central nervous system, says that, in comparison to the heart, “we really don’t understand the brain. When we talk about the heart, medicine knows a tremendous amount about the heart. The brain, in some ways, is the final frontier in the human body.”

FLCR is currently conducting studies of treatments for attention-deficit/hyperactivity disorder, bipolar disorder, depression and schizophrenia.

Atkinson, a psychiatrist, says that the medical industry does well with treating overt symptoms of central nervous system problems like delusions and mood swings. The next stage in central nervous system research, she says, is looking at problems with cognition.

“When you’re talking about cognition, you’re talking about the ability to make decisions, the ability to acquire new information, to make judgments, to process information,” Atkinson says. “Those are the parts of the brain that are affected by serious mental illness.”

One study FCLR is currently participating in is sponsored by Axsome Therapeutics and is examining treatment-resistant depression, Atkinson says. Solutions already exist for many people with depression, but the next step is to research treatment for people who do not get relief from existing depression medications, she says.

“What other aspects need to be looked at for people to live full and engaging lives?” Atkinson asks.

Targeting cancer treatment

Dr. Paul Barr, an oncologist who leads the clinical trials program at the University of Rochester’s Wilmot Cancer Institute, says that cancer therapies are getting more targeted because of research. There are fewer side effects, and treatments can attack cancer cells and leave the rest of the body alone, he says.

“As our understanding of the disease gets better, our therapies are getting more targeted,” Barr says.

UR is both leading its own cancer trials and participating in clinical trials sponsored by pharmaceutical companies or cooperative groups of researchers, Barr says. Barr focuses on treating patients and researching treatments for lymphoma and chronic lymphocytic leukemia.

Just four or five years ago, the primary treatment for those types of cancers was chemotherapy, but now there is a second generation of drugs like venetoclax and ibrutinib that can be taken orally and allow certain patients “to have a near normal quality of life and near normal life expectancy,” Barr says.

Another large area of research is a type of immunotherapy called chimeric antigen receptor T-cell therapy in which a patient’s own immune cells are removed from the body, modified to more effectively fight cancer and are then reinserted in the body, Barr says.

All cancer patients should have a discussion with their oncologists on whether clinical trials might be right for them, Barr says. Participation in clinical trials is not just for patients at the end of their fight with cancer, and treatments in a clinical trial could be the best option, he says.

Vaccines, migraines and more

Rochester Clinical Research is conducting many migraine studies in conjunction with Dr. Joseph Mann, a neurologist well known for his work on headaches and migraines. One study is looking at a device that is approved for episodic migraines and testing whether it would be effective for acute migraines, Davis says.

Kathleen Ebeling, one of the clinical research coordinators at RCR, also says there are medical devices that could produce exciting developments. One study is looking at a device that subjects wear on their foreheads to treat their active migraines. Another study is looking at the interaction between a medical device test subjects wear on their bodies and its interaction with a smartphone app, Ebeling says. Test subjects can tailor their dosing by going into the app and answering questions.

“The idea is, based on their input into the app, that the device will make adjustments to their medications,” Ebeling says.

If the device comes to market, it could let treatment become very personalized, Ebeling says.

RCR is also doing several vaccine studies that Davis says “are very exciting.”

One study is looking at avian influenza and another is looking at the development of a universal flu vaccine that would be good for five to 10 years, Davis says.

A third study is looking at whether a vaccine could prevent infections from the bacteria clostridium difficile, or c. diff., Davis says.

Infections from c. diff. cause diarrhea in senior citizens staying in nursing homes and hospitals, and “it’s costing healthcare institutions millions of dollars a year to keep this under control,” Davis says.

Some 29,000 people die from c. diff. each year, and more than 500,000 people contract it, according to Davis.

Amaris Elliott-Engel is a Rochester-area freelance writer.

Women-led businesses find support in Rochester

Submitted by Amaris Elliott-Engel on Sun, 10/15/2017 - 10:44

Here is a recent piece I wrote for the Rochester Business Journal:

The Rochester region is open for business for women-owned enterprises, and several local female business leaders report that they have been able to find success for their companies no matter what type of industry they work in.

“The (Rochester business) climate is on fire for women,” says Lauren Dixon, chief executive officer of Victor-based ad agency Dixon Schwabl.

Dixon says that unlike some other communities, Rochester is “super-supportive of women and women-owned businesses. The mentoring and support that is going on in this community—in many other communities it is not going on to the extent that it is here.”

Tracy Scalen, president and co-owner of Rochester-based supply company Regional Distributors, says that women-led businesses can’t expect favoritism. At the same time, she says women-led businesses are not meeting prejudice, for example, because a majority shareholder at Regional Distributors is overseeing finance, human resources and receivables and payables.

“Our customers don’t care that I am a woman,” Scalen says. “They care that they get the best product at the best price with the best service.”

Christine “Chris” Whitman, the current chairman and CEO of Rochester-based package-fulfillment company Complemar, agrees.

“Rochester is very open,” she says. “There is a desire on the part of many companies to be able to find minority- and women-owned businesses to be able to provide services. I encourage both minorities and women to think about being entrepreneurs.”

While there is generally a positive climate for women-owned businesses in the Rochester region, some local women business owners say that they still face hesitancy from some quarters on doing business with them.

Sitima Fowler, co-CEO of Fairport-based Capstone Information Technologies, says that as a woman in the technology world “you have to prove yourself and show you do know what you’re talking about. That’s OK. I’m ready to work twice as hard as everyone else.”

Fowler’s spouse and co-CEO, Michael, once filled in for her on a sales call at the last minute. The potential customer indicated thankfulness that Fowler, an Indian-American, hadn’t been the one to make the call out of concern that she would have a thick accent and could not be understood, she recounts.

The lesson Fowler says she learned was that “there are people out there who are afraid to call us because they don’t think they understand us.” As a result, Capstone, which provides IT and cybersecurity services to small and medium businesses, started branding with both of the Fowlers.

Fowler, who is an electrical engineer by training, said that when she joined Capstone as co-CEO in 2006 her charge was to grow the business. She knew how to use project management to solve engineering problems, but she didn’t know how to make the phone ring with new business. So she studied up on marketing and sales, and she collected testimonials from clients as well. She developed a strategy of email blasts, social media posts and going to network events. Slowly and surely, Capstone grew to join the top 100 businesses of Rochester.

Fowler advises women to seek out the mentorship of other women and to launch their businesses without worrying if everything is perfect with them.

“Don’t worry if your product or service is 100-percent perfect,” Fowler says. “The hardest part is getting someone to buy it. Even if your product or service is halfway baked, once you start selling it you’re going to figure out how to sell it.”

Whitman agrees with Fowler that the tech world, in particular, has prejudices about women’s capacity to lead such businesses. But she thinks women can surmount that because success breeds opportunity.

Women entrepreneurs need to focus on the one thing they need to do to deliver effective results.

“If you’re bringing a solution to the table, companies will work with you,” says Whitman, who has grown several businesses throughout her career. She became CEO of one supplier of equipment for semiconductor and date-storage companies and led it into a successful acquisition by a competitor. As a partner in investment firm CSW Associates, Whitman also has invested in several tech startups and now is the CEO of Complemar in order to turn around the company.

Some women-owned businesses experience mixed results with the usefulness of being certified as a women-owned business, which qualifies them for the portion of New York State government contracts dedicated to women-owned and minority-owned enterprises.

David Scalen, vice president and co-owner of Regional Distributors, says that some women entrepreneurs who thought they would get a “marketing lead from their WBE status” probably have been disappointed. Regional Distributors has found that many of its competitors have figured out a way to skirt the state regulations regarding women-owned and minority-owned businesses, he says.

In contrast, Dixon says that becoming certified as a women-owned business has helped out Dixon Schwabl “by leaps and bounds,” including getting contracts involving the New York State Fair, for the del Lago Resort and Casino and for the World Canal Conference.

Another challenge for women-owned businesses is the balance between work and family, local business owners say, especially because many of their businesses are family-owned.

“The biggest challenge of running a woman-owned business is really striking that balance and not beating myself up if things don’t go as planned,” Dixon says. “If you have a bad day, there will be a good one tomorrow.”

Tracy Scalen says that her business wants its employees to put their families before work, adding that she and her husband have a saying: The top three things for every Regional Distributor employee should be God, family and work.

“If we’re number three on the list and they do the best when they’re at work, we can’t ask for more,” she says.

Amaris Elliott-Engel is a Rochester area freelance writer.

Report Finds Gender Imbalance in Rikers Intake Reductions

Submitted by Amaris Elliott-Engel on Sat, 03/11/2017 - 13:45

My latest piece for the New York Law Journal:

Despite efforts to reduce the number of people entering New York City's criminal justice system for low-level crimes, the number of women arrested for misdemeanors has not been reduced at the same rate as for men, according to a new report.

The study, by the New York Women's Foundation and the John Jay College of Criminal Justice's Prisoner Reentry Institute, found that 42,886 women were arrested for misdemeanors in 2014—a 7.1 percent drop over the previous five years.

In contrast, the number of men arrested for misdemeanors fell by 10.3 percent to 182,403 over the same five-year period, according "Women InJustice: Gender and the Pathway to Jail in New York City."

Even though people think of men when they think of mass incarceration, women are involved in the criminal justice system too, said Ana Oliveira, president and chief executive officer of the Women's Foundation.

"The first step to solving the problem is to bring it to light," she said.

The report concluded that city officials need to take gender into account if they want to reduce the number of women entering Rikers Island, which has faced intense public scrutiny over conditions at the facility and treatment of detainees.

For example, the report found that women are likely to become involved in the justice system because of "experiences of violence, trauma, and poverty. Women of color, particularly those from low-income communities, are disproportionately arrested and incarcerated."

Women in the justice system also have higher rates of mental health problems than men do, the report added.

As policymakers debate whether it would be a good idea to close Rikers, Alison Wilkey, policy director of the Prisoner Reentry Institute and author of the report, said reform efforts should focus on the fact that the 600 women or so who are held at Rikers on a daily basis spend two weeks or less in detention.

"What's the purpose of disrupting someone's life and putting them in jail for two weeks?" she asked.

The report offers several ways to reduce the number of women entering Rikers.

Because the majority of women are held pretrial, one recommended reform is reducing the use of cash bail and fully secured bonds in favor of programs with supervised release or increasing bail funds. "For many New Yorkers, any amount of cash bail imposed results in de facto detention," the report said.

The city soon will offer the option of posting bail online, part of a larger effort to reform the bail system and reduce reliance on cash bail.The program is set to begin this spring (NYLJ, Nov. 2).

Obstacles to posting bail contribute to about 12,000 unnecessary jail stays each year, according to a release from Mayor Bill de Blasio's office. The Center for Court Innovation found that, in 2014, friends and family were able to post bail immediately in less than 14 percent of the 48,816 disposed cases in which bail was set above $1.

Another recommended reform in the Women InJustice report is delivering reentry programs to women detained at Rikers for short periods of time. Even though 60 percent of women stay at Rikers for less than two weeks, "short stays can cause significant harm, disrupting families, childcare, and health care, or leading women to lose their benefits, employment, or places at shelters," according to the report.

Housing also has been identified has the largest problem facing women in the New York City justice system, the report found.


Latest Effort Underway to Remake Arbitration Law in Conn.

Submitted by Amaris Elliott-Engel on Sat, 03/04/2017 - 18:34

My latest piece for the Connecticut Law Tribune:

Legislation that would provide a wholesale update to Connecticut arbitration law for the first time in a half-century, an effort that's failed several times already, recently received a hearing in the General Assembly and appears ready to gain traction.

Advocates of adopting the model "Revised Uniform Arbitration Act" (RUAA) are hoping that 2017 will be the year the legislation will finally be passed.

By the count of Barry Hawkins, the bill has been introduced four times since the National Conference of Commissioners on Uniform State Laws promulgated the law in 2000.

Hawkins, a partner with Shipman & Goodwin who testified in favor of the bill on Monday on behalf of the Connecticut Bar Association's Alternative Dispute Resolution Section, said proponents of the bill have made tweaks to address concerns of the groups that were opposed to the bill in the past.

For example, labor unions were concerned that the proposed law would affect their collective bargaining agreements and their grievance processes, Hawkins said. The proposed law makes it clear that collective bargaining agreements are excluded, he said.

Other opponents were concerned that the law would pre-empt punitive damages, but advocates have made clear that—just like Connecticut's current arbitration law—judges and arbitrators still have the ability to award punitive damages if the law provides for it, said Hawkins, who also is a member of the Uniform Law Commission and helped draft the RUAA.

"Hopefully all the opposition has been satisfied," Hawkins said.

Houston Putnam Lowry, a lawyer with Polivy, Taschner, Lowry & Clayton who also testified in favor of the RUAA, said he thinks the legislation may have legs this year because House Rep. William Tong, one of the co-chairmen of the Judiciary Committee, has expressed an interest in enacting legislation to make the state's legal environment friendlier to businesses.

Tong previously introduced an omnibus bill that proposed adopting a version of the Delaware Rapid Arbitration Act, but the Bar Association's ADR section asked Tong to consider support for the RUAA instead, Lowry said.

The Delaware law prevents parties from designing the arbitration process they want to use, while the RUAA fills in the gaps in arbitration agreements that parties have already agreed on in principal, Lowry said.

Tong did not respond to a request for comment.

Harry N. Mazadoorian, an arbitrator and a senior fellow at Quinnipiac University School of Law's Center on Dispute Resolution, said the time is ripe to reform Connecticut's arbitration law because the state is in a fiscal crisis and Connecticut courts are facing budget cuts.

"This is the one time we don't want to discourage arbitration as an alternative to our courts," Mazadoorian said.

One of the advantages of the RUAA is that it would explicitly put on the books that arbitrators are empowered to grant preliminary relief, including provisional remedies, Lowry said. Right now, prejudgment remedies are authorized only by case law, which has put a "judicial gloss on the statute," Lowry said.

The law also would require arbitrators to disclose "facts which might call the arbitrator's impartiality into question," Lowry said in his written testimony.

The RUAA also provides default positions if parties have not already addressed those positions in their arbitration agreements, Mazadoorian said.

The bill enforces arbitration agreements contained in electronic documents, he added.

Raphael L. Podolsky, public policy advocate for Connecticut Legal Services, proposed an amendment to the RUAA that would prevent the use of "rights enforcement disabling clauses" in all consumer contracts, whether they are enforced through the courts or arbitration.

Podolsky said in his written testimony that such clauses restrict consumers from getting punitive damages, fail to provide for the waiver of fees and costs for consumers who can't afford them, and force consumers into forums that are geographically distant and more costly than their home state courts.

Podolsky also said applying the amendment to consumer contracts that are enforceable through arbitration or through the courts would avoid a Connecticut version of the RUAA being deemed pre-empted by the Federal Arbitration Act.

The proposed amendment is based on something similar in New Mexico, Podolsky said.

Hawkins and Mazadoorian both said they think the proposed amendment Podolsky raised would run afoul of the FAA itself.

Most alternative dispute providers have built-in protocols against unfair consumer arbitration provisions, Mazadoorian said. For example, many providers won't accept consumer cases requiring consumers to travel from Connecticut to Washington in order to pursue their dispute, or won't accept cases requiring substantial sums in arbitration fees, he said.

If enacted, the RUAA would go into effect Oct. 1.

Eighteen states and the District of Columbia have enacted the RUAA.


New Virtual Law Advice Clinic Aims to Help Low-Income Residents

Submitted by Amaris Elliott-Engel on Fri, 10/21/2016 - 17:48

Here is my piece just published by the Connecticut Law Tribune about a new pro bono program aiming to help close the access to justice gap:

The power of the internet is being harnessed to make it easier for low-income Connecticut residents to access legal advice, and to make it easier for pro bono attorneys to volunteer to help people who can't afford to pay for attorneys.

Statewide Legal Services of Connecticut is one of the legal aid law firms in eight states which are partnering with the American Bar Association on a virtual law advice clinic that allows low-income clients to ask questions about civil law and for attorneys to answer their questions online whenever convenient for them.

Instead of dropping into a legal aid clinic to talk to a lawyer in person, clients can type their questions and submit them on a computer.

Judge Elliot N. Solomon, deputy chief court administrator and co-chairman of the Connecticut judiciary's Access to Justice Commission, said this new program is unique because it makes it more convenient for people with low to moderate incomes to access legal advice and more convenient for lawyers to be able to provide pro bono service to people who need it.

"It's a win-win both from the perspective of the client and the lawyer," Solomon said.

For clients, the program enables them to access legal advice if they can't afford to take time off from work or if they have some kind of disability that makes travel more difficult, Solomon said.

Clients can get quick responses to their questions with this program, Solomon said. For people who are overwhelmed because they are facing an eviction or debt collection, "sometimes the easiest course of action is to ignore it, which is the least effective" way, he said.

For lawyers, this program makes it easier to do pro bono work whenever they have free time, whether it's at "airport terminals, their offices or late at night," Ashleigh Backman, SLS' pro bono attorney manager, said.

"We saw this as a great way for busy associates, busy solo practitioners, to be able to do pro bono work and accept legal questions they feel most competent answering," Backman said.

Starting six years ago, Tennessee was the first state to run the virtual pro bono clinic. Connecticut and six other states launched their own a few weeks ago. The program will be in 75 percent of the country by November.

Connecticut's version of the program,, is still in beta testing, Backman said. The client feedback so far is "that it was really easy to get an answer for free," she said.

People can ask questions about such civil legal issues aslandlord-tenant problems, consumer debt, employment, workers' compensation, family law, wills, and health law, Backman said.

The program also could be used to send out mass legal information if there is a disaster in Connecticut, Backman said.

There are between 30 and 35 attorneys actively volunteering in the program, Backman said, and SLS would like to recruit more attorneys to participate.

Backman explained that the program is not a live chat but a "virtual space to ask questions."

Clients have to meet requirements for income eligibility, Backman said. Clients also have to sign a retainer agreeing that their attorney-client relationship will end after their questions are answered, she said.

As the site administrator, SLS is providing some quality control by making sure the volunteer attorneys do not have any disciplinary issues with their law licenses and provide legally accurate answers, Backman said.

Attorneys can ask further questions of clients through the computer program, Backman said.

"The attorney is in the driver seat," she said.

SLS will steer complex questions that would benefit from more in-depth legal services to its own staff, she said.

SLS hired Jonathan Caez as the site administrator. Caez sends out clients' questions to attorneys and encourages attorneys to respond to questions in the queue, Backman said. Cindy Fernandez, a paralegal as well as SLS' executive assistant, also will be supporting the project.

Providing a legal answer is going to empower clients and give them hope that there is someone on the other end who cares, Backman said.

The judiciary is going to assist the program by marketing it to potential pro bono volunteers and to potential clients, especially through the court's outreach program in the state's libraries, Solomon said.

The program also has been launched in Louisiana, Mississippi, New York, Oklahoma, Virginia and Wyoming.

Software developers at Baker, Donelson, Bearman, Caldwell & Berkowitz built the Free Legal Answers website.                     

Power of Attorney Reform Aims to Stop Banks from Upending Estate Planning

Submitted by Amaris Elliott-Engel on Thu, 10/20/2016 - 18:05

Here's a recent piece I wrote for the Connecticut Law Tribune about reforms to that state's power of attorney law:

Sweeping changes have been made to Connecticut's power-of-attorney law, including making it harder for banks to upend the wishes of people who do estate planning by rejecting power-of-attorney forms.

Reforms to the law came into effect Oct. 1. Leaders in the Connecticut field say this is the first time the law has been updated for decades.

Paul Knierim, probate court administrator for Connecticut, said it has been commonplace for banks to frustrate the purpose of estate planning by rejecting power-of-attorney forms (POAs) at a stage when a senior citizen or a person with disabilities no longer has the competency to execute a form that would meet the bank's liking.

"The whole purpose of a durable power of attorney is to plan ahead … but [when] a bank won't accept the power of attorney the very purpose of the power of attorney gets frustrated," Knierim said.

The law will ensure that people will not have their "long-term estate planning upended by the whim of a bank teller," said Deborah Tedford, an estate attorney with the Tedford Law Firm in Mystic who was involved in drafting the new POA forms.

With the law change, family members can now go to probate court to enforce POAs and be awarded attorney fees and other costs if a bank or another third party is not following the law, Knierim said. The probate courts have been granted new authority to compel financial institutions to accept POAs.

On the other hand, bank personnel can also ask the court to review the actions of a person who has a POA if they have concerns that the person who granted the POA is being exploited, Knierim said.

The law also provides safe harbors to financial institutions who accept POAs, Tedford said.

There is now a POA long form and a POA short form that have been put into the law, said Tedford and Suzanne Brown Walsh, a partner at Murtha Cullina who focuses on trusts and estates and also helped shape the statutory forms.

Connecticut adopted a model law promulgated by the Uniform Law Commission, but further tweaks were made this year because the 2015 law was enacted in a hurry by Connecticut legislators, Tedford and Walsh said. The 2015 law envisioned one long form, but the revisions have resulted in a short form and a long form, they said.

The short form can be used to grant a power of attorney for real estate transactions and is signed at the end, Tedford and Walsh said.

The long form allows the person doing estate planning to initial certain types of powers they want to grant on the POA to their agent, including things such as making gifts, changing beneficiary designations and creating and terminating trusts. There is a third option under the law for attorneys to draft their own forms, Tedford and Walsh said.

The new law also is important because Connecticut is joining 20 other states that have enacted the model law, Walsh said. This means that it should be easier for elderly people, who relocate to be closer to their caregivers in other states, to have their POAs recognized, she said.

Another big change in the law is the expansion of the authority of Connecticut's probate courts to deal with people who are abusing the POA they have been granted, Knierim said.

"Powers of attorney are a double-edged sword," Knierim said. "They are an excellent tool for planning for incapacity. On the other hand, they are a very powerful instrument that a person who wants to do mischief can exploit. In the probate courts, we see, unfortunately, instances where agents under powers of attorney have abused the trust" placed in them.

As a result of those type of abuses, the category of people who can raise concerns about POA abuses has been expanded. For example, the law now states that a caregiver or a person who "demonstrates sufficient interest in the principal's welfare" can petition the court to review the actions of a POA agent.

Agents who abuse the POAs they have been granted also now can be ordered to reimburse for financial losses.

Connecticut's new POA law also has changed it so that POAs are assumed to be durable.

Attorneys should be aware that the new law does not address whether agents should be granted control in a POA over someone's email, social media accounts and other digital assets, Walsh said. Attorneys will have to add that authority in their own POA forms, she said.

The new law also is attempting to synthesize POAs with when courts authorize a conservatorship and appoint a guardian to manage the financial affairs of an elderly person or a person with disabilities, Knierim said. It used to be that the appointment of a conservator automatically terminated a POA.

Now, if someone has appointed a POA, the court has to determine if the POA can work in tandem with the conservator, Knierim said. This honors the first choice of people on who they wanted to have manage their affairs, Knierim said.

Suit Over Fallen Tree Highlights Bane of Foreclosure

Submitted by Amaris Elliott-Engel on Mon, 08/15/2016 - 00:18

Here is a freelance piece published last month by the Connecticut Law Tribune:

Vacant, foreclosed homes have become a bane in many neighborhoods in the United States. There are currently 896,913 properties in some stage of foreclosure in the United States, according to RealtyTrac.

The impact of vacant, foreclosed homes is affecting Connecticut too. Two homeowners in Wyndham County have been living through the experience of having a foreclosed home in their neighborhood.

HSBC Bank owns the property at 231 Ballouville Rd. in Killingly, after foreclosing on the prior owners in April 2014. The property has been listed for sale through real estate agent David Izzo.

Neighbors Clinton Corbin II and Barbara Bouthillier complained to HSBC's realtor in February 2015 that a tree on the property was damaged, decaying and a danger. Izzo came out to take pictures of the tree.

A month to the day that the realtor had been out to inspect the tree, it fell onto Corbin's and Bouthillier's work shed. The shed, which was appraised for $28,000, was destroyed and all of the work tools and other personal items were destroyed, according to the plaintiffs' complaint.

The property owners sued, claiming that HSBC was negligent in not taking reasonable care to remove the damaged tree from the foreclosed property. They also argued that the tree was a nuisance which created an unreasonable interference with their use and enjoyment of their property.

Corbin and Bouthillier, however, ran into the barrier of the common-law rule, which started in England, that landowners are only liable for artificial conditions they create on their land, not for trees and other natural conditions on their land.

Connecticut Superior Court Judge Harry E. Calmar ruled that Connecticut continues to follow the common-law rule, which is reflected in the Restatement (Second) of Torts law treatise. The Second Restatement says that a property owner is not "liable for physical harm caused to others outside of the land by a natural condition of the land," except for trees falling on public highways when properties are in urban areas.

"Natural condition of the land is used to indicate that the condition of the land has not been changed by any act of a human being," Calmar wrote. "There is nothing in the plaintiff's complaint to suggest the tree in question is anything more than a natural condition upon the land, and for such reason the rule of the Restatement applies."

Corbin and Bouthillier were unsuccessful in their effort to change Connecticut law and obtain a ruling that private landowners can be liable for damages when a tree falls on private property.

Matthew-Alan Herman, of the Law Office of Alan Scott Herman in Putnam and counsel for the homeowners, argued that Connecticut should follow a different legal treatise, The American Jurisprudence Second Edition. That treatise says that "a landowner who knows or should know of a dangerous condition of a tree on one's property may be held liable for the injuries caused or damage done when the tree falls on an adjoining landowner's property."

"An extensive search of case law shows that the law has moved away from the traditional approach recited in the Restatement," Herman argued. "Connecticut, while not yet ruling directly on the issue, has also indicated it has adopted the more modern approach establishing liability."

Herman said in an interview he was disappointed that his client's case was dismissed at the motion to strike stage even though the trend in other jurisdictions has been to recognize liability for property owners when they have constructive or actual notice that a tree is in defective condition.

The idea that property owners have no liability for a natural condition "doesn't add up in fairness or equity," Herman said. "They should be held responsible for something they knew … and were aware of was in defective condition."

Herman noted in the homeowners' brief that the Restatement only allowed liability for a fallen tree near a highway, while the American Jurisprudence treatise permits liability when a tree falls onto an adjoining landowner's property.

Some courts have followed a similar line of reasoning as the American Jurisprudence treatise. For example, the New Hampshire Supreme Court ruled in an issue of first impression just five years ago that a landowner who knows a tree is decayed or defective has a duty to eliminate the tree's dangerous condition.

Connecticut courts, however, view the Restatement extremely favorably, Herman said.

Thomas A. Kaelin, of Woodbury and counsel for HSBC, argued in court papers that "the general rule still governs and the rule is that in cases not involving public highways, there is no liability on a landowner for damages caused by a tree falling on a neighbor's property."

Counsel for HSBC declined to comment.


Lawyers With Out-of-State Practices Can Run Afoul of UPL Rules

Submitted by Amaris Elliott-Engel on Tue, 11/17/2015 - 07:53

I wrote a piece for the Connecticut Law Tribune about how telecommuting and taking conference calls from home can make lawyers run afoul of the unauthorized practice of law rules:

There are probably hundreds of lawyers who are licensed in New York and living in Fairfield County in Connecticut. It's become commonplace for these attorneys to log onto their home computers to work on legal documents on behalf of New York clients, to participate in late-night video­conferences from home, or to conduct other business as their commuter train rolls through Norwalk.

But now some lawyers are quietly voicing concerns that under Connecticut Practice Book rules they may be engaged in the unauthorized practice of law (UPL) if they live in Connecticut but are licensed exclusively in New York. One attorney recently told the Law Tribune he made sure to get sworn into the Connecticut bar because he has a home office in Greenwich out of which he serves New York clients.

So are lawyers with virtual offices in Greenwich violating Connecticut's Rules of Professional Conduct? How about someone who regularly telecommutes from a Stamford apartment and takes Metro-North to a Manhattan law firm only once a week? Does the definition of practice of law in Connecticut conflict with the modern realities of lawyering through videoconferencing and email?

"The Rules of Professional Conduct are lagging behind [technology]," said Dove A.E. Burns, a partner at Goldberg Segalla whose professional liability defense practice includes lawyers as clients.

Under Connecticut rules, "the practice of law is ministering to the legal needs of another person and applying legal principles and judgment to the circumstances and objectives of that person." Leslie Levin, a University of Connecticut School of Law professor who studies the legal profession and lawyer discipline, acknowledges that Connecticut does have a "very wide definition of what constitutes the practice of law," meaning that many work-related tasks a New York lawyer might perform from a Connecticut residence could be construed as practicing law.

Levin said that read in a commonsense way, the rule governing UPL, Rule 5.5, is addressing legal advice offered to Connecticut residents. But if it's taken literally, according to attorneys with expertise on ethics issues, many lawyers may be violating the rule. The good news, it would seem, is that disciplinary officials probably will not coming after them anytime soon.

There's no doubt attorneys can run afoul of the disciplinary rules if they are regularly giving advice to clients in a state in which they don't have a true presence, even if as a practical matter they only live a few miles across the border, said Burns. She pointed out that the Delaware Supreme Court recently suspended an attorney from practicing law for two years because he worked out of his home in Pennsylvania. His Delaware presence was a commercial space where his landlord's receptionist did little more than greet visitors and collect the attorney's mail.

Connecticut's UPL rule clearly bars attorneys from making false claims about their licensing status. You "can't hang up a shingle in Connecticut and hold yourself out as authorized to practice law in Connecticut," said Marcy Tench Stovall of Pullman & Comley, who represents attorneys in malpractice litigation and disciplinary matters.

From there, however, the matter becomes more nuanced, raising "philosophical questions," said Stovall, that lead lawyers to parse the meaning of words such as "continuous" and "temporary."

Consider this: In Connecticut, an attorney, even while just giving advice to clients in New York under his New York license, could violate Rule 5.5(b) of the Rules of Professional Conduct, Stovall said. Rule 5.5(b)(1) bans lawyers licensed in other states from establishing a "systematic and continuous presence" in Connecticut in order to practice law.

However, there is a "safe harbor" rule for attorneys licensed in New York or other jurisdictions and who are practicing law in Connecticut only a "temporary" basis. The safe harbor applies, according to the rule, if the lawyer is providing services that arise "out of or are substantially related to the legal services provided to an existing client of the lawyer's practice or in a jurisdiction in which the lawyer is admitted to practice."

But a Connecticut-dwelling attorney doing work for non-Connecticut clients technically could be breaking the rule if they regularly work at home or on their commute through Fairfield County on the way to New York.

"If you read the rule literally, you wouldn't be practicing law on a temporary basis and [thus] not entitled to the safe harbor," Stovall said. She added that, given the ease of long-distance communications in the Information Age, it would be an "absurd result" if a lawyer was disciplined for sitting in a Connecticut home and offering counsel to a New York client. That is a "reflection of how the rules can't keep up with how people practice," she said.

Mark Dubois, who was Connecticut's first chief disciplinary counsel and is now counsel at Geraghty & Bonnano in New London, noted that the Rules of Professional Conduct are based on a 19th-century world in which lawyers were representing clients in the same town. In that era, he said, attorneys from Hartford would never even be representing clients from New Haven, much less New York.

Dubois said many bar regulators judge UPL matters simply by applying the "where-is-your-butt" test. In other words, UPL is determined if an attorney is physically located in a place where he or she is not licensed to practice.

But Dubois said a small number of states have given regulators more flexibility to make judgment calls. Among them is Arizona, he said, where a regulator might try to distinguish between attorneys giving advice about Arizona law when they're not licensed in Arizona, and attorneys who happen to be temporarily staying in a Tucson hotel room who log into their New London computers and give advice to Connecticut clients.

Moving forward, he said, questions for regulators investigating possible UPL violations will include: "Where are you when you're doing [legal work]? Are you where the client is? Where is the predominant effect of your conduct felt? Is it where you are physically?"

While an attorney could be violating UPL rules while doing legal work on a business trip, regulators are unlikely to spend the effort to discipline them, Dubois said. He said they are more concerned about protecting consumers from attorneys who don't know what they're doing and from having their money stolen by dishonest lawyers.

Burns, who commutes from her home in Wilton to a Goldberg Segalla office in midtown Manhattan, agrees that attorneys who rely on technology to do business away from their formal law office have more pressing challenges than aggressive disciplinary officials.

If faced with a professional malpractice lawsuit, she said, lawyers run the risk that they could be violating their insurance policy's "standard of care" clause because they are giving advice about the laws of a state that they don't often work in. A malpractice insurance provider isn't going to like it if an attorney isn't keeping up with the practice of law in the state where she is licensed because she often practices from a remote locations, Burns said.

Then there's the whole matter of cybersecurity. A data breach of confidential information caused by accessing files from an out-of-office location poses a significant liability concern. Lawyers, said Burns, are responsible for maintaining client confidentially "regardless of the pitfalls and failings of technology." 


Subscribe to RSS - freelance