Barclay Damon
Barclay Damon

Robert A. Barrer

Robert A. Barrer

Partner

p: 315.425.2704

f: 315.425.8544

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Syracuse Office

Barclay Damon Tower
125 East Jefferson Street
Syracuse, New York 13202

Robert is the firm’s chief ethics officer and risk management partner and is responsible for all ethics, conflicts, loss prevention, and continuing legal education activities at the firm. In this senior leadership position, Robert counsels firm attorneys and provides analysis and advice on ethical questions involving conflicts of interest, privileges, and legal issues implicating the Rules of Professional Conduct. He also supervises the firm’s CLE programs and lectures on a wide variety of ethics and practice management topics. In addition, Robert is responsible for designing and implementing programs and policies to improve the provision of high quality legal services for firm clients.

Robert has over 33 years of trial and appellate experience in the state and federal courts. He also serves as a mediator for court-directed and private mediation clients. Over the course of his career, Robert represented large and small corporations, governmental and agency clients as well as individuals in a wide variety of matters.

In recognition of his trial experience, Robert was elected as a member of the American Board of Trial Advocates. As part of his commitment to serve the legal profession and his high ethical standards, Robert served by appointment of the Chief Judge of the Appellate Division as a member, and then, chair, of the Fifth District Grievance Committee, the body charged with adjudicating misconduct complaints against attorneys. In 2010, Robert received the Pro Bono Service Award from the NDNY Federal Court Bar Association for his extensive and successful service as a mediator in the District Court’s Alternate Dispute Resolution program.

Robert is a frequent lecturer to clients and attorneys on legal ethics, professional responsibility, and federal practice issues. He is a two-time winner of the Burton Award for excellence in legal writing, presented at the Library of Congress, in recognition of his articles “Careless Keystrokes & Bad Decisions: New York Law on Inadvertent Disclosure” and “Unintended Consequences: Avoiding and Addressing the Inadvertent Disclosure of Documents.”

Representative Experience

  • Obtained summary judgment for our client, a municipality, that provided emergency medical services in response to a 911 call concerning the plaintiff who suffered a massive heart attack. While at the scene, the defibrillator and the pads allegedly malfunctioned. By the time a connection to a second defibrillator was made, it is alleged that the plaintiff suffered severe brain damage. A lawsuit was brought against our client and the manufacturer and distributors of the defibrillator and pads. We obtained summary judgment on all claims and a dismissal of the action based upon governmental immunity. In the first of two successful summary judgment motions, the claims relating to the equipment were dismissed upon the determination that the claimed negligent acts were “ministerial” in nature and there was no showing of the required special relationship. The second summary judgment motion successfully disposed of the medical treatment claim based upon a new court decision from the state's highest court holding that these claims were not proprietary and subject to normal negligence rules. In the absence of a special relationship, and none was established, there could be no municipal liability. The Plaintiff appealed and the dismissal of the action was affirmed both on the ground that the provision of emergency medical services was a governmental function and the lack of special relationship between the municipality and the Plaintiff.
  • Obtained dismissal of a prolific pro se plaintiff’s federal civil rights claim against our client, a law firm that represented other parties in state court litigation. The plaintiff, whom the federal district court judge termed “a disbarred and disgruntled former attorney,” commenced a lawsuit against a host of state court judges, state court officials and private law firms. We successfully argued that the lawsuit was frivolous against the law firm because it was not a “state actor” within the meaning of the controlling federal civil rights statute. The claims against the state court judges and state officials were similarly rejected on the grounds of judicial immunity.
  • Obtained summary judgment for our client, the owner and operator of a daycare center, in an action commenced by the parents of a two-year old who sustained a serious injury when a piece of furniture upon which the child was climbing tipped over. When the daycare center opened, it used furniture purchased directly from a nationally known manufacturer. The owner of the daycare center sought and received assurances from the manufacturer that a dress-up center which was free standing was safe and sturdy for use with young children. After receiving the assurances, the furniture was purchased and used in the daycare center. The child suffered a laceration down to her skull and was left with a large scar. A videotape of the incident showed that the child was out of a teacher’s sight and grasp for no more than a few seconds. In the lawsuit against the daycare center and the manufacturer, it was established that the dress-up center had been the subject of prior injuries from similar circumstances and, most importantly, had been the subject of a design change to enhance stability. No recall notices were sent nor was any effort made to publicize the facts that the product was dangerous and could lead to serious injury. The Court granted our motion for summary judgment and dismissed both the action against daycare center as well as all cross-claims asserted by the manufacturer. The argument of the manufacturer that the daycare center was guilty of negligent supervision was summarily rejected.
  • Obtained summary judgment for our client in a pair of federal civil rights actions commenced by retired disabled police officers who were challenging the manner in which their medical benefits were paid under Section 207-c of the New York General Municipal Law. Our client is a third party benefits provider for self-funded health and risk management plans. The Plaintiffs claimed that their civil rights were denied in a conspiracy between their former employer, a municipality, and our client to deny medical treatment in order to save costs. Following extensive discovery and motion practice over several years, we were able to convince the Court that there was no conspiracy and no denial of any medical treatment. Rather, consistent with sound fiscal policy, medical treatment costs were carefully reviewed and reasonable restrictions on the processing and payment of medical bills were employed. The decision granting summary judgment was affirmed by the United States Court of Appeals for the Second Circuit.
  • Obtained summary judgment and dismissal of a legal malpractice action against our clients, a law firm and its principal attorney, based upon the failure of the plaintiff to schedule the claim in his pre-action bankruptcy petition. The case was pending for several years and involved contentious discovery and multiple appeals. It recently concluded with the New York Court of Appeals denying leave to appeal and imposing costs upon the losing plaintiff.
  • Represented manufacturer of motorcycles and off-the-road vehicles in a hotly contested challenge to the manufacturer's decision to terminate the franchisee based upon its failure to meet the standards contained in the franchise agreement. Following a six-week jury trial in the United States District Court for the Northern District of New York, the jury returned a verdict of no cause for action in favor of our client thereby validating the decision to terminate the franchise.
  • A manufacturer of precision medical devices entered into an agreement with a New York state university for the purchase of a $2.25M nuclear magnetic resonance system. After our client performed and indicated its readiness to deliver the system, the university attempted to cancel the agreement and sought a refund of its deposit. Our client refused upon the ground that it was unable to fully mitigate its damages. We defended the university's breach of contract action and obtained a decision from the United States District Court for the Northern District of New York, affirmed by the Second Circuit, that the university breached the agreement and that there was no right to a refund of the deposit. Following a remand on the sole issue of mitigation of damages, the matter was settled favorably to our client. 
  • Represented a wholesale pharmaceutical services company in connection with its successful attempt to enjoin a former salesperson from unlawfully competing by contacting customers and using confidential information and trade secrets. The salesperson signed an employment agreement containing a non-competition clause and, although New York limits the scope and duration of such clauses, we were able to prove during a Federal Court preliminary injunction hearing that the scope and duration of the clause were reasonable and should be enforced. Once the preliminary injunction was granted, the salesman consented to all the relief our client was seeking for the duration of the agreement. 
  • Successfully defended two municipal agencies and one of its officers in a federal civil rights action arising out of the declaration that multi-story dwelling in a college town was not up to the local housing code and therefore unsuitable for use as a college fraternity. The case was complicated by the fact that the house had been sold to the plaintiff by two individuals, one of whom was the former head of the housing board that subsequently declared the property in violation of the housing code. We obtained dismissal of the punitive damage claim against the officer during the trial and, following a six-week trial, the jury in the United States District Court for the Northern District of New York returned a verdict of no cause for action against our clients. The former owners of the home were found liable for fraud. The Second Circuit affirmed the verdict in all respects.
  • Defended a physician accused of professional misconduct and fraud in an eighteen-day administrative proceeding before a panel of the State Board of Professional Medical Conduct. The Board accused the physician of multiple instances of misconduct involving ten different patients arising out of alleged deviations from the standard of care, inadequate recordkeeping and fraud for billing for procedures not undertaken.
  • Successfully defended an attorney charged with malpractice and fraud. The spouse who was not represented by our client sued him claiming that he was guilty of malpractice and fraud in the context of a contentious matrimonial action. We established proper conduct on our client's part and this, coupled with a lack of privity, led the Court to grant summary judgment to our client.
  • Obtained summary judgment for our clients, medical device manufacturers, by establishing that the product at issue had been a part of a line of business sold to another company. Because the agreement memorializing the sale excluded retained liabilities, the Court held that there was no liability to the Plaintiff who claimed to have suffered severe damages from an overdose of radiation during cancer treatment.
  • Our clients manufactured warming blankets for use during surgery and were sued when a young patient developed compartment syndrome on his legs following kidney surgery. We were able to establish that the warming blanket functioned properly and did not cause or contribute to the compartment syndrome. As a result, the Court granted summary judgment to our clients.
  • Represented a municipal fair association that sponsored an automobile race at a local fair. The plaintiff was injured when a tire separated from a race car and struck him in the leg. Because the plaintiff had executed a waiver of liability to permit him to be in the pit area and had not paid a fee for admission, he was not considered a user within the meaning of Section 5-326 of the New York General Obligations Law. Accordingly, we were able to ultimately prevail on appeal and had that victory affirmed by the New York Court of Appeals in its first application of this statute.
  • Successfully defended our client who was accused of legal malpractice arising out of his representation of an accused in a criminal case. Under New York law, a former client of an attorney who was convicted in a criminal case cannot claim legal malpractice against the attorney without first establishing actual innocence. The incarcerated former client made no claim or showing of innocence and we obtained summary judgment for our client.
  • Successfully defended a manufacturer of folding ladders in a claim by an insurance company claims adjuster that the ladder failed causing him to fall and sustain personal injuries. Relying upon expert testimony from a wood materials and ladder expert, we were able to convince the jury that the ladder was not defective and that the sole cause of the fall and injury was the negligence of the plaintiff. The jury returned a verdict of no cause for action following a four-day trial.
  • Represented the individual seller of a technology company who claimed that he was wrongfully denied compensation for the sale of products following the purchase of his business by a competitor. The sales agreement provided that the seller would receive a percentage of sales from the business that was sold in the years following the transaction. The buyer underwent a corporate reorganization and claimed that the entity that generated the sales was not the entity that was the subject of the agreement. Arbitration and litigation followed parallel tracks and, after completing the arbitration hearing, the arbitrator awarded our client $1.4M (the full amount sought).

Practice Areas

Education

  • Syracuse University College of Law, J.D., magna cum laude, 1982
  • Skidmore College, B.A., with honors, 1979

Admitted To Practice

  • New York, 1983
  • U.S. Supreme Court
  • U.S. Court of Appeals, 2nd Circuit
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Northern District of New York
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Western District of New York

Memberships & Affiliations

  • Association of Professional Responsibility Lawyers
  • Chair (2011-2013), Grievance Committee, NY State Supreme Court, Appellate Division, 4th Dept., 5th Judicial District, Member (2007-2013) 
  • American Board of Trial Advocates
  • Referee, New York State Commission on Judicial Conduct
  • Early Neutral Evaluator, Fifth Judicial District, New York State Unified Court System
  • New York State Bar Association, Member Committee on Standards of Attorney Conduct 2015- present, Former Member of the Executive Committee of the Torts, Insurance and Compensation Law Section
  • Northern District of New York Federal Court Bar Association
  • Onondaga County Bar Association, former Member of Grievance Committee

Civic Activities

  • Syracuse University College of Law, Adjunct
  • N.D.N.Y. ADR Program, Panel Member

Speaking & Publications

  • New York State Bar Association CLE, “Basic Lessons on Ethics and Civility,” April 2018
  • 17th Annual Hinshaw & Culbertson Legal Malpractice/Risk Management Conference, “Navigating Troubled Waters: Dealing with the Impaired Lawyer,” March 2018
  • New York State Bar Association CLE, “Ethics 2017: Legal Ethics in the Real World,” June 2017
  • New York State Bar Association CLE, “Legal Malpractice 2017,” March 2017
  • Legal Services of Central New York and the Hiscock Legal Aid Society CLE, “2017 Ethics and Risk Management Review,” March 2017
  • American Law Institute, “The Efficient and Ethical Use of Email in Law Practice,” National Webinar, March 2017, Original October 18, 2016
  • New York Legal Ethics Reporter, “Careless Keystrokes & Bad Decisions: New York Law on Inadvertent Disclosure (Part 2),” May 2016
  • New York Legal Ethics Reporter, “Careless Keystrokes & Bad Decisions: New York Law on Inadvertent Disclosure (Part 1),” March 2016
  • New York Legal Ethics Reporter, “Ethical Implications and Best Practices for the Use of Email,” March 2015
  • Hiscock Legal Aid Society of Central New York CLE, “2014 Ethics and Risk Management Review,” April 2014
  • Legal Services of Central New York, “Ethics and Risk Management for Legal Services Attorneys,” February 2014
  • Onondaga County Bar Association Program on Successful Strategies for Winning Commercial Cases in New York State, “Ethics for Business Litigators,” October 2013
  • NDNY Federal Court Bar Association, “Ethical Issues Arising During Handling of a Prisoner Case,” October 2012
  • City of Syracuse Corporation Counsel, “2012 Ethics and Risk Management Review,” July 2012
  • National Grid Legal Department, “Litigation Misconduct and Professional Ethics,” July 2012
  • County Attorneys' Association of the State of New York Annual Meeting, "Disciplinary Consequences of Lawyer Impairment,” April 2012
  • Association of Towns Annual Meeting and Training School, “Civility: A Complement to General Municipal Law Article 18,” February 2012
  • New York State Bar Association, “Avoiding Ethical Dilemmas in Day-to-Day Practice,” November 2011
  • NDNY Federal Court Bar Association, “Ethical Issues Arising During Handling of a Prisoner Case,” October 2010
  • National Grid, “The Rules of Professional Conduct,” March 2009
  • Niagara Frontier Corporate Counsel Association, “Preserving In-House Attorney-Client Privilege,” September 2009
  • Fifth District Grievance Committee of the Fourth Department, “Ethics and Professionalism,” October 2008
  • NDNY Federal Court Bar Association, “Professionalism and Discipline in the Northern District of New York,” May 2008
  • NDNY Federal Court Bar Association, “Removal Jurisdiction – Making it a Federal Case,” April 2008
  • New York State Bar Association Law School for the Claims Professional, “Damages in Wrongful Death Cases,” June 2007
  • New York State Bar Association Journal, “Removal of Personal Injury Actions to New York Federal District Courts,” October 2006
  • NDNY Federal Court Bar Association, “Inadvertent and Advertent Waiver of Attorney-Client and Attorney Work Product Privileges,” March 2006
  • Lorman Educational Services, “Real Evidence for the Trial Practitioner: Expert Witnesses and Admissibility,” February 2006
  • National Grid Legal Department, “Litigation Conduct, Misconduct and Inadvertent Disclosure,” December 2005
  • New York State Bar Association Journal, “Unintended Consequences: Avoiding and Addressing the Inadvertent Disclosure of Documents,” November 2005
  • Zurich American Insurance Co., “Hot Topics in Insurance Agreements,” October 2005
  • “Warren’s Negligence in the New York Courts,” Ch. 3 Editor, Parties Negligent, Matthew Bender, 2005

Honors

  • Martindale-Hubbell “AV” Peer Review Rated for Very High to Preeminent Ethical Standards and Legal Ability
  • Selected to Super Lawyers Upstate New York: Professional Liability: Defense, 2018
  • Selected to Super Lawyers Upstate New York: Business Litigation, 2007-2017 
  • Recipient of 2010 Pro Bono Service Award by N.D.N.Y. Federal Court Bar Association
  • 2006 Burton Award for excellence in legal writing, presented at the Library of Congress, in recognition of his article “Unintended Consequences: Avoiding and Addressing the Inadvertent Disclosure of Documents,” published in the November/December 2005 edition of the New York State Bar Association Journal

Prior Experience

  • Hiscock & Barclay, LLP, Partner
  • Law Clerk, Honorable Howard G. Munson, Former Chief Judge of US District Court, Northern District of New York

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