Personal Images: the Professional Athlete’S Right of Publicity by James A

MARCH/APRIL 2008 VOL. 80 | NO. 3 JournalNEW YORK STATE BAR ASSOCIATION

PPersonalersonal IImagesmages

Unauthorized Publicity vs. Public Interest Also in this Issue Common-Law Dissolution by James A. Johnson in New York Outsourcing and Intellectual Property Rights Crime Victims Compensation

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside

PUBLISHER Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org

ADVERTISING REPRESENTATIVE Network Publications Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected]

EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961–1998 CONTENTS MARCH/APRIL 2008

PERSONAL IMAGES: THE PROFESSIONAL ATHLETE’S RIGHT OF PUBLICITY BY JAMES A. JOHNSON 10

DEPARTMENTS The Contours of Common-Law 5 President’s Message 23 Dissolution in New York 8 CLE Seminar Schedule BY PHILIP M. HALPERN 20 Burden of Proof BY DAVID PAUL HOROWITZ 30 Intellectual Property Considerations in 44 Planning Ahead the Outsourcing Industry BY ILENE S. COOPER AND JOSEPH T. LA FERLITA 48 Book Review BY POORVI CHOTHANI BY WILLIAM MICHAEL TREANOR AND MARK A. KEURIAN 36 Enhancing Victims’ Rights 50 Attorney Professionalism Forum Crime Victims Compensation 52 Language Tips BY BENEDICT J. MONACHINO BY GERTRUDE BLOCK 54 New Members Welcomed 57 Index to Advertisers 57 Classified Notices 63 2007–2008 Officers 64 The Legal Writer BY GERALD LEBOVITS

CARTOONS © CARTOONRESOURCE.COM

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2008 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | March/April 2008 | 3

PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN “Celebrating Our Diversity”

“We are a richer and more effective Committee on Diversity and Association because of diversity, as it Leadership Development increases our Association’s strengths, This Standing Committee, now in its capabilities and adaptability.” Excerpt fourth year, is co- and vice-chaired from NYSBA Diversity Policy, adopted by a triumvirate of Past Presidents: in 2003. Lorraine Power Tharp, Ken Standard Our Association’s diversity policy and Tom Levin, demonstrating our defines diversity inclusively: “encom- deep commitment to diversity at all passing gender, race, color, ethnic ori- levels of the Association. In addition gin, national origin, religion, sexual to identifying and nurturing diverse orientation, age and disability.” We future leaders, this Committee has have undertaken aggressive, multi- co-sponsored a series of Regional faceted approaches to more effectively Diversity Receptions, joining with identify, nurture and grow a diverse county, women’s, ethnic, minority leadership. We recognize that it is and specialty bars across the state. not enough to have a diversity poli- Leadership training seminars after Given the many and varied Section cy. Words alone, no matter how well our House of Delegates meetings and Committee diversity initiatives, intentioned, will not suffice. Actions, have been a huge draw for members we can expect that our 2009 Diversity once taken, must be measured and be seeking opportunities for leadership. Report Card will reveal greater gains. responsive to changing needs. And we Most important, we are benchmark- have good news to report. Here are ing and measuring our success. Every Section and Committee Diversity some of the highlights. two years the Committee on Diversity Initiatives and Leadership Development admin- Where to begin? From our high- Governance Initiatives isters and reports on the results of our ly acclaimed CLE offerings such as Let me take you back to 1983 and my Diversity Report Card, which primar- “Women on the Move” (now in its first House of Delegates meeting in ily evaluates the diversity of Section fifth incarnation), the Commercial and Cooperstown. I was 30. And as I gazed leadership, membership, programs Federal Litigation Section’s “Smooth with awe at the sea of committed bar and publications. Moves” program for minority in-house leaders, it hit me that I was a minority. counsel, the Minority Fellowship in Overwhelmingly so. I saw few lawyers 2007 Diversity Report Card Environmental Law, our redesigned of color. A woman here and there. Very The news is good but could be better. Web site and meetings signage for the few delegates under 35. Since the last Report Card in 2005, visually impaired, and from our active Fast forward to today. Our House we have an uptick in women Section Senior Lawyers Committee to our new is just as committed, if not even more officers and other Section leadership LGBT Committee, we have much to collegial, as nearly 25 years ago, but it is positions but still lag behind when celebrate. now a mosaic: men and women, all ages, compared to the percentage of women We applaud the many Sections races and ethnicities, sexual orientations in the Association overall. Too many that provide financial support to law- and disabilities. Dramatic evidence that Sections have no women officers. yers of color, government and pub- yes, we are on the right path. A 3% increase in racial and eth- lic service attorneys, young lawyers Our key governance initiatives nic minority leadership is encourag- and other under-represented groups added 12 diversity seats to the House ing, as is the fact that the number through Section meeting discounts and of Delegates and two member-at- of Section leaders from three racial/ subsidies. Some Sections now spon- large diversity seats to our Executive ethnic minority groups (Asian/Pacific sor Minority Scholarships, through Committee. But that alone cannot Islander, black/African American, and restricted gifts to the Bar Foundation. account for the changes in our House Hispanic) has doubled, along with an We recently honored Taa Grays for and Executive Committee leadership. increase in the number of our Sections her pioneering efforts with the 2008 Our Section and local bar delegates are with a Diversity Committee and for- also far more diverse. From the top- mal diversity plans. Yet most of our KATHRYN GRANT MADIGAN can be down, we have made it a long-term, Sections have few, if any, minorities reached on her blog at http://nysbar. indelible commitment. within their leadership ranks. com/blogs/president.

NYSBA Journal | March/April 2008 | 5 PRESIDENT’S MESSAGE

Diversity Trailblazer Award during Diversity fosters intellectual growth; ences flow healthy debate and innova- our “Celebrating Diversity in the Bar” it allows us to challenge our assump- tive solutions. Diversity will always be Reception, which has become a stand- tions and learn from each other. We a priority, and we are making genuine ing-room-only event and an Annual must grow not only in numbers but in progress. And that is reason to cel- Meeting week tradition. differences, because from our differ- ebrate! ■

NEW YORK STATE BAR ASSOCIATION

“The NYSBA is a wonderful, welcoming legal community where members enjoy diversity of thought, lively debate, educational insight, and a unique camaraderie among attorneys. The professional and personal connections made at NYSBA Section meetings and events last a lifetime. It is one of the most valuable resources in my practice.”

Rosemarie Tully Member since 1993

LAST CHANCE TO RENEW FOR 2008. Please renew your membership by March 30th. www.nysba.org/renew2008 Thank you for your membership support.

6 | March/April 2008 | NYSBA Journal

NYSBACLE Partial Schedule of Spring Programs (Subject to Change)

The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.

Introductory Strategies on Ethics and Civility in Advanced Equitable Distribution: Valuing and Everyday Lawyering Dividing Professional Practices and Closely-Held (program: 9:00 am–12:45 pm) Businesses Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 +Fulfills NY MCLE requirement (4.0): 4.0 practice ethics and professionalism management and/or professional practice April 4 Albany; Buffalo; New York City (program: 9:00 am–12:35 pm) April 18 Melville, LI April 25 Tarrytown April 25 Rochester May 9 Rochester May 16 Melville, LI Practical Skills Series: Family Court Practice: June 13 Albany Support, Family Offense Proceedings and Ethics June 20 New York City Fulfills NY MCLE requirement for all attorneys (7.5): 2.0 ethics and professionalism; 3.0 skills; 2.5 practice manage- Can the Commercial General Liability Policy ment and/or professional practice Survive? Recent Development Affecting Coverage for Bodily Injury Claims Under the CGL Policy April 8 Albany; Buffalo; Melville, LI; New York City; Rochester; Syracuse; Fulfills NY MCLE requirement for all attorneys (6.5): Westchester .5 ethics and professionalism; 6.0 areas of professional practice Women on the Move 2008 – Clarity, Focus April 29 Albany; New York City and Action May 1 Buffalo (program: 12:00–5:10 pm) May 2 Syracuse May 6 Plainview, LI Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 skills; 1.5 law practice management; 1.0 professional Meet the Third Department Justices practice (program: 3:00–5:00 pm; reception: 5:00–6:00 pm) April 9 Syracuse April 30 Albany A Day in Discovery: Win Your Case Before Trial with Jim McElhaney DWI on Trial VIII Fulfills NY MCLE requirement for all attorneys (7.0): .5 Fulfills NY MCLE requirement for all attorneys (10.5): ethics and professionalism; 6.5 skills 7.5 skills; 3.0 professional practice IMPORTANT NOTE: NYSBA CLE seminar coupons IMPORTANT NOTE: NYSBA CLE seminar coupons and complimentary passes cannot be used for this and complimentary passes cannot be used for this program. program. April 17 Tarrytown May 1–2 New York City April 18 New York City Long Term Care Representing a Political Candidate (and Winning!): May 2 New York City A New York Election Law Primer May 9 Albany (program: 9:00 am–1:00 pm) May 16 Rochester April 23 Buffalo Practical Skills Series: Basic Tort and Insurance April 25 Tarrytown Law Practice May 7 New York City Fulfills NY MCLE requirement for all attorneys (6.5): May 14 Albany .5 ethics and professionalism; 2.5 skills; 3.5 practice May 16 Melville, LI; Syracuse management and/or professional practice May 20 Albany; Buffalo; Melville, LI; New York City; Syracuse; Westchester

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NYSBA’s CLE Online ONLINE | CD | iPod | MP3 PLAYER

Out the Door, But Not Over the Hill – Options for Bringing CLE to you... the Mature Lawyer (program: 1:00–5:00 pm) anywhere, anytime. May 6 Albany May 14 New York City NYSBA is proud to present the most flexible, May 21 Hauppauge, LI “on demand” CLE solutions you could ask for. Practical Skills Series: Basics of Intellectual Property Law With CLE Online (also available as CLE on Fulfills NY MCLE requirement for all attorneys (7.0): CD), you can now get the valuable profes- 2.0 skills; 5.0 practice management and/or professional sional learning you’re after practice ...at your convenience. May 8 Buffalo; Hauppauge, LI; New York City; Syracuse > Get the best NY-specific content from the state’s #1 CLE provider. Criminal Motion Practice TBD Buffalo > Take “Cyber Portable” courses from May 15 Albany your laptop, at home or at work, via the May 22 New York City Internet or on CD. Immigration Law Update 2008 > Download CLE Online programs to your May 13–14 New York City iPod or MP3 player. > Everything you need to obtain full MCLE Getting Ready in New York: Public Health credit is included online or on CD! Emergency Legal Preparedness May 15 Yonkers Come click for CLE credit at: Beyond Medicaid: Alternative Methods for www.nysbaCLEonline.com Financing Long-Term Care or to purchase CDs call 800.582.2452 May 21 Syracuse June 4 Hauppauge, LI June 5 New York City June 6 Albany; Buffalo June 17 Tarrytown +Fourth Annual International Estate Planning Institute (program: May 27, 2:00–5:30 pm; May 28, 8:15 am – 5:00 pm) May 27–28 New York City

To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 Or fax your request to (518) 487-5618 Complete Spring CLE Schedule can be found at: www.nysba.org/CLE/spring2008 (Note: As a NYSBA member, you’ll receive a substantial discount)

NYSBA Journal | March/April 2008 | 9 JAMES A. JOHNSON ([email protected]) of James A. Johnson, Esq., in Southfield, Michigan, concentrates on intellectual property licensing with an emphasis on sports- and entertainment-related intellectual property litigation. Mr. Johnson is a Certified NBA Players Agent, litigator, and a member of the Massachusetts, Michigan and U.S. Supreme Court Bars. Personal Images: The Professional Athlete’s Right of Publicity By James A. Johnson

he First Amendment requires that the right to be protected from unauthorized publicity be balanced against the public Tinterest in the dissemination of news and information. This is congruent with the democratic processes under the constitutional guarantees of freedom of speech and of the press.

Distinction of Rights The right of publicity is a protectable property interest in one’s name, identity or persona. Every person – celebrity or non-celebrity – has a right of publicity, which is the right to own, protect and commer- cially exploit one’s identity. The genesis of the legal right of publicity is rooted in and intertwined with the right of privacy.1 The right of privacy is a personal right; it is non-assignable and terminates at death. It protects against intrusions upon one’s seclu- sion or solitude to obtain private facts for public disclosure, facts that would be highly offensive, false or embarrassing to a reasonable person. In short, this is a right to be left alone. Privacy and publicity rights become entwined when one’s name or likeness is appropri- ated, without permission, for the benefit of another.2 To illustrate: a photograph in an advertisement causes injury to a plaintiff. If that injury is to the plaintiff’s feelings and dignity, resulting in mental

NYSBA Journal | March/April 2008 | 11 or physical damages, that implicates the right of privacy. mercial value of the person’s name, likeness or persona. If that injury is infringement upon the plaintiff’s legal In the absence of actual loss of money as a result of the right to exploit for commercial purposes his or her name, defendant’s unauthorized use, the “going rate” or com- character traits, likeness3 or other indicia of identity, that pensatory damages is the appropriate measure of dam- comes within the ambit of publicity rights. Depending ages. Where the defendant’s activities are also in willful on state law a caricature,4 popular phrase (“Here’s disregard of the plaintiff’s rights, punitive damages are Johnny”),5 sound-alike voice,6 name in a car commercial,7 warranted.18 animatronic likeness8 and statistics of professional baseball players,9 used without consent, have all been held Constitutional Protection to come within the ambit of publicity rights, constituting The reporting of newsworthy events, with nonconsen- infringement. sual use of a name or photo in a magazine, is afforded First Amendment guarantees of freedom of speech and Proprietary Interest the press.19 There is no violation of publicity rights; An individual has the right to control, direct and com- newsworthiness provides constitutional protection. mercially use his or her name, voice, signature, likeness Where a newspaper was selling promotional posters or photograph. Publicity rights may include the right to of NFL Quarterback Joe Montana’s four Super Bowl assign, transfer, license, devise and to enforce the same Championships,20 and the posters were reproductions of against third parties. Today, 18 states have publicity stat- actual newspaper pages of that newspaper, the California utes,10 which differ widely. At least a half dozen other Court of Appeals opined that the posters depicted news- states rely on common law, and 12 states do not recognize worthy events and the newspaper had a right to promote the right of publicity.11 itself with them.

A prevailing party, in appropriate circumstances, can collect treble damages, costs and attorney fees on Lanham Act claims.

Commercial value together with the commercial The plaintiff Tony Twist,21 a former professional exploitation without prior consent triggers a cause of “enforcer” hockey player, sued the creator of a comic action. The unauthorized use, in a commercial context, series who used the name Anthony “Tony Twist” Twistelli engenders money damages or equitable relief by way of as a fictional Mafia character. Twist claimed association an injunction or both. Moreover, as to a celebrity, subject with the comic book thug damaged the endorsement to exemptions, the post-mortem right of publicity extends value of his name. The Missouri Supreme Court adopted after death to 70 years in California12 and 100 years in a predominant purpose test and held that the use and both Oklahoma13 and Indiana.14 New York, with one of identity of Twist’s name was predominantly a ploy to the most developed jurisprudence in this area, excludes sell comic books rather than an artistic or literary expres- protection for the persona of deceased celebrities.15 sion. Under these circumstances, free speech must give way to the right of publicity. Because of improper jury Supplemental Jurisdiction instructions, however, the verdict of $24.5 million in There is no federal statute or federal common law govern- the plaintiff’s favor was set aside. A second trial in 2004 ing rights of publicity, which stands in contrast to other resulted in a $15 million jury verdict. On June 20, 2006, in fields of intellectual property law. Nevertheless, federal a 3-0 opinion, a three-judge panel of the Eastern District claims of unfair competition and false advertisement or Appeals Court upheld the $15 million jury verdict against false endorsement under the Lanham Act,16 together the comic book creator Todd McFarlane and his company, with a state claim of right of publicity, can be asserted in Todd McFarlane Productions Inc. federal court under supplemental jurisdiction. A prevail- A publisher of an artist’s work depicting Tiger Woods’s ing party, in appropriate circumstances, can collect treble likeness, titled “The Masters of Augusta,” is afforded damages, costs and attorney fees on Lanham Act claims First Amendment protection based on its being “fine by establishing unfair competition, dilution or the likeli- art,”22 despite the fact that 5,250 copies of the print had hood of public confusion.17 been sold. The court found that the print was not a mere Monetary relief in establishing liability for infringement of one’s right of publicity is measured by the com- CONTINUED ON PAGE 14

12 | March/April 2008 | NYSBA Journal

CONTINUED FROM PAGE 12 that those uses were of substantial public interest and not commercial speech. poster or item of sports merchandise, but rather an artis- New York’s highest court extended such rights to a tic creation seeking to express a message. Further, the magazine that used a 14-year-old girl’s picture, without right of publicity does not extend to prohibit depictions her consent, to illustrate a magazine column on teenage of a person’s life story in a television miniseries,23 book24 sex and drinking. The New York Court of Appeals ruled or film.25 that publishers cannot be held liable, so long as the pho- In Gionfriddo v. Major League Baseball,26 the First tograph bears a genuine relationship to a newsworthy Amendment protected Major League Baseball’s use of article and is not an advertisement in disguise,27 despite names and statistics of four former players on MLB’s the fact that the plaintiff’s photo was used in a substan- Web sites, media guides, and programs for All-Star and tially fictionalized way and may by implication make the World Series games. The California Court of Appeal held plaintiff the subject of the article. “[W]hen a plaintiff’s likeness is used to illustrate a newsworthy article, the

NATIONAL BASKETBALL ASSOCIATION UNIFORM PLAYER CONTRACT

THIS AGREEMENT made this ___ day of ______ing the obligations described herein the Compensation is by and between ______(hereinafter described in Exhibit 1 or Exhibit 1A hereto (less all called the “Team”), a member of the National Basketball amounts required to be withheld by any governmental Association (hereinafter called the “NBA” or “League’’) authority, and exclusive of any amount(s) which the Player and ______, an individual whose address shall be entitled to receive from the Player Playoff Pool). is shown below (hereinafter called the “Player”). In con- Unless otherwise provided in Exhibit 1, such Compensation sideration of the mutual promises hereinafter contained, shall be paid in twelve (12) equal semi-monthly payments the parties hereto promise and agree as follows: beginning with the first of said payments on November 15th of each year covered by the Contract and continu- 1. TERM. ing with such payments on the first and fifteenth of each The Team hereby employs the Player as a skilled bas- month until said Compensation is paid in full. ketball player for a term of Two (2) year(s) from the 1st day of September 2005. * * * 12. PROHIBITED ACTIVITIES. 2. SERVICES. The Player and the Team acknowledge and agree that The services to be rendered by the Player pursuant to the Player’s participation in certain other activities may this Contract shall include: (a) training camp, (b) practices, impair or destroy his ability and skill as a basketball player, meetings, workouts, and skill or conditioning sessions and the Player’s participation in any game or exhibition conducted by the Team during the Season, (c) games of basketball other than at the request of the Team may scheduled for the Team during any Regular Season, (d) result in injury to him. Accordingly, the Player agrees that Exhibition games scheduled by the Team or the League he will not, without the written consent of the Team, during and prior to any Regular Season, (e) if the Player engage, in any activity that a reasonable person would is invited to participate, the NBA’s All-Star Game (includ- recognize as involving or exposing the participant to a ing the Rookie-Sophomore Game) and every event con- substantial risk of bodily injury including, but not limited ducted in association with such All-Star Game, but only in to: (i) sky-diving, hang gliding, snow skiing, rock or moun- accordance with Article XXI of the Collective Bargaining tain climbing (as distinguished from hiking), rappelling, Agreement currently in effect between the NBA and the and bungee jumping; (ii) any fighting, boxing, or wres- National Basketball Players Association (hereinafter the tling; (iii) driving , or riding on a motorcycle or moped; (iv) “CBA”), (f) Playoff games scheduled by the League subse- riding in or on any motorized vehicle in any kind of race quent to any Regular Season, (g) promotional, and com- or racing contest; (v) operating an aircraft of any kind; (vi) mercial activities of the Team and the League, as set forth engaging in any other activity excluded or prohibited by in this Contract and the CBA, and (h) any NBADL Work or under any insurance policy which the Team procures Assignment in accordance with Article XLII of the CBA. against the injury, illness or disability to or of the Player, or death of the Player, for which the Player has received 3. COMPENSATION. written notice from the Team prior to the execution of (a) Subject to paragraph 3(b) below, the Team agrees this Contract; or (vii) participating in any game or exhibi- to pay the Player for rendering the services and perform- tion of basketball, football, baseball, hockey, lacrosse, or

14 | March/April 2008 | NYSBA Journal plaintiff may not recover under sections 50 and 51 [of the from writing about them? The courts do not draw a Civil Rights Law] even if the use of the likeness creates a clear path between commercial exploitation and pro- false impression about the plaintiff.”28 tected expression. In this morass, questions abound and The New York ruling begs the question: Would the answers elude. result have been different if a high-profile celebrity’s In Cobb v. Time, Inc.,29 Randall “Tex” Cobb, a former picture was used without permission? Should any and professional boxer, sued Sports Illustrated for an article all purported newsworthy uses provide a safe haven for describing his alleged participation in drug use and a authors and publishers? If § 50 of the Civil Rights Law fixed boxing match. The Sixth Circuit affirmed summary provides a criminal misdemeanor penalty and § 51, civil judgment of the district court based on the actual malice damages, then when do they really become actionable? standard, because Cobb was a public figure. Moreover, how is it that celebrities may prevent the use Consider the Ninth Circuit’s reversal of $1.5 million of their visual and audio images, yet cannot stop authors in compensatory damages and $1.5 million in punitive

other team sport or competition. If the Player violates this consistent with the Team’s past practice and not otherwise Paragraph 12, he shall be subject to discipline imposed by unreasonable. the Team and/or the Commissioner of the NBA. Nothing contained herein shall be intended to require the Player 14. GROUP LICENSE. to obtain the written consent of the Team in order to (a) The Player hereby grants to NBA Properties, Inc. enable the Player to participate in, as an amateur, the (and its related entities) the exclusive rights to use the sports of golf, tennis, handball, swimming, hiking, soft- Player’s Player Attributes as such term is defined and ball, volleyball, and other similar sports that a reasonable for such group licensing purposes as are set forth in the person would not recognize as involving or exposing the Agreement between NBA Properties, Inc. and the National participant to a substantial risk of bodily injury. Basketball Players Association, made as of September 18, 1995 and amended January 20, 1999 and July 29, 2005 (the 13. PROMOTIONAL ACTIVITIES. “Group License’’), a copy of which will upon his request, (a) The Player agrees to allow the Team, the NBA, or, a be furnished to the Player; and the Player agrees to make League-related entity to take pictures of the Player, alone the appearances called for by such Agreement. or together with others, for still photographs, motion pictures, or television, at such reasonable times as the Team, (b) Notwithstanding anything to the contrary contained the NBA or the League-related entity may designate. No in the Group License or this Contract, NBA Properties (and matter by whom taken, such pictures may be used in any its related entities) may use, in connection with League manner desired by the Team, the NBA, or the League- Promotions, the Player’s (i) name .or nickname and/or (ii) related entity for publicity or promotional purposes. The the Player’s Player Attributes (as defined in the Group rights in any such pictures taken by the Team, the NBA, or License) as such Player Attributes may be captured in the League-related entity shall belong to the Team, the game action footage photographs. NBA Properties (and NBA or the League-related entity, as their interests may its related entities) shall be entitled to use the Player’s appear. Player Attributes individually pursuant to the preceding * * * sentence and shall not be required to use the Player’s (c) Upon request, the Player shall consent to and make Player Attributes in a group or as one of multiple play- himself available for interviews by representatives of the ers. As used herein, League Promotion shall mean any media conducted at reasonable times. advertising, marketing, or collateral materials or marketing programs conducted by the NBA, NBA Properties (and (d) In addition to the foregoing, and subject to the its related entities) or any NBA team that is intended to conditions and limitations set forth in Article II, Section 8 promote (A) any game in which an NBA team participates of the CBA, the Player agrees to participate, upon request, or game telecast, cablecast or broadcast (including Pre- in all other reasonable promotional activities of the Team, Season, Exhibition, Regular Season, and Playoff games), the NBA, and any League-related entity. For each such (B) the NBA, its teams, or its players, or (C) the sport of promotional appearance made on behalf of a commercial basketball. sponsor of the Team, the Team agrees to pay the Player COMMISSIONER $2,500 or, if the Team agrees, such higher amount that is SEPT. 12, 2005.

NYSBA Journal | March/April 2008 | 15 as specified. Existing law provides that the rights damages in Hoffman v. Capital Cities/ABC, Inc.30 The Ninth recognized under these provisions are property rights, Circuit disagreed with the district court’s conclusion that freely transferable, in whole or in part, by contract or a magazine article which featured a digitally altered pho- by means of trust or testamentary documents, whether tograph of Dustin Hoffman together with a fashion spread the transfer occurs before the death of the deceased was pure advertisement and commercial speech. Instead, personality, by the deceased personality or his or her the court opined, the fashion article’s purpose was not to transferees, or, after the death of the deceased per- propose a commercial transaction.31 Los Angeles Magazine sonality, by the person in whom the rights vest under was fully protected by the First Amendment and could these provisions or the transferees of that person. not be subjected to liability unless, under New York Times This bill would provide, instead, that the above prop- v. Sullivan,32 the magazine intended to mislead its read- erty rights are freely transferable or descendible by ers. Thus, the court raised the burden of proof to clear contract or by means of any trust or any other testa- and convincing evidence that the magazine acted with mentary instrument executed before or after January constitutional “actual malice.” 1, 1985. It would provide that those rights shall be deemed to have existed at the time of death of any person who died prior to January 1, 1985, and shall vest in the persons entitled to these property rights under the To keep the jump shot and testamentary instrument of the deceased personality other indicia of identity “pure,” effective as of the date of his or her death, except as specified. The bill would provide that, in the absence the individual’s consent should of an express provision in a testamentary instrument be secured. to transfer these rights, a provision in the instrument that provides for the disposition of the residue of the deceased personality’s assets shall be effective to trans- Is it now time for a uniform federal statute govern- fer the rights. ing the rights of publicity? In 2004, the ABA Section of Senate Bill No. 771 was signed into law by the Governor Intellectual Property Law proposed for consideration the on October 10, 2007. following recommendation: That the American Bar Association supports the enact- Right to Use Persona ment of federal legislation to protect an individual’s To keep the jump shot and other indicia of identity right of publicity to the extent the individual’s identity “pure,” and to avoid a violation of the right of publicity, is used for commercial purposes in “commerce,” as the individual’s consent should be secured. Most pro- that term is defined in Section 45 of the Lanham Act, fessional athletes, as part of their employment, in their 15 U.S.C. § 1127, and to prospectively preempt incon- individual contracts and through the relevant collective sistent state and territorial laws. bargaining agreements, give their consent to the team Post-mortem Rights and league to broadcast their pictures, attributes and use Two central issues in any right-of-publicity statute: (1) To of their names for promotional purposes. (See sidebar, whom does the right of publicity extend, to any person page 14: NBA Uniform Player Contract #13 Promotional or just celebrities? And what elements of personality are Activities and #14 Group License.) Absent expressed or protected – name, signature, voice? (2) Is a post-mortem implied consent, the most effective way is to obtain a property right provided? Not only do the publicity release, endorsement agreement or a license. The appro- statutes in the 18 states vary widely, but so do the post- priate instrument should transfer, in whole or in part, mortem protections. For example: in Kentucky post-mor- specific rights setting forth, at a minimum, the scope, tem rights last 50 years; in Ohio, 60 years; in Tennessee, 10 term, representations, warranties, fees, choice of law and years with a potential perpetual right, so long as there is a morals clause. A morals clause permits a team, league, no nonuse for two consecutive years. New York does not product developer or licensee to terminate the player or recognize a post-mortem right of publicity. the agreement for engaging in criminal conduct or acts On September 7, 2007, the California Senate passed involving moral turpitude. (See sidebar, page 18: Sample an act to amend § 3344.1 of the Civil Code, relating to Endorsement Agreement.) deceased personalities: testamentary instruments. The legislative intent as set out in the Legislative Counsel’s Conclusion Digest is as follows: Not all commercial unauthorized uses of identity violate Existing law establishes a cause of action for damages the right of publicity. Violations turn on how the identi- on behalf of specified injured parties for the unau- ties are used in a commercial context. Is the use solely to thorized use of a deceased personality’s name, voice, promote, sell or endorse products and services, or is it a signature, photograph, or likeness for commercial purposes within 70 years of the personality’s death, except CONTINUED ON PAGE 19

16 | March/April 2008 | NYSBA Journal

Endorsement Agreement

______AGREEMENT comes first. Licensee shall pay Licensor an additional fee made this ______day of ______, by and of $______upon Licensee’s election by written notice between ______, a Delaware Corporation to Licensor to exercise its option to extend the term for having its principal place of business at Minneapolis, print advertising and/or out-of-home media. Minnesota (Licensee) and ______, an individual 4. Advertising and Marketing residing in New York City (Licensor). All copy appearing on or with Licensor’s image must be submitted to Licensor for written approval which approval WHEREAS, Licensee wishes to use Licensor’s name may not be unreasonably withheld or delayed. and likeness in Licensee’s ______forthcoming print marketing and advertising campaign, 5. Representations and Warranties entitled ______(The Licensor represents and warrants that Licensor has the “Campaign”) in connection with ______exclusive right to grant this license to use the likeness ______(the “Products”); attached hereto as Exhibit A and that the rights granted will not infringe or violate any copyright, patent, trade- WHEREAS, Licensee and Licensor desire to establish the mark, trade name, service mark, trade dress or other per- terms of such use. sonal property or proprietary right of any person or entity. Licensor agrees to indemnify and hold Licensee harmless NOW, THEREFORE, in consideration of the mutual against any and all claims, damages and expenses arising promises set forth herein, Licensee and Licensor hereby directly or indirectly from the breach of the foregoing agree as follows: representation and warranty. 1. License 6. Choice of Law Licensee shall have the right, but not the obligation, This Agreement shall be governed and constructed to use the name and likeness of Licensor as attached as in accordance with the laws of the State of New York Exhibit A, in connection with the Campaign, for print without regards to conflicts of laws. The parties agree advertising, out-of-home media, in-store marketing and the sole jurisdiction and venue for any disputes or actions direct mail in connection with the Product and for pub- arising under this Agreement shall be the jurisdiction lic relations materials, in any media, produced and dis- of the Supreme Court of the State of New York or the tributed by Licensor to promote the Product and/or the United States District Court for the Southern District of Campaign, throughout the world, in any language and in New York. multiple languages. Licensor agrees that Licensor will not use or license the likeness attached hereto as Exhibit A for 7. Termination for Cause use by any third party, in any print advertising or in-store Licensee may terminate this agreement upon written or out-of-home media marketing or direct marketing for notice to the licensor, upon the Licensor’s death, disability, the duration of this Agreement applicable to in-store suspension and for cause. Cause shall mean, the arrest, usage. indictment or conviction for the commission of a crime by licensor or any other conduct, public or private, involv- 2. Term ing moral turpitude on which has or may reasonably be ______expected to have a material adverse effect on Licensee, its Licensee’s rights under this Agreement shall terminate business, reputation or interests. ______months from first publication for print advertising and/or first out-of- 8. Entire Agreement home media usage for both print ______This Agreement, including all Exhibits hereto, consti- ______advertising and out- tutes the entire agreement between the parties relating of-home media usage, and ______to this subject matter and supersedes any and all prior or ______months from first in-store usage and/or pub- simultaneous representations, discussions, negotiations, lic relations usage for all other uses. Licensee has the documents and/or agreements, whether written or oral. option to extend ______use for IN WITNESS WHEREOF the parties have executed this print advertising and/or out-of-home media usage for Agreement on the date first set forth above. an additional ______months, to total ______months from first use (of print LICENSOR and/or out-of-home media), upon payment of an addi- By: tional use fee as set forth below. Name: 3. Fees Title: Licensee shall pay Licensor $______upon first publi- LICENSEE cation of the image, first out-of-home media usage or in- By: store usage, or first public relations usage, ______Name: ______whichever Title:

18 | March/April 2008 | NYSBA Journal CONTINUED FROM PAGE 16 New York: N.Y. Civ. Rights L. §§ 50–51, N.Y. Gen. Bus. L. §397; Ohio: Ohio Rev. Code Ann. § 2741.04; Oklahoma: 21 Okla. Stat. §§ 839.1–839.3; 12 Okla. §§ 1448–1449; Rhode Island: R.I. Gen. Laws § 9-1-28; Tennessee: Tenn. Code Ann. fair use? The ultimate answer is based on the facts and §§ 47-25-1101–47-25-1108; Utah: Utah Code Ann. § 45-3-1; Virginia: Va. Code Ann. §§ 8.01-40, 18.2-216; Washington: Wash. Rev. Code §§ 63.60.030–63.60.037; circumstances of each case. Wisconsin: Wis. Stat. Ann. §§ 895.50; in Texas the tort of misappropriation The value of endorsements is astronomical. With the protects a person’s persona and the unauthorized use of one’s name, image advent of the Internet and sophisticated computer tech- or likeness. Brown v. Ames, 201 F.3d 654 (5tth Cir. 2000) (post-mortem right of nology, we can expect the value of commercial endorse- publicity); Tex. Prop. Code §§ 26.001–26.015. ments by celebrities to go literally off the charts. As of 11. Alaska, Arizona, Idaho, Louisiana, Mississippi, New Hampshire, New Mexico, North Dakota, Oregon, South Carolina, Vermont and Wyoming. July 2005, America’s highest paid professional athletes for 12. Cal. Civ. Code §3344.1(g). endorsements33 were as follows: 13. Okla. Stat. Ann. tit. 12, § 1448(g). Tiger Woods, golf $80 million 14. Ind. Code Ann. § 32–36-1-8. Andre Agassi, tennis $44.5 million Lebron James, basketball $24 million 15. Stephano v. News Group Publ’ns, 64 N.Y.2d 174, 485 N.Y.S.2d 220 (1984). Phil Mickelson, golf $21 million 16. Lanham Act § 43(a), 15 U.S.C. § 1125(a). Dale Earnhart Jr., auto racing $20 million 17. Lanham Act § 35(a), 15 U.S.C. § 1117(a). Fame is valued. The right of publicity protects the pro- 18. Frazier v. South Fla. Cruises, Inc., 19 U.S.P.Q. 2d (BNA) 1470 (E.D. Pa. 1991) (defendant placed a full-page unauthorized advertisement in Ring Magazine fessional athlete’s proprietary interest in the commercial inviting the public to cruise with former world heavyweight champion, value of his or her identity from exploitation by others.34 Smokin’ Joe Frazier. Cecil Fielder, three-time MLB All-Star, in 2003 won over Advertising is the quintessential commercial speech and $400,000 against a design firm for using his name without permission in commercial ads). a violation of the right of publicity is a tort that quintes- 19. Neff v. Time, Inc., 406 F. Supp. 858 (W.D. Pa. 1976); see Joe Dickerson & sentially consists of advertising. The crux of the right of Assocs. v. Dittmar, 34 P.3d 995 (Col. 2001) (Colorado Sup. Ct. recognizes the publicity is the commercial value of human identity. In tort of invasion of privacy by appropriation of name or likeness subject to First order to lawfully and properly exploit this legitimate pro- Amendment privilege where the use involves publication of matters that are newsworthy or of legitimate public concern). prietary interest, it is just like the game itself – one must ■ 20. Montana v. San Jose Mercury News, Inc., 34 Cal. App. 4th 790 (1995); see, know the rules. e.g., Hogan v. Hearst, 945 S.W.2d 246 (Tex. App. 1997) (exemplifying the breadth of the newsworthy exception in negating a claim of invasion of privacy based 1. Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902) on disclosure of highly embarrassing facts, obtained from a public record); (rejected the common law right of publicity which led to the enactment of Peckham v. Boston Herald, Inc., 719 N.E.2d 888 (Mass. App. Ct. 1999) (defense the New York privacy law, codified in the N.Y. Civil Rights Law §§ 50–51); summary judgment on basis of newsworthiness to a statutory private facts Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905) (first state to recog- claim). nize a personal privacy right against unauthorized commercial exploitation); Pallas v. Crowley Milner & Co., 322 Mich. 411, 33 N.W.2d 911(1948) (Supreme 21. Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003). Court of Michigan recognizes a right of publicity where invasion of privacy 22. ETW Corp. v. Jireh Publ’g, Inc., 332 F.3d 915 (6th Cir. 2003); see Comedy III was pleaded in preventing the nonconsensual use of a model’s photograph Prods., Inc. v. Saderup, Inc., 21 P.3d 797 (Cal. 2001) (a T-shirt artist’s realistic in a local department store advertisement. The plaintiff was not a nationally drawing of the Three Stooges was not sufficiently transformative to defeat a known celebrity. Michigan recognizes publicity rights through a derivative claim of California’s publicity rights statute). privacy right at common law); Janda v. Riley-Meggs Indus., Inc., 764 F. Supp. 23. Ruffin-Steinbeck v. Depasse, 82 F. Supp. 2d 723 (E.D. Mich. 2000). 1223 (E.D. Mich. 1991). Haelan Labs. v. Topps Chewing Gum is the seminal case that coined the term right of publicity. 202 F.2d 866 (2d Cir.), cert. denied, 346 24. Matthews v. Wozencraft, 15 F.3d 432 (5th Cir. 1994) (applying Texas law). U.S. 816 (1953). 25. Seale v. Gramercy Pictures, 949 F. Supp. 331 (E.D. Pa. 1996) (applying 2. Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc., 642 F. Supp. Pennsylvania law). 1031 (1986) (demonstrates the labyrinth of intellectual property rights in pub- 26. 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001). licity issues such as copyright infringement and trademark dilution). 27. Messenger v. Gruner & Jahr Printing & Publ’g, 94 N.Y.2d 436, 706 N.Y.S.2d 3. Newcombe v. Coors, 157 F.3d 686 (9th Cir. 1998). Brooklyn Dodger pitcher 52 (2000). Don Newcombe’s stance and windup displayed in a drawing in Sports Illustrated created a triable issue of fact whether Newcombe is readily identifi- 28. Id. at 447. able as the pitcher in the beer advertisement. (It is interesting to note that Don 29. 278 F.3d 629 (6th Cir. 2002). Newcombe, Cy Young Award, MVP and Rookie of the Year, is the only player 30. 255 F.3d 1180 (9th Cir. 2001). in major league history to have won all three awards.) 31. Id. at 1184–86. 4. Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85 (2d Cir. 1989). 32. 376 U.S. 254 (1964). 5. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). 33. Kortney Stringer, Winning Isn’t Everything, Detroit Free Press, Mar. 20, 6. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988); Waits v. Frito Lay, Inc., 2006, at C1. 978 F.2d 1093 (9th Cir. 1992). 34. O’Brien v. Pabst Sales Co., 124 F.2d 167, 170 (5th Cir. 1941) (involving famed 7. Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996). Heisman Quarterback and Philadephia Eagle, case opened the door to the 8. Wendt v. Host Int’l Inc., 125 F.3d 806 (9th Cir. 1997); White v. Samsung Elecs. professional athlete’s right of publicity). Am. Inc., 971 F.2d 1395 (9th Cir. 1992); 989 F.2d 1512 (9th Cir. 1993). 9. Uhlaender v. Hendricksen, 316 F. Supp. 1277 (D. Minn. 1970). 10. California: Cal. Civ. Code § 3344.1; Florida: Fla. Stat. Ann. § 540.08; Illinois: 765 Ill. Comp. Stat. § 1075/30; Indiana; Ind. Code 32-36-1-1; Kentucky: Ky. Rev. Stat. Ann. § 391.170; Massachusetts: Mass. Gen. L. Ann., ch 214, § 3; Nebraska: Neb Stat. §§ 20-201–20-211 and 25-840.01; Nevada: Nev. Stat. §§ 597.77–597.810;

NYSBA Journal | March/April 2008 | 19 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury attorney in New York City. He teaches New York Practice at New York and Brooklyn Law Schools, is a member of the Office of Court Administration CPLR Advisory Committee, the author of the LexisNexis Answerguide New York Civil Disclosure, and is a frequent lecturer and writer on these and other civil practice topics.

“Old Dogs, Old Tricks”

n the fall of 2006 two columns were Still and all, it is worth reviewing He didn’t say he couldn’t picture devoted to the then “new” deposi- the trickle of cases to learn how some an eighth of a mile. Ition rules. Following the effective of our colleagues are conducting them- BY [Plaintiff’s Counsel]: date of October 1, 2006, I sat back selves under the new rules. He just said it. confidently and waited for a tsunami BY [Defense Counsel]: of cases invoking the new rules. As of “Objection, No Foundation. Don’t He didn’t say he couldn’t picture this writing, 16 months later: nary a Answer; But If You Do Answer, an eighth of a mile. tsunami, and barely a trickle.1 The first Allow Me to Suggest . . .”2 BY [Plaintiff’s Counsel]: of the earlier columns, after discussing The first of two cases reported,3 He just said it. an assortment of deposition misbe- Simmons v. Minerley,4 dated August BY [Defense Counsel]: havior the new rules were designed to 24, 2007, decided a motion to strike All right. Wait one second here. curb, ended with a question: the plaintiff’s complaint based upon BY [Plaintiff’s Counsel]: the conduct of plaintiff’s counsel in What are we waiting for? Can an old dog learn new tricks? defending the plaintiff’s deposition. BY [Defense Counsel]: Only time will tell. Are the new In addition to constant interrup- I’m going to call up Judge Pagones rules, despite their clear pro- tions by plaintiff’s counsel, the movant right now.6 nouncements, destined to be fol- sought redress for two nefarious depo- In another portion of the transcript, lowed more in the breach, as has sition techniques: directing the witness the following exchange took place: been the case with the existing not to answer questions without a [After acknowledging his signa- body of case law on deposition proper basis, and coaching the witness ture on the notice of claim] plain- practice and sanctions and penal- on how to answer questions.5 tiff was then asked by defendants’ ties related to depositions? Again, The court annexed the relevant por- counsel: only time will tell. If you are a tions of the transcript to its decision, “In that Notice of Claim, did you poster child for bad behavior at and directly quoted two exchanges in allege that there was an obstructed depositions, is it time to reconsider the body of the decision: view of the intersection? Yes or your ways? You bet! BY [Plaintiff’s Counsel]: no?” One could infer from the paucity of From an eighth of a mile? At that point, [plaintiff’s counsel] reported cases that the new rules have, BY [Defense Counsel]: stated: by and large, been incorporated into No. You have to stop interrupt- “I will not allow him to answer practitioners’ tool kits, and are being ing – that because what’s in the Notice? followed. One, a bit more cynical, BY [Plaintiff’s Counsel]: There’s no testimony that he’s read might infer that the conduct of attor- Can you picture an eighth of a it and knows what’s in it, so there’s neys at depositions, and the concomi- mile? no foundation for that question. tant reluctance to seek judicial redress BY [Defense Counsel]: What the document says and what by those aggrieved by misbehavior, Judge, I hope when you read this he knows it says may be two differ- continues. Since most deposition prob- that you listen to what this lawyer ent things.” lems are worked out informally, with is doing. [Defense counsel] stated: or without a call to the court, anecdotal BY [Plaintiff’s Counsel]: “I know that. We’re not supposed evidence and personal experience will Can you picture an eighth of a to say any of this. We can do it best inform the reader of the efficacy mile? outside of the presence of the wit- of the new rules in any given region BY [Defense Counsel]: ness.”7 in the state.

20 | March/April 2008 | NYSBA Journal Justice Pagones examined the attorney’s conduct within the context of the new rules: [Plaintiff’s counsel’s] apparent objection to the question was that there was “no foundation. [Plaintiff’s counsel’s] obligation pursuant to § 221.1(a) was to make his objection and to permit the plaintiff to answer the question. It is significant to note that [plaintiff’s counsel’s] first response when the question was asked was not to object but to immediately direct his client not to answer, although there was no assertion of a permis- sible basis as set forth in § 221.2. [Plaintiff’s counsel] compounded his error by not-so-subtly instruct- ing his client as to the response that he should give. The defense counsel advised [plaintiff’s counsel] of the impropriety of his directions to no avail. As the transcript unequiv- ocally indicates, during the portion of the deposition at issue, [plaintiff’s counsel] repeatedly directed his client not to answer; repeatedly interrupted the deposition; and repeatedly provided instructions in his statements as to how the witness should respond.8 The court held that the plaintiff’s attorney failed to comport with the spirit of the CPLR, and violated specific provisions of both Article 31 and 22 N.Y.C.R.R. Part 221 (the new rules). The court declined to strike the plaintiff’s complaint, reasoning it would unfairly punish the plaintiff for the conduct of the attorney. Instead, citing a Second Department case from 2006,9 the court imposed a sanction of $2,500, payable to defense counsel, to compensate for the time expended and costs incurred as a result of plaintiff’s counsel’s conduct.

“I Am ‘Not Aware of Any Rule of Law Which Requires Civility Between Counsel’” In the second case, dated December 5, 2007, Laddcap Value Partners, LP v. Lowenstein Sandler,10 defense counsel

NYSBA Journal | March/April 2008 | 21 moved for a court-appointed referee to In this day and age, one imag- Court is not swayed by [plain- supervise future depositions, and for ines both Fred Flintstone and Archie tiff’s counsel’s] pledge to behave at an order directing that future deposi- Bunker would likely cringe at a male future depositions.15 tions be held at the courthouse. attorney calling a female attorney In addition to the appointment of a Justice Edmead began her decision “hon,” advising her that if she tried the referee, the court directed that future with a quote from plaintiff’s counsel in case she would be “one sorry girl,” and depositions be held at the courthouse. opposition to the motion (reproduced referring to her having a “cute little What I find remarkable about this case in the headnote of this section), and thing going on.”12 Driving home the is that the aggrieved attorney exercised explained that “[t]he genesis of this point that such conduct has long been restraint and did not request sanctions application is a claim of contumacious, eschewed, Justice Edmead quoted a under Rule 130, which the court clearly abusive, and strident conduct by coun- 15-year-old New York County case signaled would have been warranted. sel during a deposition.”11 where [plaintiff’s counsel] directed to his Conclusion colleague the following comments: While the majority of practitioners may In this day and age, “I don’t have to talk to you, little well have incorporated the new rules lady”; “Tell that little mouse over into their deposition practice, at least a one imagines both Fred there to pipe down”; “What do stubborn few have not. The example of Flintstone and Archie you know, young girl”; “Be quiet, the few, however, should instruct the little girl”; “Go away, little girl.” many that judicial tolerance is low, and Bunker would cringe at [Defense counsel] states these com- corrective action and/or punishment a a male attorney calling a ments “were accompanied by dis- near certainty. paraging gestures . . . dismissively So come on, you old dogs, learn female attorney “hon.” flicking his fingers and waving a and, more important, follow the “new” back hand at me.” The transcript deposition rules. ■ contains the remarks and an attor- The court gave a summary of plain- ney for another party corroborates 1. Assuming two cases may actually constitute a trickle. tiff’s counsel’s conduct during the the description of the gestures. The 2. This is not a quote from counsel in any of the deposition of the plaintiff’s represen- affidavit in opposition justifies the reported cases. tative: comments as “name-calling.”13 3. “Reported” being used a bit broadly, since the [Plaintiff’s counsel] repeatedly Justice Edmead recited what was second case appeared in the New York Law Journal, but, as of this writing, did not appear online in directed the witness not to answer considered a given in 1992: “Given the either Lexis or Westlaw. certain questions posed to him, fol- rules applicable to professional con- 4. 16 Misc. 3d 1128(A), 847 N.Y.S.2d 905 2007 lowed by inappropriate, insulting, duct, any reasonable attorney must be (Sup. Ct., Dutchess Co. 2007) (Pagones, J.S.C.) and derogatory remarks against held to be well aware of the need for 5. The court also had to address a cross-motion for recusal made by the attorney defending the [defense counsel] concerning her civility, to avoid abusive and discrim- deposition, based upon the claim by the question- gender, marital status, and com- inatory conduct, to conduct proper ing attorney, after stating that he was going to call petence. Although both counsel depositions, to eschew obstructionist Justice Pagones, that “Judge Pagones is a friend of mine,” followed by the explanation “[w]hen I say agreed that all objections, except tactics, and to generally abide by the that he is a friend of mine I mean that every judge those as to form, were preserved, norms of accepted practice.”14 in this district is a friend of mine and officer of the [plaintiff’s counsel] made numer- The court granted the motion, find- court. And I assume that every judge is a friend of yours and your law firm’s as well.” Id. at 3. The ous speaking objections, and ing violations of both the duty of civil- court denied the request for recusal: “I am not a threatened to leave the deposi- ity and the duty to engage in gender- “good friend” of the defendants’ counsel and am tion in response to such “leading” neutral conduct, and concluded: merely acquainted with him from his occasional appearance at trial over the years. It is the only basis questions. [Defense counsel] also If such objectionable conduct has for our interaction.” Id. at 5. contends that [plaintiff’s counsel] merited sanctions, which [defense 6. Simmons, 16 Misc. 3d at 2. asked her several times, off the counsel] does not even seek in this 7. Id. record, whether she was married. instance, surely guarding against 8. Id. at 6. 9. O’Neill v. Ho, 28 A.D.3d 626, 814 N.Y.S.2d 202 The motion alleged that the conduct future objectionable conduct by (2d Dep’t 2006). complained of was intended to intimi- appointing a referee to essentially 10. 2007 WL 4901555 (Sup. Ct., N.Y. Co. 2007) date questioning counsel and interfere monitor [plaintiff’s counsel] would (Edmead, J.S.C.). with her ability to zealously defend not constitute improvident exer- 11. Id. and conduct further depositions, and cise of this Court’s discretion. That 12. Id. 13. Principe v. Assay Partners, 154 Misc. 2d 702, 586 [plaintiff’s counsel] claims that he claimed violations of a number of N.Y.S.2d 182 (Sup. Ct., N.Y. Co. 1992) (Lebedeff, J.). statutes and rules, including the new knows of no rule requiring attor- 14. Laddcap Value Partners, 2007 WL 4901555. deposition rules. neys to be civil is baffling and the 15. Id.

22 | March/April 2008 | NYSBA Journal PHILIP M. HALPERN ([email protected]) is the managing partner at Collier, Halpern, Newberg, Nolletti & Bock, LLP and concentrates in commercial litigation. This article first appeared, in slightly different format, in the Spring 2007 edition of the NYLitigator, volume 12, no. 1, published by the Commercial and Federal Litigation Section of the New York State Bar Association.

The Contours of Common-Law Dissolution in New York By Philip M. Halpern

ew York’s Business Corporation Law § 1104-a Burden of Proof for Common-Law Dissolution (BCL), which became effective on June 11, 1979, The decision to dissolve a corporation is typically left in Ncreates a statutory cause of action in New York for the hands of the directors and majority shareholders. The the dissolution of a closely held corporation by a share- Legislature in New York has constituted these individu- holder owning 20% or more of the outstanding shares of als as guardians of the corporation’s welfare and, in the the corporation.1 The statute provides for the presentation normal course, they determine whether dissolution is in of a petition for dissolution on (1) the grounds of illegal, the best interest of all shareholders.5 With this power, fraudulent or oppressive actions by directors or those in however, comes responsibility. control of the corporation toward the complaining share- As guardians of the corporate welfare, directors and holder; or (2) the looting, waste or diversion of corporate majority shareholders are cast in the role of fiduciaries property or assets by the corporation’s directors, officers and must exercise their responsibilities “with scrupulous or those in control of the corporation.2 good faith.”6 If they “so palpably breach the fiduciary As a result of this legislation, shareholders owning at duty they owe to the minority shareholders that they are least 20% of the voting stock have had available to them disqualified from exercising the exclusive discretion and in New York, since 1979, recourse for corporate malfea- the dissolution power given to them by statute,” New sance in the form of statutory dissolution.3 However, York’s common-law permits minority shareholders to sue shareholders of a closely held corporation owning less for a judicially ordered dissolution.7 than 20% of the voting shares have no recourse pursuant The “palpable breach of fiduciary duty” is the stan- to § 1104-a. dard a plaintiff must satisfy to sustain the burden of proof Shareholders in that situation have had, and continue for common-law dissolution. Courts in New York have to have, recourse in the form of common-law dissolution. universally cited to this standard – grounded in clear vio- Common-law dissolution, which predates BCL § 1104-a4 lations of the fiduciary relationship – when considering is an equitable cause of action which permits sharehold- common-law dissolution causes of action.8 ers below the 20% ownership threshold to seek dissolu- Although the “palpable breach” standard is the articu- tion of a private corporation under certain circumstances lable standard that applies in New York, its vagueness of malfeasance. Although common-law dissolution cases begs the question as to what type and degree of breach are relatively rare in New York, a body of case law has must be shown to sustain the dissolution cause of action. evolved (and continues to evolve) that sheds light on this Stated differently, at what point does the majority “so pal- cause of action, the burden of proof necessary to sustain pably breach” its fiduciary duty that its exclusive power such a cause of action, and the available remedies if liabil- to dissolve is relinquished to a judge sitting in equity? ity is found to exist. Several courts in New York have pinpointed two specific

NYSBA Journal | March/April 2008 | 23 circumstances warranting dissolution: (1) looting of the holdings to them at a sacrifice and to freeze them out of corporation by the majority so as to impair the capital of the corporation. The Court of Appeals held, in the con- the corporation and (2) continuing the existence of the text of a motion to dismiss the Leibert complaint, that the corporation for the sole or special benefit of the majority allegations, if true, would establish that the directors and at the expense of the minority.9 majority shareholders “so palpably breached the fiduciary Although these are indeed examples of palpable duty they owe to the minority shareholders” and reversed breaches which rise to the level sufficient to sustain a dismissal of the dissolution cause of action.11 dissolution cause of action, they are not the only catego- The plaintiffs in Kroger v. Jaburg12 also made allegations ries of misconduct which warrant equitable relief. The beyond that of “looting” and “sole benefit” fact patterns. implicit argument set forth in the appellate case law that Kroger involved a corporation that had been unsuccess- these two circumstances – and only these two – must ful and unprofitable since its inception, and because of occur to sustain a common-law dissolution cause of changes in the trade, could not be made profitable for the action is overly narrow, and ignores the broader nature of future. Despite this circumstance, the president of the cor- the “palpable breach” standard. poration, who was inexperienced and incompetent to run It also ignores the fact that New York’s Court of the company, used his stock control to increase his salary Appeals has never defined the “palpable breach” stan- substantially and prevent the corporation from being dis- dard as limited to these two circumstances. The determi- solved. The plaintiffs alleged that the business at issue nation of whether a sufficient showing has been made is was unprofitable and could not be made profitable in the adjudicated on a case-by-case basis considering all of the future; the corporation’s capital was being impaired; its circumstances pertaining to the particular case in ques- property was being wasted and dissipated; no dividends tion. The cause of action arises in equity, where there were being paid on its common stock; a default in divi- are no bright-line rules for automatically sustaining or dends existed on its preferred stock; and the corporation rejecting such a claim. The court, acting in equity, has the had become obsolete. The court, reversing dismissal of discretion and authority to do what is appropriate and the plaintiffs’ first cause of action for common-law dis- fair, given all of the circumstances of the case. solution, recognized that “in courts of equity directors of a corporation are accountable as such for fraud, bad faith, and other breaches of trust,” concluding that “the The court, acting in equity, has the first cause of action sets forth facts sufficient to constitute discretion and authority to do what is a cause of action.”13 Lewis v. Jones14 involved a plaintiff who was the sole appropriate and fair, given all of the minority shareholder of each of the defendant corpora- circumstances of the case. tions, and who was also an employee of said corporations. The plaintiff alleged that those in control engaged The universe of cases in New York concerning com- in a conspiracy designed to freeze him out including mon-law dissolution is not large and a review of these failing to pay him a salary, failing to pay dividends, and cases confirms that the narrow approach as to what con- accumulating excessive earnings – beyond those needed stitutes the necessary “palpable breach” is not in favor. for foreseeable projects. The purpose of the scheme was For example, in Leibert v. Clapp,10 the plaintiff, who owned to force the plaintiff to sell his shares to the majority at a small number of shares in the defendant Automatic Fire prices vastly below their value, otherwise he would be Alarm Co., complained that those in control of the com- permanently prevented from receiving any return on his pany were engaged in a conspiracy to manipulate and investments. depress the market of the shares of the company, and The plaintiff’s allegations of fraud, misappropriation squeeze out the minority shareholders. It was alleged and use of corporate assets for personal gain were viable that the conspiracy included siphoning off the income for dissolution, said the court. Affirming denial of defen- and profit of the company to a parent corporation and, dant’s motion to dismiss, the court concluded that the rather than declare dividends for the benefit of all share- plaintiff was not limited to a shareholder’s derivative suit holders, the majority caused a huge earned surplus to be and that the complaint was sufficient to state a cause of accumulated and diverted to the parent corporation. This action for common-law dissolution. in turn depressed the value of the shares of the company Fedele v. Seybert15 involved a successful food market and allowed the majority to increase their shareholdings venture. The minority shareholder plaintiff brought his and control of the company. action for dissolution because the majority shareholders, The plaintiff in Leibert alleged not only looting of cor- who also owned a competing food market, were alleged- porate assets and the continuation of the corporation for ly diverting business opportunities to the competing mar- the sole benefit of the majority, but also that the majority ket, and creating phony financial statements to cover up was attempting to force minority shareholders to sell their their wrongdoing. The majority also attempted to amend

24 | March/April 2008 | NYSBA Journal the bylaws of the shareholder’s agreement to divest the of which was wholly owned by a majority defendant), minority shareholder of his management responsibilities, wrongfully terminated the employee-plaintiff, failed to and took other steps to exploit the company to the detri- compensate the employee-plaintiff for services rendered, ment of the minority shareholder – e.g., executed secret, and failed to distribute dividends. In effect, the minority unauthorized promissory notes, wrote checks drawn plaintiffs were squeezed out and deprived of the benefits on the company’s account, hired an employee whose of their investment. The court agreed with the lower salary was in excess of $50,000 – without the minor- court that the corporations at issue should be dissolved, ity shareholder’s consent. The court in Fedele recognized and affirmed the order dissolving same. that beyond “looting” and “sole benefit” allegations, The case law associated with the burden of proof in the plaintiff had alleged a pattern of “illegal, unfair and New York will continue to evolve as more common-law oppressive conduct” which severely prejudiced the plain- dissolution cases are litigated. However, the case law tiff, and that the cause of action should properly proceed to date, as referenced above, indicates that “palpable as a common-law dissolution cause of action.16 breaches of fiduciary duty” can run the gamut of a broad In re Charleston Square, Inc.17 involved two corporations range of corporate malfeasance. whose primary purpose was to purchase unimproved It is important to remember, in assessing actionable land and build houses thereon for profit. The plaintiffs dissolution conduct based upon the sparse holdings to were minority shareholders, one of whom was also date, that for such conduct to be actionable it must injure employed by the corporations to build and sell houses. the minority shareholders specifically, and not just the It was agreed that the employee-plaintiff would receive corporation. The factual foundation for any common-law compensation for each house constructed, as well as a dissolution case is that the majority engages in conduct real estate commission for each house he sold. The plain- injurious to the minority and that the conduct of the tiffs ultimately had a falling out with the majority and majority will continue into the future. Contrariwise, con- asserted causes of action for common-law and statutory duct injurious to the corporation as a whole can only be dissolution. In support thereof, they made allegations remedied by a derivative action. that the majority usurped corporate opportunities by sell- When misconduct targeted at the minority exists, the ing undeveloped plots of land to other corporations (one law in New York is clear that the minority is not relegated

NYSBA Journal | March/April 2008 | 25 sary to accomplish a fair result. For example, a prac- to the exclusive remedy of a derivative suit. This dichot- tical solution might be found in a procedure under omy makes sense because a derivative action would only which either interest may purchase the shareholdings ultimately serve to place any monetary recovery back in of the other at an appraised value found by the Court the hands of the corporation, an entity controlled by the and upon terms set by it. Flexibility of remedy, tailored majority wrongdoer(s) and would not remedy the minor- to all the facts and circumstances of the case, including ity shareholders’ issues prospectively. In Leibert, the Court the good faith of the parties on both sides, their con- of Appeals expressly rejected the notion that the remedy flicting interest and motivations, if any, is the key.21 of a derivative suit under such a circumstance would be sufficient. The Court stated, in relevant part: Stock Buy-out Alternative In light of the serious charges of persistent corporate In Kruger, Judge Fuld specifically identified a practical abuses by the directors and the majority shareholders, alternative to dissolution in that case: a buy-out of a it would be inadequate and, therefore, inappropriate to stockholder’s shares at an appraised value determined remit the minority shareholders to the exclusive rem- by the Court. This buy-out remedy has been acknowl- edy of a derivative suit. . . . [T]o restrict the minority edged in New York as a viable alternative to dissolution, shareholders to a derivative suit would be to commit and is currently incorporated in New York’s Business them to a multiplicity of costly, time consuming and Corporation Law applicable to statutory claims for dis- difficult actions with the result, at most, of curing solution. The statutory remedy and related case law the misconduct of the past while leaving the basic is instructive in the common-law context, particularly improprieties unremedied. It is the traditional office because the statutory remedy has its origins in the com- of equity to forestall the possibility of such harassment mon law. and injustice.18 Section 1118 of the BCL, which became effective on Limiting a claim to a recovery by the corporation June 11, 1979, provides that in any statutory dissolution when that entity, by its majority, is breaching its duties to proceeding brought pursuant to BCL § 1104-a, any other the minority is precisely what the doctrine of common- shareholder or shareholders of the corporation can elect law dissolution seeks to avoid. to buy out the petitioning shareholder at fair value upon such terms and conditions as may be approved by the If a plaintiff meets the burden of proof court.22 Courts in New York have applied the § 1118 buy- and establishes liability for common-law out concept in statutory cases and have expanded the concept beyond that of a mere election to be exercised at dissolution, the court must next turn to the whim of a shareholder. the question of a proper remedy. The Court of Appeals addressed a BCL § 1104-a statutory dissolution cause of action in In re Kemp & Beatley, Available Remedies Inc.23 The court in Kemp affirmed an order of dissolution If a plaintiff meets the burden of proof and establishes conditioned upon permitting the corporation to purchase liability for common-law dissolution, the court must next the petitioning shareholders’ stock at fair value. The turn to the question of a proper remedy. Although a plain- Court of Appeals ultimately concluded that dissolution tiff asserting a cause of action for common-law dissolu- was the appropriate remedy but, citing to BCL § 1118, tion, by definition, seeks dissolution of the corporation, stated that the order of dissolution must be conditioned the court is not limited to awarding such extreme relief. upon first providing the corporation with a 30-day buy- In fact it should consider less drastic and intrusive relief, out option.24 Relying on the Kemp decision, the Appellate which would nonetheless make the plaintiff whole.19 Division, Third Department, in In re Dissolution of Wiedy’s Judge Fuld, in rendering the Court’s majority opinion in Furniture Clearance Center Co.,25 a statutory dissolution Leibert, discussed the issue of the proper remedy, stating, case, affirmed the remedy of a court-ordered buy-out at [I]f the plaintiff does prove those allegations [establish- fair value. Here, however, the Appellate Division did not ing entitlement to common-law dissolution], the Court order dissolution conditioned upon a buy-out option. It should grant either the relief of dissolution which the acknowledged the lower court’s power to order a buy-out plaintiff seeks or, alternatively, such other relief as in lieu of dissolution, regardless of whether the corpora- might seem more appropriate once the actual facts and tion elected to avail itself of a buy-out option. circumstances are ascertained.20 This went well beyond the buy-out election provided Judge Fuld expanded upon this thought less than two for in BCL § 1118. In other words, the court applied a com- years later, in his dissenting opinion in the Kruger case, mon-law buy-out alternative in a statutory case, separate and stated: and apart from the strictures of the BCL statute. Although the Court would be empowered to direct The viability of the buy-out remedy does not depend that the stock (the asset of the venture) be voted for on whether dissolution is sought under the BCL statute dissolution, such an extreme step may not be neces- or at common law. New York courts determining statu-

26 | March/April 2008 | NYSBA Journal tory BCL cases have the discretion to require a fair value O’Neal points to two cases in the common law as the buy-out, as in Wiedy, or, at a minimum must, according basis for the buy-out remedy. The Idaho case he refer- to Kemp, provide the option of a buy-out prior to dissolu- ences is Riley v. Callahan Mining Co.28 The Supreme Court tion proceeding forward. This is wholly consistent with of Idaho, relying on equitable principles, fashioned a Judge Fuld’s conclusion in the common-law Kruger case buy-out remedy in Riley. The court stated in relevant part that “[f]lexibility of remedy, tailored to all the facts and as follows: circumstances of the case . . . is key.”26 From its very nature, and in order to attain its objects, In fact, the buy-out remedy makes even more sense in equity must often act without specific statutory author- the common-law context where the stock holdings of the ity and sometimes without legal precedent. Each case plaintiff do not reach the 20% threshold of stock owner- must stand on its own facts, and the degree of relief applied must be commensurate with the wrong to be ship necessary for statutory dissolution. It allows the remedied. As remarked by Mr. Justice Field in Sharon v. larger majority of shareholders to continue the existence Tucker, 144 U.S. 533, 12 S. Ct. 720, 36 L. Ed. 532, in quot- of the corporation if they so desire, while providing a fair ing from Pomeroy’s treatise on Equity Jurisprudence: and just return to the “below 20%” minority plaintiff. It “It is absolutely impossible to enumerate all the special is also less of a burden for a company to buy out a share- kinds of relief which may be granted, or to place any holder owning less than a 20% interest as compared to bounds to the power of the courts in shaping the relief a shareholder owning a larger stake, and who is able to in accordance with the circumstances of particular pursue statutory dissolution. cases.” We shall not in this case compel the dissolution of the defendant corporation, but we conclude Legislative History that plaintiffs are at least entitled to such a measure of equitable relief as will require the defendant corpora- The legislative history of BCL §§ 1104-a and 1118 further tion to reduce its capital stock to the extent required confirms the viability of the fair value, buy-out remedy in order to enable it to distribute among plaintiffs, in in a common-law dissolution action. The incorporation exchange for the surrender and cancellation of their of this remedy into the BCL statutory framework came share certificates, a proportionate share of the corpo- directly from the common law. rate assets, after all the corporate obligations are paid. To understand the genesis of the BCL § 1118 buy-out The stockholders will at once take the proper statutory provision, the legislative history of that provision reveals proceedings to reduce the capital stock accordingly. If a number of telling facts. Contained in the bill jacket is a letter dated May 29, 1979, from William B. Finneran of the New York State Assembly to then Governor Hugh L. Carey recommending approval of the legislation. In support of the legislation, Assemblyman Finneran submitted a section of a legal treatise with his letter. He stated: I am enclosing a section of F. Hodge O’Neal’s esteemed work “Squeeze-Outs” of Minority Shareholders (Expulsion or Oppression of Business Associates). Note Chief Judge Fuld’s strong advocacy on page 591. O’Neal addresses the buy-out alternative in this treatise section and explains its use at common law. He states: In many situations a court can offer quarreling shareholders one or more alternatives to dissolution. . . . A court order compelling one faction of shareholders to buy-out the other faction is another possible solution of a shareholder conflict. In an Idaho case, the court, as an alternative to dissolution, gave majority shareholders a reasonable time to reduce the corporation’s capital so as to enable it to pay the complaining shareholder his pro rata share of corporate assets in exchange for his stock. Along a similar line, a practical solution might be found in a procedure under which either shareholder may purchase the holdings of the other at an appraised value found by the court and upon terms set by it. Flexibility of remedy, tailored to all the facts and circumstances of the case, including the shareholders’ conflicting interests and motivations, is the key.27

NYSBA Journal | March/April 2008 | 27 they prefer to dissolve the corporation altogether, they ing the plaintiff. For example, a receiver needs to be may of course exercise their statutory rights in that appointed to marshall the assets of the corporation, liq- respect, but it is not the purpose of this decision to uidate those assets which can be sold, address existing 29 force them to do so. liabilities of the corporation and ultimately distribute the After citing the Idaho case, O’Neal cites the New remaining cash and assets to the corporation’s sharehold- York case of Kruger v. Gerth30 and Judge Fuld’s dis- ers.32 Furthermore, dissolution may create substantial tax senting opinion therein. Expanding on the thoughts he liabilities for all shareholders including the plaintiff. expressed in the majority opinion in Leibert, Judge Fuld A second possible remedy is a required, court-ordered offered the buy-out remedy as a practical, alternative buy-out of the plaintiff’s interest. The court may hold a solution to dissolution, and stressed that “[f]lexibility of hearing to determine the limited issue of the fair value of remedy, tailored to all the facts and circumstances of the the plaintiff’s interest, and then order the corporation to case including the shareholders’ conflicting interests and buy out the plaintiff’s interest at that fair value within a motivations is the key.” fixed period of time. This remedy is similar to the remedy As noted, Assemblyman Finneran, in his letter to ordered in Wiedy, described above. The attractive feature Governor Carey, specifically directed the Governor’s of such a remedy is that it allows the existence of the attention to Judge Fuld’s thinking as set forth in the corporation to continue for its remaining shareholders; O’Neal treatise (“Note Chief Judge Fuld’s strong advo- avoids the time, costs and potential tax liabilities associ- cacy”). BCL § 1104-a and BCL § 1118 (buy-out provision) ated with dissolution; and accomplishes the objective of became effective on June 11, 1979, less than two weeks the plaintiff’s cause of action – assuring the plaintiff a fair after Assemblyman Finneran wrote to Governor Carey.31 recovery upon his or her minority interest and preventing The letter gives insight into the rationale behind BCL majority abuses against the plaintiff in the future. § 1118, namely the O’Neal legal treatise and its citation to A third possible remedy is a court order providing for common law advocating the buy-out alternative. There dissolution conditioned upon first offering the corpora- can be no question that such alternative is a creature of tion a buy-out option, to be exercised within a fixed peri- equity and the common law, and the practical nature od of time, for example, within 30 days. This is identical of such an alternative spurred its incorporation into to the remedy ordered in Kemp. This type of remedy gives the statutory framework of the BCL in June 1979. Judge a corporation the flexibility to determine its best alterna- Fuld’s “strong advocacy” of this alternative remedy is tive once the minority shareholder is gone. as relevant today as it was in 1965 and 1979. A court, A fourth possible remedy is a buy-out variation exercising its equitable powers, can and should consider involving an aliquot share distribution of the corpora- the alternative remedy of a buy-out at fair value when tion’s assets. The corporation “buys out” the minority the facts and circumstances warrant such alternative. shareholder by distributing to the plaintiff his or her pro- Flexibility of remedy is indeed the key. portionate share of the company’s assets (rather than cash only) in exchange for the plaintiff’s stock. This form of Choices for the Court remedy could be used in the situation where the corpora- The objective of a common-law dissolution cause of tion’s assets are easily divisible. action is to assure recovery of a minority plaintiff’s In all, a court confronted with a common-law dissolu- interest in the corporation at issue, and prevent further tion claim has a wide variety of reasonable alternatives to malfeasance by the majority, who have control over the consider short of dissolution. corporation. The court, in exercising its equitable power, can accomplish this objective by choosing from a number Conclusion of possible remedies. Common-law dissolution, albeit rare, is alive and well in The most obvious possible remedy is that of dissolu- New York. A plaintiff satisfies the burden of proof if he or tion. The court may order that the corporation in question she establishes that the majority “so palpably breached be dissolved, that pursuant to such dissolution the assets their fiduciary duties” that the majority by its own con- of the corporation be sold, and that each shareholder duct has relinquished the exclusive power to dissolve the receive his or her share of the proceeds based upon the corporation. If liability is established, the court must then shareholder’s percentage ownership of the corporation. turn to the issue of the appropriate remedy. The remedy satisfies the objective of assuring a fair The court, in equity, must consider all the facts and recovery by the plaintiff and preventing further majority circumstances of the case and fashion a remedy that is malfeasance; however, there are downsides. Dissolution fair and reasonable to all. A practical alternative to the is the nuclear option, and would prevent the corporation extreme remedy of dissolution is a buy-out of the plain- from continuing in existence. The dissolution process tiff’s interest by the corporation. itself takes time. The costs associated with the process The buy-out remedy can be fashioned in a variety of can be high and will be borne by all shareholders includ- ways. The important point to bear in mind is, the court

28 | March/April 2008 | NYSBA Journal 10. 13 N.Y.2d 313. has broad discretion to choose the most appropriate 11. Id. at 317. remedy and should attempt to balance the needs of the 12. 231 A.D. 641, 248 N.Y.S. 387 (1st Dep’t 1931). parties in fashioning the most equitable solution. ■ 13. Id. at 643, 645. 14. 107 A.D.2d 931, 483 N.Y.S.2d 868 (3d Dep’t 1985). 1. Public corporations and corporations registered as investment companies 15. 250 A.D.2d 519, 673 N.Y.S.2d 421 (1st Dep’t 1998). under the Investment Company Act of 1940, 15 U.S.C. §§ 80a-1–80a-64, are not 16. Id. at 520–24. subject to § 1104-1 dissolution. See BCL § 1104-a(a). 17. 295 A.D.2d 425, 743 N.Y.S.2d 170 (2d Dep’t 2002). 2. BCL § 1104-a(a)(1), (2). 18. Leibert, 13 N.Y.2d at 317. 3. Many states other than New York also have statutory dissolution provi- 19. See, e.g., In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 74, 484 N.Y.S.2d 799 (1984) sions. See, e.g., Conn. Stock Corp. Act § 33-382(b); Dist. Columbia Business Corp. (“Every order of [statutory] dissolution, however, must be conditioned upon Act § 90; Fla. Gen. Corp. Act § 607.274; Il. Business Corp. Act § 86; In. Gen. Corp. permitting any shareholder of the corporation to elect to purchase the com- Act § 25-242; Md. Gen. Corp. Law § 4-602; Me. Business Corp. Act § 1115; Mn. plaining shareholder’s stock at fair value”). Business Corp. Act § 301.50; N.H. Gen. Corp. Law § 294.97; N.C. Business Corp. 20. Leibert, 13 N.Y.2d at 318. Law § 55-125; Pa. Business Corp. Law § 1107; R.I. Business Corp. Law § 7-1.1-90; 21. Kruger, 16 N.Y.2d at 807. Tenn. Gen. Corp. Law § 48-1008; W.V. Corp. Act § 31-1-134. 22. BCL § 1118. 4. Before the passage of § 1104-a, common-law dissolution was the avenue 23. 64 N.Y.2d 63, 484 N.Y.S.2d 799 (1984). by which all shareholders, those owning 20% or more of the voting shares and 24. Id. at 75. those owning less than 20%, could seek dissolution of a private corporation. 25. 108 A.D.2d 81, 487 N.Y.S.2d 901 (3d Dep’t 1985). 5. See Leibert v. Clapp, 13 N.Y.2d 313, 316, 247 N.Y.S.2d 102 (1963). See also BCL 26. Kruger, 16 N.Y.2d at 807. §§ 1001, 1103. 27. O’Neal, “Squeeze Outs” of Minority Shareholders (Expulsion or Oppression 6. Leibert, 13 N.Y.2d at 317, 247 N.Y.S.2d at 105. of Business Associates) (Callaghan & Co. Chicago, Il.). 7. Id. at 317. “Palpable” is commonly defined as tangible, easily perceptible, noticeable. See, e.g., Webster’s Ninth New Collegiate Dictionary (Merriam- 28. 28 Idaho 525, 155 P. 665 (Sup. Ct., Idaho 1916). Webster, Inc. 1988). 29. Riley, 28 Idaho at 591. 8. See Kroger v. Jaburg, 231 A.D. 641, 248 N.Y.S. 387 (1st Dep’t 1931); Leibert, 13 30. Kruger v. Gerth, 22 A.D.2d 916, 255 N.Y.S.2d 498 (2d Dep’t 1964), aff’d w/o N.Y.2d 313; Nelkin v. H.J.R. Realty Corp., 25 N.Y.2d 543, 307 N.Y.S.2d 454 (1969); opinion, 16 N.Y.2d 802, 263 N.Y.S.2d 1 (1965). In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 484 N.Y.S.2d 799 (1984); In re Dubonnet 31. New York was not alone in adopting the buy-out remedy as part of its Scarfs, Inc., 105 A.D.2d 339, 341, 484 N.Y.S.2d 541 (1st Dep’t 1985); Lewis v. Jones, statutory scheme. At that time several other states had already adopted similar 107 A.D.2d 931, 932, 483 N.Y.S.2d 868 (3d Dep’t 1985); Fedele v. Seybert, 250 legislative provisions. See, e.g., S.C. Code Ann. § 12-22.23(a)(4) (Supp. 1968); A.D.2d 519, 521, 673 N.Y.S.2d 421 (1st Dep’t 1998); Collins v. Telcoa Int’l Corp., Md. Gen. Corp. Law § 4-603 (1967); W. Va. Code Ann. § 31-1-80 (1966); Conn. 283 A.D.2d 128, 132–33, 726 N.Y.S.2d 679 (2d Dep’t 2001). Gen. Stat. Rev. §§ 33-117 (1958); Ca. Corp. Code § 4658 (1955). 9. See, e.g., Kruger v. Gerth, 22 A.D.2d 916, 255 N.Y.S.2d 498 (2d Dep’t 1964), 32. See, e.g., BCL § 1005(a)(3)(A), (B). aff’d w/o opinion, 16 N.Y.2d 802, 263 N.Y.S.2d 1 (1965); Shapiro v. Rockville Country Club, Inc., 22 A.D.3d 657, 802 N.Y.S.2d 717 (2d Dep’t 2005).

NYSBA Journal | March/April 2008 | 29 Intellectual Property Considerations in the Outsourcing Industry By Poorvi Chothani

ost outsourcing transactions involve the licens- Convention, the Paris Convention and the Trade-Related ing of one party’s intellectual property (IP) Aspects of Intellectual Property (TRIPS) under the World Mto another. An ancillary problem is the issue Trade Organization (WTO). of ownership of intellectual property created as part Service providers in India are generally wholly owned of an outsourcing contract. Intellectual property laws subsidiaries of foreign entities (captive), or third-party are country-specific and apply within the geographic providers where work is contracted out to third-party borders of the nation except where international trea- vendors, or joint ventures, which are collaborative initia- ties have made some aspects of member-nation’s laws tives with local entities with joint control of the service consistent. Therefore, it is imperative that the many dif- provider. The most commonly used form is the third- ferences are addressed when outsourcing work to an entity abroad. An IP owner cannot rely on an umbrella POORVI CHOTHANI ([email protected]) of Law Quest, is grant of an IP right because the governing laws are not the Correspondent Attorney in Mumbai, India, for Cyrus D. Mehta and harmonized worldwide. These problems are mitigated, to Associates, PLLC, New York. She is licensed to practice Indian law, New some extent, as certain offshore jurisdictions are becom- York State law and U.S. federal law. ing signatories of international treaties such as the Berne

30 | March/April 2008 | NYSBA Journal party model, which can be established in a short span of the public” have not been satisfied, or that the pat- of time and offers flexibility in growth, termination and ented product is not available at a “reasonably affordable scale. But, as the day-to-day operations are managed by a price,” or that the patented invention is “not worked in third party that would have access to sensitive data and the territory of India.” India’s patent laws also provide IP, there are significant risks. A captive service provider, for “research and experimental use” enabling the use of on the other hand, requires more time to establish and a patent for experimental use even if it is for commercial provides less flexibility, but it ensures control of sensitive purposes.3 Further, under Indian patent law, applications data and IP. In contrast, joint venture units provide more for patents for inventions in India or involving an inven- speed and control but give rise to, among others, issues tor who is a resident of India, must first be filed in India, of joint IP ownership. No matter which model is chosen, unless the Indian Patent Office has granted a “foreign IP issues need to be addressed carefully. filing license.”4 India’s IP laws are based on common law and Indian courts often refer to British and U.S. case law when con- Joint Ownership Rules sidering an issue that may not have been addressed by New IP products are often created during an outsourc- Indian statutes or Indian courts. However, there are some ing relationship, thus raising IP ownership issues. Unless significant differences between Indian and British or U.S. the parties clearly and expressly define the terms of joint IP law. It is important that an outsourcer is aware of these ownership, the parties involved in the project are likely to differences when entering into outsourcing contracts face joint ownership problems and ensuing conflicts. In with an Indian service provider. This article examines India, for instance, a joint owner of a patent can commer- some of the provisions that are relevant to the outsourc- cially exploit the patent only after obtaining consent from ing industry and unique to India. the co-owner and is required to provide an accounting to the co-owner for all transactions pertaining to the patent.5 Patents The Controller of Patents has the statutory power to inter- In India, the law protecting patent rights is the Patent vene and pass directives in certain circumstances.6 Act, 1970. This act has undergone several amendments. The present act dealing with this subject is Patents Copyrights in India (Amendment) Act, 2005. Earlier, India only protected Under Indian Copyright Law,7 copyright subsists in process patents, which deterred the research and devel- original literary work, in original dramatic work and its opment of inventions and innovations. The new law adaptation, in original musical work, in a software pro- extended the term to 20 years from 14 years, and the gram, in a painting, in a film, in a sculpture, in a drawing recent amendments provide for patents for drugs and as well as a diagram, map, chart or plan, in an engraving chemical products as well as software-related inventions or a photograph, whether or not any such work possesses but not software per se. artistic quality. Copyright also subsists in an architectural The differences in the patent laws of different countries work of art and any other work of artistic craftsmanship. can be significant, and one needs a clear understanding Copyright, in India, subsists for a period of 60 years, of the laws of the country where the patent is to be used for a literary work, from the beginning of the year follow- or will require protection. For instance, India, unlike the ing the year of death of the author; for broadcaster rights, United States, follows a first-to-file system. As a result, 25 years from the year following the first broadcast; for India does not provide for a process to determine prior- photographs, cinematographs and sound recordings, 60 ity of invention in the case of objections. The first-to-file years from the beginning of the calendar year following system also raises the issue of adequately documenting the year in which each is first published. Authorized proof of invention or innovation. Indian service provid- adaptations, derivatives, versions, etc., would be entitled ers may not be aware of the importance of this in view of to separate copyright provided the new work qualifies the first-to-invent system of the U.S. patent system. This for copyright independently under the Copyright Act. could be mitigated by clearly defined contractual provi- Software in different jurisdictions can be protected as sions ensuring adequate documentation, training and a patent, granted copyrights or secured as a trade secret. implementation of systems. Please note that an assign- As a member of the WTO, India, as required by Article 10 ment of a patent has to be in writing and registered in of TRIPS, protects computer programs under copyright India otherwise it is invalid.1 law as a literary work. TRIPS does not specifically require In addition, though these apply only to certain health- patent protection for computer programs. Under Indian care KPOs (knowledge process outsourcing companies), law software or computer programs per se are not patent- India’s patent laws provide the government with powers able. Computer programs that show technical effects are to grant a “compulsory license.”2 Under this provision, arguably patentable. However, this theory, to our knowl- a third party may make an application for a compulsory edge, has neither been examined in the patent office nor license on the grounds that the “reasonable requirements in the Indian courts of law.

NYSBA Journal | March/April 2008 | 31 Inalienable Rights Version Recordings Indian copyright laws provide for inalienable “moral One “fair use” provision significant to the entertainment rights,” which attach to authors of copyrighted work industry is the right to make “version recordings.” This providing protection against distortion or modification provides a statutory license to make a sound recording of work if it could bring the author “disrepute.”8 These of an existing musical work by engaging independent rights do not transfer along with an assignment of the artists to create the same music and use identical lyrics, copyright in a work but, in limited circumstances, a cus- provided the “version recording” is made two years after tomer may seek a waiver of such moral rights from the the original sound recording and is subject to certain author upon assignment of all copyrighted materials to conditions. This has spawned a significant amount of ensure that the customer is not restrained from creating “remixes” which in some instances undermine the value future versions of copyrighted materials, if the author of the original works. believes such versions may bring the author disrepute. However, this provision of moral rights does not apply Compulsory Licensing to computer software, which may be modified by a cus- The Copyright Board may grant a compulsory license to tomer who acquires the rights to adapt the software. use a work on the grounds that the work is withheld from the public because the owner has refused to republish, Fair Use or Fair Dealing to allow the republication of the work or to allow the Under Indian law “fair use exceptions” strive to strike performance of the work in public. A compulsory license a balance between the rights of authors and interests of may also be granted if the owner has refused to allow the society. Section 52 of the Indian Copyright Act provides communication to the public by broadcast of such work, for Fair Dealing and enumerates instances where use of as in the case of a sound recording. copyright-protected material is not considered to be an infringement. Under this provision, certain uses of com- Assignments and Licensing puter programs without the copyright owner’s permis- An assignment under Indian copyright law is limited to sion, including for “non-commercial personal use,” are the territory of India and a term of five years, unless the deemed “fair use” and do not constitute infringement. copyright license or assignment states otherwise.10 Also, Furthermore, Indian copyright law does not require that unless a copyright assignment provides otherwise, the any payment be made to the copyright owner for such assignment lapses if the assignee does not “exercise” its use. In view of this a foreign customer should clearly set rights within one year from the date of assignment.11 It out the permitted uses of software, source code, or other is important to consider these issues carefully because copyright protected work to avoid disputes arising out of even if the contract provides for non-Indian law as the ambiguity. applicable law, Indian law may be used to determine IP ownership and infringement pertaining to IP transferred Work for Hire to, created in, or licensed from, India. Subject to certain exceptions, the general rule of copyright is that the author is the owner of the copyright. Indian Remedies and Law Enforcement copyright law recognizes the doctrine of “Work for Hire” The Copyright Act provides various remedies. First, it and extends it to employee-created inventions but not to is possible to file a suit to obtain an injunction, which is contractor-created work.9 As a result the legal owner of a court order forbidding the infringers from distribut- the work under Indian law will be the contractor who ing any more copies of the infringing work. Second, the developed the work unless otherwise provided in writ- copyright owner is entitled to actual damages. Actual ten contracts. Foreign customers often rely on general damages are what harm the copyright owner suffered “work for hire” principles, which may not transfer IP from the infringement. These damages are usually next rights that are a result of the work outsourced to an to nothing unless the owner proves that the value of Indian service provider. Therefore, if the customer wishes the copyrighted material has been diminished by the to retain ownership of any IP that is created during and infringer’s version. Perhaps the most significant remedy under the subsistence of its KPO contract, it is necessary is the award of profits. The copyright owner is entitled to include comprehensive and valid assignment provi- to the profits the infringer earns from the infringing use sions transferring the copyright to the customer. These of the copyrighted material. In addition, criminal penal- provisions should flow down into agreements with the ties have substantially increased and the Copyright Act Indian service provider’s employees and sub-contractors. provides for a minimum jail term of seven days, which If the Indian service provider is likely to subcontract the can be extended up to three years, and fines ranging work then the foreign customer is likely to ask for addi- from INR 50,000 to 2,000,000 (approximately US $1220 to tional precautions to ensure control and ownership of US $4878)12 depending on the nature and frequency of IP rights. the offense.

32 | March/April 2008 | NYSBA Journal India’s Copyright Office under the Ministry of existing trade secrets, in writing, to prohibit the use of a Human Resources, Department of Secondary and Higher third party’s trade secrets to avoid legal action by a third Education in its Study on Copyright Piracy in India party alleging trade secret misappropriation, and should reports that though the law authorizes a police officer to prohibit the disclosure of its own trade secrets. This is seize without warrant, “many police officers may refrain best achieved by clearly identifying specific trade secrets from implementing their powers because of the clause and prohibiting their use, misuse and/or modification. ‘if he is satisfied.’” The study also refers to allegations It is also necessary to allocate ownership of new trade and counter-allegations regarding the role of police per- secrets. On the one hand, the developer may not want to sonnel: the police admit that infringement of copyright give up rights to new ideas, algorithms, and processes protection does not merit the same attention as murders, created during the tenure of the outsourcing transaction. rapes, or law-and-order problems. The study finds that On the other hand the customer would not want the ser- the police blame rights holders for “not coming forward vice provider to use and/or benefit from using the new to either lodge a complaint formally or failing to produce trade secrets for its own purposes or those of other third necessary proof/document before the court.”13 parties. Indian law requires all owners of a patent or copyright to be parties in an infringement lawsuit.14 This affects Data Security and Privacy Considerations the enforcement of rights of a joint owner against a third Data security and privacy are other very significant party. Indian law does not provide for a joint owner’s issues in an outsourcing transaction. India does not have responsibilities with regard to filing, prosecution, main- specific laws governing trade secrets and confidential tenance or enforcement of IP rights. information. Despite the statutory provisions to protect copyrights, Judicial interpretation suggests that the Constitution of the enforcement of these provisions is still inadequate. As India provides an implied “right to privacy” but this right per the U.S. Trade Representative Special 301 review,15 may be invoked only in disputes between a citizen and

All remedies are available – injunctive relief, damages, accounting of proﬁ ts, and the return of all property containing the trade secret information.

“[t]here have been few criminal convictions under the the state involving the exercise of governmental power criminal provision under Section 63B of the Copyright resulting in an “invasion of privacy” – such as telephone Act since January 2000 – reportedly five for movie piracy, tapping, police surveillance, and like actions. But there is none for software piracy and only a few for music and no case law in India that supports the notion of a private book piracy.” entity enforcing a right to privacy against another private entity. However, the Indian government is considering Trade Secrets enacting a new law, which may be similar to the EU Data India follows common-law principles in these matters, Protection Directive. Service providers are often required often relying on British precedents but has not adopted to deal with an individual’s confidential data, including any civil or criminal statutes or specific laws relating to personal information. Privacy and data security issues trade secrets. India offers protection for trade secrets and also affect intellectual property, corporate secrets, confi- confidential information including but not limited to for- dential customer health and financial information, as well mulas, product specifications, manufacturing techniques, as personal identifiable information such as addresses, drawings, diagrams, pricing, supplier details, customer national identifying numbers, and credit-card informa- lists, management know-how, strategic business plans, tion, among many others. The Information Technology etc. All remedies are available – injunctive relief, dam- Act 2000 (the “IT Act”)16 covers issues of privacy and data ages, accounting of profits, and the return of all prop- loss or misuse in a very limited and indirect way. erty containing the trade secret information. An ex parte The IT Act provides some protection against “comput- seizure order can be obtained in civil actions to search a er offences” pertaining to the unauthorized access to data defendant’s premises in order to obtain the evidence to on computers and networks, unauthorized downloading establish the theft of trade secrets at trial. or copying of data, or introduction of viruses or other Parties routinely enter into contracts that provide damage to computer systems. The IT Act provides for for trade secret protection, especially in an outsourcing both civil and criminal remedies, ranging from imprison- transaction. Foreign customers should address use of ment for up to seven years to fines of up to INR 1 crore

NYSBA Journal | March/April 2008 | 33 (approximately US $240,000 under current exchange access, personnel security, business continuity and disas- rates) as well as for the creation of a special appellate ter recovery. To verify the credentials of employees, the court to expedite the disposition of claimed violations National Association of Software and Service Companies of the IT Act. Contractual provisions may be enforced (NASSCOM) has launched an employee registry that under the Specific Relief Act, 1963. Early last year, the compiles a national database of IT and BPO professionals Indian government approved an amendment to the IT in the outsourcing industry. This registry, managed by Act to expressly provide data protection and privacy a third party, includes employees in the database after measures. This new bill, if enacted by parliament as it is, conducting background checks. NASSCOM is involved would impose a liability on organizations for negligence in several initiatives to improve the standards of the in implementing and maintaining “reasonable secu- industry and the law enforcement agencies. It under- rity practices” to safeguard sensitive personal data that takes several initiatives to train KPO aspirants, employ- resides in a computer resource owned or operated by the ees and police staff, and conducts some training that organization and disclosing personal data acquired from is open to the public. NASSCOM, in conjunction with an individual to any other person without the concerned the Technology Law Forum in Mumbai, regularly hosts individual’s consent and with an intent to cause injury events of knowledge sharing and interaction between the to the individual. Under the bill, parties can contractu- legal professionals and members from the industry and ally agree to adapt “reasonable security practices” but public, where legal aspects of the industry, its problems if no such agreement was reached the reasonableness of and solutions are discussed. security practices will be determined by the adjudicating authority. Recent Developments Recently, an Intellectual Property Appellate Board was established as a specialized IP body to carry out the expeditious adjudication of appeals. The board was first Firms that do not factor these set up in 2003, but did not commence work at that time concerns into their plans expose due to a lack of technical experts to hear matters. Until recently, the board has adjudicated only on trademark themselves to vast losses. matters. The latest amendments to the Patent Act provide that the board is the adjudicator of patent appeals, but did not provide for an effective date for this provision. In addition to relief under the IT Act, it might be As a result, no steps were taken till April 2, 2007, when possible to obtain limited relief against data security the Indian government issued a notification ordering the violations under the Indian Penal Code, 1860, and the transfer of all appeals against orders or decisions from the Indian Criminal Procedure Code, 1973, which provide Controller of Patents to the board. It is expected that this for prosecution of crimes involving theft, breach of trust new independent IP dispute resolution body will reduce and fraud. However, as these laws only extend to offenses the delays that plague the judicial system. against “corporeal” property, they may be pertinent only Further, NASSCOM conceptualized and established when the data is housed in a physical object or medium, the Data Security Council of India (DSCI), as an indepen- making it possible to prosecute the theft of the object or dent self-regulatory body, to provide organizational sup- medium. It would also be possible to prosecute fraud that port to the already prevalent self-regulatory mechanisms is a result of the misuse of data. In addition, it is possible to protect data adopted by the IT industry. The DSCI will to avail of common law remedies and injunctions against be initially funded by NASSCOM and later it will gener- contractually bound parties or those that are in a position ate its own funding. of trust for breach of confidence. Recommendations Self-Imposed Regulation Very often in outsourcing contracts businesses erode The Indian IT and outsourcing industries are cognizant the value of their IP rights: their IP rights have not been that they need to provide an environment that protects assessed or protected, their IP rights may already be data to obtain offshore client work. Therefore, in addi- compromised or at risk, or they fail to allocate realistic tion to legislative efforts, the Indian IT and outsourcing budgets for IP protection. Firms that do not factor these industries have implemented their own initiatives to concerns into their plans expose themselves to vast losses. alleviate the data security concerns of foreign clients. Legal remedies may be largely ineffectual and post-loss Indian companies implement international standards, compensation moot because the IP is already lost, thus such as BS7799 and ISO 17799, to strengthen data security, affecting future earnings. Before retaining an outsourcing including network security, information security, physi- service provider, the foreign customer should conduct a cal security, documented procedures for storage and thorough check to assess the vulnerability of its IP in the

34 | March/April 2008 | NYSBA Journal outsourcing transaction and then provide for protective raised about data security issues, and steps have been measures for data and IP. This will help mitigate the risks taken to minimize damages, punish the offenders and and protect the business’s or project’s critical IP rights, deter future offenses. The variations in IP regulation and which may be at the core of the entire process or busi- protection in different jurisdictions make it imperative ness. that the customer has a complete understanding of the Another significant issue is the ownership of IP that differences and factors them into the contractual terms. is developed during the subsistence of the outsourcing A customer should insist on comprehensive contractual relationship. A service provider typically can claim own- terms and internal security measures to protect sensitive ership, unless there is an agreement to the contrary, and personal data that is used or processed in India. ■ the customer can use the new IP under “license,” which may be at a cost. Further problems can occur when the 1. Patents Act § 68 (1970). service providers use the services of third parties or sub- 2. Patents Act § 84 (1970). Under this section, a third party may make an application for a compulsory license on the grounds that the “reasonable contractors; in India, ownership of the IP usually rests requirements of the public” have not been satisfied, or that the patented product with the creator unless it is created within the scope of is not available at a “reasonably affordable price,” or that the patented inven- employment terms. It is best to clarify these issues in the tion is “not worked in the territory of India.” contractual terms so that any IP that is developed by the 3. Patents Act § 47 (1970). service provider at the customer’s request belongs to the 4. Patents Act § 8 (1970). customer. 5. Patents Act § 50 (1970). When the IP consists of data, configurations, formulas, 6. Patents Act § 51 (1970). trade secrets, confidential information or other sensitive 7. Copyright Act (1957); Copyright Rules (1958). information, it is a good idea to fragment the work among 8. Copyright Act § 57 (1957). several service providers so no single service provider 9. Copyright Act § 17 (1957). has access to the entire information. In addition, contrac- 10. Copyright Act §§ 19, 30A (1957). tual provisions to ensure that the service provider will 11. Copyright Act § 19 (1957). use “reasonable efforts” to protect the data should specify 12. US $1 = INR 41. that the sensitive information will be clearly identified, 13. http://www.copyright.gov.in/maincpract6.asp#top#top (last visited on access to physical areas where the data is housed will Feb. 14, 2008). be restricted, and the employees of the service provider 14. Copyright Act § 61 (1957). will be educated and sensitized to the confidential nature 15. United States Trade Representative 2007 Special 301 Report, available at of and potential risks to the information. The customer www.ustr.gov. should also ensure that all third parties involved with the 16. Proposed Amendments to the IT Act. transaction adhere to these requirements. Regular moni- 17. Indian Contract Act (1872). toring of the entire process will enhance the effectiveness of IP protection measures. To be successful, any outsourcing arrangement – whether on shore, near shore or off shore – must have clear and unambiguous contracts to support the project. India has a codified Contract Act17 governing all Indian contracts. The outsourcing contracts should carefully allocate responsibility of the service provider and the enterprise customer for violations of the rights by third parties and liability for punitive damages. Comprehensive and effective contracts must include provisions for scope service definitions, sub-contracting rights and obligations, governance structure, data protection provisions, IP ownership and responsibilities, legal compliance obligations, ongo- ing monitoring and audit rights, term and termination, termination assistance and transition, obligations, assignment, protection and ownership of intellectual property rights and well-defined dispute resolution mechanism.

Conclusion Unfortunately, IP infringement and data breaches occur in many parts of the world, whether developed or not. The government of India diligently responds to the concerns

NYSBA Journal | March/April 2008 | 35 Enhancing Victims’ Rights Crime Victims Compensation By Benedict J. Monachino

eptember 11, 2007, marked the sixth anniversary of remedy.3 Crime victims compensation is distinct from the terrorist attack that annihilated the Twin Towers restitution, however. As a form of punishment, restitu- Sin New York City, resulting in more than 3,000 tion is by no means a new approach to crime and jus- deaths. The events of that tragic day will never be forgot- tice. Ancient civilizations required criminal offenders to ten. Not to be forgotten, either, is the assistance provided settle with the victims and their families.4 These societies to bewildered victims and their families in the immediate believed retaliation by the victim could create a continu- aftermath of the 9/11 attack through the enforcement of ous cycle of violence and revenge,5 and that by requir- a little-known statute by an equally little-known agency ing restitution the threat of retaliation would diminish.6 called the Crime Victims Board. This wide use of restitution in both violent and property crimes is recorded in the Old Testament.7 It not only Crime Victims Board made the victim whole, but it helped restore community In 1965 the New York Legislature, recognizing that sur- peace. Many pre-colonial African societies also believed vivors of homicide victims were also victims of a violent that the response to crime should address the damage crime, sought to find a way to compensate such innocent caused to victims.8 victims – including surviving dependents – who also Today, the remedy of restitution is achieved when suffer.1 Assisting victims and their families would help prosecutors seek court-ordered compensation to the to restore balance to a criminal justice system in which victim by the offender as a part of sentencing. Every rehabilitative programs for those convicted of crime cap- state court has the authority to order criminal offenders tured public funds, and little or no help was provided to pay restitution to their victims; however, not every to victims and their survivors.2 The answer was the cre- state makes restitution mandatory.9 New York State, for ation, in 1966, of the crime victims compensation pro- example, leaves the ordering of restitution to a court’s gram (the “Program”) administered by the Crime Victims discretion, but courts will not consider restitution unless Compensation Board under Article 22 of the Executive the victim requests it.10 Compensation under restitution Law. This article summarizes the genesis of victims compensation and provides a road map to understanding the BENEDICT J. MONACHINO ([email protected]) is a past member provisions of Article 22. of the Crime Victims Board and is now Professor of Business Law at St. Joseph’s College, Patchogue and Brooklyn, NY. He concentrates his pri- Victims Compensation vs. Restitution Compensation vate practice in unfair competition, environment law and real estate. He State crime victims compensation has been regarded as a received his B.S. in Chemical Engineering from Polytechnic University and primary victim-oriented remedy and is often compared his law degree from Brooklyn Law School. with court-ordered restitution, another victim-oriented

36 | March/April 2008 | NYSBA Journal can consist of the return of a sum of money or the value ern-day compensation programs. In 1965, California’s of an object that the offender took in the course of com- became the first such program established in the United mitting the crime, funeral expenses, lost wages, support States; New York followed in 1966, Hawaii in 1967, and and payment of medical expenses.11 Similarly, many of Massachusetts, Maryland and the Virgin Islands in 1968. these expenses are reimbursable to a victim under a crime Today all 50 states, the District of Columbia, and the victims compensation program. Virgin Islands operate victim compensation programs.15 One primary benefit of restitution is that it requires the offender to directly compensate the victim, placing Overview of Article 22 of the Executive Law: the consequences of the crime on the criminal rather than Crime Victims Board on the public in the form of state victim compensation As with other states’ programs, New York’s Program awards.12 Still there are barriers to restitution. In reality, provides financial assistance to victims of nearly every once the convicted offender stands before the bench for type of violent crime, including rape, homicide, robbery, sentencing, he or she has a great incentive to promise assault, sexual abuse, and domestic violence. The pur- to comply with almost any form of restitution to avoid pose of the Program is to compensate innocent victims of jail time or receive a lighter sentence. Once the threat of crime or their surviving dependents for un-reimbursed serious incarceration is gone, the offender may totally out-of-pocket expenses.16 This Program is established disregard his or her obligations toward the victim, mak- under Article 22, § 620 of the Executive Law. ing collection questionable.13 When there is no leverage Restitution is frequently not awarded in sentencing proceedings. Consequently, the costs of crime continue to be borne by the victims. in sentencing, as in the case of a required minimum Powers and Duty of the Board sentence, even the defendant’s pretense of cooperation is The New York State Crime Victims Board (the “Board”), absent. Other common reasons why courts fail to order which administers New York’s Program, consists of five restitution are a victim’s failure to request restitution, the full-time members appointed by the Governor, with the belief that restitution is inappropriate when incarcera- advice and consent of the New York Senate.17 Terms are tion is imposed, a defendant’s inability to pay, and the staggered and run for seven years.18 The Governor names unwillingness of some courts to enter an order of restitu- a chairperson from among the five Board members.19 tion without sufficient evidence of the victim’s financial Among its more important powers, the Board has the loss.14 As a result, restitution is frequently not awarded in authority to determine awards, order medical examina- sentencing proceedings. Consequently, the costs of crime tions of victims, issue subpoenas compelling attendance, continue to be borne by the victims. request documents, make grants to community-based Because of the problems associated with effecting advocacy programs, schedule and hear appeals, and restitution, crime victims compensation has become a advise the Governor on establishing policies to address significant alternative for reimbursement of expenses the needs of crime victims.20 incurred from injuries inflicted by the criminal activity When a claim is filed, the claim is assigned to a Board of others. Indeed, it often is the only remedy available. member who makes the final determination as to wheth- Under New York’s Program, there is another alternative er the claim meets the criteria for payment.21 Conviction for such reimbursement, although not as regular vic- of the perpetrator is not a prerequisite to compensation. tim compensation. The “Son of Sam” law provisions in The claim is determined without regard to whether the Article 22 (discussed further below) allow the victim or alleged criminal has been arrested or prosecuted; rather, dependent survivors to seek and recover damages from the focus is on the victim.22 any source of money the convicted person receives. As a primary remedy, victims compensation is available to Persons Eligible crime victims regardless of whether the court has ordered Persons eligible for financial assistance are (1) a victim restitution. of a crime; (2) a surviving spouse, parent, child, or step- State compensation to victims of crime is one of the child of a victim of a crime who died as a direct result of earliest forms of victims’ rights. For thousands of crime such crime; and (3) any person dependent for his or her victims each year, it serves as the primary source of “principal support” upon a victim of a crime who dies as financial aid in the aftermath of victimization. In 1964, a direct result of such crime.23 Also eligible is any person Great Britain and New Zealand established the first mod- who has paid for the burial expense of a victim of a crime,

NYSBA Journal | March/April 2008 | 37 as well as a “Good Samaritan” (one who acts to aid a law • Cooperate with police and prosecutors in the inves- enforcement officer in the apprehension of an offender tigation and prosecution of the case.36 A Board or to prevent the commission of a crime).24 Awards are member has the discretion to deny a victim’s claim made to such persons for their out-of-pocket expenses, for compensation if it is shown that the victim and lost earnings or support resulting from the injury.25 did not fully cooperate with the appropriate law enforcement agencies. This requirement is intended Victim of a Crime – Eligibility Criteria to assist the police in the apprehension of the While the Board’s investigative staff corresponds and offender, as well as to help the prosecuting attorney sometimes meets with victims or their surviving depen- to obtain a conviction. Victims subject to a forensic dents to determine whether such individuals are encoun- medical examination who have not filed a police tering obstacles to eligibility, the Program requires that to report are exempted; the Board does not require qualify as a victim of a crime, the individual must satisfy such victims to come forward with information the following criteria: concerning the incident for which the examination • Be a victim of a crime.26 A “crime” means an act was sought.37 Also, the Board takes into consider- committed in New York State which would, if com- ation possible impediments to cooperation, includ- mitted by a mentally competent criminally respon- ing apprehension about personal safety and fear of sible adult, who has no legal exemption or defense, retaliation by the assailant or others. For example, constitute a crime as defined in New York’s Penal some victims are reluctant to cooperate with the Law.27 Also included as a “crime” is an act of ter- police after receiving threats of violence against rorism committed outside the United States against them and their families from assailants. The Board a New York resident.28 The term “victim” means a also recognizes that age, cultural and language bar- person who suffers physical injury as a direct result riers may influence a victim’s willingness to cooper- of a crime.29 Physical injuries resulting from an acci- ate with law enforcement. dent, as opposed to a crime, are not compensable. • Sustain physical injury or death resulting directly Claimant – Eligibility Criteria from the crime,30 unless the victim meets one of Whether a victim, surviving dependent or family mem- the exceptions set forth below under the heading ber, a claimant must comply with the following proce- “Exceptions to Physical Injury.” dures and meet the following criteria to be eligible for • Be an innocent victim.31 The victim cannot be reimbursement: engaged in criminal activity or in contributory • Submit a claim application to the Board within conduct (not necessarily criminal). Contributory one year after the crime, subject to a “good cause” conduct could result in total or partial denial of the exception.38 If the claimant is under the age of 18 or claim at the discretion of the assigned Board mem- incompetent, a relative, guardian, or other legal rep- ber. This could have serious effects on the victim’s resentative must file the claim within the applicable family. The eligibility of a victim’s dependents rests time period.39 largely on the eligibility of the victim. For example, • Be a living natural person.40 A claimant who dies if a homicide victim was engaged in criminal activ- before an award is made has no vested benefits, and ity at the time of his or her death, and such activ- such person’s estate has no claim to any award.41 ity played a part in the homicide, the dependents • Suffer financial difficulty if compensation is not would not be eligible for benefits. awarded.42 This applies to cases involving $5,000 or • Within one week, report the criminal incident to law more in compensation benefits. enforcement or another criminal justice agency such • First use medical insurance and public funds, if as the District Attorney’s Office. In cases involving available, on any bill for payment. All states’ com- sex offenses, the report may be made to the Family pensation programs are “payers of last resort,”43 Court, a child or adult protective service agency,32 requiring the claimant to exhaust all other sources of or, in the case of a rape or sexual assault victim, he insurance or government benefits that could pay for or she may simply seek a forensic medical exami- medical treatment, counseling, or funeral expenses nation.33 New York’s Program has a “good cause” before receiving compensation. Similarly, a compen- exception for those victims who can demonstrate a sation award will be reduced by the amount of any good-faith basis or other special circumstance for payments received by a claimant resulting from a not filing within the specified time.34 Victims of sex civil recovery or restitution.44 crimes must only file within a “reasonable time con- Under New York’s Program, a member of the criminal sidering all the circumstances, including the victim’s offender’s family is eligible.45 However, the award may physical, emotional and mental condition, and fam- be reduced or structured in such a way as to eliminate ily situation.”35 the economic benefit or unjust enrichment to the offender.

38 | March/April 2008 | NYSBA Journal The claim may even be denied.46 This is intended to • Moving or relocation expenses when a victim is in prevent the person who is criminally responsible for the immediate physical danger, or when relocation is crime from benefiting from the victim’s claim. medically necessary following the crime.54 A letter from a counselor, doctor, or district attorney is usu- Physical Injury Benefits ally required explaining the need for relocation.55 All state compensation programs cover the same types • Crime scene clean-up to a maximum of $2,500.56 of expenses with varying specific limits. The New York • Cost of installing certain security devices, if consid- Program covers medical expenses (unlimited); mental ered necessary for the victim’s health or welfare.57 health counseling for the victim (unlimited); lost sup- Maintenance fees, however, are not compensable. port for surviving dependents of homicide victims (up to • Emergency awards up to a maximum of $2,500 in $30,000 total); lost earnings for victims unable to return cases of extreme hardship such as the deposit on a to work because of a crime-related injury (up to $600/ funeral bill, immediate assistance for lost earnings, week, up to $30,000 total);47 and counseling for family and to cover the cost of HIV prophylaxis for sexual members of a homicide victim (includes spouse, child, assault victims.58 parents, stepparents, grandparents, guardians, stepchild, • Attorney fees for services related to processing the brothers, sisters and in the case of a minor victim, the victim’s claim and representing the victim before child’s parent, stepparent, grandparent, guardian, sibling the Board on appeal of the denial of a claim (up to and stepsibling).48 If the victim has sustained a physical $1,000 with affidavit of service).59 injury, counseling for the victim’s spouse, children or • Cost of sheltering battered spouses and children.60 stepchildren is reimbursed.49 Property losses, however, • Rehabilitative occupational training for job retrain- are compensated only for essential personal property and ing.61 property lost by a Good Samaritan as a result of a crime New York does not compensate for pain and suffering. (discussed further below). The Board pays for out-of-pocket costs actually incurred In addition, New York compensates for other essen- by the victim or surviving claimant. Counseling and ther- tial expenses resulting from a violent crime including apy, however, are compensable in situations where there felonies, sexual assault and domestic violence. These is physical injury, or, as discussed below, in stalking- include: related crimes. New York does not recognize “emotional • Essential personal property necessary and essential trauma” as a “physical injury” and it is, therefore, not for the victim’s health, welfare or safety (up to $500 compensable. with a cash limit of $100).50 This also applies to the child of a domestic violence victim. Good Samaritans Exceptions to Physical Injury are covered for up to $5,000 for all personal prop- Domestic Violence Victims erty.51 Essential personal property may include such Victims who have not sustained a physical injury may items as clothing, bedding, eyeglasses, personal nevertheless be eligible for compensation benefits if hygiene items, as well as prosthetic devices such as an artificial limb or false teeth. • Travel expenses for necessary court appearances and for medical or psychotherapy treatment.52 The Board usually requires a letter from the district attorney or a medical professional, stating mandatory dates for court appearances or transportation needs of the victim where the provider is located far from the victim’s home or when other special circumstances exist. • Home or vehicle modifications for victims disabled as a result of violent crime and rehabilitation which may include physical or job therapy, wheelchairs, specialized mechanical beds, and ramps for paralyzed victims.53

NYSBA Journal | March/April 2008 | 39 they are victims of certain stalking-related crimes. These Compensation benefits for child victims, including crimes include: menacing, harassment, criminal contempt those who are witnesses to a crime, are not so limited. (violating an order of protection), and four degrees of Child victims and their families are eligible for all catego- stalking that were recently added to the Penal Law.62 ries of compensation without regard to physical injury.71 Each of these crimes place victims in fear of actual harm and are often committed by those whom the victim Death Benefits knows well.63 The injuries sustained as a result of domes- The Program provides additional compensation in the tic violence often include emotional abuse,64 job loss or event of death of the victim. The Program provides up to career impediments,65 in addition to physical injury. $6,000 in funeral expenses, together with compensation Program benefits payable to victims of domestic vio- to the surviving dependents for lost support and crime lence crimes include: lost earnings if they lose their job scene clean-up.72 Police officers and firefighters are cov- or are unable to work; the un-reimbursed cost of repair ered for reasonable burial expenses (not limited to $6,000) or replacement of essential personal property; the un- when they die from injuries received in the line of duty as reimbursed cost for security devices to enhance the per- a result of a crime.73 Additionally, the Program provides sonal protection of such victims; transportation expenses compensation for counseling for the spouse, grandpar- incurred for necessary court appearances in connection ent, parent, guardian, siblings, stepsiblings, children, or with the prosecution of such crime; the un-reimbursed stepchildren of a homicide victim.74

The Sexual Assault Reform Act created signiﬁ cant reform in New York’s sexual assault and child sexual abuse laws, advancing the rights of victims of sexual assault. cost of counseling provided to such victims due to men- Denial of Claims tal or emotional stress resulting from the crime; and Within 30 days after a decision by a Board member deny- occupational or job training.66 With the expansion of the ing compensation, the claimant may request an appeal anti-stalking laws, more domestic violence victims have before the Board for reconsideration of the decision. qualified for compensation. Three members of the Board, not to include the Board member who rendered the underlying decision, review Non-domestic Violence Victims the record and affirm or modify the decision of the origi- For victims of Unlawful Imprisonment in the First Degree nal Board member. The claimant may appear at the hear- and Kidnapping in the First and Second Degrees, the ing with or without an attorney in support of the appeal, Program compensates for lost earnings and counseling and may bring any supporting documents and anyone to for the emotional abuse resulting from the incident.67 testify on the claimant’s behalf. The decision of the three- These crimes are not specifically intended for victims member appeal board is final, subject to appeal pursuant of domestic violence, but rather apply to all victims in to an Article 78 proceeding under the Civil Practice Law general who have not been physically injured as a direct and Rules.75 result of the crime. Impact of the Sexual Assault Reform Act Elderly, Disabled and Child Victims On October 19, 2000, Governor George Pataki signed Another physical injury exception exists for the elderly, into law the Sexual Assault Reform Act (SARA or the the disabled, and children. Innocent victims who are “Act”),76 which took effect February 1, 2001. SARA cre- (1) at least 60 years of age, (2) under 18 years of age ated significant reform in New York’s sexual assault and (child victims), or (3) disabled68 may qualify for com- child sexual abuse laws, advancing the rights of victims pensation.69 Compensation benefits for the elderly and of sexual assault. The Act created new classes of crimes disabled are limited to the following: under the Penal Law, enhanced protection for victims of • replacement or repair of lost or damaged essential sex offenses with enhanced protection for child victims, personal property; and increased penalties for offenders. One of the Act’s • transportation expenses for necessary court appear- provisions significantly eased the Program eligibility ances; and requirements. Now, a victim who has sought a forensic • counseling for the victim, provided that in the case rape examination from a medical facility authorized of the elderly and disabled, treatment must begin to perform such exams is deemed to have “reported” within one year of the crime.70 the crime without having to report to a criminal justice

40 | March/April 2008 | NYSBA Journal Crime victims compensation agency as previously required by statute.77 Consequently, such a victim more easily satisfies the Program’s report- has become a vibrant ing eligibility requirement. In keeping with the purpose of SARA, the Board will force in advancing the rights compensate victims of sexual assault for the cost of a of victims. forensic rape examination. These victims remain eligible for all categories of Program compensation for which they would otherwise be eligible. helping to ensure that the financial consequences of crime SARA effected other changes in the law that do not are placed on the criminal who caused the harm. directly impact the Program, but which have a comple- mentary effect of enhancing the rights of crime victims. Relief for Livery Cab Drivers For example, in creating new classes of crimes, SARA On July 12, 2000, in response to a rash of livery cab homi- broadens the scope of sexual assault victims that qualify cides and severe assaults in New York City, Governor for compensation. Pataki signed into law an act that enabled the Board to grant expedited compensation awards to livery operator Impact of Amendment to “Son of Sam” Law victims and family members.81 The law empowers the Victims’ rights under the Program were further enhanced Board to provide immediate assistance for lost earnings with the passage of the 2001 amendment to New York’s by livery operator victims and for lost support for sur- “Son of Sam” law.78 Originally enacted in 1977 because viving family members ($500 weekly to a total of $20,000 of outrage over possible book and movie deals offered regardless of the actual income)82 without a reduction to New York serial killer David Berkowitz, known as the for any applicable workers’ compensation benefits.83 In “Son of Sam,” it was the first state law designed to pre- the past it has taken the Workers’ Compensation Board vent convicted criminals from profiting from their crimes. over six months to determine workers’ compensation The law authorized the Board to seize a criminal’s wind- benefits,84 which has delayed the Board’s ability to pay in fall when it appeared to come from “selling” his or her view of its status as “payer of last resort.” story; to determine in an administrative hearing whether such income was in fact the proceeds from the sale of the Conclusion criminal’s story; and if that was found, to hold the income Thinking back to the horrors of that September morning in escrow for distribution to any victims, who had a five- six years ago, the rationale for crime victims compensa- year window in which to file with the Board. tion is clear. Whether the victim of a terrorist attack, rape, In 1991, the United States Supreme Court struck down or homicide, victims or their survivors often need imme- the law because it focused exclusively on profits made diate financial assistance as a consequence of that crime. from “speech” activity.79 The N.Y. Legislature responded The Board encourages attention to the needs of crime with a revised “Son of Sam” law that covered all profits victims, and often provides a remedy where none would of a crime, not just those generated by speech activity. The otherwise exist. As such, crime victims compensation has new law also removed the Board’s administrative power become a vibrant force in advancing the rights of victims. to hold and escrow targeted funds, relegating the Board’s Each time compensation benefits are expanded, crime role to notifying victims of potential profits of a crime, victims are another step closer to restoring balance to the and facilitating a victim’s rights in the courts. criminal justice system. As United States Supreme Court Effective January 2001, a subsequent amendment Justice Benjamin N. Cardozo wrote, “Justice, though due expanded the law to allow victims and their families to to the accused, is due the accuser also. The concept of recoup damages from a convicted person’s funds. This fairness must not be strained till it is narrowed to a fila- amendment allows victims and their families to sue a ment. We are to keep the balance true.”85 The New York person convicted of certain crimes80 for all funds and Legislature in 1966 thought so, too. ■ property received from any source, including lottery earnings, inheritances, gifts, investment income or judg- 1. Bill Memorandum filed with Assembly Bill, Intro. No. 5335, Pr. No. 7172, Chapter 894, S. Pr. No. 6124 entitled: “An Act to amend the Executive law, in ments in civil lawsuits with the exceptions of earned relation to the creation of the crime victims compensation board in the execu- income and child support. Under the prior law victims tive department, prescribing the powers and duties thereof and making an could not reach assets obtained by criminals that were not appropriation therefore.” (1966) (proposing a program for the compensation of victims of violent crime to be administered by a Crime Victims Compensation related to the underlying crime. Board). Taken as a whole, victims and their families now have 2. Id. at 3 (containing remarks by Governor Nelson Rockefeller explaining a greater ability to sue their attackers. Consequently, the the need to form a special committee to develop a program to compensate new law fills the void created when restitution is not victims of violent crime). imposed on criminals as part of their prison sentence, 3. Frank Carrington & James A. Rapp, Victims’ Rights: Law and Litigation 3-1 (Matthew Bender 1991).

NYSBA Journal | March/April 2008 | 41 4. Daniel Van Ness & Karen Strong, Restitution to Rehabilitation: How and Why 37. Exec. Law § 631(1) simply requires victims of sexual offenses as contained Victims Were Removed From the Criminal Justice Process, Crime Victims Rep., vol. in Penal Law art. 130 or of incest as defined in Penal Law § 255.25 to report to 4, no. 6, Jan./Feb. 2001, p. 81, col. 1. and receive treatment from a hospital that provides forensic rape exams. 5. Id. at 92. 38. Exec. Law § 625(2). 6. Id. 39. Exec. Law § 625(1). 7. Id. 40. Gryziec v. Zweibel, 74 A.D.2d 9, 426 N.Y.S.2d 616 (4th Dep’t 1980) (actual 8. Id. at 93. crime victim, if he or she is living, or a person dependent for principal support upon a victim including a surviving spouse, parent or child of the deceased 9. Ordering Restitution to the Crime Victim (11/2002), Office for Victims of victim are claimants under § 624 and not estates or other impersonal entities in Crime, U.S. Department of Justice, p. 1. view of § 621 which defines claimant as the person filing the claim). 10. Penal Law § 60.27(1). 41. Id. at 13–14. 11. See Carrington & Rapp, supra note 3, p. 3-8. 42. Exec. Law § 631(6)(a). 12. Id. at 3–5. 43. Exec. Law §§ 626, 631(4)(c) (the Board interprets these provisions to pro- Id. 13. vide that compensation will be paid only after the claimant exhausts all sources 14. David Beatty, Susan Howley and Dean Kilpatrick, Statutory and of collateral funds). Constitutional Protections for Victims Rights, Arlington, Va., National Center for 44. Exec. Law § 631(4). Victims of Crime, p. 95. 45. Exec. Law § 624(2). 15. National Association of Crime Victim Compensation Boards, Program, 46. Id. Directory (2002), National Association of Crime Victim Compensation Boards. 47. Exec. Law § 631(2), (3). 16. Exec. Law § 620. 48. Exec. Law § 626(1), (2). 17. Exec. Law § 622(1). 49. Id. 18. Exec. Law § 622(2). 50. Exec. Law § 631(2), (9). 19. Exec. Law § 622(3). 51. Exec. Law § 631(5)(c). 20. Exec. Law § 623. 52. Exec. Law § 631(8), (10), (12). 21. Exec. Law § 627(1), (5). 53. Exec. Law § 631(2), (12). 22. Exec. Law § 627(3). 54. Exec. Law § 626(1) (moving and relocation expenses are compensated as 23. Exec. Law § 624(1)(a), (b), (c). medical expenses). 24. Exec. Law §§ 624(1)(d), 631(5)(c). 55. Required by Board policy. 25. Exec. Law § 626(1). 56. Exec. Law § 631(2). 26. Exec. Law § 631(1)(a). 57. Exec. Law § 631(12) (the Board will pay for all victims with a letter from 27. Exec. Law § 621(3)(a). the District Attorney’s Office stating the need for victim’s welfare). 28. Exec. Law § 621(3)(c). 58. Exec. Law § 630(1). 29. Exec. Law § 621(5). 59. Exec. Law § 626(1). 30. Exec. Law § 631(1)(b). 60. Id. 31. Exec. Law § 631(5)(a). 61. Exec. Law § 631(2). 32. Exec. Law § 631(1)(c). 62. Exec. Law § 631(12). Id. 33. 63. Elizabeth Schneider, Battered Women and Feminist Lawmaking 3–4 (Yale 34. Id. Univ. Press 2000). 35. Id. 64. Id. at 65. 36. The Board has discretion to determine whether a victim has a legitimate 65. Lucy Freedman & Sarah Cooper, The Cost of Domestic Violence, New York, reason for not pursuing prosecution. Also, the Federal Guidelines for crime Victim Services Research Dep’t (1987). victim compensation encourages each state to develop its own standards for 66. Exec. Law § 631(12). “reasonable cooperation.” 67. Exec. Law § 631(11). 68. Exec. Law § 621(9), (10), (11). 69. Exec. Law § 624(1)(e), (f), (g). 70. Exec. Law § 631(8). 71. Exec. Law §§ 621(11), 624(1)(g), 626(2), 631(2) (considered collectively, the Board interprets these provisions to provide all categories of compensation to child victims without regard to physical injury). 72. Exec. Law § 631(2) 73. Exec. Law § 631(5)(e) 74. Exec. Law § 626(1), (2). 75. Exec. Law § 628(1), (2), (3). 76. 2000 N.Y. Laws ch. 1. 77. Id. at § 28, amending Exec. Law § 631(1). 78. Exec. Law § 632-a. 79. Simon & Schuster, Inc. v. Members of the N.Y. Crime Victims Bd., 502 U.S. 105 (1991). 80. Exec. Law § 632-a. 81. Exec. Law § 627(6)(a). 82. Exec. Law § 627(6)(b). 83. Exec. Law § 631(4). 84. It normally takes at least six months to receive a worker’s compensation decision letter. 85. Snyder v. Mass., 291 U.S. 97, 122 (1934).

42 | March/April 2008 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

“I love being a NYSBA member for so many reasons—like the networking opportunities. I’ve made countless professional contacts and lasting friendships.”

Sherry Levin Wallach, Member since 1996

LAST CHANCE TO RENEW FOR 2008. Please renew your membership by March 30th. www.nysba.org/renew2008 Thank you for your membership support. PLANNING AHEAD BY ILENE S. COOPER AND JOSEPH T. LA FERLITA

ILENE S. COOPER ([email protected]) is a partner at Farrell Fritz, P.C., who concentrates her practice in trusts and estates. She is also a Fellow of the American College of Trust and Estate Counsel, an Adjunct Professor of Law at Touro Law School, and a Delegate-at-Large of the Trusts and Estates Law Section of the New York State Bar Association.

JOSEPH T. L A FERLITA ([email protected]) is an associate at Farrell Fritz, P.C., who concentrates his practice in trusts and estates. He is Vice-Chair of the Surrogate’s Court Committee and a Member of the Estate Administration Committee of the Trusts and Estates Law Section of the New York State Bar Association.

What’s a Distributee to Do? Renunciation and the Dead Man’s Statute

any estate practitioners are personal transaction or communi- “[t]he underlying purpose of the [Dead aware that a renunciation cation between the witness and the Man’s Statute] is to protect the estate of Mcan eliminate the applica- deceased person, except where the the deceased from claims of the living tion of the Dead Man’s Statute at trial, executor, administrator, survivor, who, through their own perjury, could but may not realize that its utility . . . or person so deriving title or make factual assertions which the dece- is not uniform and may, in fact, be interest is examined in his own dent could not refute in court.”7 On the dependent upon whether the person behalf . . . concerning the same other hand, it has been considered by renouncing is a legatee or a distribu- transaction.3 practitioners to be an unwieldy evi- tee.1 The lesson to be learned from the As defined by the provisions of dentiary burden and an impediment to distinction may prove critical to the CPLR 4519, the Dead Man’s Statute the fact-finding process.8 strategy of an estate litigation.2 bars the testimony of “any person Given these evidentiary hurdles, interested in the event” regarding a estate litigators often find themselves The Dead Man’s Statute transaction or communication with a confronted with the choice of navigat- The Dead Man’s Statute provides, in decedent. Specifically, the statute pro- ing within the confines of the statute pertinent part: hibits testimony by (1) a party, (2) a or strategizing a means of avoiding Upon the trial of an action or the person “interested in the event,”4 or its application. It is not surprising that hearing upon the merits of a spe- (3) a person from whom such a party many of them choose to steer clear of cial proceeding, a party or a person or interested person derives his or her the statute. Renunciation – divestiture interested in the event, or a person interest, regarding transactions or com- of a witness’s financial “interest” in the from, through or under whom such munications with the decedent when event or subject matter of the litigation a party or interested person derives such person or party is examined in his – offers one such means. The problem his interest or title by assignment or her own behalf or interest5 against is that while a renunciation by a lega- or otherwise, shall not be exam- (a) the executor, (b) the administrator, tee will eliminate the legatee’s statu- ined as a witness in his own behalf (c) the survivor of a deceased person tory disqualification as an interested or interest, or in behalf of the party or (d) a person deriving his or her title witness, a renunciation by a distributee succeeding to his title or interest or interest from, through or under a may not produce the same result. against the executor, administrator deceased person.6 or survivor of a deceased person The statute is wide-ranging and Eliminating a Witness’s “Interest” . . . , or a person deriving his title captures within its preclusive net any A witness’s incompetence under the or interest from, through or under conversations, observations and even Dead Man’s Statute may be circum- a deceased person . . . , by assign- writings with or about a deceased vented if such witness renounces his or ment or otherwise, concerning a person. Courts typically explain that her “interest in the event,” as observed

44 | March/April 2008 | NYSBA Journal above.9 “In order to be disqualified, Therefore, under the common law, was both a legatee and distributee. The the witness’ interest in the event must a legatee rendered incompetent to tes- proponent objected to the beneficiary’s exist at the time of the proposed testi- tify under the Dead Man’s Statute may testimony at trial on the basis of the mony. Therefore, a potential witness’ cure such incompetence by renouncing Dead Man’s Statute. The beneficiary divestiture of his or her interest before his or her interest derived under the argued that he was not incompetent testifying generally will restore the will. to testify under the statute because he witness’ competency,”10 as the witness had executed a document under which will no longer be a person “interested” Renunciation of an Intestate he purportedly waived his rights as a within the scope of the statute.11 Share Under the Common Law legatee and distributee. Although the law is clear that this Unlike a legatee, the common law does The trial court ruled that the docu- result will apply if the interest is rooted not allow a distributee to renounce his ment did not amount to such a waiver, in a legacy, this is not necessarily the or her interest in an estate.16 Instead, found the beneficiary incompetent, and case if it is rooted in an intestate share. any attempt to disclaim by a distributee his testimony was stricken. In affirm- The distinction, which, indeed, can be is deemed a gift of his or her intestate ing on appeal, the Second Department significant to the trial of a proceeding, share to the other distributees of the observed that the proponent did not may be best understood through an decedent.17 The common law views argue that the beneficiary’s purported examination of renunciations under the interest of a distributee as vesting waiver was ineffective in releasing the both the common law and statute. on the date of the decedent’s death, beneficiary’s interest as a distributee. thus making a purported renunciation However, the court explained, in dicta, Renunciation of a Legacy Under by a distributee ineffective.18 that, even if the beneficiary could the Common Law A case often cited for this proposi- waive his intestate share, he neverthe- As compared to the case of a dis- tion is In re Aievoli’s Will,19 a probate less would have been incompetent to tributee, the common law has always proceeding in which objections to pro- testify at trial under the Dead Man’s allowed a legatee to renounce an inter- bate were filed by a beneficiary who Statute, since his testimony would est in an estate on the theory that such interest did not automatically vest in the legatee at the moment of death.12 Although on the face of the Dead Man’s Statute the renouncing legatee appears to be “a person from, through or under whom . . . [the] interested person, [i.e., the remaining legatee,] derives his interest or title,”13 under the circumstances, the legacy is deemed to pass to the remaining testamentary beneficiaries from the testator, and not from the renouncing legatee.14 This is true despite the fact that the renunciation will have enhanced the interests of any remaining residuary legatee in whose favor the renouncing legatee may be testifying. A leading commentator states: A legatee who has released the legacy is competent to testify to transactions with the testator to support the will. As a result of the release, the witness is no longer a person interested in the event, and while it is true that the release has enlarged the interest of the residuary legatee, the increment is deemed to flow from the testator and not from the releasing legatee.15

NYSBA Journal | March/April 2008 | 45 Nevertheless, the debate as to the import of a distributee may have been rendered tion to Aievoli might be based on distributee’s renunciation obsolete by virtue of the provisions of § 2-1.11(d) of the Estates, Powers continues. New York’s renunciation statute, EPTL & Trusts Law, which provides that 2-1.11. In pertinent part, the statute a person who duly renounces a have benefited someone who succeed- requires that an effective renunciation distributive share is to be treated ed to his interest.20 of an interest in an estate be made as having predeceased the dece- Surrogate Nathan Sobel’s decision within nine months of the decedent’s dent. The increase in the other dis- in In re Fienga21 provides a helpful his- death.25 The statute makes no distributees’ shares, therefore, should torical examination of the renunciation tinction between a renunciation by a not be deemed to flow from the statute and a rationale for the distinc- legatee and a distributee.26 Indeed, renouncing distributee.32 tion drawn between renunciations of a the statute specifically provides that a Similarly, Richardson on Evidence legacy and those of an intestate share. renunciation has the same effect with remarks, “It should be noted, how- The court explained: respect to the renounced interest as ever, that EPTL 1.11 may be inter- [P]rior to any statute, a legatee though the renouncing person had pre- preted to change the ruling in Matter or devisee could always renounce deceased the decedent.27 of Aievoli.”33 his testamentary disposition. A In sum, it is not certain that a dis- distributee could not. The theory Renunciations Within the tributee’s renunciation within the stat- was that a testamentary disposi- Nine-Month Period utory period will render the distribution was regarded as an “offer” Section 2-1.11 of the EPTL appears tee competent to testify at trial under by the testator which the legatee to place a legatee and a distributee the Dead Man’s Statute. or devisee could accept or reject. who renounce within nine months of A distributive share in intestacy the decedent’s date of death on equal Renunciations Outside of the on the other hand vested by force footing in that it allows each of them Nine-Month Period of law in the distributee at date to “reject” the vesting of title.28 Since A distributee who is incompetent to of death. An attempt by the dis- title never vests, neither should be testify under the Dead Man’s Statute tributee to relieve himself of his deemed someone “from, through or will face even more uncertainty when vested share or to shift it to others under whom” a “person interested in a renunciation is attempted outside of occasioned possible gift tax con- the event . . . derives his interest or title the nine-month “deadline” imposed sequences [and] the vested share by assignment or otherwise.”29 This by EPTL 2-1.11(b)(2). Under EPTL remained subject to the claims of suggests that common law principles 2-1.11(h), the statute provides that it the renouncing distributee’s credi- regarding vesting of an intestate share “shall not abridge the right of any tors. In contrast, because a testa- no longer apply to a distributee who beneficiary or any other person to mentary disposition was an “offer” renounces within the statutory period, assign, convey, release or renounce which the legatee or devisee could thus clearing the way for a distribu- any property or interest therein arising accept or reject, a renunciation of tee’s testimony, even in the face of the under any other section of this chap- a testamentary disposition had no Dead Man’s Statute.30 ter or other statute or under common gift or creditor consequences.22 Nevertheless, despite the foregoing, law.”34 As Surrogate Roth explains, Therefore, in light of the foregoing, the debate as to the import of a dis- paragraph (h) “may be invoked only in a distributee could not utilize a renun- tributee’s renunciation continues. As those situations which the statute did ciation in order to eliminate his or her mentioned above, many of the leading not contemplate, such as . . . where a incompetence to testify under the Dead commentators continue to cite pre- witness orally renounces on the stand Man’s Statute, as the distributee was statutory opinions, like In re Aievoli’s in order to avoid the exclusion of his deemed to be a person “from, through Will, for the proposition that a distribu- or her testimony under CPRL 4519, the or under . . . whom . . . an interested tee’s renunciation does not cure his dead man’s statute.”35 person derives his interest or title by or her incompetence under the Dead Clearly, paragraph (h) would be assignment or otherwise.”23 Curiously, Man Statute.31 On the other hand, helpful to a legatee who seeks to despite the enactment of legislation more than one commentator has ques- renounce after the statutory nine- dealing with renunciations, discussed tioned the durability of these opinions. month period, since the common law below, a number of treatises and com- Professor Vincent Alexander, author does not restrict a legatee’s ability to mentaries continue to acknowledge of McKinney’s Practice Commentaries, renounce.36 However, it seems that it this view.24 states the following: may not be helpful to distributees who Why this result has never been find themselves in the same situation Does the Distinction Continue? corrected by subsequent decisions for the converse reason: the common The common-law distinction between or by explicit legislative action is a law does not afford a distributee the a renouncing legatee and a renouncing mystery. An argument in opposi- ability to renounce.

46 | March/April 2008 | NYSBA Journal What’s a Distributee to Do? 19. 272 A.D. 544, 74 N.Y.S.2d 29 (2d Dep’t 1947). 30. See, e.g., Prince, Richardson on Evidence, 11th ed., § 6-124(b). As Weinstein, Korn & Miller’s trea- 20. See also In re Bourne’s Estate, 206 Misc. 378, 133 N.Y.S.2d 192 (Sur. Ct., Suffolk Co. 1954). 31. See 9 Warren’s Heaton on Surrogate’s Court tise New York Civil Practice laments, Practice § 116.05[2][b] (“The Dead Man’s Statute has 21. 75 Misc. 2d at 233–34. “Reconciliation of the legatee-devisee been applied differently . . . to the disclaiming dis- 22. Id. cases may leave the reader slightly tributee [as compared to the disclaiming legatee]. Waiver of his rights in the estate by a distributee has 37 23. CPLR 4519; see also In re Aievoli’s Will, 272 A.D. unsettled.” Indeed, even with the 544. been deemed to have enlarged the proportionate enactment of a statute that explic- share of the other distributees and consequently the 24. See 9 Warren’s Heaton on Surrogate’s Court disclaiming distributee has been held to be a person itly allows distributees to renounce Practice § 116.05[2][b] (“The Dead Man’s Statute from, through, or under whom the interest of the has been applied differently . . . to the disclaiming their interest in an estate, questions other distributees is derived.”); 40 NY Jur. 2d § 1231 distributee [as compared to the disclaiming legatee]. abound regarding its relation to the (2007) (citing In re Aievoli’s Will, 272 A.D. 544, 374 Waiver of his rights in the estate by a distributee has N.Y.S.2d 29 (2d Dep’t 1947) and In re Bourne’s Estate, Dead Man’s Statute. Legislative action been deemed to have enlarged the proportionate 206 Misc. 378, 133 N.Y.S.2d 192 (Sur. Ct. Suffolk ■ share of the other distributees and consequently the may be warranted. Co. 1954)); 25A Carmody-Wait 2d § 149:566) (citing disclaiming distributee has been held to be a person In re Bourne’s Estate); 2 Harris NY Estates: Probate from, through, or under whom the interest of the 1. CPLR 4519. Admin. & Litigation § 19:187 (2006) (citing In re other distributees is derived.”); 40 NY Jur. 2d § 1231 Aievoli’s Will). 2. While the Dead Man’s Statute is most often (2007) (citing In re Aievoli’s Will, 272 A.D. 544 and In invoked in Surrogate’s Court proceedings, it is re Bourne’s Estate, 206 Misc. 378); 25A Carmody-Wait 32. Alexander, McKinney’s Practice Commentary, applicable in any action or proceeding when testi- 2d § 149:566) (citing In re Bourne’s Estate); 2 Harris CPLR 4519 at 4519:2(c) (2007). mony by a “person interested” regarding a transac- NY Estates: Probate Admin. & Litigation § 19:187 33. Prince, Richardson on Evidence, 11th ed., § tion or communication with a decedent is offered at (2006) (citing In re Aievoli’s Will). 6-124(b). trial. 25. EPTL 2-1.11(a)(2), (b)(2). 34. EPTL 2-1.11(h). 3. CPLR 4519. 26. EPTL 2-1.11(a)(1), (b). 35. In re Chofeng Lin Fee, N.Y.L.J., Oct. 19, 1992, p. 4. A party or person is interested in the event has 29, (Sur. Ct., N.Y. Co.). been defined as someone who “will either gain or 27. EPTL 2-1.11(d). lose by the direct legal operation and effect of the 28. See EPTL 2-1.11(a)(1), (b). 36. See generally id. judgment” (Prince, Richardson on Evidence, 11th 29. See CPLR 4519. 37. 1 Weinstein, Korn & Miller – New York Civil ed., § 6-124(a) (quoting Hobart v. Hobart, 62 NY 80, Practice: CPLR 4519.12 (Matthew Bender 2006). 83 (1875))). 5. One testifies in one’s own behalf when one benefits from one’s own testimony (Prince, Richardson on Evidence, 11th ed., § 6-125). 6. See CPRL 4519. 7. See, e.g., Sepulveda v. Aviles, 308 A.D.2d 1, 10, 762 N.Y.S.2d 358 (1st Dep’t 2003) (internal quotation marks and citations omitted). 8. See generally Alexander, McKinney’s Practice Commentary, CPLR 4519 (2007). 9. 40 NY Jur. 2d § 1231 (2007) (“Generally, if a witness releases his or her interest and thereby removes himself or herself from the class of persons deemed disqualified from testifying, the limitations of the dead man’s statute are thereby overcome.”) (citing In re Wilson’s Will, 103 N.Y. 374 (1886); In re Keegan’s Will, 114 N.Y.S.2d 217 (Sur. Ct., Westchester Co. 1952)). 10. Alexander, McKinney’s Practice Commentary, CPLR 4519 at 4519:2(c) (2007). 11. See 25A Carmody-Wait 2d § 149:566; Alexander, Practice Commentary, CPLR 4519 at 4519:2(c) (2007). 12. See In re Fienga, 75 Misc. 2d 233, 347 N.Y.S.2d 150 (Sur. Ct., Kings Co. 1973). 13. CPLR 4519. 14. See, e.g., 25A Carmody-Wait 2d § 149:566. 15. Prince, Richardson on Evidence, 11th ed., § 6-124(b) (citing In re Lefft Estate, 44 N.Y.2d 915, 408 N.Y.S.2d 1 (1978); In re Wilson Estate, 103 N.Y. 374 (1886); Loder v. Whelpley, 111 N.Y. 239 (1888)); see 25A Carmody-Wait 2d § 149:566; 40 NY Jur. 2d § 1231 (2007). 16. In re Fienga, 75 Misc. 2d at 233–34. 17. Id. 18. Id.

NYSBA Journal | March/April 2008 | 47 BOOK REVIEW BY WILLIAM MICHAEL TREANOR AND MARK A. KEURIAN

WILLIAM MICHAEL TREANOR is the Dean and Paul Honoring the Past Fuller Chair of Law, Fordham University School of Law. The Judges of the New York Court of Appeals: A Biographical History MARK A. KEURIAN is a Dean’s Fellow, Class of Albert M. Rosenblatt, Editor in Chief, copublished with The Historical 2007, Fordham University School of Law. Society of the Courts of the State of New York (2007)

he Judges of the New York Court of unearthed their stories. The history term as the state’s chief administrative Appeals: A Biographical History, of the Court, through the biography judge, in 1989, Governor Mario Cuomo Tedited by Judge Albert Martin of its judges, is told thoroughly and designated him as an associate jus- Rosenblatt, provides a masterful his- fairly. Judge Rosenblatt’s contributors tice of the Appellate Division, Second tory of the individuals who have do not shy away from discussion of Department. With such an impressive served on the New York Court of low points in the Court’s history, such and distinguished background, Judge Appeals. Written by an extraordinary as the vilification of the Court during Rosenblatt was a logical choice for range of authors – with contributions the Boss Tweed era or the scandal sur- New York’s highest court. Named to from former law clerks to grandchil- rounding the appointment of Judge the Court in December 1998, following dren five generations removed – Judge Isaac Horton Maynard. At the same his nomination by Governor George Rosenblatt’s book offers illuminating time, the effect of the book will cer- Pataki, Judge Rosenblatt would serve biographies of the judges of a court tainly be to increase awareness of the the Court with the same extraordinary that has contributed immeasurably to extraordinary contributions the Court honor, distinction, and dedication that both New York State and the nation. has made in its history. he had shown throughout his life. Judge It is a fascinating and important work In her Foreword, Chief Judge Kaye Rosenblatt sat on the Court of Appeals and this analysis of the lives of the aptly describes the book as “a labor from 1999 to 2006, when he reached the judges of the New York Court of of love” by Judge Rosenblatt. It is mandatory retirement age of 70. Over Appeals is long overdue. the latest achievement in a public the course of his 18 years as an appel- Opening its doors on September 8, career of remarkable achievements. late judge, Rosenblatt participated in 1847, the New York Court of Appeals Judge Rosenblatt’s dedication to the approximately 10,000 decisions. His from its inception was one of the most legal system has marked his career impressive body of opinions reflects a important courts in the country, and it since he began his studies at Harvard powerful combination of commitment has continued to maintain this great Law School. Appointed as acting dis- to legal craftsmanship, sensitivity to stature. Its prominence is due, in part, trict attorney of Dutchess County in practical realities, and dedication to to the significance of its docket. Equally 1968 by Governor Nelson Rockefeller, using the law as an instrument of jus- important, its prominence is due to the Rosenblatt would soon be elected dis- tice. For example, in People v. Darling, a quality of the Court’s decision mak- trict attorney. Due to his success as case in which the defendant petitioned ing. The Court has produced count- district attorney, and the respect he to suppress evidence obtained from a less landmark decisions, and with garnered in his position, he would wiretap of a phone, where the number such legal minds as Henry R. Selden, become the president of the New York was changed after the wiretap warrant Benjamin N. Cardozo, and Judith S. State District Attorneys Association was issued with the old number, Judge Kaye, among a long list of giants, it is only five years later. At the age of 39, Rosenblatt, in affirming that the letter hardly surprising that this court, and in 1975, Judge Rosenblatt first entered of the law was followed in acquiring the judges who have composed it, is the judiciary, having been elected a and executing the warrant, stated that one of the most cited in the country. Dutchess County judge. In 1981, Judge “‘strict compliance’ does not entail Despite the Court’s effect on the Rosenblatt was elected to the New hypertechnical or strained obedience, history of the nation and development York Supreme Court. A man dedicated nor is common sense its enemy.” Judge of law, no book has ever presented the to promoting ethical practice, Judge Rosenblatt, in Linda R. v. Richard E., biographies of all of the judges. While Rosenblatt was appointed the state’s was one of the earliest judges to insist the lives of some are well-known, such chief administrative judge in 1987, that the law be blind about gender, in as Cardozo and Judge (and Senator) where he helped create the New York this instance, a custody case. Further, Kenneth Keating, other judges who State Advisory Committee on Judicial in People v. Sanchez, Judge Rosenblatt have made important contributions to Ethics, which would help guide the wrote a passionate dissent in which he the law have been largely forgotten to 3,300 New York state judges on ethi- criticized the extension of the depraved history. No more. Judge Rosenblatt has cal questions. After Judge Rosenblatt’s indifference murder statute.

48 | March/April 2008 | NYSBA Journal Given his wealth of experience and 1869, when the voters approved a new for President of the United States, to accomplishments, Judge Rosenblatt is constitutional article that provided for face the unenviable task of challeng- an excellent gatekeeper for the lore a court of seven judges elected state- ing incumbent Theodore Roosevelt. of the Court’s judges. Among Judge wide, for 14-year terms, with manda- Parker, while allowing the party to Rosenblatt’s countless achievements, tory retirement at age 70. consider him as a candidate for its The Judges of the New York Court of Another giant in the Court’s history nomination, held steadfast to the posi- Appeals must rank as one of his highest. was Chief Judge Alton Brooks Parker, tion that it was inappropriate for a sit- Nowhere is the history of the Court, who served on the Court of Appeals ting judge to express his own personal told through the lives of its judges, (Second Division) in 1889–1892, and political views publicly. He thus did more accessible. By bringing the lives then as the Chief Judge of the Court not campaign for his own nomination, of these judges to the forefront, Judge of Appeals from 1898–1904. In 1889, even after immense party pressure to Rosenblatt provides an important con- then Supreme Court Judge Parker was do so. On July 6, 1904, the Democratic tribution to legal history. appointed to the newly created Second Party selected Chief Judge Parker as To give a sense of the book, I will Division of the Court of Appeals – a its candidate. On August 5, Parker focus on three of the biographies from temporarily established court to resolve resigned as Chief Judge and accepted the book: Chief Judges Denio, Parker, the problem of calendar congestion. In the party nomination five days later. and Loughran. Focusing on their his- 1897, Parker was elected Chief Judge. The only Court of Appeals judge to tories gives a sense of the important (if Most famously, he is remembered ever run for President of the United sometimes largely forgotten) lives the for penning two key opinions, one a States, he would go on to a resounding book highlights. landmark case that has inspired more defeat. Judge Hiram Denio served on the than a century of controversy, and the In the years after, he continued to Court of Appeals from 1853 to 1865, other, a decision seen as too progres- make important contributions to the an extremely long tenure for that time. sive by the United States Supreme legal history of both New York and He was the first in the Court’s history Court (although history would side the United States itself. Parker would to serve two different terms as chief with Parker). be active in bar groups, as a found- judge, in 1856 to 1857, and again in The first case, Roberson v. Rochester er and director of the American Bar 1862 to 1865. Judge Denio, a Democrat, Folding Box Co., an invasion of pri- Association, twice serving as its presi- was notably the only Democrat to vote vacy case, involved a young woman dent, as well as serving as the president with the majority in Lemmon v. The whose photograph had been used, of the New York State Bar Association. People, a case whose facts were similar without her permission, to advertise He would also serve for several years to facts found in the Supreme Court’s flour. Judge Parker, without the aid of as a special lecturer and adjunct faculty earlier Dred Scott decision, but the existing precedent, held that no such member at Fordham University School outcome of which was dramatically right existed under New York law. of Law, from the time of its founding in different. Judge Denio authored the The New York State Legislature would 1905. Judge Parker’s contributions to 5–3 decision, affirming the grant of the respond, passing a statute allowing for the legal field cannot be understated, writ of habeas corpus by New York such a private right of action. To this and Judge Rosenblatt’s book does an and holding that the slaves who trav- day, scholars continue to debate if the excellent job of reintroducing a man eled from Virginia were properly freed right of privacy should be recognized. to those scholars and practitioners in by New York statute. Unlike Dred Scott, In the second case, People v. Lochner, New York that otherwise would not Lemmon was a model of progressive the Court upheld a maximum-hours know of him or his importance in his- thinking and judicial self-restraint, in law for employees as being validly tory. which only the questions before the within the Legislature’s police power Judge John Thomas Loughran sat Court were decided. Judge Denio was to “promote and protect the health of on the Court of Appeals from 1934 to also a strong proponent of reform for the people.” In a time when workers’ 1953, as Chief Judge from 1945 to 1953, the fledgling court. In 1857, he wrote rights were being defined, the Court of during both the Great Depression to the Assembly Judiciary Committee Appeals, through Lochner, would once and World War II. An avid scholar asking for change in the selection pro- again be at the forefront of a national and teacher, Judge Loughran always cess of judges, persuasively arguing issue. Likewise, in National Protective remained active within the community. that it was difficult to preserve a con- Ass’n of Steam Fitters and Helpers v. He taught at Fordham Law School for sistent course of decisions with such Cumming, decided before Lochner, the 18 years before being appointed to a high turnover. Indeed, because one Court would uphold workers’ right to 14-year term on the Court of Appeals. judge’s term would expire every two strike. Judge Parker would remain a So great was Judge Loughran’s capa- years, in its first 23 years of existence friend of labor after leaving the bench. bility and understanding of the law, the Court had 19 regular members. In 1904, Chief Judge Parker was Judge Denio’s dream was realized in asked to be a Democratic candidate CONTINUED ON PAGE 61

NYSBA Journal | March/April 2008 | 49 ATTORNEY PROFESSIONALISM FORUM

To the Forum: to settle because, in your judgment, Your belief that they are violating a I am litigation counsel to a business it is sometimes unreasonable and/or number of Ethical Considerations and client that has expressly directed me to unnecessary. Your concern highlights Disciplinary Rules is well founded. settle whenever possible, and as early the long-recognized tension between At the outset, the conduct of a lawyer as possible. Management is so strongly a client’s right to make substantive who refuses to discuss settlement so averse to litigation that, in my experi- decisions and the exercise of a law- as to maximize billing is nothing less ence, this company will take a sub- yer’s professional judgment regarding than egregious. In placing his own eco- stantial loss rather than litigate – even strategy and procedure. You should nomic interests over those of his client, when it is clearly in the right. rest assured that under the Code of an attorney clearly violates EC 5-1 and Unfortunately, in attempting to Professional Responsibility, a lawyer DR 5-101. EC 5-1 states, “The profes- implement my client’s policy I fre- is obligated “to seek the lawful objec- sional judgment of a lawyer should quently have been confronted with tives of the client through reasonably be exercised, within the bounds of the opposing counsel who will resist any available means permitted by law and law, solely for the benefit of the client suggestion of settlement. On occasion, the disciplinary rules.” DR 7-101(a)(1). and free of compromises, influences my suspicion that certain lawyers are The duty of zealous advocacy has been and loyalties” (emphasis added). refusing to discuss settlement because called the “fundamental principle of An adversary’s statement that his they simply want to maximize their the law of lawyering.”1 EC 7-7 pro- client believes right is on his side, own billings has been confirmed by the vides that “the authority to make deci- and demands “justice” in the face of attorneys themselves. Of course, when sions is exclusively that of the client a weak case, is troubling. However, we get before a judge, the judge also and, if made within the framework of this does not seem to rise to the level attempts to expedite a settlement, but the law, such decisions are binding on of a Disciplinary Rule violation. A such efforts can be thwarted by coun- the lawyer.” lawyer must represent his client zeal- sel who insist that their client believes A lawyer should “exert best efforts ously but within the bounds of the law. right is on his side. Counsel demands to ensure that decisions of the client EC 7-1. A lawyer may not, however, “justice,” even when the weakness of are made only after the client has been assert a position to harass or mali- the client’s case is apparent to every- informed of relevant considerations.” ciously injure another (DR 7-102(a)(1)), one. EC 7-8. So long as you are advising advance a claim that is unwarranted I believe Ethical Considerations, if your client of your concerns, it would not Disciplinary Rules, are being vio- appear that your client’s directive to lated in such circumstances, but am settle does not fall outside a legal The Attorney Professionalism Committee unsure as to what I can do. I also objective, and is a perfectly accept- invites our readers to send in comments would like to know what the court’s able course of action, even if you do or alternate views to the responses responsibilities are when it is clear that not agree with it. However, if you feel printed below, as well as additional a lawyer is not serving the interests of that your client’s desire to settle at hypothetical fact patterns or scenarios to his or her client, but is perpetuating all costs renders it unreasonably dif- be considered for future columns. Send litigation for the lawyer’s own benefit. ficult for you to carry out employment your comments or questions to: NYSBA, Finally, how do I explain this predica- effectively, then you should share your One Elk Street, Albany, NY 12207, Attn: ment to my own client, who is also concerns with your client. Indeed, you Attorney Professionalism Forum, or by being prejudiced by the other attor- may consider substitution of coun- e-mail to [email protected]. ney’s behavior? sel, or you can seek permission from This column is made possible through Sincerely, the court to withdraw as attorney of the efforts of the NYSBA’s Committee on Doing a Slow Burn record. DR 2-110(c)(1)(d). All of your Attorney Professionalism. Fact patterns, concerns must be part of your con- names, characters and locations presented Dear Slow Burn: versation with your client. If you seek in this column are fictitious, and any resem- Your predicament raises a number of to withdraw, then permission from blance to actual events or to actual persons, important issues in this age of an ever- the court is required. This cannot be living or dead, is entirely coincidental. These increasing concern for the “bottom accomplished if there is any material columns are intended to stimulate thought line.” adverse effect on the interests of your and discussion on the subject of attorney Before addressing the conduct of client. DR 2-110(c). professionalism. The views expressed are your adversaries, it seems reasonable However, assuming that you will those of the authors, and not those of the to examine first your concern about stay with this client and will continue Attorney Professionalism Committee or your own client’s instructions, which to follow management’s instructions, the NYSBA. They are not official opinions to a large extent have placed you in you correctly identify problems with on ethical or professional matters, nor the position you now occupy. You are the response of some of your adver- should they be cited as such. clearly troubled by your client’s desire saries, as outlined in your question.

50 | March/April 2008 | NYSBA Journal under existing law (DR 7-102(a)(2)) or disclosure of the implications of the I received a signed letter of intent knowingly make a false statement of lawyer’s interests.” Because you have from a broker engaged by my client law or fact (DR 7-102(a)(7)). Standing knowledge of that conduct, you have outlining the terms of a new lease to alone, the assertion that a client wants an affirmative obligation to report it an accountant, covering approximately “justice,” or that right is on his side, under DR 1-103(a). 1,500 square feet for general office use. appears to be sufficiently general in Although the judge may have sus- I prepared the lease. As is often the nature and would not warrant sanc- picions about why opposing counsel is case, the letter of intent provided the tions. This analysis assumes, of course, unreasonably refusing to discuss set- name and current address of the ten- that opposing counsel has stated the tlement, he or she likely is not privy to ant, but did not include the name of position of his client accurately after counsel’s remarks confirming that this an attorney representing the tenant. I fully informing his client of your will- refusal is based on a desire to maximize called the broker who confirmed that ingness to discuss settlement. The out- billings. It is your obligation to inform no attorney had been identified by the come would be quite different, for the court of your adversary’s conduct tenant and, as I customarily do in such example, if your adversary were work- under EC 1-4. Pursuant to Cannon 3 instances, I e-mailed the draft lease ing under directives similar to yours, of the Code of Judicial Conduct (22 directly to the tenant. In my covering that is, to settle whenever possible and N.Y.C.R.R. § 100.3(D)(2)), a judge who message, I requested that after review as early as possible. If your adversary receives information indicating a sub- by him and counsel, he ask his attor- had been told to explore settlement, but stantial likelihood that a lawyer has ney to call me to discuss the draft. was refusing to do so, then he would committed a substantial violation of The following week I received a call not only be placing his interests above the Code of Professional Responsibility from the prospective tenant. He asked those of his client, but also would also is required to take appropriate action. me if he really needed an attorney to be making significant misrepresenta- The judge is authorized to look into the review the lease. Before I could even tions of fact to the court and counsel, matter, and to report your adversary’s respond, he told me that he did not in violation of a number of provisions conduct as well. Appropriate action want to pay an attorney to do the found at DR 1-102. may include direct communication work; that the cost of moving his office It appears from your question that with the lawyer who committed the and preparing and furnishing the new you have made it abundantly clear to violation, or some other direct action, if space was taxing enough; and that opposing counsel and to the court that available – and reporting the violation colleagues who already rented space your client is willing to discuss settle- to the appropriate authority or agency from my client assured him that he ment. In the future, it may be advanta- or body. ran an efficient building and did not geous to reduce this willingness to a An adversary who focuses on the gouge his tenants. He then stated that firm settlement offer. The client, and bottom line to the extent you indi- he read the lease and asked if I could not the attorney, decides whether or cate has compromised fully his or her just answer a few questions. not to accept, and an attorney informed client’s interests. You now have an Although I did not know my exact of such an offer is bound to communi- excellent opportunity to preserve the ethical and professional obligations in cate it to his client. EC 7-7. integrity of the legal profession by not this situation, my antennae did go up You must next consider whether only informing your client of these so I punted and told him that I would you have any obligation to report an developments, but by reporting your get back to him. I grabbed my portable adversary whose refusal to discuss adversary’s conduct to the court and Code of Professional Responsibility settlement is motivated by a desire to local grievance committee. and began to leaf through the appli- continue billing his client. Clearly, such The Forum, by cable sections, but I am still not 100% conduct violates a Disciplinary Rule Dennis P. Glascott sure what to do. I do not want to kill and calls into question your adver- Goldberg Segalla LLP this deal by being overcautious and sary’s fitness as a lawyer. DR 5-101(a) Buffalo refusing to talk to this tenant (as I know states, “A lawyer shall not accept or the space has been empty a long time), continue employment if the exercise but on the other hand, I do not want to of professional judgment on behalf of QUESTION FOR THE compromise my allegiance to my client the client will be or reasonably may NEXT ATTORNEY or do what is ethically or profession- be affected by the lawyer’s own finan- PROFESSIONALISM FORUM: ally improper. Please advise. cial, business, property or personal Signed, interests, unless a disinterested lawyer I devote a large part of my law prac- Lost in Leaseland would believe that the representation tice to commercial real estate, includ- of the client will not be adversely ing lease negotiation on behalf of a 1. Monroe Freedman, The Errant Fax, Legal Times 26 (Jan. 23, 1995) (quoting Geoffrey C. Hazard, The affected thereby and the client con- client who owns office buildings in the Law of Lawyering). sents to the representation after full vicinity of my own office. Recently,

NYSBA Journal | March/April 2008 | 51 LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: Please comment is that prepositions like over, from, and ers to respond with their comments. on the following language, about are being omitted, and almost A number of e-mails have arrived. Qwhich is common among trial nobody is confused about the meaning Many readers wrote that they had lawyers. In my opinion, it is ungram- of the truncated statement. been taught and still believe that it is matical: On the other hand, while we have never appropriate for professionals to The defendant should have moved dropped some prepositions, we have apply a title or honorific to themselves. the court to strike the request rath- added others. How about the redun- For that reason the self-application of er than to dismiss the complaint. dant on in the statement, “Continue “Esq.” is offensive in itself. Answer: The correspondent, who is on with your work”? Or “I’m going to Other readers responded that the not a lawyer, objected to the construc- hose down the car”? Or “Please reply use of “Esq.” by a corporate officer tion “moved the court.” That state- back at once”? Without the unnecessary might be considered misleading and ment, she maintained, implied that prepositions, the meaning remains the therefore unethical because it suggest- courts could be “moved” by lawyers same. ed that the officer had more authority or by any group other than building Readers have also written to object to or knowledge than was actually the contractors with heavy equipment. another addition, a second that, which case. For example, the statement that She argued that the verb move is a when unnecessarily added makes a “we will bring legal action” might transitive verb that requires an object. sentence both redundant and ungram- be considered to be more threatening One can move books, furniture, even matical. The following illustrates what coming from a lawyer who presum- (figuratively) “heaven and earth,” but they are criticizing (emphasis added): ably had the authority to bring the one cannot move “courts.” She argued His lawyer said that, if we pursued action than from a corporate lawyer that the word that should not have the case, that he was prepared to who had no such authority. Therefore been omitted, and that the sentence represent his client in court. these readers suggested that a cor- should be re-drafted to read: The second that probably would porate lawyer should use only his or The defendant should have moved have been omitted had the sentence her corporate title (for example, “Vice that the court strike the request rath- been edited. Nor would the speaker/ President for Compliance”), perhaps er than to dismiss the complaint. writer have added the second that adding his degree (J.D.). The correspondent is, of course, had he had been taught grammar by Several lawyers wrote that in the factually correct. But the construction an old-fashioned English teacher who communities in which they practice it “move the court” is “legal English.” It taught her elementary students to is commonplace for lawyers to add the is in wide use, and clear and familiar “parse” sentences. Probably the strong title of “Attorney” to their names. They to members of the legal profession. influence of spoken English upon writ- said that lawyers refer to other lawyers It is also briefer than the statement it ten English due to pervasive electronic and to themselves in that manner. replaces. That kind of shorthand is media is responsible for this ungram- Television advertisements contain that often used by professions, trades, the matical construction. Speaking or writ- title, and even judges identify lawyers media, and the general public. The fol- ing informally, the individual forgets to juries with that title. lowing sentence, for example, is from that he or she has already put in one But the lawyers who acknowledged the Wall Street Journal: that, so in goes another. that the practice is common also wrote After nearly a decade of review- that they consider it inappropriate. One ing [diet] pills, the Food and Drug From the Mailbag: lawyer commented, “Teachers don’t Administration has done little but In the February “Language Tips,” a identify themselves as ‘Teacher Jones’; mull the problem. reader asked the following question: architects don’t identify themselves as You can “mull over” a problem, Isn’t it incorrect for a lawyer who is ‘Architect Smith.’” So he asked, “Why but you cannot “mull” a problem; not a member of the corporate law should lawyers give themselves that however, the omission of “over” is department of a corporation, but who title? Why shouldn’t we be called just idiomatic and probably confuses was hired by the human resources ‘Mrs.,’ ‘Ms.,’ or ‘Mr.’?” nobody. Nor can you “fly an airport,” department as a vice-president of com- but a large sign at the entrance of the pliance, to send out memoranda and GERTRUDE BLOCK is lecturer emerita at the local airport urges travelers to “Fly e-mails both internally and externally, University of Florida College of Law. She is the Gainesville Airport.” Money is said to identifying himself as “Esq.”? author of Effective Legal Writing (Foundation “talk,” but can a person “talk money”? I answered that it seemed inappro- Press) and co-author of Judicial Opinion Apparently, for the expression, “You’re priate for me to comment on a question Writing (American Bar Association). Her most talking money,” is widely understood about professional etiquette on which recent book is Legal Writing Advice: Questions to mean “You’re talking about a large only the opinion of fellow lawyers and Answers (W. S. Hein & Co., 2004). amount of money.” What is happening should carry weight. So I invited read-

52 | March/April 2008 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

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LAST CHANCE TO RENEW FOR 2008. Please renew your membership by March 30th. www.nysba.org/renew2008 Thank you for your membership support. NEW MEMBERS WELCOMED

FIRST DISTRICT Jacqueline Duval Sarah Katherine Jackel Andrew Alexander Noble Angela Cristina Kenneth M. Abell Paul Eberhard Reynald R. Janairo Cory John O’Neill Munsayac Tordesillas Sarah Jennifer Abitbol Kenneth Nji Ebie Robert Jones Kathleen Marie O’Neill Caroline W. Trowbridge Elkan Jonathan Adler Faye Neiman Eisen Cyrus Joubin Denise Rocha Oliveira Matthew P. Truax Dean Agnos Nakia Monique Elliott Larken Sutherland Kade Frank Oliveti Natasha Vladimir Nancy Ahn Jill Amy Ellman Rachel Susan Kafrissen Anthony Michael Udensiva Kwaku Affawua Donna Erez Sarah Kehaunani Kam Onyrscuk Scott Robert Usiak Akowuah Andre Michael Espinosa Andrew I. Kandel Jame Claire Ortiz Nita A. Varia Anne-Laure Allehaut Brooke Nicole Estren Ilan Katz Rachel D. Oshry Rafael Vasquez Tami Jean Alpert Brian Eutermoser Jonathan Gaynor Judson Alan Oswald Lara E. Veblen Camila Ferreira Do Adeeb R. Fadil Kaufman Anthony Lee Pacchia Jackson Paul Wagener Amaral Hubert Edington Farrish David Ezra Kay Humberto Antonio Shlomit Wagman Amanda Jane Ambrose Harry B. Feder Shane B. Kelbley Pacheco Alan Walkow Virginia Eve Anello Julie E. Feldman John Kelley Seema Nagin Patel Shou Wang Patricia Arce Shannon Joy Fields Marc Jeffrey Khadpe Joshua McIntire Paulson Brigitte Ann Watson William Belitsky Silas John Findley Ankush Khardori Jaclyn Christine Petrozelli Talik Nathaniel Watson Maria Isabel Beltrani Anthony J. Fiorella Kristie G.D. King Mark Tanguay Pilon Ryan Weber Renee Fawn Bergmann Richard Blair Foulkes Isabelle A. Kirshner Ernest Theron Poole Francesca Weindling Mark Arthur Berman William M. Freiberg Scott Joseph Kreppein James Rollin Powers Dana Loryn Glick Ronald Joshua Bliss Philip E. Fried Dennis C. Krieger Robert Marshall Prysock Weisbrod Kari Darlene Boston Andrew Lee Gaines Divya Krishnan Tina Radchenko Frederick Wesner James B. Boyle Jill Barri Garfinkel Elizabeth Hamilton Adam Jason Reiss Kyle James Westaway Evan B. Brandes Dara Lynne Gelbtuch Lambdin Michele Anne Richman Laurel Kirsten White William J. Brennan Nada Hafez Ghusayni Scott M. Le Bouef Stanley Abbott Roberts Jennifer Loren Whitney Lynne Margaret Britt Michael J. Gilbert David H. Lee Sarah Rosen Amy Williams Laura Kathryn Browning Alison Joan Glusman Thomas S. Lee Benjamin Rosenblum Nathan T. Williams Robert B. Buehler Michael David Goldfarb Sheldon Leibenstern Giulianna Karin Ruiz Thomas Wilson Williams Jennifer Lynn Burka Sari R. Goldmeer Adam H. Lelonek Matthew Rymer Andrew Vaughn Winchell Aoife E. Butler Jonathan Charles Stephen Charles Lessard Salim Choucri Sader Jamie L. Wine Samuel Porter Callard Goldstein Katherine Alice Levine Amee Sampat Samuel Eugene Wolfe Torello Howard Calvani Robert A. Goldstein Orrin Levine Asia Desiree Sanders Barbara Yan George S. Canellos Jill L. Goodman Jessica Meryl Lichtenstein Irika Ashton Sargent Nikki Lynn Young Brooke Elizabeth Carey Jannine Audrey Nadjia Limani Andres Sawicki Zahra Fatima Zaidi Giulio Carini Gordineer Lixia Lin Adam Wilen Schneid Jacob David Zetlin-Jones Terry E. Chang Shari Aviva Katz Graham Adina Nechama Loewy Andrea Schoor Tracey Zheng Tszyu Chen-Holmes Jesse Luke Green Anthony James Loman Theodore Frederic SECOND DISTRICT Fuchen Cheng Adria Denise Greene Susan Patricia Long Schroeder Renata Bystritsky Marzio Ciani James Everett Gregory Alain Lopez Joseph Michael Schuster Justin P. Daley Oreste Cipolla Sarah Kennedy Griffin David G. Lucking Daniel D. Schwarz Femi Bilikisu Disu Gareth Peter Clark Lee Matthew Grinberg Nicholas Bruce Malito Christine S. Scott- Ainissa Espada Nerissa Marion Coan Lara Catherine Recknagel Veena Malpani Hayward Scott Glotzer David Aaron Cohen Gruber James Hilliard Mann Samuel J. Servello Joseph Daniel Hodler Steven M. Cohen Robert J. Gunther Diane Jane Marciniak Milli D. Shah Andrew M. Katz Jennifer L. Cook Danli Guo Sara Marnel Mike Shaikh Christopher A. Keating Matthew Karlisle Frank H. Guzman Amanda Patricia Marsick Shannon Christy Sharon Leah Kleinfeld Cowherd James Benjamin Gwynne Priscilla McCalley Shakespeare Lawrence A. Korman Carrie Crane Jenny Nova Han Scott K. McCulloch Gary D. Shapiro Alex Levkovich Kathleen Renee Kendyl T. Hanks Aliya Mariama Kyla Lynn Sharma Joseph Daniel MacLellan Cronin-Furman Elisabeth Hanratty McLendon Tal Batia Sheratzki-Jaffa Stephanie Malkind Janet Leslie Cullum Loytavian T. Harrell Navid Mehrjou Lucie Eun Mee Shin Robert J. Miller Carol Daniel Barbara J. Harris Frances K. Mejia Sandra Haejung Shin Catherine L. Nesser David Wesley Decker Lucas Fredrick Hartley Carmela Miele Brian Shortt Jason Putter Yuta Nicole Delarck Brooke Gibson Hasenauer Jeanne Ellen Mirer Andrew Evans Skroback Tania Ju-ann Redman Gamaliel Benjamin Matthew Sean Heibel Manish K. Mital Nooshin Soltani Louis Anthony Totino Delgado Douglas Benjamin Autumn Maria Montague Sarah K. Stern Peter David Urias Christopher James Heitner James S. Montano Joshua Seth Stevens Valerie Sue Weiss Desmond Marcia M. Henry Stephanie Montez Moore Matthew Louis Stitzer Michael C. Winfield S. Lynn Diamond Thomas E. Hommel Rosa Marina Morales Peter Sullivan Yuan Jia Xu Adrienne Louise Dicerbo Gregory Aaron Horowitz Michelle Nicole Pallak Sharmin Takin Sean Michael Donovan Timothy Michael Hudson Movahed Renee Juanita Tello THIRD DISTRICT Cody Adrian Doran Bryan Hunkele Marc Lee Mukasey Christina Marie Tener Amy L. Dickson James Doty Amene Mamoun Husain Kelly Ann Murphy Jasse Singh Tomer John C. Florsch Jon Sterling Drumwright Shermarkeh Hussein Earl A. Murrell Ryan C. Tooley Glinnesa D. Gailliard Elizabeth Marie Dugan Anya Elena Irons Daya Nathan Matthew J. Griesemer

54 | March/April 2008 | NYSBA Journal Sandra H. Irby Adam P. Wofse Ivan Francis Cabrera Christian Anthony Erik Brandon Zarkowsky Haroen Calehr Malanga Fuqiang Zhang Eric William Callahan Gino Caluori Kruti M. Patel ELEVENTH DISTRICT Lijun Cao Cheryl Elizabeth Sarjeant Jaleel Adam Foundation Memorials Matthew Cono Capozzoli Reema Shah Michael Angelo Canasa Jhon Paul Carmona Elizabeth Williams Bagtas Carmona FOURTH DISTRICT Rakhi Bahadkar fitting and lasting tribute to a Tobias James Casaw Nikki Lee Baldwin Michael Ross Cohen Krisha Cerilli deceased lawyer can be made Stephen Button Frank T. Dipiazza A Ayman Chahine Erin R. Mindon Sheila Horgan through a memor ial contribution to The Ming Shan Fiona Chan Jan H. Plumadore Corry Lynn McFarland Amanda Chapman New York Bar Foundation. This highly James L. O’Connor FIFTH DISTRICT Yunseong Chun Nils C. Shillito appropriate and meaningful gesture on Heather A. Prado Zachary Clopten Jun Wang the part of friends and associates will Brianne Elizabeth Rahn Patrick Connell Andrew John Wells TWELFTH DISTRICT Candace Amy Cooper be felt and appreciated by the family of Rebecca Chevalier Philip Warren Crawford SIXTH DISTRICT the deceased. Denise St. Cecelia Eric Crothers Hiroki Awahara Kennedy Brent Merrill Davis Matthew Christopher Contributions may be made to The Thomas Dooley Lancer Howard Paul Davis Gagliardo Vivian Roque-Balboa Andrey Vasilievitch Deev New York Bar Foundation, One Elk Lauren Ann Kiley Lindsey Anne Shoshany Christina Julia Deleveaux Joshua M. Luce Street, Albany, New York 12207, stating Matthew Foster Tropp Cecile Lucie Eleonore SEVENTH DISTRICT in whose memory it is made. An officer OUT OF STATE Dessapt John L. Haack Paul Lancaster Adams Claudio John Dipaolo of the Foundation will notify the family Marcus William Kroll Linda Leuchter Addison Elena Dzhigardzhyan that a contribution has been made and Robert P. Santandrea Simi Adejunio Cheryl Anne Edelman Ann Marie Taddeo by whom, although the amount of the David Fenton Adler Alexander L. Ellenberg EIGHTH DISTRICT Tracy Agyemang Mark Elton contribution will not be specified. John Joseph Konst Eugene K. Ahn Christopher Michael Erb Kavita Aildasani Quindal Christman Evans All lawyers in whose name contri- NINTH DISTRICT Arif Ali Devon Marc Fagel Dena T. Berke butions are made will be listed in a Perveen Racquel Ali Aram Fahim-hashemi Megan L. Bierlein Tatiana Aliberti Matthew R. Fearnside Foundation Memorial Book main- Nabeela Chaudhury Cheryl Altenman Samuel Augustus Findley Christopher Nixon Cox tained at the New York State Bar Center David Allen Amamoo Matthew Fiorovanti Joan S. Faier in Albany. In addition, the names of Ephyro Luis Barrios William Jason Fisher Dorothy M. Finger Amatong Alexa Fleischer deceased members in whose memory Elena Molly Goldberg Matthew Carl Anderson Matthew Adam Friedman Adrienne Harrison bequests or contributions in the sum Joshua F. Andriano Samantha Friedman Antonietta Ursula of $1,000 or more are made will be per- Michael Angelo Daniel Frischberg Marmorato Sarika Jiham Angulo Ronald S. Garzio manently inscribed on a bronze plaque Anthony David Milewski Lucile Gaud Geoffrey David Antell mounted in the Memorial Hall facing the TENTH DISTRICT Diane Vicente Araujo Michael F. Germano Esta M. Algava-Czik Chong Wai Au Priscilla Shanise Gholston handsome courtyard at the Bar Center. Anthony Contardo Luis Badia Neil Gillam David Daniel Drebsky Nicholas Bagley Andre Osorio Gondinho Ralph A. Erbaio Cathy Baleiron Anthony J. Gray Frank Walter Fountain Thomas Samuel Bather Jamieson Lee Greer Christina L. Geraci Ryan Edward Bausch Meredith Kathryn Robert Lyons Grasing Eugenio Bernal Caso Gregory Alexandra Leidesdorf Jill Bier Joseph Francis Grove Hack Sarah Elizabeth McMillan Kristine C. Gu Rski Cherie Ann Hlady Bleichner Thomas Michael Guiffre Andrew Matthew Lieb Adam Paul Blumenkrantz Stephen Adam Hall Naor Yair Maman Christina Renee Bollman Dong Hoon Han Barry L. Manus Kenneth Bork Benjamin Christopher James D. Murtha Rebecca Borne Hancock David Brian Reay Emily Brooke Bradford Kathleen Elizabeth Kristen Ryan Victoria Brassart Hanlon Jennifer Nicole Jennifer Mary Breen Nicole Anastasia Harkin Santaniello Kirsch Maho Hayashi Jacqueline P. Testani Barbara Kay Burbach Weiguo He

NYSBA Journal | March/April 2008 | 55 Michael David Healan Rukhsanah Latif Kanasha S. Herbert Johannesen Lighari Calanit Lior Glenn James Light In Memoriam Hermelin-Vager Angela Lipscomb Kazuma Higuchi Julia Alejandra Lopez Wai Shun William Ho Richard James Lydecker Thomas Joseph Donovan Alan S. Liebman Mary Hodgins Kimberly Michelle Mack Mineola, NY New York, NY Jihye Hong Robert John Mackay Elliott M. Epstein Joseph J. Ryan Odegua Irivbogbe Gabriel Stefan Marinaro New York, NY Chateaugay, NY Aleksander Mateusz David T. Martin Evan G. Galbraith Burton D. Tanenbaum Janiszewski Lucian C. Martinez New York, NY Rochester, NY Leshan D.w.t. Jayasekera Laura A. Matejik Jeremy Ralphael Jessen Kristen McClain Joseph Levy Elliot J. Wachs Margaret Anne Julian June Edwina McGinn Paramus, NJ Albany, NY Jarrid H. Kantor Howell Webster Melton Timothy James Kautz Eric Daniel Mercurio Terrence J. Kearney Sophie Marguerite Merlet Alan Pereira Michael Wade Skarda David Michael Vincent Asim Khan Jan Meuleman Jeffrey R. Pittard Erin Patricia Smith Natalie Waites Anastasia Kharitonova Brian Jay Militzok Chrystalla Polydorides Arne F. Soldwedel Christopher Paul Ward Kyoung Yeon Kim Nuraliza Binte Mohamed Chistopher William Bradley Jay Sollars Arthur Lawrence Shin-Woo Kim Osman Porter Whayoon Song Washburn William Rudolph Hojoon Moon Larry Tate Powell Lanta Spencer Sally Alicia Webster Kleysteuber John E. Moore Michael James Prindiville Carlos Fernando Squeira Alison Marie Weir Vanessa Lynn La Santa Kellie Marissa Morton Intisar Rabb Castro Amy Williams Lital Ladsteiner-Klein Altay Mustafayex Nalinie Ramchandren Megan Marie St. Ledger Daniel Vincent Williams David Lafarga Christopher Naumes Neil David Raphael Melissa Ruman Stewart Monica Hirsch Wilson Danny Charles Lallis Linda Neilson Luis G. Raven Michael Joseph Stirrup Daniel I. Winter Rachel Yan Kay Lam Elisabeth Jill Neubauer Patrick Juergen Renfert Lindsay Jocelynn Stoudt Bernhard F. Wychera Rachel Emma Lawrie Michael B. Neuman Elizabeth Wescott Rigsbee Evgeny Swarovski Anastasios Masao Carol Lazar Stephanie Nicole Nielson Marta Eugenia Ruiz- Einar Tamimi Xeniadis Baron Dmitri Leacock Casey Paul Nix Sanchez Ioli Tassopoulou Lawrence Yang Hunyoung Lee Ijeoma Marilynn Constance Dionne Russell Jo Louise Taylor Anna Yegupova Hyun Seung Lee Nkwontz Brent Michael Ryan Jonathan David Tepper Kenneth J. Yood Jaeyoung Lee Steven E. Nurenberg Ana Paula Santos Takahiro Teranaka Katie Young Sung Bong Lee Nneoma Nwogu Setsu Sasamoto Timothy Daniel Thulson Jane Jule Zara Daina Leimanis Uzoamaka Ndidi Okoye Maki Sekiji Adam Tope Bridget A. Zerner Aaron Daniel Levy Olajumoke Olabisi Bradley Matthew Seldin Gregory Edward Torrence David Tong Zhang Jonathan Mark Levy Oluwalana Angelena H. Serrano Jessica Jagemann Troell Steven Mark Ziegler Adam Owen Lewinberg Hector Z. Oropeza Jessica D. Shaw Joseph Patrick Turk Wolf-Sebastian Zylka Jinghua Li Sunah Park Jenny Shen Marianna Udem James Theodore Lidbury Peter Parry Michael Paul Shuster Adela Zevart Ulloa Ronald Stanley Liebman Michelle Marie Parten Neeraja Sivarajah Laura Ann Vance

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NYSBA Journal | March/April 2008 | 57 THE LEGAL WRITER “Where’s the beef CONTINUED FROM PAGE 64 don’t need commas. Using test 2 to jerky?” Don’t use a insert “and”: “The firm bought three “provided that,” “regardless of,” and and new and affordable computers.” comma unless you “usually.” Examples: “Although she (No sense.) was sick, Ms. Jones finished the trial.” Use a comma to separate two parts mean “Where’s the “If the defendant appears this morn- of a double-comparative. Correct: “The beef, jerky?” ing, we’ll continue the trial.” sooner, the better.” “The more, the Use commas to set off tag questions. merrier.” Examples: “She finished cross-examin- Put a comma before a coordinating tioner’s summary-judgment motion; ing the witness, didn’t she?” “She’s an conjunction (“and,” “but,” “for,” “nor,” consequently, the court set the matter eloquent attorney, don’t you think?” “or,” “so,” “yet”) that joins two inde- for trial next week.” Or: “The court Use commas to separate coordinate pendent clauses. Don’t put a comma denied petitioner’s summary-judg- adjectives. Examples: “He’s a meticu- before a conjunction if the conjunc- ment motion. Consequently, the court lous, efficient attorney.” “After win- tion joins a dependent clause: a sen- set the matter for trial next week.” ning the trial, Joe bought a new, trendy tence that has no subject, verb, or both Using a comma instead of a semicolon convertible.” Because noncoordinate can’t stand on its own as a sentence. or a period will create a comma-splice adjectives carry equal weight, don’t Examples of conjunction joining two inde- run-on sentence. use commas to separate them. pendent clauses: “She lost her first trial, Separate a series of three or more Two tips to figure out whether the but she won every trial since then.” words or phrases by putting a comma adjective is coordinate or noncoordi- “The court attorney studied in the between them. The last comma in the nate: (1) Reverse the order of the adjec- law library, and while there he drafted series — the serial comma — is optional tives to see whether the sentence makes an opinion.” Examples of conjunction but preferred. (More on serial commas sense. Or (2) insert “and” between the joining a dependent clause: “She won will appear in the Legal Writer’s forth- adjectives to see whether the sentence her first trial but never won again.” coming column on legal-writing contro- makes sense. If the adjectives pass test “The court attorney studied in the law versies.) “And” example: “To prepare for 1, they’re coordinate adjectives and library and drafted an opinion there.” trial, Mike drafted the opening, Mary need commas. If the adjectives pass If the two independent clauses are drafted the closing, and I prepared the test 2, they’re coordinate adjectives and short, don’t insert a comma except to exhibits.” “Or” example: “After he leaves need commas. If the adjectives pass emphasize the second clause. Example: the courthouse, John eats at Forlini’s neither test, the adjectives are noncoor- “Lawyers speak and judges listen.” Or: Restaurant, Bagel Place, or Peking Duck dinate and won’t need commas. “Lawyers speak, and judges listen.” House.” Exceptions: Don’t add commas Using the examples above for tests Use commas to enclose appositives: if you join all the words, phrases, or 1 and 2: “He’s an efficient, meticu- nouns or pronouns that rename or statements with “and.” Example: “To lous attorney.” (Sentence makes sense explain the nouns or pronouns that prepare for trial, Mike drafted the open- when you reverse the adjectives.) follow. Examples: “Lawyer A, who ing and Mary drafted the closing and I “He’s a meticulous and efficient attor- practices in state court, and Lawyer Z prepared the exhibits.” ney.” (Sentence makes sense when appeared in federal court.” (Note the Don’t use a comma before an amper- you insert “and.”) “After winning the absence of a comma after “Lawyer Z.”) sand in a firm or organization’s name trial, Joe bought a trendy, new convert- “Harry argued before the Supreme unless the firm or organization’s name ible.” (Sentence makes sense when you Court, Appellate Division, Third uses a comma. Examples: “Mr. White reverse the adjectives.) “After winning Department.” “Anne, the celebrated works for Johnson, Brown & Roe LLP.” the trial, Joe bought a trendy and new trial attorney, answered questions from “Howard, Doe & Jones, P.C., represents convertible.” (Sentence makes sense the press.” “The defendant, accord- the plaintiff in the lawsuit.” when you insert “and.”) ing to witnesses, shot the victim three Never put commas after exclama- Consider this: “The firm bought times in the chest.” tion points or question marks follow- three new affordable computers.” If a conjunctive adverb (“according- ing a quotation. Incorrect: “I declare Using test 1 to reverse the adjectives: ly,” “again,” “also,” “besides,” “con- a mistrial!,” the judge said. Correct: “The firm bought new three affordable sequently,” “finally,” “for example”) “I declare a mistrial!” the judge said. computers.” “The firm bought afford- joins two independent clauses, use Incorrect: “Are you finished with this able three new computers.” “The firm semicolons or periods, not commas, witness?,” the judge asked. Correct: bought affordable new three comput- to set off the clauses. Incorrect: “The “Are you finished with this witness?” ers.” “The firm bought new affordable court denied petitioner’s summary- the judge asked. three computers.” The sentences make judgment motion, consequently, the Don’t use a comma after a “that” no sense regardless which test you use. court set the matter for trial next before quotation marks when the The adjectives are noncoordinate; they week.” Correct: “The court denied peti- “that” precedes a quotation. Incorrect:

58 | March/April 2008 | NYSBA Journal The judge found that, “the witness is refers to. “Which” often precedes non- “How’s your wife Samantha?” Leaving incredible.” Correct: The judge found restrictive phrases. If you remove a out the comma in this example would that “the witness is incredible.” Or nonrestrictive phrase from a sentence, be correct if the person has more than (without a “that”): The judge found “the the sentence will retain its meaning. one wife. Correct: “How’s your wife, witness . . . incredible.” Restrictive phrases don’t need com- Samantha?” (But even that example Don’t use a comma when other mas. A phrase is restrictive when it’s can be a miscue. Is the reader discuss- material precedes and follows the quo- essential to the meaning of the sen- ing Samantha, or is Samantha the per- tation. Correct: “The judge’s repetitions tence. Restrictive phrases are defining: son’s wife?) of “Stop arguing like children” didn’t They identify which things or people In Bluebook and ALWD format, pacify the attorneys. the clause refers to. “That” often pre- put commas after citations when cit- Use a comma to introduce a quota- cedes restrictive phrases. Example of a ing in text:3 “The court in X v. Y, 99 tion only (1) when the quotation is an nonrestrictive phrase: “The car, which F.4th 99 (14th Cir. 2002), held that independent clause and (2) when what was light blue, slammed into the pedes- . . . .” This issue doesn’t arise under the precedes the quotation is inapposite to trian.” That example presupposes that Tanbook, which requires that paren- the quotation or to replace a “that” or a one car among others on the road hit theses enclose a citation in the text and “whether” before the quotation. If you the pedestrian. Example of a restrictive forbids commas to surround the paren- wouldn’t add a comma if the sentence phrase: “The courtroom that seats 250 theses: “The court in X v Y (99 F4th 99 had no quotation marks, don’t add a occupants had a back room for special [14th Cir 2002]) held that . . . .”4 comma before the quotation marks events.” That example presupposes the According to ALWD, the Bluebook, just because there are quotation marks. existence of more than one courtroom. and the Tanbook, don’t put commas Example when the quotation is an indepen- Use a comma to omit an elliptical after signals.5 Incorrect: Accord, But see, dent clause: The witness stated, “I was word, a word a reader can replace Compare, Id., See, See also,. In Bluebook walking down Centre Street when I immediately. Example: “He picked format, use a comma before and after noticed the defendant.” Example of what juror number 4; she, juror number 6.” “e.g.” when you use it with other sig- precedes the quotation is inapposite to the The comma replaces “picked.” nals.6 Example: “See, e.g.,” “But see, e.g.,” quotation: “The attorney worked as an Never use a comma before a verb. Put commas inside quotation marks. associate at Roe & Doe, “and for three Incorrect: “Knowing when to use com- Example: “I have no further questions years he never tried a case.” Examples mas, creates problems for lawyers.” for this witness,” the attorney said. of a comma replacing “that”: Judge Doe Eliminate that comma. 9. Hyphens. Hyphens divide single ruled, “The case must be dismissed on Don’t use a comma before “because” words into parts or join separate words jurisdictional grounds.” “As Judge Doe unless the sentence is long or complex. into single words. explained, “The case must be dismissed Example of an unnecessary comma: “The Use hyphens (“-”) to divide words on jurisdictional grounds.” Example of a associate was late, because she had a between syllables from one line to comma replacing “whether”: The issue is, flat tire.” Example of a necessary comma: the next. Put the hyphen after the last “City Court had the authority to order “I knew that James would be promot- letter on the first line, not at the begin- petitioner to write a reference letter for ed to partner that morning, because ning of the second line. Don’t put any respondent.” Fred’s sister worked in the same firm spaces before or after the hyphen. Use commas to set off parenthetical and she called me with the news.” Never use a hyphen to divide a one- expressions, or unimportant comments The comma is necessary here because syllable word. or information. Example: “His argument the reader might believe that James Hyphenate names if the individual is, in my opinion, frivolous and weak.” was promoted because Fred’s sister uses that style. Example: “Ms. Smith- Put commas after parentheticals, not worked in the same firm. Green.” before them. Incorrect: “The attorney Never use a comma after a com- Words evolve. Long ago, we said attended New York University School pound subject. Incorrect: “Court attor- “tele phone,” not-so-long-ago we said of Law, (NYU) graduating summa cum neys use Westlaw, Lexis, and Loislaw, “tele-phone,” and now we say “tele- laude in 2001.” Correct: “The attorney nearly every day.” Correct: “Court phone.” With frequent use, compound attended New York University School attorneys use Westlaw, Lexis, and words join to become single words. of Law (NYU), graduating summa Loislaw nearly every day.” Examples: “backpack,” “bumblebee,” cum laude in 2001. Use commas to eliminate confu- “copyright,” “deadlock,” “headlight,” Use commas to set off nonrestric- sion. Example: “You’re a better attorney “weekend.” Other compound words tive phrases. A phrase is nonrestrictive than I, Mary Beth.” Include the comma haven’t become single words; when it isn’t essential to the meaning unless you mean “I Mary Beth.” they’ve kept their hyphens. Examples: of a sentence. Nonrestrictive phrases Example: “Where’s the beef jerky?” “simple-minded,” “well-being.” Some are nondefining: They don’t identi- Don’t use a comma unless you mean fy which things or people the clause “Where’s the beef, jerky?” Incorrect: CONTINUED ON PAGE 60

NYSBA Journal | March/April 2008 | 59 CONTINUED FROM PAGE 59 or a superlative (“best,” “better,” Hyphenate when not hyphenating “more” ). The Legal Writer recommends is visually troubling, such as when are spelled as separate words: “lame hyphenating. Example: “The law text- the prefix ends with the same letter duck,” “mountain range.” Always books were the highest priced books.” that begins the word. Example: “anti- check a dictionary to see whether a Becomes: “The law textbooks were the injunction,” “anti-intellectual,” “de- word takes a hyphen or whether it’s highest-priced books.” Example: “New emphasize.” Exceptions: “coordinate,” become a single word. York State judges are no longer in the “cooperate,” “unnatural.” Some writers oppose combining upper income bracket.” Becomes: “New Hyphenate when the base is a prop- words with hyphens to form compound York State judges are no longer in er noun. Examples: “anti-Nixon,” “pro- adjectives. The Legal Writer recom- the upper-income bracket.” Example: Washington.” mends hyphenating to avoid confusion “He was the best qualified candidate Hyphenate when using the words and miscues. Example: “He’s a small for Surrogate’s Court.” Becomes: “He “all,” “ex,” “quasi,” or “self.” Example claims arbitrator.” If you don’t hyphen- was the best-qualified candidate for of “all”: “all-inclusive.” Example of ate, readers might believe that he’s a Surrogate’s Court.” “ex”: “an ex-court attorney.” But con- claims arbitrator who’s short. Correct: Hyphenate compound numbers sider “ex-patriot” versus “expatriot.” “He’s a small-claims arbitrator.” Or: from twenty-one to ninety-nine under Example of “quasi”: “quasi-contractual,” “He’s a Small Claims arbitrator.” the Bluebook.7 Under the Tanbook, use “quasi-complete.” Examples of “self”: Some tips: Hyphenate a compound figures for the figure 10 and higher.8 “self-control,” “self-defense,” “self- adjective appearing before a noun. Use hyphens to write fractions: employed.” Don’t hyphenate when Examples: “The attorney had a choco- “one-fourth.” adding “self” to a suffix, or letters late-colored briefcase.” “He’s a criminal- Hyphenate after “well” when you added to the end of a word: “selfless.” defense practitioner.” Don’t hyphenate use “well” in an adjectival phrase. On your computer keyboard, the when the compound adjective appears Examples: “He’s a well-known attor- “hyphen” key is next to the “sym- after the noun. Examples: “The attorney.” “The firm’s summer interns are bol” keys, usually after the “zero” key. ney’s briefcase was chocolate colored.” a well-matched team.” Otherwise, Don’t press the “Shift” key; if you do, “He practices criminal defense.” Don’t hyphenate after “well” if the phrase you’ll insert an underscore “_” instead use a hyphen to join an adverb ending doesn’t mean the same thing if it’s of a hyphen “-”. in “ly” to another word. The modi- flipped around. Example: “Judge Roe is The Legal Writer continues with fier “ly” already trips off the tongue. well-read.” Hyphenate because Judge punctuation in the next column. ■ Incorrect: “The jury found him guilty of Roe can’t be read well, unless he has criminally-negligent homicide.” Correct: lots of tattoos. 1. The Bluebook: A Uniform System of Citation R. 6.2(a)(vii), at 73 (Columbia Law Review Ass’n et al. “The jury found him guilty of crimi- Hyphenate suspension adjectival eds., 18th ed. 2005). nally negligent homicide.” phrases. Examples: “First-, second-, and 2. Association of Legal Directors (ALWD) Citation Hyphenate uppercased nonprop- third-year associates will attend the Manual R. 4.2(h)(1), at 31 (3d ed. 2006). er-noun adjectival phrases. Example: holiday party.” 3. Bluebook R. 10.2, at 81; ALWD R. 43.1(c) (3), at 318. “Legal-Writing Seminar.” Don’t Some writers don’t hyphenate titles 4. New York Law Reports Style Manual (Tanbook) hyphenate capitalized proper-noun denoting a single office. Examples: R. 1.2(b), at 2 (2007), available at http://www. adjectival phrases. Incorrect: “Off- “Attorney at law,” “editor in chief,” nycourts.gov/reporter/New_Styman.htm (html version) and http://www.nycourts.gov/reporter/ Centre-Street Jam, Inc.” Correct: “Off “vice president.” The Legal Writer, like NYStyleMan2007.pdf (pdf version) (last visited Centre Street Jam, Inc.” the Tanbook,9 recommends that you Dec. 11, 2007). Don’t insert a hyphen in a com- hyphenate. Becomes: “Attorney-at-law,” 5. ALWD R. 44.6(a), at 325; Bluebook R. 1.2, at pound predicate adjective whose sec- “editor-in-chief,” “vice-president.” 46-47; Tanbook R. 1.4(a), at 6. 6. Bluebook R. 1.2 (a), at 46. ond element is a past or present par- Hyphenate a title that precedes 7. Bluebook R. 6.2(a), at 73 (“[S]pell out the num- ticiple. Incorrect: “The effects were far- “elect.” Examples: “Treasurer-elect,” bers zero to ninety-nine in the text and in footnotes reaching.” Correct: “The effects were “President-elect.” . . . .”). far reaching.” But: “The judge’s opin- Hyphenate to join words thought of 8. Tanbook R. 10.2 (a)(1), at 72 (2007). ion had far-reaching effects.” as one expression. Example: “Secretary- 9. Id. app. 5, at 127.

Don’t hyphenate foreign words treasurer.” GERALD LEBOVITS is a judge of the New York City used in an adjectival phrase. Incorrect: Hyphenate prefixes, or letters added Civil Court, Housing Part, in Manhattan and an “Mens-rea element.” Correct: “Mens to the beginning of a word, when omit- adjunct professor at St. John’s University School rea element.” ting the hyphen will confuse the reader. of Law. He thanks court attorney Alexandra Some writers recommend against Examples: “pre-judicial” versus “preju- Standish for researching this column. Judge hyphenating a two-word modifier if dicial,” “re-sign” versus “resign,” “re- Lebovits’s e-mail address is [email protected]. the first word is a comparative (“first,” count” versus “recount,” “re-cover” ver- “greater,” “higher,” “lower,” “upper”) sus “recover,” “re-sent”versus “resent.”

60 | March/April 2008 | NYSBA Journal BOOK REVIEW ions were collected by Judge Francis the will.” Judge Rosenblatt certainly CONTINUED FROM PAGE 49 Bergan in Opinions and Briefs: Lessons proved his wisdom and will in not that he was appointed a temporary from Loughran, to be used as a teach- only his decisions, but in compiling chief judge of the Court of Appeals ing tool for generations of praction- and creating this fine work. Written by the Republican Governor Thomas ers. Judge Loughran had a “pragmatic with the same passion that these dis- E. Dewey, who crossed party lines to understanding of peoples’ needs” at tinguished judges wrote about the appoint the Democrat Loughran. The a time when the people needed the law, The Judges of the New York Court next year, he was endorsed by both courts the most. of Appeals should be on the shelves parties to a new 14-year term as chief In 1999, when taking his seat in the of every New York practitioner, and judge. Judge Loughran truly had a Court of Appeals, Judge Rosenblatt anyone who cares about the law of the masterful understanding of the law, began his work with the sentiment “I country and the history of the state. ■ so much so that many of his opin- hope I have the wisdom. I know I have

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62 | March/April 2008 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

KATHRYN GRANT MADIGAN FIRST DISTRICT Kamins, Barry Edmunds, David L., Jr. Aaron, Stewart D. Longo, Mark A. Embser, James T. President Abernethy, Samuel F. Romero, Manuel A. Evans, Lydia V. Binghamton †* Alcott, Mark H. Sunshine, Hon. Jeffrey S. Fisher, Cheryl Smith Alden, Steven M. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando BERNICE K. LEBER Anello, Robert J. Szochet, Diana J. Gerstman, Sharon Stern Badner, Lisa Ray * Hassett, Paul Michael President-Elect THIRD DISTRICT Badway, Ernest Edward Ayers, James B. Lamantia, Stephen R. New York Barson, Alan D. Breen, Michael L. Manias, Giles P. Bartlett, Linda G. Casserly, Timothy E. McCarthy, Hon. Jeremiah J. JAMES B. AYERS Bienstock, Peter Cloonan, William N. McCarthy, Joseph V. Treasurer Blanchard, Kimberly S. Copps, Anne Reynolds Meyer, Harry G. Borsody, Robert P. O’Donnell, Thomas M. Albany Davidoff, Michael Boyers, Hon. Seymour Dolin, Thomas E. Porcellio, Sharon M. Brett, Barry J. Doyle, Hon. Cathryn M. Sconiers, Hon. Rose H. MICHAEL E. GETNICK Brown Spitzmueller, Janiece Farley, Susan E. Subjack, James P. Secretary Brown, Geraldine Reed Fernandez, Hermes Young, Oliver C. Brown, Peter Utica Gold, Majer H. NINTH DISTRICT Burns, Howard W., Jr. Greenberg, Henry M. Burke, Patrick T. * Campos-Galvan, Manuel ARK LCOTT Greenthal, John L. Byrne, Robert Lantry M H. A Caraballo, Dolly Higgins, John Eric Campanaro, Patricia L. Immediate Past President Chambers, Hon. Cheryl E. Higgins, Patrick J. Casey, Bridget M. New York Cheng, Pui Chi Kelly, Matthew J. Dohn, Robert P. Chin, Sylvia Fung Kretser, Hon. Rachel Enea, Anthony J. Christian, Catherine A. Lally, Sean P. Fontana, Lucille A. VICE-PRESIDENTS Cohen, Carrie H. Liebman, Bennett M. Gordon Oliver, Arlene Antoinette Collazo, Ernest J. Lynch, Margaret Comard Gouz, Ronnie P. * Cometa, Angelo T. Meislahn, Harry P. Kranis, Michael D. FIRST DISTRICT Crespo, Louis Miranda, David P. Lagonia, Salvatore A. Davis, Tracee E. Moy, Lillian M. Markhoff, Michael S. Claire P. Gutekunst, New York Donoghue, Gail Netter, Miriam M. Marwell, John S. Susan B. Lindenauer, New York Draper, Thomas G., Jr. Perino, Justina Cintron * Miller, Henry G. Drayton, Joseph Michael Potter, James T. Murray, Conal E. Eppler, Klaus SECOND DISTRICT Powers, John K. †* Ostertag, Robert L. Finerty, Hon. Margaret J. Salkin, Prof. Patricia E. Sciortino, Sandra B. Barry Kamins, Brooklyn Fink, Rosalind S. Sandner, James R. Selinger, John * Forger, Alexander D. Schofield, Robert T., IV †* Standard, Kenneth G. Frank, Paul M. THIRD DISTRICT †* Tharp, Lorraine Power Thornhill, Herbert L., Jr. Fries, Richard S. Thornton, Timothy B. Van Scoyoc, Carol L. Hon. Rachel Kretser, Albany Gesinsky, Loren M. * Williams, David S. Wallach, Sherry Levin * Gillespie, S. Hazard * Yanas, John J. Welby, Thomas H. FOURTH DISTRICT Grays, Taa R. Wilson, Leroy, Jr. Gredd, Helen A. FOURTH DISTRICT Nicholas E. Tishler, Niskayuna Gross, Marjorie E. Breedlove, Brian H. TENTH DISTRICT Gutekunst, Claire P. Burke, J. David * Bracken, John P. Buonora, John L. FIFTH DISTRICT Haig, Robert L. Caffry, John W. Hariton, David P. Coffey, Peter V. Cartright, Valerie M. David M. Hayes, Syracuse Harris, Joel B. Cullum, James E. Castillo, Nelson A. Hoffman, Stephen D. Ferradino, Stephanie W. Chase, Dennis R. SIXTH DISTRICT * King, Henry L. Haelen, Joanne B. Clarke, Lance D. Kobak, James B., Jr. Rider, Mark M. Elder-Howell, Andrea M. David A. Tyler, Ithaca Kougasian, Peter M. Rodriguez, Patricia L. R. Fishberg, Gerard †* Krane, Steven C. Sterrett, Grace Franchina, Emily F. SEVENTH DISTRICT Kuntz, Dr. William F., II FIFTH DISTRICT Gann, Marc Giorgio, Frank, Jr. David M. Schraver, Rochester Larson, Wallace L., Jr. Gall, Erin P. † Leber, Bernice K. Getnick, Michael E. Gross, John H. Leo, Robert J. Gingold, Neil M. †* Levin, A. Thomas EIGHTH DISTRICT Lieberman, Ellen Greeley, Kristin B. Levy, Peter H. Sharon Stern Gerstman, Buffalo Lindenauer, Susan B. Hayes, David M. Luskin, Andrew J. * MacCrate, Robert Larose, Stuart J. Makofsky, Ellen G. Martin, Edwina Frances Margolin, Linda U. NINTH DISTRICT Longstreet, Ami S. Mazzarelli, Hon. Angela M. McClusky, James P. Mihalick, Andrew J. John S. Marwell, Mount Kisco McEnroe, Diane Crosson Mitchell, Richard C. * Pruzansky, Joshua M. Miller, Michael Pellow, David M. Purcell, A. Craig * Rice, Thomas O. TENTH DISTRICT Millett, Eileen D. Peterson, Margaret Murphy Minkowitz, Martin Richardson, M. Catherine Robinson, Derrick J. John H. Gross, Hauppauge Moreland, Thomas H. Stanislaus-Fung, Karen Smolowitz, Barry M. Morril, Mark C. Steinberg, Harriette M. SIXTH DISTRICT ELEVENTH DISTRICT Nathanson, Eugene Stempel, Vincent F., Jr. Cummings, Patricia A. Thompson, Charlene R. O’Neill, Paul J., Jr. Denton, Christopher Seymour W. James, Jr., Kew Gardens * Patterson, Hon. Robert P., Jr. Walsh, Owen B. Egan, Shirley K. Winkler, James R. Paul, Gerald G. Gorgos, Mark S. TWELFTH DISTRICT Reed, Thomas A. † Madigan, Kathryn Grant ELEVENTH DISTRICT Steven E. Millon, Bronx Rifkin, Richard Marris, Karin Huntley Cohen, David Louis Robertson, Edwin David May, Michael R. Dietz, John R. Rosenthal, Lesley Friedman Sheehan, Dennis P. Goldblum, A. Paul Rosner, Seth Smyk, Stephen D. Haskel, Jules J. MEMBERS-AT-LARGE OF THE Rothstein, Alan Tyler, David A. James, Seymour W., Jr. Russell, William T., Jr. Leinheardt, Wallace EXECUTIVE COMMITTEE * Seymour, Whitney North, Jr. SEVENTH DISTRICT Lomuscio, Catherine Sherman, Carol R. Barney, Brian J. Lonuzzi, John A. Vincent E. Doyle, III Sherwin, Peter J.W. Brown, T. Andrew Nashak, George J., Jr. David L. Edmunds, Jr. Sigmond, Carol Ann Buholtz, Eileen E. Terranova, Arthur N. Silkenat, James R. †* Buzard, A. Vincent Wimpfheimer, Steven Hermes Fernandez Doyle, Hon. John D. Smith, Hon. George Bundy TWELFTH DISTRICT Sonberg, Hon. Michael R. Lawrence, C. Bruce Michael Miller Lightsey, Mary W. Chavez, Daniel M. Spelfogel, Evan J. Friedberg, Alan B. David P. Miranda Steinberg, Lewis R. * Moore, James C. * Palermo, Anthony R. Millon, Steven E. Stenson, Lisa M. * Pfeifer, Maxwell S. Peter J.W. Sherwin Tesser, Lewis Reynolds, J. Thomas Schraver, David M. Schwartz, Roy J. Lauren J. Wachtler Wachtler, Lauren J. Stansel, Lynn Williams, Bryan R. Schultz, Jill K. Smith, Thomas G. Summer, Robert S. Stephen P. Younger Younger, Stephen P. Weinberger, Richard Zulack, John F. Tilton, Samuel O. OUT-OF-STATE SECOND DISTRICT * Vigdor, Justin L. Adler, Roger B. * Witmer, G. Robert, Jr. Cahn, Jeffrey Barton Branda, Rose Ann C. EIGHTH DISTRICT * Fales, Haliburton, II Cohn, Steven D. Brady, Thomas C. * Walsh, Lawrence E. Golinski, Paul A. Doyle, Vincent E., III

† Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | March/April 2008 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Do’s, Don’ts, and Maybes: Legal Writing Punctuation — Part II

n the last column, the Legal Writer “The attorney has worked at 123 after a lengthy introductory clause. discussed seven punctuation issues Justice Avenue, Elmhurst, New York A clause has a subject and a verb. A Iin legal writing. We continue with 11373, since 2001.” Don’t use commas phrase has a subject or a verb, but two more. between the state and the zip code. In not both. Introductory word examples: 8. Commas. Commas are meant to typing, add two spaces after the state “Honestly, I remember nothing about slow down language or replace words. and before a zip code. Example: “New the accident.” Writers often omit intro- To create a pause, add a comma. York, New York 10013.” ductory commas. Incorrect: “Thanks Put commas after salutations Use commas to separate digits. Bob.” Correct: “Thanks, Bob.” Correct: in informal writing. Example: “Dear The Bluebook tells writers to insert “Therefore, the plaintiff failed to prove Grandma Jane,” Use colons in formal commas only in figures containing negligence.” Also correct (without the writing. Example: “Dear Mr. Johnson:” five or more digits.1 The Association comma): “Therefore the plaintiff failed In formal and informal writing, use of Legal Writing Directors (ALWD) to prove negligence.” Introductory commas after closing. Examples: Citation Manual instructs writers to phrase example: “In Quebec City and “Sincerely,” “Very truly yours,” insert commas in numbers containing Montreal, students read and write in Put commas before titles. Examples: four or more digits.2 The New York French.” Introductory clause: “Although “Jane Smith, Esq.” “Bob Jones, Ph.D.” State Official Style Manual (Tanbook) Jane wrote the appellate brief, Mary “Tom Roe, M.D.” In a sentence, put doesn’t discuss the issue. The Bluebook: argued it on appeal.” Ambiguity or commas after titles. Example: “Sam “4500.” Insert a comma only when the miscue: “After the house blew up Mary Smith, Ph.D., conducted the psychiat- number exceeds four digits: “45,000.” sued.” Without the comma, the house ric evaluation.” Insert commas before ALWD: “4,500.” is a homicide bomber that blew Mary “Jr.” or “Sr.” only if the person uses a Use commas to contrast or empha- up. Correct: “After the house blew up, comma. If the person uses a comma, size words. Example: “Jane deposed Mary sued.” use commas before and after. Examples: three, not five, witnesses.” “William met “Judge John Smith, Jr., is presiding.” his client in Ithaca, not Schenectady.” “Judge John Smith, Sr., is presiding.” Set off interruptive phrases or tran- “After the house Don’t use commas to separate nouns sitional expressions with commas. The blew up Mary sued.” from restrictive terms of identification. most common interruptive phrases or Example: “Alexander the Great.” transitional expressions are the con- Without the comma, Use commas to set off dates. junctive adverbs “additionally,” “for Example: “The deposition is scheduled example,” “however,” “moreover,” the house is a for Wednesday, October 31, 2007.” “therefore,” and “thus.” Examples: homicide bomber that Don’t put a comma between a month “The attorney, however, spent too and the year. Correct: “July 2008 will be much time asking the witness irrel- blew Mary up. her sixth anniversary since she passed evant questions.” “The attorney, for the bar exam.” example, asked the witness what she Use commas to set off introductory A controversy exists about whether ate for breakfast.” “The plaintiff, there- phrases that add nonessential informa- to put a comma after the date if the date fore, failed to prove negligence.” tion to a preceding clause. Introductory appears within a sentence. The comma A controversy exists about intro- phrases will begin with words like is optional, but the Legal Writer rec- ductory commas. Use introductory these: “although,” “according to,” ommends it. Example: “On August 29, commas to clarify an introductory “after,” “despite,” “first,” “if,” “includ- 2007, she started law school.” word, clause, or prepositional or par- ing,” “irrespective of,” “particularly,” Use commas to separate parts of an ticipial phrase or subordinate clause, “perhaps,” “preferably,” “probably,” address and after the address. Correct: to avoid ambiguity or miscues, and CONTINUED ON PAGE 58

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