RPPT Bulletin

June 2006

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Please send your comments about this issue to: rppt-comments@mail.abanet.org

The RPPT Bulletin is emailed out on a bi-monthly basis to all Section members to keep you up-to-date on the activities of the Section.


Special Focus:
Special Focus: Employee Benefit Plans and Other Compensation Arrangements Group

Employee benefits represent an important component of an employee's economic well-being and welfare and constitute a vital recruitment and retention tool for employers. This group focuses on all aspects of employee benefit plans and other compensation arrangements, including issues relating to qualified plans, medical and other welfare plans and nonqualified deferred compensation plans, the fiduciary responsibilities of plan trustees, plan administrators and other plan fiduciaries, plan administration, plan transactions, plan terminations, and litigation involving this area of practice. Please visit our web page at http://www.abanet.org/dch/committee.cfm?com=RP549000, which will take you to the committees’ web pages that have additional information.

The Group has telephone conferences the second Tuesday of each new Quarter starting at 1:00 p.m. Eastern Time and continuing for up to an hour. We will informally discuss current developments and committee projects. To receive notices of monthly meetings and information on selected current developments, please join our committee at http://www.abanet.org/dch/committee.cfm?com=RP549000# . Joining provides you with information and opportunities but does not require you to participate.

The Group currently has a conference call scheduled for July 11, 2006 at 1:00 p.m. Eastern Time. All are welcome to join the call to discuss the topics on the agenda, or just listen if you prefer. One of the topics that will be discussed will be independent fiduciaries: “what do they do, when do you need them, and how do you select them?” To participate in the July 11, 2006 call, dial 1-800-503-1676 (the pass code is 520657 followed by the # key).

For additional information, please contact the Group’s chair, Peter Kelly, at peter.kelly@bcbsa.com , or the Group’s Vice-Chair, Michael Macris at mmacris@cahill.com. The Supervisory Council Representative for this Group is Bernard V. Kearse at bkearse@kearse-law.com


Special Focus:
Leasing Group's Committee on Emerging Issues and Specialized Leases

The Committee on Emerging Issues and Specialized Leases attempts to identify new leasing trends and issues and develop them.  We also try to develop a body of checklists [mainly] and some forms for Specialized Leases.

Now, emerging issues and Specialized Leases may be easy to define, but perhaps hard to identify.  If you're suddenly confronted with an unusual lease use, we suggest you look at our website and see if we've massaged it.  We have over 60 experienced lease people looking at our material before it goes public.  For example, in gestation [meaning we're working on these] are: doctor/dental office leases; garage leases; we're awaiting the San Diego spring meeting CLE presentation on port authority and airport retail leases, to see what we can borrow for our purposes; ATM sites [are these even leases?  who knows?].

We are also working on our current favorite project, The Glossary!   The Glossary is a compilation of definitions, to make it easy when you're under pressure to grab a nice definition of, say, "net worth," or "subsidiary," or "substantial completion."  We are asking everyone we meet to send in their definitions, their favorites and their mundane ones We will tweak and try to improve the definitions we receive and redistribute what we think are excellent ones, perhaps with a website reference [such as, a CPI link to Bureau of Labor Statistics].  We would love to have your ideas, so (1) send in your favorites [to rmf@rmfromelaw.com or jcharlton@weingarten.com or agardner@mcdonaldhopkins.com ] and (2) keep an eye on our webpage for our latest postings. 

And, lastly, if any of this sounds interesting, let one of us know and join us on this committee.  No limit on topics, plenty of opportunity to participate.

The Two Richards Richard "Dick" Montgomery, III, Chair  (  rmontgomery@dkslaw.com )
Richard Frome, Vice Chair   ( rmf@rmfromelaw.com )


Section Endorses Two Model Acts

At the spring meeting in San Diego, the Section’s Council approved the Model Entity Transaction ("META") which was drafted jointly between the ABA and the National Conference of Commissioners on Uniform State Laws ("NCCUSL"). It is a template for individual states to consider drafting transaction junction box statutes and would permit all laws in a state in connection with mergers, domestications, conversions, interest exchanges and divisions among and between all business entities. It is the prelude to a full Omnibus Business Code. While the Council does not believe it is a panacea for these types of transactions, it is a starting place for which further acts may be refined.

The Council also approved the adoption of Uniform Limited Liability Company Act ("ULLCA II") which makes numerous improvements to ULLCA I after several years of history with limited liability companies. The approval of the Council was simply because ULLCA II is better than ULLCA I, but is not yet fully refined. The ABA Partnership Law Section is working on a prototype LLC Act, as well.

The Council also heard a report in connection with a new Omnibus Business Code , which we believe will begin to be drafted this fall. The Omnibus Business Code will not only take the place of META, but it will also begin the drafting toward a Business Entity Act that would be uniform through most states and would begin making it easier to select a proper entity for a transaction, especially given the plethora of choices now available to practitioners.


 Section Establishes a Task Force on Real Property Law School Curriculum

The Real Property Probate and Trust Law Section has formed a Task Force to study a perceived decline in emphasis on real property courses at law schools around the country. In conjunction with the American Bar Foundation, the Section has designed and distributed a questionnaire on this topic to law school professors and selected practitioners around the country. The purpose of the survey is to establish empirical evidence that the focus on the real property area has declined at the nation’s law schools. The initial response rate to the survey has been quite high, and preliminary results do reveal a decline in coverage of real property related issues in the first year law school curriculum. The Task Force hopes to reverse this trend by establishing a canon prescribing appropriate content for first year property classes in order to ensure consistency in the law courses offered around the country.


Practice Alert: New Hampshire Passes New Trust Statute

The Trust Modernization and Competitiveness Act, SB 394, passed by both houses of New Hampshire's legislature this past April, amends the state's current trust statute in order to make New Hampshire more attractive for those individuals establishing or servicing trusts. Backers of the bill argue that the new legislation, along with the state's lack of income tax and already favorable trust laws, will benefit New Hampshire by potentially creating new jobs and millions in state business tax revenue.

The legislation streamlines the application process for the formation of trust companies and clarifies the authority of these companies, conferring upon them the power and privileges applicable to a limited liability corporation. The statute provides for the

appointment of Trust Protectors and Trust Advisors and states that Trustees are not responsible for the acts of such Protectors and Advisors. The provisions of the Uniform Principal and Income Act, including the Power to Adjust, are adopted in the New Hampshire Act. The Act also allows for the formation of "Family Fiduciary Services

Companies"--entities which specifically service one or more family members rather than the general public. Though these new companies would not be allowed to take deposits or make loans, the law essentially allows any family with $500,000 in start-up capital to

form their own private trust company to manage and control the family's wealth. A final key provision of the law includes additions, ensuring that confidential information only be shared with state and federal regulators.

By: Christina Thoda of Fulbright & Jaworski L.L.P.


Practice Alert: Nevada Adopts New Rules for Out-of-State Lawyers

The State of Nevada has adopted rules governing practice and presence by out-of-state lawyers on matters touching upon Nevada clients and Nevada law.  These rules are relatively permissive for transactional lawyers, who have no equivalent of the pro hac vice admission used by litigators.  But lawyers doing transactional and extrajudicial work must file an annual report about what they did, or the work will be deemed unauthorized practice. 

Twenty-Six States Now Have Rules Permitting Multijurisdictional Practice ("MJP")

As of May 17, 2006 twenty-six states have adopted rules that are identical or very similar to ABA Model Rule 5.5, which permits lawyers licensed in other jurisdictions to practice law on a temporary basis in the state (Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah and Wyoming). The bar associations in six other states have recommendations before their states' highest courts to adopt rules that are identical or similar to Model Rule 5.5 ( Connecticut, Illinois, Michigan, Montana, New Hampshire, and Washington). Six other jurisdictions' MJP Study Committees have recommended adoption of rules identical or similar to Model Rule 5.5 (Alaska, District of Columbia, New York, Ohio, Vermont, and Wisconsin), but the Oklahoma Bar formed a Task Force which took no action. All the remaining states have created committees to study the ABA's proposed model rules. For a more detailed analysis of the states' implementation of Model Rule 5.5, and the related proposals on choice of law for disciplinary authority, pro hoc vice admissions, admission by motion, foreign legal consultants and temporary practice by foreign lawyers, please see http://www.abanet.org/cpr/mjp-home.html.


Don’t Miss This Opportunity!

Join Us in Denver October 19-21

The ABA Section of Real Property, Probate & Trust Law and Section of Taxation will once again co-sponsor a Fall CLE Meeting from October 19-21 at the Hyatt Regency in Denver, Colorado.

This is our fourth combined CLE program with the Section of Taxation. Last year’s Fall Meeting in San Francisco was very successful, and we are looking forward to an even better meeting this year. The Fall CLE Meeting provides the opportunity for you to experience joint programming on a wide range of issues related to your practice area, while offering the same high quality stand-alone CLE programming you have come to expect from our Section in our core practice areas of real property, estate planning, probate and trust.

Join us and take advantage of networking with the country’s leading attorneys and government officials, and discuss the latest initiatives, regulations, legislative forecasts, and planning ideas.

Watch for details at www.abanet.org/rppt/2006.