Upon reboot, the Exchange store wouldn’t mount.

Much teeth gnashing ensued.  I’ve recovered my fair share of Exchange stores, but this one just wasn’t coming back.

The event viewer was full of errors from the Exchange service:

Event Type:    Error
Event Source:    ESE
Event Category:    Logging/Recovery
Event ID:    494

Description:
Information Store (3860) First Storage Group: Database recovery failed with error -1216 because it encountered references to a database, ‘x:\pathtoourdatabase\priv1.edb’, which is no longer present. The database was not brought to a Clean Shutdown state before it was removed (or possibly moved or renamed). The database engine will not permit recovery to complete for this instance until the missing database is re-instated. If the database is truly no longer available and no longer required, procedures for recovering from this error are available in the Microsoft Knowledge Base or by following the “more information” link at the bottom of this message.

The frustrating part of all of this was the Exchange database was where it should have been (contrary to the above error).

Further struggle resulted in me throwing up my arms, catching a few hours sleep and attacking the problem in the morning.  I knew mail was being spooled on our mail gateway, so I wasn’t worried about losing any inbound mail.

In the morning, my luck was no better.  I did a quick Google search and turned up ExchangeRecovery.org

I made offline backups of the Exchange stores and gave them a call.  The receptionist answered promptly and transferred me over to “an Exchange specialist.”

I then spoke with Jon who was helpful as a fella could be.  I gave him access to our box and he ran thru the litany of tests I had, and then a few more too.   As a last resort, he tried moving the transaction log files out of the directory and that seemed to do the trick.  The store was in a clean state when it shutdown, so we didn’t lose any mail.

I can’t recommend Jon enough — he was good humored, professional and a joy to work with.  I give him an unqualified recommendation.

As you can imagine, there was some egg on some faces.

(This ties in, a tad, with my previous post about managing personally identifying information from your Word documents.)

The article goes on to point out a fact I think bears repeating: the new version of Acrobat (Version 8) does redaction right and actually removes the text hidden behind the redactions.

Even if you’re not using redactions, to make sure you’re not passing along any hidden data in your PDF files, you’ll want to do the following:

Open your PDF in Acrobat, click on Document > Examine Document and Check all boxes and click “Remove All Checked Items” and that should strip out any of the stuff this guy is worried about.  (The dialog box is shown; click on it for a version you can actually read.)

Also, the redactions in Acrobat 8 are PERMANENT which means once they’re applied, there’s no getting at the underlying info. No cut-and-paste into Word is going to get it back.  This is why Acrobat prompts you to use a NEW filename for your redacted copy… once you redact, there’s no going back.  SAVE YOUR ORIGINAL.

Also, once you redact, Acrobat — for good measure — will prompt you do the “Examine Document” scrubbing, since if you’re redacting, you probably want the other stuff out too.

CAVEAT: Examine Document also deletes any Bates numbers; so you’ll want to scrub and THEN Bates number.

Mr. Huber’s article brought to mind a company Andrew Craig and I have been working with.  That company has a business that scrapes electronic and paper records to create alerts of threats to institutional and engineering environmental controls for historically-contaminated real property.

It works like this:  if you were to remedy historical contamination by placing a physical cap and recording a deed restriction, but then not be in a position to observe whatever may go on at the property thereafter (most likely you sell or close the factory and move away), as a subscriber to the tracking service you would receive an alert, by way of example, if reporting on the control goes out of compliance or someone applies for a permit that could interfere with it.   I think that one of Andrew’s clients or a responsible party predecessor at a remediated site is considering subscribing to the service for its site(s).  Mike and I are involved in a discussion with a similar company about how the information technology they have developed may have application to insurance claims.

What I think we are seeing is that these companies have cool products in search of drivers to make a market that is emerging.

Obviously, information technology is a game-changer for an information business like law.  Today’s consumer of legal services is increasingly unwilling to pay lawyers’ fees for service the consumer perceives to be at best “paperwork” and, at worst, clerical repackaging of data and analysis that already exists.  (Cisco’s general counsel, Mark Chandler, made a well-publicized speech addressing these themes.)   As Mr. Huber discusses, today’s technologies provide cost-effective means of performing that work and the law will adopt them.

This award stems from the successful return of the Former NASA/Downey Industrial Plant in Downey to productive use. The work, which has been progressing since 2003, involves environmental remediation and redevelopment of 160 acres of property located approximately 15 miles east of Los Angeles International Airport. The property was used by the military for airplane assembly during the World War II era and later by NASA in its Apollo and Space Shuttle programs. The property then became excess to NASA’s mission but remained contaminated, principally with solvents in soil and groundwater incidental to the work performed there over the years.

The transaction provides an illustration of Early Transfer of contaminated federal property in accordance with CERCLA. The structure demonstrates how vital site-controls needed for effective privatization of historical environmental clean up cost on a fixed budget must be balanced with the realities of real estate development, requiring that all stakeholders perform with a sound understanding of the degree to which all rights and interests are intertwined.

Mr. Crooker’s client, International Risk Group, worked closely with the GSA, NASA, the City and other stakeholders to build the required relationships and agreements. The Governor of California, advised by state regulators, then signed off on the transaction, setting in motion the process whereby the real property and improvements were transferred from Federal Government ownership to the City prior to completion of environmental cleanup with private ownership and redevelopment commencing simultaneously.

Private redevelopment includes the Downey Studios (a major motion picture and television studio), a retail power center (Downey Landing) and a Kaiser Permanente regional hospital center and related complex. The transaction was facilitated by an environmental risk assumption agreement undertaken by a subsidiary of International Risk Group, by which it agreed to perform the required environmental clean up to no further action and to insulate the exiting federal government and incoming stakeholders, including the City of Downey, from financial risk associated with historical environmental conditions. Manuscripted environmental insurance products were utilized to secure these obligations.

Since the real estate and environmental risk assumption transaction closed in 2003, numerous major films, as well as the television series Smash Lab, have been made at the Studio, the retail center has opened and continues to operate at or near full occupancy, and construction of the hospital complex continues. Kaiser Permanente’s medical facilities are scheduled to commence full operations in 2010. Development has occurred simultaneously with ongoing environmental remediation at the site.

For further information, contact Richard Crooker at 973.734.3200 or rcrooker@cuyler.com.

What could go wrong? 

Plenty, particularly if you, the client, are also an attorney and your former attorneys are not intimated by the malpractice claim and are unwilling to play the passive role you had planned for them.

The Appellate Division of the Superior Court of New Jersey recently affirmed a trial court’s decision award to Cuyler Burk attorneys fees and costs pursuant to New Jersey’s statute and court rules which authorize reimbursement of fees and costs incurred in defending frivolous claims.  The Appellate Division formally published its decision (Cuyler Burk, LLP v. Robert M. Silverman, Esq., 2007 WL 2934997, V N.J. Super. ______ (App. Div. 2007)).  The opinion has received significant attention in the media as well as among members of the Bar. 

The facts were not complicated and for the most part were not disputed.  Robert Silverman, a highly-advertised “Lemon Law” attorney, had engaged Cuyler Burk to defend him against ethics charges that had been filed against him by a Lemon Law client.  Ironically, one of the ethics charges was that Silverman had filed a frivolous lawsuit against the client for his fees.  Cuyler Burk originally recommended that Silverman contest the ethics charges, because a finding of ethical violations would disrupt plans to expand his practice by opening offices in other jurisdictions.  Silverman disagreed, and instructed Cuyler Burk to negotiate the best deal possible with the Attorney Disciplinary Review Board. 

Cuyler Burk did just that.  It negotiated the most lenient form of discipline by consent available under the circumstances: discipline by consent with an admonition.  But Silverman delayed signing the necessary documentation to finalize the settlement, and then, notwithstanding his previous direction, questioned why Cuyler Burk had negotiated the discipline by consent with an admonition.  He also delayed in paying his bills for the legal services that were being rendered to him and paid none of the monthly bills totaling $18,748, which had been sent to him over the seven-month period of Cuyler Burk’s representation.  Not surprisingly, this produced a parting of ways. 

Silverman engaged a new attorney who defended him in the ethics proceedings.  Following an ethics hearing, a thirty-day suspension from the practice of law was ordered.  After Silverman’s appeal, the suspension was changed to a reprimand, which was still a more severe form of punishment than the admonition Cuyler Burk had negotiated.

Meanwhile, Cuyler Burk sued Silverman for its $18,748 in fees.  Rather then paying his bills for legal services, Silverman’s next fateful decision was to file a counterclaim against Cuyler Burk for legal malpractice.  Silverman eventually settled the complaint for fees by paying Cuyler Burk $15,000, but the counterclaim for malpractice remained.

Generally, claims for professional malpractice require that the claim be supported by an opinion of an expert.  To support his legal malpractice claim against Cuyler Burk, Silverman engaged a well-known legal malpractice expert, Anthony Ambrosio.  Ambrosio first offered an opinion that Cuyler Burk had committed malpractice by failing to recommend that Silverman settle the ethics charges.  However, when Cuyler Burk deposed Ambrosio, and Ambrosio was shown documents that demonstrated that Cuyler Burk had negotiated a discipline by consent with an admonition, Ambrosio testified that, in forming his original opinion, he had not been provided with all of the pertinent facts and documents and, upon further consideration, he withdrew his opinion in the course of the deposition.  Faced with the documentary record, Ambrosio testified  that the ethics settlement negotiated by Cuyler Burk was a better result then could have been reasonably anticipated, and that Cuyler Burk had done an excellent job on Silverman’s behalf.  Sometime after the deposition, Silverman dismissed his counterclaim. 

Cuyler Burk however continued to press its claim for fees and costs under the frivolous claims statute and rule.  After a hearing (at which Silverman offered no witnesses), Superior Court Judge John Harper awarded Cuyler Burk a total of $59,793.50 in fees and costs in defending the malpractice counterclaim.  Judge Harper found that Silverman had filed the counterclaim in bad faith in an effort to frustrate Cuyler Burk’s efforts to collect the legal fees owed for defense against the ethics charges.

Silverman’s next tactic was to appeal Judge Harper’s decision.  In order to stay enforcement of the judgment against him, Silverman was required to deposit cash security in the amount of $90,000 with the court.

Silverman’s principal arguments on appeal were that he could not be held liable for filing a frivolous claim, because he subsequently had withdrawn the claim, and the counterclaim against Cuyler Burk could not be deemed frivolous because he originally had the Ambrosio opinion to support it.  In this latter regard, he disputed Ambrosio’s assertion that he had not given Ambrosio all of the facts and documents.  Silverman also argued that the award of fees was excessive.

The Appellate Division rejected all of these arguments. While the counterclaim may have been voluntarily dismissed, it was only dismissed after Cuyler Burk demonstrated through the Ambrosio deposition that it had no merit.  The Appellate Division remarked that the counterclaim had “all of the earmarks of a pleading meant simply to intimidate an adversary and to delay entry of a judgment ….”  Ambrosio’s report, the Court held, did not afford Silverman a safe-harbor because the facts that the expert relied upon were untrue.  Finally, the Appellate Court found that Judge Harper’s fee award was reasonable and would not be disturbed.

After the Appellate Division decision, Silverman agreed to pay Cuyler Burk $70,000 out of the funds on deposit with the clerk.  Cuyler Burk agreed not to pursue a claim for additional fees and costs incurred in defending Silverman’s appeal.

It is difficult to imagine a strategy producing a more disastrous result then the one embarked upon here.  Rather then accepting the settlement of the ethics matter negotiated by Cuyler Burk and pay Cuyler Burk the $18,748 in fees he owed – an amount that would have been less had the ethics settlement negotiated by Cuyler Burk been executed - here is what Silverman’s grand plan produced:

On the positive side:

• Silverman saved $3,800 by settling Cuyler Burk’s $18,748 claim for $15,000.

On the not-so-positive side:

• Silverman ended up with a discipline of reprimand, rather then the lesser discipline negotiated by Cuyler Burk; 
• Silverman incurred the cost of engaging an attorney to take over the defense of the ethics matter for the ethics hearing and subsequent appeal;
• Silverman lost the time of his firm’s attorneys and staff while they engaged in defending the Cuyler Burk complaint and prosecuting the counterclaim, in addition to incurring litigation costs;
• Silverman incurred the cost of engaging an attorney to represent him at the fee hearing, as well as the subsequent appeal of Judge Harper’s decision to the Appellate Division;
• Silverman incurred the cost of funds on deposit as security;
• Silverman paid Cuyler Burk $70,000;
• Silverman received unfavorable publicity calling attention to his ethical violations, that he had failed to pay an amount justly owed, and that he had filed a lawsuit premised on facts which he knew to be untrue. 

This saga provides real-life proof for the old adage about a lawyer who represents himself.  Had Silverman engaged independent counsel before filing the counterclaim, it’s likely he would have been counseled against doing so.  Independent counsel could not have signed and filed the counterclaim without subjecting himself to risk.  Of course, this assumes that Silverman would have given independent counsel all of the facts and documents.  The experience with Mr. Ambrosio’s experience suggests Silverman might not have done so. 

Cuyler Burk was represented by Cuyler Burk partner Stephen Cuyler in connection with Cuyler Burk’s complaint for fees and defense of the counterclaim, and by partner David Menzel at the fee hearing and subsequent appeal.

As a result of events that occurred between August 1999 and April 2000 involving two minors, Sheryl Van Dyke (“Sheryl”) pled guilty to one count of second degree sexual assault and one count of endangering the welfare of minors. In a subsequent personal injury action brought by guardians of the involved minors, Sheryl faced allegations of sexual molestation and emotional injury. In addition, the complaint alleged that George Van Dyke (“George”), Sheryl’s husband, knew or should have known of Sheryl’s behavior and did nothing to prevent it. The Van Dykes were insured pursuant to a homeowner’s policy issued by High Point. High Point defended George subject to a reservation of rights, but declined to defend Sheryl. The case eventually settled.

Subsequently, a coverage action was commenced to determine whether the settlement was covered. The trial Court found Sheryl’s actions to be intentional based on an objective approach thus precluding coverage pursuant to an expected/intended exclusion within the policy. The trial court also denied coverage to George on public policy grounds, asserting that liability coverage should not be provided to spouses of sexual molesters, especially if he knew or should have know about his wife’s sexual proclivities.

George argued on appeal that the trial court should have applied a subjective test to determine an insured’s intent to injure. He further argued that if such a test was applied, summary judgment would have been denied because High Point could not demonstrate that he had any intent to injure. Quoting the New Jersey Supreme Court in Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 184 (1992), the Court stated “[w]hen the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure.” Furthermore, the Court reasserted its public policy stance stated in J.C. v. N.B., 335 N.J.Super. 503, 509-10 (App.Div. 2000) that allowing coverage for a spouse in a sexual molestation case would provide that spouse “with an undue incentive to value the stability and privacy of the marriage over the well-being of the child-victim.” Therefore, the Court found that public policy warranted application of an objective approach and as such George’s behavior cannot be labeled an ‘accident’ consistent with the policy’s definition of ‘occurrence’. The award of summary judgment relative to George was thus affirmed.

Also on appeal, Sheryl argued that High Point had a duty to defend and indemnify her based on her lack of subjective intent to cause any harm. Sheryl cited her assertion of a duress defense as support for her argument. The Court found this reasoning unpersuasive, stating that the elements of the crimes for which Sheryl pled guilty to reflect culpability for injury to the minors involved. As a result, the Court found that it did not matter which test (subjective or objective) the Court used to evaluate coverage and affirmed the award of summary judgment relative to Sheryl.

Perhaps it’s because a gallon of gas costs more than a gallon of milk? This morning one of the T.V. news shows juxtaposed two signs outside a gas station mini-mart: “Milk: $2.99/gal.” and “Unleaded: $3.99/gal.”  Indeed, hitting the $50 or $60 mark for the first time when filling up your tank kind of smarts. Ouch.  
          
The Earth’s natural resources are not unlimited, and people are starting to notice. It would appear that the laws of economics find themselves in the service of environmentalism. For whatever reasons, the general wisdom is acknowledging climate change, and people are taking action.      

For me, “going green” is not a trend or a fad; it’s a lifestyle, just like eating healthy. It’s about making smart choices, and choosing the “green choice” when you can.

This does not mean you have to trade in your SUV for a bicycle and go vegan. Who am I to tell others how to live their lives? I’m not a perfect “tree-hugger” either - I wanted to use low-VOC paint in my home, but the colors I wanted did not come in the eco-paint. So I stuck with the old-fashioned latex.  In the spirit of Earth Day, I will share some easy green choices I’ve made:

      * I try to reduce the need for unnecessary plastic. If I pick up cup of coffee, I pour the milk in the cup first, and then add the coffee. The act of pouring the coffee into the milk mixes the two, and there’s no need to use a little plastic straw for stirring.

      * If I’m picking up a 6-pack at the liquor store or a 12-pack of soda, I skip the plastic bag. They come with handles for carrying.

     * I throw grocery store shopping bags in my trunk after I empty them. Then I toss them in my shopping cart and reuse them on the next shopping trip. Some stores even give you a credit for reusing bags or bringing in cloth ones. (Wow - 2 cents a bag! I’m going to be rich!)

     * I try to use paper wisely by printing double-sided documents. Everyone in our office e-mails and works in digital versions of documents whenever possible. We also encourage other lawyers to provide document productions in electronic format such as a CD, and we offer to provide them documents on CDs as well. The Federal courts use electronic filing. Maybe one day the NJ courts will, too, although that’s a long shot.

    * I use a refillable plastic water bottle and coffee mugs from home instead of the plastic and Styrofoam cups in the kitchen. While it would be great if others followed my lead on this, that’s also a long shot.
 
The above suggestions make “cents” by conserving resources. After all, buying less paper and cups saves money.  Stay tuned for future blogs on how going green can provide both environmental and economic benefits to individuals and to businesses.

The reports in the papers indicate that the measured lead levels may result from lead compounds used to color the nylon utilized in turf products distributed several years ago. At least for now, the turf itself would appear to be a source of the lead contamination, in whole or part. But it also seems reasonable to consider that one or more of these playing surfaces may sit on a field in an urban, highly-industrialized area of our state, essentially a brownfield, where increased lead levels may be historical in the soils and nearby structures. Obviously, step one is to investigate the situation and understand it so that all reasonable and necessary measures are taken.

But regardless of what the science ultimately shows, as in any situation like this, the recent findings will generate heat, and will have financial costs, at a minimum in the form of investigative work, and field surface replacement, since some fields are already being ripped out. At least three hot-button issues are in play here — protection of childrens’ health, environmental risk and urban - center quality of life. Where there are unexpected costs and issues like these, litigation is a distinct probability.

Typically, one of the first places we look when unexpected costs, especially cost associated with possible bodily injury arise, is liability insurance. To be sure, those who find themselves in the path of this issue have been calling their risk managers, brokers and lawyers, and policies are being pulled out and read. What they find there may or may not be reassuring. Today’s standard liability policy forms would contain exclusions, for example, barring coverage costs from damage to one’s own property or product without actual damage or injury to a third party, as well as a broad so-called absolute pollution exclusion barring coverage for liabilities arising from pollution. Of course, standard insurance policies, like any contract, can be negotiated at its inception to attempt to address the risk of the insured, and even if a risk cannot be transferred, the mere exercise of considering what risk is covered, and what is not, earlier rather than later, facilitates planning. There are commercial insurance products on the market for many years that directly underwrite so-called “pollution liability”. If a turf-war does break out, the degree of insurance protection available may depend on whether those with exposure today sought proper advisors, including lawyers and insurance brokerage personnel, to think about potential environmental exposures of their client and tried to identify and manage such risks when the coverage was procured.

MAKING HISTORY

A legal visionary guides a museum into the future

BY SUSAN BRIERLY

When it comes to her career, Jo Ann Burk is all about championing change.

In 1987, as the legal ranks were filling with female associates, women partners were still scarce. So Burk joined four other attorneys to found Cuyler Burk, P.C., in Parsippany.

“I was particularly proud to manage a highly visible commercial law firm with major corporate clients in the late 1980s - a time when women attorneys just weren’t doing that in New Jersey,” says the Chester resident and Seton Hall law school grad.

When she’s not in her office or a courtroom, you’ll likely find Burk at Macculloch Hall Historical Museum in Morristown, where her mission is preserving the past.

“This wonderful 1810 home was the residence of prominent families for five generations,” she says. “It’s seen its share of politicians, military heroes, business entrepreneurs and artists.” Indeed, past visitors include President Ulysses S. Grant and Commodore Matthew Perry. Burk sits on the board of the nonprofit museum, which boasts one of the state’s finest collections of furniture and art from the 18th and early 19th centuries.

“It’s a real pleasure to help launch events and exhibits, like the museum’s private collection of works by 19th-century political cartoonist Thomas Nast,” she says. This year Burk is taking her efforts to a new level, volunteering to launch a corporate membership program, which invites businesses to sponsor museum events.

Burk has taken on new professional roles too.

In 2007, she became CEO and majority shareholder of Cuyler Burk and was ranked by NJBIZ magazine as one of the state’s top 50 female business owners. Her firm also received its Women’s Business Enterprise National Council certification. It’s a fitting designation for a company that’s always been managed by a woman.

The most common example that may arise in a divorce action is where a non-owner spouse argues that the marital home that was either acquired before the marriage or inherited or gifted to the other spouse during the marriage, is now subject to equitable distribution.

Generally, assets which are acquired prior to the marriage, or assets which were gifted to one spouse or inherited by one spouse during the marriage, are considered separate property. However, there are exceptions to this general rule.

Typically, issues arise where the value of the separate asset has increased over time. In order to evaluate whether the asset has maintained its separate character, a determination of whether the asset’s appreciation was “active” or “passive” must be made.

Passive assets are generally those assets whose appreciation is based solely on market conditions. On the other hand, active assets are those which appreciate due to the contributions or efforts of one party.

Passive assets which were acquired prior to the marriage or by gift or inheritance during the marriage are not subject to equitable distribution in a divorce action.

The analysis of pre-marital active assets or active assets that were acquired by gift or inheritance is not that simple. If the asset’s appreciation was brought about solely by the efforts of the owner spouse, it is not subject to distribution. On the other hand, where the asset appreciates, in whole or in part, due to the efforts of the non-owner spouse, the appreciation is subject to distribution. Common examples of the active asset whose appreciation is subject to distribution are where the non-owner spouse pays down the mortgage or the non-owner spouse contributes in some way to renovations to the house which increase its value.

Further, separate property can be “transmuted” into marital property, which will be subject to equitable distribution in the event of a divorce. If the spouse owning the asset represents to the non-owing spouse that the separate asset will be shared or takes some action to share the asset, such as depositing separate funds into a jointly owned account, the separate asset may then become marital property.

Therefore, it is important for parties intending to keep separate property separate, to be aware of the various factors which can affect the asset’s ownership in the event of a divorce.