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JCuly/August 2O013 UNTY VisitL us at wwwA.nycla.orgW YER Volume 7 / Number 24 Federal Re-entry Programs in the Southern and Eastern District Courts of New York: Creative Approaches to Offender Recidivism INSIDE Negotiation ...... 2 By Laury A. Betha, Esq. GEDs, and do community serv -  ice until employed. It takes In 2002, in an effort to reduce between one and two years to recidivism rates, the Eastern complete the STAR program, but Speaking Tip ...... 2 District of New York launched participants can remain in the an experimental program involv - program for longer periods of ing supervised re-integration of time.  released federal offenders into the community. Currently, To graduate, the participants Judges Dora Irizarry and John must have 12 consecutive Met the New Officers and Gleeson, and Magistrate Judge months of sobriety. The Chief of Steven Gold supervise these pro - Federal Probation for the EDNY, Directors ...... 3 grams. Eileen Kelly, states “the goal of  the program is abstinence.” “As In 2012, the Southern District of long as the participants are will - Meet the New Foundation New York initiated a similar pro - ing to remain in the program gram, supervised by District then they can stay.” It may take Board Members ...... 6 Judge Harold Baer, a former longer than two years to get 12 president of NYCLA, and months of sobriety. When there  Magistrate Judge Harold Pittman . Both Participants in STAR are offenders is a relapse, the offenders are sanctioned the SDNY and EDNY programs have whose “drug use led to criminal activity” with graduated consequences such as achieved impressive results, but are says supervising probation officer Nella more meetings with their probation offi - New NYCLA Dues threatened by recent cuts to the budget of Yalenovic. The participants have either cers, home confinement, or for severe Structure ...... 9 the federal judiciary. completed their sentences, and are on infractions, incarceration. Remaining in supervised release or have been admitted the program or termination are judicial TABLE OF The underlying premise of the re-entry to the program as an alternative to incar - decisions not subject to appellate review. programs is collaboration – a team ceration. Judge Irizarry, Probation (see infra , Statement of Reasons for CONTENTS approach to assisting released offenders Officers Nella Yalenovic, Christopher Accepting Deferred Prosecution to reintegrate into their communities and Wodzinski, and Yolanda Diaz, federal Agreement Dismissing Charges Entirely , Book Review ...... 6 society at large. The re-entry programs defenders, Lem Kamdang, Esq, and Gleeson, J.). involve intensive supervision, over a Mildred Whalen, Esq, and staff from CLE Institute ...... 4 short period of time, that address the drug treatment programs meet with the On June 4, 2013 from 9:30 until 11:30 whole person rather than just the crime. offenders in the courtroom the first a.m., I observed the STAR program in Criminal Courts Manual ...... 13 The main goal is keeping the offender Tuesday of every month for the purposes Judge Irizarry’s courtroom. There were Electronic Research Center CLEs ...... 10 out of any further criminal trouble. 1 of progress review. The key components 11 offenders who were a mix of alterna - of the program are education, obtaining a tive to incarceration and post-release Ethics Hotline ...... 11 Eastern District of New York (EDNY) job, drug treatment, cognitive behavioral supervisees. One person graduated from Health Insurance ...... 12 STAR Program therapy, and community service. The the program and has now finished his Since 2005, EDNY Judge Dora Irizarry idea behind the program is to decrease federal sentence entirely. The Chief Judge High School Essay Contest Winning has run a supervised reentry program for recidivism. Judge Irizarry reported that of the EDNY, Carol Bagley Amon, pres - Submission ...... 13 drug offenders. The drug court program STAR partners with Daytop Village “in a ent at the graduation, praised the gradu - began in 2002 under the late Judge significant way” for the purposes of drug ate, saying that he was an “inspiration to Library Notes ...... 10 treatment programs. Daytop Village has Charles P. Sifton. In that same year, the all.” She noted that this program was not Long-Term Care Myths ...... 12 program was re-named STAR “accommodated” the STAR participants “part of the official duties” for Judge (Supervision Treatment and Re-entry). by having Saturday meetings that do not Irizarry, the federal defenders, or the pro - Meet the New Foundation Board STAR is designed to provide “the kind of interfere with participants’ work sched - bation department demonstrating the Members ...... 6 structure, intensive supervision, account - ules. The key to success of the STAR commitment that the federal courts have ability, drug and mental health treatment, program, which is now unfunded, is the to reducing recidivism. Message from Barbara Moses, NYCLA educational, vocational, and employment partnerships with community programs assistance that will give addicted offend - which are supported by Medicaid and The other 10 are in various stages from President ...... 3 ers a better chance of leading a drug-free other public insurance programs. Other the first day in the program to several Message from Lewis S. Tesser, and law-abiding life than they would oth - community based drug treatment pro - months in the program, and are well on erwise.” 2 grams include the Hope Program, and their way to completion. Many have President of the NYCLA Foundation ... 6 820 River Street. According to Mr. obtained jobs, have been sober for Negotiation ...... 2 While the evaluation by the Federal Wodzinski, the 820 River Street program months, and are involved with their fam - Judicial Center has not been made pub - is based on one similarly named in ilies. Some are still working toward New NYCLA Dues Structure ...... 9 lic, the early findings are that the recidi - “Upstate New York.” sobriety and employment. Movement New Officers and Directors ...... 3 vism rate is 10 percent for STAR partici - toward the educational goals of obtain - pants versus 15 percent for those not in The incentive for participation is that ing a GED, or completing college cours - Recent Events ...... 8 successful participants can get as much the program. Also, Judge Irizarry provid - es, is still a challenge for the partici - Recidivism ...... Cover ed statistics that suggest that as much as as four years removed from their super - pants. Competing family and work a half-million dollars in savings may vised release. Ms. Yalenovic reported responsibilities can interfere with Speaking Tip ...... 2 result from the use of federal drug court that successful participants complete accomplishing educational goals. What’s Tweeting ...... 11 programs instead of incarceration. drug treatment, are involved in an educa - However, most importantly, there were tional component such as getting their (See Recidivism on Page 14) 2 July/August 2013 / The New York County Lawyer Know Thyself: Styles and Tactics at the Negotiation Table

By Clara Flebus, Esq. Matching Styles to Situations and communicate their own needs. To A helpful method to predict the effective - avoid learning too little, or revealing too “A negotiation is an interactive communi - ness of negotiation styles is analyzing much, attorneys should determine what cation process that may take place when - every bargaining situation by asking your they want to know , what they wish to ever we want something from someone client: (a) how important are the issues divulge, and what they prefer to keep pri - else or another person wants something involved; and (b) how important is the vate. In this phase, there are few general from us.” 1 People negotiate every day in relationship between the parties to tips to remember: (a) gather information their personal and professional life, achieve their respective goals in the about the other side’s interests, issues, whether or not they are aware they are future. 5 Typically, in market-mediated and perceptions by using active listening doing it, without the help of lawyers or transactions such as home, car, and land techniques that involve asking questions other agents. As a result, people develop sales between strangers, the stakes are and paraphrasing the response to demon - negotiation styles which are generally considerably more important than any strate your understanding of what a per - based on personality, self-identification, prospective relationship. 6 A predominant - son said; 9 (b) provide pertinent informa - attitudes derived from family, gender, cul - ly competitive style can be effective in tion regarding your clients’ interests and ture and experience, and preconceptions this type of negotiation, where the focus concerns, as these factors may be the real about the process. At the negotiation is on a party’s gain, without particular key to a satisfying and realistic negotiat - table, some people may behave more concern about the resulting relationship. ed solution; 10 and, (c) if you elect to cooperatively, others may adopt a more A much more complex situation arises reveal a bottom line, do not do so prema - competitive stance, still others may act when both the issues at stake and the turely. Remember, skilled negotiators more pragmatically . To become success - future relationship between the parties probe first, and disclose later; informa - ful negotiators, lawyers should be aware are important. This typically occurs in tion about what a counterpart wants pro - of their own basic dispositions . However, disputes involving employment, partner - vides leverage. no matter what tendency or disposition a ships, joint ventures, long-term supplier the table is perhaps the most important lawyer may have, she can help clients relationships, etc. 7 In such situations, the aspect of the process because it facilitates Competitive Bargaining achieve better results in negotiation most effective negotiation styles would communication. “Schmoozing” and small At the bargaining stage, parties make through training and experience. be problem-solving or compromise. talk are helpful to dispel initial tension. offers, counter-offers, and concessions. Thus, negotiators who are naturally com - This is not a novel concept, but applying Lawyers should understand bargaining In preparation for negotiation, lawyers petitive should be aware that bargaining it might be less intuitive when parties tactics to maximize the benefits of nego - should carefully analyze each bargaining too hard over positions without regard for stand on opposite ground. Generally, we tiation and not be caught unprepared. The situation and choose a style, or a mix of the other side’s interests and feelings may tend to like and trust people with whom most common competitive or “hard-bar - techniques, that is best suited to achieve result in no agreement , or may poison we have things in common. Thus, a good gaining” tactic is making extreme the clients’ goals. In addition, lawyers future relationships with regrets or method of building rapport is finding demands followed by small, slow conces - may enhance their skills as negotiators by recriminations about the deal. As a final mutual interests, passions, background sions. An ambitious initial demand has becoming familiar with the phases of the note, assessing a bargaining situation is experiences, or groups, such as alumni the effect of setting the perceived bar - negotiation process, which, at a mini - also critical in anticipating what styles associations and clubs, with which both gaining range . However, this tactic has mum, include relationship building, and techniques will likely be engaged by parties identify. Engaging the other side the disadvantage of reducing the proba - information exchange, bargaining, and the negotiating counterpart. in a conversation about similarities and bility that any deal will be reached if it commitment. A strategic approach to connections will establish a positive only causes protracted haggling. A varia - negotiation requires planning ahead what Relationship Building atmosphere early in the negotiation. 8 tion consists of making a smaller demand lawyers, and their clients, will say or do After choosing a negotiation style, or a after the extreme one was refused. As the at each stage of the process. mix of techniques, lawyers should focus Information Exchange second demand may seem reasonable by on how to greet the other side. In this phase, lawyers should test their contrast, a party may feel compelled to Negotiation Styles Establishing rapport with the parties at assumptions about the other side’s needs, accept it to reciprocate the gesture of The three most common styles used by withdrawing the first demand. Both ver - lawyers when negotiating are: competi - sions of this tactic can be countered by tive, problem-solving, and compromis - researching and bringing objective infor - ing. Competitive bargaining focuses on mation to the table. maximizing one’s gain over that of the “Act As If:” A Tip for Attorney negotiating counterpart. The negotiation Another bargaining tactic is to eschew is viewed as win-lose game where one Persuasive Power presenting a counter-offer in order to party’s gain is the other side’s loss. 2 By compel a party to bid against herself. contrast, problem-solving is based on This can be accomplished either by stat - collaborating with the other side to satis - By Maria Guida act of smiling, you can “act as if” you ing that the offer is inadequate and fy both parties’ interests and goals. In are happy. requesting a better one, or by waiting in this type of negotiation, also called inte - Business speaking is sometimes inef - silence until the other side makes another grative or win-win bargaining, a party fective, because speakers unnecessari - Behavior can certainly induce a feel - offer simply to avoid feeling uncomfort - seeks creative solutions to maximize the ly fear being perceived as “phony .” ing; actions and feelings go togeth - able. As Alexander Theroux noted, gain for both sides. 3 The third style, com - er. Do remember that feelings are not “Silence is the unbearable repartee.” promise, involves trading off some of As an attorney, if your business speak - subject to direct command, but behav - what a party wants in order to get at least ing lacks enthusiasm, it may be ior is subject to direct command. Commitment tactics can be a source of something. In this vein, the compromis - because you fear that using a higher Therefore, behaving a certain way, hard bargaining; a course of action that ing negotiator considers not only his or energy level is dependent upon your whether one “feels” that way or not, is limits the choices of one party in a way her gain, but also what the other side experiencing a certain emotion. This paramount. Behavior is king, particu - that seems credible and irreversible will desires in a sort of give-and-take can cause a “humdrum demeanor”: larly when your prospects and clients force the other side to be accommodat - fashion. 4 Compromising, however, is avoiding the kind of energy for speak - are watching. ing. However, there is a risk that no deal often less effective than exploring ing that truly engages your clients and will be made if accommodation is not options created through problem-solving. prospects (and jurors) . Finally, a second quote from feasible. In this regard, take-it-or-leave-it As such, it is better used as a tool to find Stanislavsky has relevance for your offers are also risky. If the offer is reject - a quick solution when the time is short or Adopt the attitude that actors take: a business speaking: “Show me what a ed, the negotiation may be over; if the as a supplement to the other styles. specific feeling does not have to be person DOES, and I’ll show you who negotiation is not over, the tactic will present in order for you to behave a he/she IS .” sacrifice credibility. Take-it-or-leave-it As an example, if the object of a negotia - certain way. Acting “as if” you feel or tactics often can be neutralized simply by Who do your prospects and clients tion were a blueberry pie, the competitive think a certain way is the surest way to making some other offer. perceive YOU to be? As an attorney, bargainer would aim at dividing the pie project the qualities you choose (poise your speaking behavior holds the key. so as to get the larger portion. The prob - and passion, for example) and increase Another common hard-bargaining tactic your persuasive power. Stanislavsky that can be employed in a team setting is lem-solving negotiator would try to Maria Guida is a speaking (the great Russian director and teacher) playing “good cop, bad cop.” In this clas - increase the size or value of the pie by strategist/coach at major law firms and called this the “magic if .” sic ploy, one negotiator acts as the rea - adding more filling, so that both sides law associations, as well as a corporate sonable person, while the other on the could gain more and feel their solution is and television spokesperson. As an actor Shakespeare was advising the same same team pushes for unreasonable con - fair to both. Meanwhile, the compromiser on Broadway, TV, and film, she has thing when he wrote, “Assume a cessions. Transparent competitive tactics might consider giving up some of the fill - worked with Paul Newman, James Earl virtue if you have it not.” such as this one, while often seen in legal ing, even though she loves blueberries, Jones, and Kevin Kline. Maria can be drama, are not highly successful as a and accepting more crust, if that would Don’t wait for a feeling of happiness reached at 718-884-2282 or via email at rule. However, this and other tactics such make the other side more amenable to before smiling, for example. With the [email protected]. reaching an agreement. (See Negotiation on Page 15) July/August 2013 / The New York County Lawyer 3 MESSAGE FROM BARBARA MOSES NEW YORK PRESIDENT OF NYCLA COUNTY LAWYER Dear Readers, justice for all, regardless of wealth. And through our pro bono programs and com - NYCLA has never been afraid to speak mittee work, NYCLA is deeply involved Barbara Moses out on significant issues affecting access in helping poor and near-poor New to justice—including funding for the Yorkers obtain the essential legal services President courts, indigent criminal defense, and they need when faced with consumer civil legal services . debt problems, housing emergencies, and other legal crises .In the months to come, Sophia J Gianacoplos In 2011 and 2012, NYCLA’s Task Force NYCLA’s new Task Force on Meeting Executive Director on Judicial Budget Cuts examined the the Challenge will examine New York’s impact of $170 million in cuts on the most recent experiment in closing the jus - New York judiciary, as well as deep cuts tice gap: the 50-hour rule, which will Toni Valenti Barbara Moses Director of Marketing and to the federal judicial budget. We issued a President, New York County require bar applicants to certify that they series of reports detailing the real-world Lawyers’ Association have performed 50 hours of pro bono Membership Development impact of those cuts on both the courts legal services before they can be admit - and the public. This year, New York’s cannot do its job, the costs are external - ted. At the same time, the task force, already overloaded state court system ized on our community.” Funding for working together with staff and volunteer Ariella Greenbaum continues to struggle with a bare-bones indigent criminal defense has also been leaders, will develop new pro bono Editor budget, which has led to shorter court - slashed . The Federal Defenders of New opportunities for NYCLA’s law student Senior Communications and house hours, longer waits for trial dates, York—charged with the representation of and law graduate members. Social Media Manager and backups in clerk’s offices across the criminal defendants who cannot afford state. private counsel in the Southern and The continuing struggle to improve Eastern Districts—have been forced to access to justice is difficult and some - The federal courts, meanwhile, are reel - furlough attorneys and put off trial dates. times discouraging, but it is also central New York County Lawyer is ing from the effects of sequestration, to NYCLA’s mission . I look forward to published by including reduced staffing for Pretrial Through our Task Force on Judicial working on these issues in the months to Long Islander Newspapers Services, which supervises defendants Budget Cuts, NYCLA is once again come. under the auspices of awaiting trial, and the Probation examining the ability of our state and the New York County Lawyers’ Department, which supervises individuals federal courts to carry out their constitu - Association. For advertising sentenced to probation or on supervised tionally mandated functions in light of information, call 631-427-7000. release. These reductions present both a continuing budget challenges. Through Mailing address: 149 Main Street, public safety issue and a false economy. our recent forum commemorating the Huntington, NY 11743. In the words of Chief Judge Carol Bagley 50th anniversary of Gideon v. Barbara Moses Amon of the Eastern District of New Wainwright , NYCLA took a probing look President York, “If the [Pretrial Services] agency at our nation’s still-unfulfilled promise of New York County Lawyers’ Association Copyright © 2013 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ NYCLA Inducts Officers and Directors Association grants permission for articles and other material herein or At NYCLA’s Annual Meeting on May ther NYCLA’s work in urging restoration pliance issues, and internal investiga - portions thereof to be reproduced and 23, NYCLA inducted Officers and of funds to the judiciary budget, review tions, and service as a court-appointed distributed for educational or profes - Directors to its Board of Directors. Along NYCLA’s position concerning election of monitor or special master. sional use through direct contact with with Barbara Moses who was inducted as judges, further NYCLA’s leading role in clients, prospective clients, profes - President and featured in last month’s supporting judges who are unfairly Roberta A. Kaplan sional colleagues and students pro - New York County Lawyer , Lewis F. attacked or criticized, and encourage NYCLA member since 2013 vided that such use shall not involve Tesser was inducted as President-Elect, NYCLA to explore ways to assure that no Kaplan practices com - any matter for which payment (other Carol A. Sigmond as Vice President, one is wrongfully convicted. She would mercial litigation at Paul, than legal fees or tuition) is made Stephen C. Lessard as Treasurer, and also like to work toward increasing mem - Weiss, Rifkind, Wharton Donald M. Zolin as Secretary. bership in NYCLA. & Garrison LLP where and provided further that all repro - she is a partner. She has ductions include the name of the The following Directors were also Hon. Emily Jane Goodman practiced for 20 years and author of the article, the copyright inducted, and will each contribute some - NYCLA member since 1969 as a Board member will notice(s) included in the original thing unique to help move the Judge Goodman was look to do what she can to facilitate and publication, and a notice indicating Association forward in its mission. We elected in 1983 and improve the laudable programs and goals the name and date of the Association invite you to get to know these new served 29 years in Civil of NYCLA. publication from which the reprint is Board leaders: Court, Criminal Court, made. Subscription rate: $10.00 per Supreme Court Ronald J. Katter year for non-members Jai K. Chandrasekhar (Criminal), and Supreme NYCLA Member since 1988 NYCLA Member since 2001 Court (Civil), leaving in Katter, who has been Chandrasekhar, who has 2012. As a NYCLA Board member, she practicing law for 27 New York County Lawyer is published been practicing law for 12 is looking to help improve New York years, founded the Katter monthly (except January and August) for years, practices primarily State’s courts, in particular, helping to Law Firm in 1991 to rep - $10 per year by New York County Lawyers’ in securities litigation on restore judicial independence, which she resent personal injury Association, 14 Vesey Street, New York, NY the plaintiffs’ side. He feels at this time is seriously threatened. plaintiffs in claims to currently serves as a sen - recover money damages 10007. Periodicals postage paid is mailed at ior counsel at Bernstein Andrew T. Hahn, Sr. for the injuries they suffer through negli - New York, NY and additional mailing Litowitz Berger & Grossmann LLP. As a NYCLA member since 2011 gence or abuse. He represents clients in offices. POSTMASTER: Send address NYCLA Board member, he hopes to help Hahn, who currently is a all five boroughs of NYC and in changes to: New York County Lawyer, 14 the Association strengthen its vital work litigator and partner at Westchester and Nassau Counties. As a Vesey Street, New York, NY 10007-2992. of providing professional resources to Duane Morris LLP, has Board member, his goals include advo - lawyers from all segments of the bar and been practicing law for cating on behalf of solo and small-firm encouraging lawyers to represent needy 27 years. As a NYCLA practitioners, and helping NYCLA USPS #022-995 New Yorkers. He notes that this mission Board member, he hopes employ social media and live sessions to ISSN: 1558-5786 is more important now than ever in light to help increase the recruit new members and to help train of the weak economy and the related diversity of the membership. new leaders from the membership. $10.00 of membership dues is deducted for a structural changes in the profession. one-year subscription to the New York Hon. Barbara S. Jones Carolyn A. Kubitschek Hon. Helen E. Freedman Joined NYCLA in 2013 Joined NYCLA in 2003 County Lawyer . Joined NYCLA in 1989 Judge Jones served as a Kubitschek, who prac - Judge Freedman has been judge for almost 17 years tices civil rights, family, Photo Credits on the bench nearly 35 in the U.S. District Court and Social Security law years, and has been on the for the Southern District at Lansner & Kubitschek, Dana Burr Appellate Division, First of New York. She is cur - has been practicing law Ariella Greenbaum Department since July rently a partner at for 39 years. As a Board 2008. As a Board mem - Zuckerman Spaeder LLP member, she is looking to ber, she would like to fur - where she is focusing on corporate com - (See Officers and Directors on Page 14) 4 July/August 2013 / The New York County Lawyer Summer at the CLE Institute

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Consecutive Fridays, July 12 and 19; Consecutive Fridays, August 2 and 9, Attendees will learn: Key techniques NYCLA’s CLE Institute 9 a.m.-5 p.m. 2013: 9:00 AM – 5:00 PM for building relationships; Effective and courses now available for 16 NY Credits: 3 Ethics; 6 Skills; 7 16 NY Credits: 3 Ethics; 6 Skills; 7 ineffective ways to leverage social New Jersey MCLE Credit PP/LPM; Transitional and Non-transition - PP/LPM; Transitional and Non-transition - media; How to ethically use publishing al; 16 NJ Credits: 3 Ethics; 13 General al; 16 NJ Credits: 3 Ethics; 13 General in print and online to enhance your New York County Lawyers’ This program will satisfy the first or sec - This program will satisfy the first or sec - practice; Trusted techniques for estab - Association’s CLE Institute is ond year MCLE requirements for newly ond year MCLE requirements for newly lishing a stronger professional reputa - currently certified as an admitted attorneys in New York State. 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Be sure to check the website for course details, facul - 15 NJ Credits in 5 of 9 Specified Practice Practice in the Recovery * nycla website for a list of upcoming ty, complete program descrip - Areas Friday, August 2, 2013; 9 a.m.-5 p.m. webinars, or visit the NYCLA branded tions and pricing. This program is specifically designed for 8 NJ Credits: 3 Ethics; 2 LPM; 3 Skills; on-demand and live webinar page at newly admitted attorneys in New Jersey. Transitional and Non-transitional; 8 NJ: http://nycla.furthered.com/cle/index.php Be sure to check our website for It will satisfy the requirement that newly 4 Ethics; 4 NJ Law Practice Management admitted attorneys take 15 credits in 5 of Reinvent your practice, reconnect a complete listing of programs. 9 specified practice areas. with clients and redefine the way you July/August 2013 / The New York County Lawyer 5 6 July/August 2013 / The New York County Lawyer MESSAGE FROM LEWIS S. TESSER Meet the New PRESIDENT OF THE NYCLA FOUNDATION Foundation What Does Being a Lawyer Mean to You? Board Members This spring I attended a law school grad - the necessary energy (especially in sum - uation . Not only did my daughter and her mer) to effectuate our plans . A call to classmates receive a degree, but the Chief action is frequently helpful. At the NYCLA Foundation Annual Judge of the State of New York, Hon. Meeting on April 8, Hon. Betty Jonathan Lippman, also received an hon - NYCLA is here to assist us assist our - Weinberg Ellerin, Mary Gail orary degree . In fact, the Chief Judge was selves and others. The NYCLA Gearns, and Brian D. Graifman the keynote speaker. He encouraged the Foundation is a major component of our were elected as new Foundation new graduates to be mindful of their ability to continue our mission. The Board members and Stewart D. responsibilities to serve the justice sys - Foundation is the fundraising arm of Aaron, Sylvia DiPietro, Susan tem by , for example , helping the disad - NYCLA and I am honored I was elected Lindenauer, and Lester Nelson were vantaged and the needy. He noted that to serve as its President this year. re-elected to three-year terms. The agencies such as Legal Aid turn away as HERE’S ONE THING THE FOUNDA - NYCLA Foundation is led by Chair, many as 90 percent of the individuals TION SUPPORTS- Project Restore, a Vincent Chang; President, Lewis F. seeking their help and that we, as a just lawyers for noble reasons and that, as a program that for years has helped provide Tesser; Vice President, Richard A. society , are dependent on equal access to demographic, lawyers are good people. pro bono counsel to ex-offenders who Williamson; Secretary, Martha justice. Do Judge Lippman’s remarks Your responses did not disappoint. may have been inappropriately denied Cohen Stine; and Treasurer, Scott pertain to us? employment licenses. The Foundation Mitchell Berman. We are not only lawyers but also mem - has many other projects (which we’ll In last month’s column, we asked, “Why bers of the first major bar association in highlight in future articles). Hon. Betty Weinberg Ellerin did you become a lawyer?” A few of the the country to admit “any attorney who Member of NYCLA since 1953 responses: had met the rigid standards set up by law PLEASE LET ME HEAR FROM YOU Hon. Betty Weinberg for admission to the bar.” One of Ellerin spent 29 - “I thought it would be intellectually NYCLA’s founders, Benno Lewison, What does being a lawyer mean to you ? years as a judge — challenging.” observed that the Association stood for Write to me at [email protected] . first in the Civil “the promotion of reforms in the law Court and then as a - “My grandfather and father were [and] the facilitation of the administra - I’m told that I’ll have this column for a city-wide adminis - attorneys.” tion of justice.... ” To this day, NYCLA is while. Let’s have a discussion. I’m happy trative judge, in the a progressive, inclusive and action-ori - to include some of your answers and Appellate Division. She was the first - “To satisfy my intellectual curiosity ented organization. What’s next? comments in future articles. And in the woman appointed as Deputy Chief and use the knowledge and experi - meantime, please go to www.nycla.org Administrative Judge of the State of ences gained as a springboard to From the Cup to the Lip and choose “Giving to NYCLA.” It does - New York for the New York City effectuate change.” Was it necessary for Judge Lippman to n’t matter how much you give. If you Courts. She was also Presiding exhort new graduates to do good? Is the care to, send an email to me saying “I’ve Justice and Additional Justice of the - “ My reasons are deeply personal. My concept of service to a higher calling supported the Foundation. ” Appellate Division of the Supreme dad was falsely accused.... A team of implicit in the license we receive and Court of the State of New York, lawyers took his case and stopped the hang on our walls? Is that enough? Do Esprit de corps! First Department. Since she retired persecution. I never wanted to be vul - good motives and good character = good from the bench over seven years nerable myself and [I wanted] to help deeds? No, of course not. Conduct is as ago, she has served as senior coun - those who might need it.” vital as intent. And not only is it true that sel in Alston & Bird LLP’s “there’s many a slip twixt the cup and the Litigation & Trial Practice Group. As many of you know from my CLE lip,” it is also true that despite our good She is very concerned about judicial courses, I believe that lawyers become intent, we often find it difficult to rally Lew independence and serves as co-chair of the NYCLA Task Force on Judicial Independence.

Mary Gail Gearns Joined NYCLA in 2005 A Partner at Bingham McCutchen LLP, Gearns practices in the firm’s Financial Services area where she focuses on secu - rities regulatory and enforcement matters and litigation. She has more than 20 years of litigation experi - ence, and she also advises clients on compliance and risk management issues.

Brian D. Graifman Member of NYCLA since 1988 Graifman is the Co- Chair of NYCLA’s Supreme Court Committee, and has been active for many years on the Federal Courts Committee and the Appellate Courts Committee. Counsel at Gusrae Kaplan Nusbaum PLLC, he handles complex litiga - tion and appeals, often intersecting areas of arbitration, securities, regu - latory disciplinary defense, and state-federal jurisdiction. He says that he has much to thank NYCLA for, and expects to give back by participating on the Board of the NYCLA Foundation, the fundrais - ing arm of NYCLA. July/August 2013 / The New York County Lawyer 7 Book Review Good Counsel: Meeting the Legal Needs of Nonprofits by Lesley Rosenthal

By William M. Tiersten, Esq. Beyond that, the book is inspiring: a call Through her virtual tour of the nonprofit to arms for lawyers, executives, board office, Ms. Rosenthal engagingly pro - Say that you are a long-time city dweller members and donors to face legal chal - vides detailed descriptions and advice who just bought a new home in suburbia lenges ,come to the aid of a large sector of from the boardroom, to contracts and and you want to learn about gardening, the economy (11 percent it says here) , intellectual property, through fund-raising then you find a book called Gardening and do good work for good organiza - and human resources. In each chapter, we for the Transplant: A Guide for the New tions. On top of that, the book is written are reminded of the need for oversight, Homeowner. You exclaim to yourself: as an engaging “virtual tour” through the education, strong working relationships “Eureka. This has got to be the right nonprofit organization with stops in all with staff and the sine qua non for non - book, it sounds perfect.” Based on this the many areas where legal understand - profit practitioners: a passion for the impulse, you buy it and you begin to read ing and advice is needed. organization’s mission. She always ends it carefully and then slowly it dawns on chapters with detailed work plans and you that it isn’t what the title promised; “Every one of these organizations faces refers us to a companion website that in fact, it isn’t a very good or useful legal issues, and yet most do not have provides both more detail and further book. I am delighted to say that this is regular access to counsel,” notes Ms. resources. the opposite of the experience I have had Rosenthal, who leads Lincoln Center’s with Lesley Rosenthal’s practical and legal efforts. And despite the business Throughout, she combines easy-to-read inspiring new book Good Counsel: law concerns of any corporation and the practical advice with good humor and the Meeting the Legal Needs of Nonprofits. particular needs of nonprofits, they tend passion for the subject that she brings to to have a culture that is somewhat reti - it and hopes to inspire. She ends the book Some personal disclosure is in order. I am cent about – even allergic to – the need with three chapters meant specifically for a newly minted lawyer who spent decades for legal assistance, or lawyers . After all, the aspiring nonprofit lawyer. We all working as a content producer for a wide people who feel they are doing good, have heard about the need to find a niche variety of nonprofits. Shortly before a perhaps at the expense of doing well, Ms. Rosenthal feels that “outside or in- for one’s professional services. How friend brought Ms. Rosenthal’s book to my tend to think that legal issues shouldn’t house, paid or volunteer, there should be much better yet when that niche stems attention, I had begun a new venture based be a problem. But alas, tax exempt does one person – a general counsel – in from personal conviction and corre - on providing cost-effective legal consult - not mean law exempt and more and more charge of overseeing the legal affairs of sponds to a societal need . ing services to nonprofits. So, when I saw nonprofits are running into serious issues. most tax-exempt nonprofit corporations.” the title of the book I got excited and I Ms. Rosenthal provides us with several And as general counsel, this person indeed Bill Tiersten Esq., a member of NYCLA’s read it. Then I read it again. Then I began detailed cautionary case studies ranging needs to be a generalist. Particularly in Nonprofit and Law & Literature marking up my copy to make notes for a from vaunted giants like the Smithsonian this age of specialization, a generalist Committees, also holds a Master’s in presentation to prospective clients. Then, Institution to seemingly innocent ven - can guide a nonprofit through her own English from the University of Chicago. with existing clients, I found myself fre - tures like a string quartet. And as for efforts and by “selecting, supervising He is building a practice as a nonprofit quently going back to the book and using today’s news: Does Rutgers Athletics and coordinating outside counsel where specialist. it as a practical guide, even a playbook. ring a bell? necessary.”

Over 8,000 patents granted Over 15,000 trademarks obtained or e-mail us at [email protected] Over 45 years of experience 8 July/August 2013 / The New York County Lawyer RECENT EVENTS

NYCLA Holds Annual Meeting

On May 23, NYCLA held its 2013 Annual Meeting and Induction of Officers and Directors. The Law-Related Education and Immigration and Nationality Committees were honored with awards, Barbara Moses was inducted as President, Stewart Aaron gave a musical performance, we heard from very special guests, and much more.

Hon. Sheila Abdus-Salaam (center) receives gifts of apprecia - tion from former NYCLA President, Catherine A. Christian (left) and NYCLA Executive Director, Sophia Gianacoplos (right) New NYCLA President Barbara (right). Moses gives her first remarks as President.

Peter Dizozza (left) and Immediate Past NYCLA President, Stewart Aaron (right), welcome new NYCLA president, Barbara Moses, with a special song written to the beat of, “Leaving on a Jet Plane” by John Denver. NYCLA incoming Directors gather with NYCLA’s new President at Annual Meeting.

Minority Judicial Interns Welcomed at Reception Matrimonial Section Honors Senior Court Attorneys of New interns in NYCLA’s Hon. Harold Baer Jr. and Dr. Suzanne Baer Summer Minority Judicial Internship Program celebrated the NY County Matrimonial Judges 2013 program kick-off at a reception on May 15. Interns Nida Alvi (second from left) and Khalil Nobles (third from left) from Pictured at the June 3 Matrimonial Section Cocktail Party at Battery Gardens Restaurant in Cardozo , Versaly Rosales from CUNY (fourth from left) , Battery Park are, left to right, Hon. Deborah Kaplan; Joan Levenson, Esq., Court Attorney Stephanie Lin from St. John’s (fourth from right), and Nora to Hon. Deborah Kaplan; Lindsay Feinberg, Esq., Court Attorney to Hon. Laura Drager; Cussy from CUNY (second from right), gather with Hon. Harold Charlotte C. Lee, Esq.; Briana Denney; Hon. Lori S. Sattler; Nancy Hobbs, Esq., Court Baer Jr. (center), Hon. Debra James (third from right), and Steven Attorney to Hon. Lori S. Sattler; DrorBikel, Esq.; Hon Saralee Evans; Hon. Ellen Gesmer; Golembiewski of Pfizer Inc. (far right). Kristen Bebelaar, Esq. Court Attorney to Hon. Ellen Gesmer; Hon. Matthew F. Cooper, and Timothy Corbo, Esq., Court Attorney to Hon. Matthew F. Cooper. July/August 2013 / The New York County Lawyer 9 Membership News! NYCLA Dues Structure Updated

For the first time since 2007, NYCLA has revamped its membership dues structure. Of note:

• A complimentary year of membership will continue to be offered during the first year an attorney is licensed to practice .

• Dues for admitted attorneys practicing for one to two years have been low ered to $75—only $50 if the member joined NYCLA while in law school or before admission to the bar .

• A senior category has been introduced for attorneys who have taken emeritus status with the New York State Unified Court System or who are no longer licensed to practice.

Already a member? New rates will go into effect upon membership renewal . Not a member? Join now at the below rates. Law-Related Education Committee Honors High School Students

Aglaia Ho (center), a student from Stuyvesant High School, was awarded with the first place, $1,000 prize, at the Law-Related Education Committee’s High School Essay Contest Awards Reception on May 14. She is joined by Law-Related Education Committee Chair, Justice Richard Lee Price (second from right); Law-Related Education Committee Members Robert Stern, Esq. (far left) and Lynn Goodman, Esq. (far right); and immediate-past NYCLA President Stewart D. Aaron (second from left).

Nonprofit Counsel and Author Speaks at NYCLA

On June 11 author and general counsel for Lincoln Center, Lesley Rosenthal, spoke about how to become a general counsel in a nonprofit organization or a candidate for the board of directors. Attendees also had the opportunity to buy Rosenthal’s newest book, Good Counsel: Meeting the Legal Needs of Non- Profits , and get it signed. 10 July/August 2013 / The New York County Lawyer LIBRARY NOTES

To make suggestions about books, data - Bankruptcy Litigation Manual ; Collection , where works by our fellow 3. All acknowledgements regarding the bases or other NYCLA Library matters, Advanced Chapter 11 Bankruptcy NYCLA members are on display. Gladys gift are between the donor and please contact Dan Jordan, Director of Practice ; Glickman, who passed away in 2007, donee . Library Services, by email at Ordin on Contesting Confirmation ; was the Contributing Editor to the 4. There is no guarantee that a willing [email protected] or by phone at 212- Strategies for Creditors in Bankruptcy Matthew Bender/Lexis treatise, donee will be found for your offer of 267-6646, ext. 204. Proceedings ; Franchising . Gladys Glickman left a a gift. Tax Planning for Troubled major bequest for the benefit of the The NYCLA Library seeks to be the Corporations ; NYCLA Library, where she spent many New Jersey Treatises on Lawyers ’ Toolbox for members. In addi - CCH State Exemptions ; hours writing and updating her work. WestlawNext/Westlaw tion to all the needed primary source And more. The Glickman NYCLA Authors Did you know that WestlawNext/ materials, the NYCLA Library has Collection can be found on the Gladys Westlaw , on the Patron terminals in the numerous Bankruptcy treatises and form The New York State Library-Attorney Glickman Balcony, adjacent to the NYCLA Library , now have access to sets available through WestlawNext/ Borrower’s Card is available to New Digital Resource Center.Please inscribe New Jersey treatises and form books Westlaw Classic, including 45+ treatises York residents who are admitted to prac - the title page of your work to NYCLA. from Westlaw? The titles are: from West, the American Bankruptcy tice law in New York. Holders of the card Institute and the American Law Institute. receive no cost, Internet access to many To our budding NYCLA authors, how Commercial Law Form Finder - New Bankruptcy treatises include : databases, including four meaningful can the library help you? Jersey legal databases with extensive primary New Jersey Forms Legal and Business Norton Bankruptcy, Law and Practice and secondary source materials . E-mail Looking to donate sets of Law (a seventeen volume set) 3d Ed ; [email protected] for information and books? The NYCLA Law-Related New Jersey Forms: Business & The Norton Bankruptcy Dictionary; an application to the NYSL-ABC. Education Committee, Dan Jordan Commercial Chapter 11 Reorganizations, 2d Ed. , (Director of Library Services at New Jersey Pleading and Practice Chapter 13: Practice and Procedure ; Looking for New York legislative histo - NYCLA) ,and Debra Lesser from the Forms (a seventeen volume set) Tax aspects of Bankruptcy Law and ry materials? The NYCLA library can Justice Resource Center will attempt to New Jersey Practice Series (30+ trea - Practice ; assist you in your legislative help you place your unwanted sets with a tises: L&T, Wills, Criminal, Family, Bankruptcy and Domestic Relations history/intent project and provide copies willing High School Law Program in DUI, etc.) Manual ; of session laws, legislative memoranda, New York City.Contact Dan Jordan at Strategic Alternatives for distressed bill jackets and more. Give the NYCLA [email protected] specifying what sets Interesting recent Reference questions: Businesses; Library a call at 212-267-6646, x204 or you hope to donate.Most sought sets are -A scholar from a foreign University And many more titles concerning the contact us at [email protected] to find McKinney ’s/CLS; NYJur 2d; NY came in to research the Lindy Hop and finer points of bankruptcy law. out about this NYCLA Library fee-based Supplement 2d; West NY Digest 4th . the law and to look for court records. service.The NYCLA Library can also be -Verdict Searches-the value of a broken New York State Library-Attorney of assistance with similar projects for the 1. The law books must be current with - ankle with no surgery. Borrower’s Card holders also have other 49 states and the federal system. in the last 3 years . -Verdict Searches-Seeking experts on access to several treatises on Bankruptcy 2. Shipping arrangements are made meat mincer/kitchen equipment safety. from CCH/Aspen including: NYCLA members who have authored or between the donor and the donee edited published books or articles are school in consultation with the DOE How can we help you and your practice Ginzburg& Martin on Bankruptcy ; asked to submit a copy of their work to and usually require at least four today? Contact [email protected] . Bankruptcy Litigation and Practice ; the Gladys Glickman NYCLA Authors weeks lead time. Electronic Research Center CLE Programs

July U.S. Bankruptcy Court Electronic Westlaw: Form Finder & Form Westlaw: What’s New on Westlaw Case Filing System Builder on Westlaw Next Next Westlaw: Introduction to Westlaw July 24 – 10 a.m.-12:30 p.m. August 7 - 11:30 a.m.-12:30 p.m. August 21 - 1:30 - 2:30 p.m. Next 2.5 MCLE Credits: 2.5 Skills; 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional July 10 – 10-11 a.m. Transitional (Also NJ) Free and open to the public Free and open to the public 1 MCLE Credit: 1 Skills; Transitional Member: $65 Non-member: $85 Free and open to the public Non-legal Staff: $35 Lexis: I Westlaw: Enviromental Law August 9 – 11:00 a.m. – 12: 00 p.m. Research on Westlaw Next Westlaw: Trusts & Estates Law Westlaw: What’s New on Westlaw 1 MCLE Credit: 1 Skills; Transitional August 21 – 3 - 4 p.m. Research on Westlaw Next Next Free and open to the public 1 MCLE Credit: 1 Skills; Transitional July 10 - 11:30 a.m.-12:30 p.m. July 30 - 1:30 - 2:30 p.m. Free and open to the public 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional Lexis: II Free and open to the public Free and open to the public August 9 – 12:30 – 1:30 p.m. Using Bloomberglaw.com for 1 MCLE Credit: 1 Skills; Transitional Litigation Lexis: I Westlaw: NY Materials Law Free and open to the public August 29 – 10 - 10:50 a.m. July 23 – 10:30 – 11:30 a.m. Research on Westlaw Next 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional July 30 – 3 - 4 p.m. Lexis : Litigation (Also NJ) Free and open to the public 1 MCLE Credit: 1 Skills; Transitional August 9 - 2:00 - 3:0 0 p.m. Free and open to the public Free and open to the public 1 MCLE Credit: 1 Skills; Transitional Lexis : II Free and open to the public Using Bloomberglaw.com for a July 23 – 12:00 – 1:00 p.m. August Corporate Transactional Practice 1 MCLE Credit: 1 Skills; Transitional U.S. Bankruptcy Court Electronic August 29 - 11:05 - 11:55 a.m. Free and open to the public Case Filing System 1 MCLE Credit: 1 Skills; Transitional Westlaw: Introduction to Westlaw August 14 – 10 a.m.-12:30 p.m. (Also NJ) Lexis: Litigation Next 2.5 MCLE Credits: 2.5 Skills; Free and open to the public July 23 - 1:30 - 2:30 p.m. August 7 – 10-11 a.m. Transitional (Also NJ) 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional Member: $65 Non-member: $85 Free and open to the public Free and open to the public Non-legal Staff: $35 July/August 2013 / The New York County Lawyer 11 Ethics Hotline The Committee on Professional Ethics September 1-15 The New York Center for accepts both written and telephone inquiries Glen Schleyer on ethics matters and provides advisory opin - 212-558-7284 ions. For additional information, call the Neuropsychology members listed below. September 16-30 Philip Ross & Forensic Behavioral Science July 1-15 212-421-4000 Ronald Minkoff 212-705-4837 Please Note: Assignments are subject to change. July 15-31 Dr. N.G. Berrill, Director Joseph Vogel Questions to the Hotline are limited to an inquir - 212-997-7634 ing attorney’s prospective conduct. The Hotline does not answer questions regarding past con - August 1-15 duct, the conduct of other attorneys, questions Barry Temkin that are being litigated or before a disciplinary 212-804-4221 committee or ethics committee, or questions of law. This notation shall not be construed to con - [ Over 30 Years \ August 16-31 tain all Hotline guidelines. For a full discussion David Wirtz of Ethics Hotline guidelines, please see the arti - 212-583-2699 cle below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New YorkCountyLawyer . Providing Forensic Consultation to Attorneys NYCLA In The News & the Courts on Psycho-legal Matters

A roundup of recent national and local Hynes and other prosecutors, who he news stories featuring NYCLA and its accused of unconstitutional actions, for members $150 million.“Some of the assistant • Criminal Cases: Competency Issues, Criminal district attorneys involved in his case WNYC Radio were on the first episode of the CBS Responsibility, Extreme Emotional Disturbance, Risk Brooklyn D.A. Show Criticized show and were portrayed in a very June 3 , 2013 favorable light,” said Moses. “If I were Assessment, Sex Offender Workups & Dispositional Recently some people have questioned Mr. Collins’s attorney, I would be con - whether the CBS series about the cerned about that.” Planning Brooklyn District Attorney’s office gives prosecutors an unfair advantage. HuffingtonPost.com NYCLA’s President, Barbara Moses, Wedding Trailblazers: The Reverend commented on this on WNYC Radio, D Talks Officiating Offbeat • Matrimonial & Family Court Cases: citing the case of Jabbar Collins, who Weddings was found guilty of murder in 1995 May 28, 2013 and released in 2010 after a federal In this article about offbeat weddings, Custody/Visitation, Neglect/Abuse, Termination, judge vacated his conviction. Collins is the NYCLA Home of Law is mentioned now suing Brooklyn D.A. Charles as a venue for one such wedding. Delinquency, Family Violence, & Adoptions

• Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders

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WWW.NYFORENSIC.COM 12 July/August 2013 / The New York County Lawyer The Myths about Long-Term Care

Long-term care issues have been every - Myth #3: I’ll pay for my own long- Americans of any age who need help insurance can also help cover the cost of where in the news lately – from stories of term care. paying for those services. Medicaid is care in other locations, such as adult day people needing these services to how the In 2012, nursing home costs averaged currently the largest payer of long-term care centers, assisted living facilities and government is responding. But there is over $91,000 a year nationally, but in care costs in the United States, primarily hospice care. also a lot of conflicting, and even mistak - some regions these costs are sometimes for care in nursing homes. However, en, information. Misconceptions may twice that amount 3. How long can you Medicaid focuses on helping people With long life comes long-term planning. have prevented you from including long- pay for these expenses without jeopardiz - with limited or minimal income and Make a plan for you and your family term care planning into your retirement ing your financial plan or exhausting assets, and in order to qualify for bene - today. For more information on long-term portfolio. But long-term care planning your savings? It may make good sense to fits, you have to demonstrate a financial care insurance, please contact Thomas A. can be a critical component to any com - transfer this financial risk just like you do need for help. Qualifying means spend - Martin, J.D., Agent, New York Life prehensive retirement plan. So now is the with your homeowner’s insurance or auto ing nearly all of your own money on Insurance Company at (914) 626-2024. time to dispel these myths. insurance. Even if you can afford to pay your own care before the government for long-term care services out of pocket, will step in to help. The purpose of this piece is solicitation of Myth #1: I’ll never need long-term why would you want to when you can insurance. An insurance producer (agent) care. transfer the cost to an insurer for premi - Myth #6: My family will take care of may contact you. New York Life Insurance Most people can’t imagine themselves ums that may total a fraction of the cost me. Company long-term care insurance is issued needing long-term care services. But, the of care? The financial, physical and emotional on policy form series ILTC-5000 and INH- U.S. Department of Health and Human stress that full-time care-giving may 5000 with a state identifier and edition date. Services indicates that people age 65 face Myth #4: Medicare will cover my long- place on families can be overwhelming. Examples: for Idaho ILTC-5000 (ID) at least a 40 percent lifetime risk of term care expenses. Many families have struggled to provide (1001) and INH-5000 (ID) (1001) and for entering a nursing home sometime during Medicare does pay for nursing home care for parents or siblings only to even - North Carolina ILTC-5000 (NC) (1001) their lifetime 1. Living a long life may care, but only for a maximum of 100 tually realize that the care required is (Rev. 0606) and INH-5000 (NC) (1001) increase your risk of needing long-term days and if the 3-day qualifying hospital more than they can provide. The truth is, (Rev. 0606) and for Pennsylvania ILTC- care. Isn’t it better to insure against what stay requirement has been met. In addi - sometimes the best way for a family to 5000 (PA) (1001), FLTC-5000 MLP (PA) that risk may do to your family and your tion, Medicare will only pay as long as take care of a loved one needing long- (0503), for Tennessee ILTC-5000 (TN) financial plans? you are showing progress toward recov - term care is to make sure that they have (1001) and INH-5000 (TN) (1001) and for ery. Once your condition becomes stable, access to professional care. With the Texas ILTC-5000 (TX) (0305) and INH- Myth #2: Long-term care is only for even if you are not fully well or back to a advances in home care services, many 5000 (TX) (0305). New York Life the elderly. completely healthy state of being, people needing long-term care are actual - Insurance Company, 51 Madison Avenue, Actually, a surprising amount of long- Medicare rules indicate that benefits will ly able to stay at home, with or near fam - New York, NY 10010. term care services are provided to stop. Also, Medicare does not pay for ilies, and still get the professional care younger people. The U.S. Government individuals to attend an adult day care or they need. References: 1 Accountability Office estimates that 40 for the room and board expenses at an Health Insurance Association of America.A Guide percent of 13 million people receiving assisted living facility. Myth #7: Long-term care insurance to Long-Term Care Insurance. 2007. Page 3. 2Health Insurance Association of America.A Guide long-term care services are between the covers only nursing homes. to Long-Term Care Insurance. 2007. Page 3. ages 18 and 64 2. The unexpected need Myth #5: Medicaid will cover my long- Everyone wants to stay at home. Long- 3 New York Life Insurance Company. Survey of for long-term care could arise at any age term care expenses term care insurance can offer valuable Nursing Home Costs. 2012. for any number of reasons, including ill - Medicaid was developed partially to benefits that may keep you at home for ness, or an accident. cover long-term care costs for as long as possible. Long-term care July/August 2013 / The New York County Lawyer 13 2013 NYCLA High School Essay Contest: First Place Essay

Topic: Should a sports team be pun - individual players that do not affect the What he chooses to do off of the field, in whole. A coach may be involved in a ished for the improper conduct off the performance of the team, and 3) misbe - his personal life , will definitely affect the devastating abuse scandal, like Penn field of its players or coaches? havior of coaches whose actions repre - team’s mood and relationships between State assistant football coach Jerry sent their teams as a whole. players. Nonetheless, other outside factors Sandusky. Players could have been aware By Aglaia Ho can affect the dynamics of a team in the of these incidents, but choose to keep The first category involves serious mis - same way. If a player gets married, gets quiet in order to maintain their position Sports are a popular pastime in America. conduct by an individual player that divorced, or gets sick, the ambiance can on the team. Some might also have been However, what often grasps our attention affects the performance of the entire easily change . Furthermore, the player’s the unfortunate victims of a coach’s abu - in competitive sports, apart from the team. This would encompass, for exam - misconduct off of the field in these situa - sive behavior. When players become excitement and entertainment of a ple, drug use. When a player uses per - tions usually does not affect the team’s entwined in a coach’s personal dilemma, Sunday football game, are the scandals. formance-enhancing drugs, he affects the success. The individual should be held their performance on the field might be When players or coaches of prominent outcome of a game. He could miracu - solely responsible for his misbehavior. In affected due to fear or pressure. In a case sport teams come under fire, the world lously excel during a competition and his the scandal of Jets football player Brett so serious, the entire team needs to take a takes notice. Sport scandals pop up fre - performance can make the difference Favre, there was no reason for the entire hit so that justice can be truly served. quently on professional, college, and between winning and losing . Significant team to be punished for his misconduct. Yet, a coach may also be involved in amateur fields. They range from the championships can be unfairly won He was wrong for texting inappropriate petty scandals in their personal lives, direst, like drug use and abuse, to the because of this individual’s ill-judged content, but his slipup did not affect how which do not have the same gravity as an most trivial, like blemishes in an individ - actions. When dealing with this type of the Jets performed. Thus, he was charged abuse case. In those instances, the coach ual’s personal life. Regardless of how misconduct, the entire team must be pun - for his crime, but the rest of the team was can take full responsibility of his actions serious the transgression, misconduct off ished because its victories were not not. This situation is no different from an and the rest of the team should not . of the field leads to the same conse - achieved fairly. Collective punishment is ordinary citizen committing a wrongdo - quence: a collective punishment. This necessary to maintain sport ethics. It can ing. If a criminal robs a bank, he is the Sometimes, it is difficult to define “fair.” penalty comes in many forms, be it strip - act as an effective deterrent for cheating. one that is prosecuted . If the offender’s When it comes to team sports, “fair” ping the team of its titles or merely dam - This is similar to how society must deal family and friends were not involved in might not entail solely an eye for an eye. aging the reputation of the affected team. with the consequences of the actions of the robbery, they are not tried for having When people are bounded in group Nevertheless, the punishment should an individual for the protection of the connections to the criminal . Collective activities where an individual’s actions always fit the crime. Under certain cir - greater good. We must deal with height - punishment would not be fair or logical. can lead to a Rube Goldberg machine of cumstances, the entire team should bear ened security at the airport, even though cause and effects, sometimes “fair” must the burden of the improper conduct. Still, we are not all terrorists. It is important The third category involves inappropriate be sacrificed. At times, an entire sports occasionally, the individual perpetrator that everyone bears this burden for the behavior of coaches who are leaders and team must be punished for the actions of should take one for the team. sake of international security. overall representations of their teams . an individual . Yet, during other times, Players are bound to follow their coach - teams do not deserve to have ruined rep - A person’s actions must be analyzed in The second category deals with a player’s es’ decisions despite any ethical breaches utations because of the unrelated behav - terms of cause and effects. Do this per - improper behavior that does not affect the that may be involved. Thus, if a coach ior of individual players or coaches. It son’s actions directly or indirectly affect performance of the team. This would manipulates a game, the entire team all depends on the action, the effects of the team as a whole? Does the miscon - include scandals that solely involve flaws should be punished because the miscon - the actions, and the severity of the mis - duct affect the team’s success and per - in a player’s personal life, such as , sex duct can easily affect the outcome of a conduct. formance during a game? scandals and criminal behavior. This type game. This happened during the 2012 of behavior not only makes good gossip, Olympics, when several badminton teams Aglaia Ho is a student at Stuyvestant We can study improper conduct in three but also results in an inadvertent collec - purposely threw a few matches to their High School and the first place winner in categories : 1) misbehavior of individual tive punishment : a ruined reputation for advantage. The teams involved were dis - NYCLA’s 2013 High School Essay players that affect the performance and/or everyone . Nevertheless, the team should qualified. A coach’s actions in their per - Contest, sponsored by the Law-Related success of the team, 2) misbehavior of not be punished for a player’s actions. sonal lives can also affect the team as a Education Committee. Practicing in NYC’s Criminal Courts Aided by Updated Manual 2013 Edition Now Available—Purchase and Help Support a Worthy Cause

The 2013 NYCLA New York City Courts, plea and sentencing issues, pre- Not only is the Manual a fantastic invest - Criminal Courts Manual is an invalu - trial hearings, trials, and post-judgment ment but it also supports a worthy cause. able resource for criminal practitioners issues. The 2013 edition has expanded Because the Manual is produced by in New York City. Since 2010 , NYCLA sections on Alternative to Incarceration NYCLA’s Criminal Justice Section vol - has sold hundreds of copies of the programs and specialty courts , listing unteers, all revenue from sales support Manual to large, medium and small detailed contact information for these the annual Public Service Fellowship firms, law schools, prosecutors , and options. It also contains an entire chapter Essay Contest. Based on this competi - defense attorneys from New York City, devoted to the procedure and practice of tion, NYCLA awards two financial counties in upstate New York and Long criminal court summons, both individual stipends of at least $2,000 to a newly Island, New Jersey, Pennsylvania, and corporate. Additionally, the Manual admitted prosecutor and a newly admit - Connecticut , and Florida. Whether you lists contact and biographical informa - ted public sector defense attorney who are an experienced criminal practitioner tion for judges who sit in New York, each has at least $30,000 in educational or handling your first criminal case in Kings, Queens, and Richmond counties. debt. These stipends help alleviate the New York City, the Manual contains The 2013 edition contains updated case financial sacrifice new lawyers make by critical information in an easily accessi - law, new information regarding bail, and entering public service criminal law with ble format. a new section about Certificates of overwhelming educational debt. Relief from Civil Disabilities and The Manual contains the fundamentals Certificates of Good Conduct. It is an Purchase the Manual—it’s an invest - of criminal law in New York such as: excellent basic resource for anyone ment in your practice and the future of commencement of an action, arraign - involved with the criminal courts of New the profession! Visit the News & ment practices in Criminal and Supreme York City. Publications section of nycla.org.

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Visit News & Publications on NYCLA.org to order your copies today 14 July/August 2013 / The New York County Lawyer Recidivism goal of POP is to reduce incarceration who graduated, two from POP, and one are no longer available. and recidivism. ( see Pretrial Opportunity from SOS (Special Options Services) 8 (Continued from page 1) Program). that the programs helped the government Judge Baer hopes that if and when the to save thousands of dollars by place - program is reinstated that it will be no reports of re-arrests. The program POP is modeled after the state court ment of the offenders in the pre-sentence extended to two years, rather than the also monitors the participants state diversion programs. Sometimes offend - diversionary programs rather than in current one year, and that there will be offenses, if any. ers post-sentence who need further drug prison. 9 The alternatives to incarceration educational therapy, and a psychological treatment are allowed to join the POP approach weeded out low-level offenders component (such as anger management One critical aspect of STAR, which has group. The post-sentence group of from more serious drug managers of training) that evaluates the participants been lost, is the funding for vocational offenders are a part of REAP (Relapse drug distribution chains for treatment of prior to entrance into the program. programs such as welding. Previously, Prevention and Accountability Program). their underlying drug addiction rather STAR used the Second Chance Act 3 POP/REAP offenders are those whose than strict adherence to an ineffective The success rate of the alternative to funds to pay for a participant’s welding drug use led to their crimes. According punitive approach possibly leading to incarceration programs in the EDNY and course at a cost of $2000. The partici - to Judge Gleeson, the “crimes do not continued criminality. It is too early to SDNY has not yet been conclusively pant graduated from both STAR and the involve violence, or being a leader in a measure the recidivism rate for determined. However, anecdotal reports welding program. Funds are no longer drug trafficking organization.” The POP/REAP, or SOS, but early reports are indicate reduced criminality, quicker available to pay for such courses. Judge stated that there must be a “causal encouraging. reintegration into society, and rehabilita - relationship” between the drug use and tion of drug addicts who engaged in According to Judge Irizarry the “cost of the crime. Participants must have a his - Southern District of New York criminality as a result of their longstand - the program cannot be quantified.” It is tory of substance abuse. (SDNY) Program ing addictions. While there is debate the restoration of offenders to being pro - The SDNY runs a program entitled over whether or not this is the purview ductive members of society, and their Since 2012, there have been five gradu - SOAR (Supervision Opportunities to of the federal courts 10 , what is clear, is successful reintegration into society with ates. One very successful graduate had Advance Re-entry). Judge Baer oversees that the bench, bar, pretrial services, and no further criminality, or drug use that her charges dismissed entirely, and was the program, assisted by Magistrate probation services all benefit from mov - are the measurements of accomplishment profiled in a March, 2013 New York Judge Henry Pittman. Begun in 2012, ing offenders out of the criminal justice for the reentry programs. Times article. 6 Another graduate had a SOAR is the first program of its kind in system faster and possibly permanently. drug conspiracy charge reduced from a the SDNY. Judge Baer stated that the EDNY Pretrial Opportunity (POP) felony to a misdemeanor possession SDNY program is patterned after the Laury A. Betha, Phd., Esq. is a member Program charge. 7 The other graduates fared well Eastern District Court of Pennsylvania’s of NYCLA’s Federal Courts and LGBT STAR is one of several drug treatment in terms of sentencing. re-entry program or STAR (Supervision Committees. She is a solo-practitioner court programs in the EDNY. Another to Aid Reentry) begun in 2007. with the Law Office of Laury A. Betha in program with the acronym POP (Pretrial In order to graduate, participants must Fort Lee, NJ. She works collaboratively Opportunity Program) is administered by maintain sobriety for 12 consecutive SOAR has had two “classes” of ex- in New York with George Bundy Smith & Judge John Gleeson and Magistrate months, earn their GEDs if applicable, offenders who are in the process of com - Associates, P.C. Judge Steven M. Gold which begun in and obtain jobs. POP/REAP is not pleting the supervised release part of 2012. 4 POP is administered by the affected by the cuts in Second Chance their sentences. Participants are chosen References Pretrial Services Agency and is directed Act funds because most of the partici - based upon their likelihood of recidi - 1 Ware, Jamie M., The Supervision to Aid Reentry by the Board of Judges. 5 The program is pants have Medicaid funding, or private vism. Participation is voluntary. (STAR) Program: Helping Previously Incarcerated insurance to pay for the drug treatment Participants can choose to remain just on Federal Prisoners Succeed in Transitioning Back to authorized by 18 USC §3154 governing the Community , Philadelphia Social Innovations programs. supervised release without a re-entry pretrial services and supervision of crim - Journal, (March, 2011), Available at , inal defendants. POP is a collaborative program. There have been five male http://www.philasocialinnovations.org/site/index.ph effort of the judges, defense attorneys, Judge Gleeson wrote in the statement of graduates per class aged 30 to 40. Some p?option= prosecutors, and pre-trial services. The reasons for each of the three offenders participants have served sentences as com_content&view=article&id=253:the-supervi - long as 17 years, but some less than ten sion-to-aid-reentry-star-program-helping-previous - 10 years. The offenders have included ly-incarcerated-federal-prisoners-succeed-in-transi - Officers and Directors law in New York City the “major crimes,” but instead are for tioning-back-to-the-community&catid=20:what- over the past 36 years. the most part lower level, non-violent works-and-what-doesnt&itemid=31. (last visited (Continued from page 3) As a Director, he hopes offenders. Most return home to their June 7, 2013). to work on issues of families. 2 Irizarry, D. STAR Program Description, U.S. continue the good work that NYCLA has special interest to attor - District Court been doing. neys such as merit The program is one year long and the Eastern District of New York (September 19, selection of judges and participants are required to sign a con - 2012). Jay G. Safer 3 The Second Chance Act (P.L. 110-199) was equal access to justice. At the same tract agreeing to the rules, and regula - signed into law April 9, 2008. The Act provided NYCLA Member since 2002 time, he would like to see NYCLA tions of the program and agreeing to set grants to “government agencies and nonprofit Safer has practiced law expand its relationship with our larger and meet goals to enhance their chances organizations to provide support strategies and for 40 years and practices community by promoting a variety of of successful reintegration into society. services designed to reduce recidivism by improv - commercial business liti - pro bono activities. The participants should have no re- ing outcomes for people returning from prisons, gation and international arrests. jails and juvenile facilities.” arbitration at Locke Lord Richard A. Williamson “The Second Chance Act’s grant programs are LLP. As a NYCLA NYCLA member since 1972 From 5 to 7 p.m., the participants talk to funded and administered by the Office of Justice Director, he would like to Williamson, who has Judge Baer, or in his absence, Magistrate Programs in the U.S. Department of Justice.” continue making NYCLA meaningful practiced commercial Judge Pittman. The first hour-and-a-half Available at , http://csgjusticecenter.org/nrrc/pro - and helpful to attorneys and enhance litigation for over 40 is a progress report on how the partici - jects/second-chance-act / (last visited June 5, 2013) NYCLA’s role in the legal community years, is a partner at pants are succeeding in meeting job, see also , Justice Department Announces $58 and the public. Flemming Zulack educational, and housing goals. From 5 Million to Improve Reentry Outcomes, Grants Support Improved Probation and Reentry Williamson Zauderer to 7 p.m., the participants receive Programs. Available at , Diana S. Sen LLP. He is looking to instruction from the service program http://www.justice.gov/opa/pr/2012/October/12-ag- Joined NYCLA in 2012 carry on NYCLA’s wonderful tradi - providers, and from the probation 1185.html (last visited June 5, 2013). Sen has practiced law for tions of being of service to the pub - department. 4 The POP program in Central Islip is supervised about 13 years, and cur - lic, the bench and the bar and help - by Judge Joanna Seybert and Magistrate Judge rently works for the U.S. ing our new President Barbara According to Judge Baer, the program is Gary Brown. Department of Labor in Moses for whom he has the highest currently “suspended” while the Federal 5 United States Pretrial Services Agency Eastern the capacity of the regard. Judicial Center evaluates the recidivism District of New York , Pretrial Opportunity Regional Director of the rates of the program participants versus Program, (January, 2012) Office of Federal Jacqueline C. Wolff non-participants. Judge Baer stated that 6 Secret, M., “Outside Box, Federal Judges Offer Contract Compliance Programs Northeast Joined NYCLA in 2012 any evaluation that assesses the first Addicts a Free Path,” The New York Times, Region. As a former national president Wolff, who has prac - “six-months” after the program would (March 1, 2013). of the Hispanic National Bar Association, ticed law for over 25 conclude that the program participants 7 Gleeson, J. Statement of Reasons For Accepting Deferred Prosecution Agreement Dismissing she hopes to help NYCLA expand its years, practices have lower recidivism rates. Charges Entirely (11-CR-00609)(February 28, Hispanic membership and to support Corporate Investigations 2013) (Available from Judge Gleeson), at pp. 11-12 NYCLA’s many diversity initiatives. and White Collar SOAR was supported by the Second 8 Id. at p.22.(The SOS program started in January, Defense at Manatt, Chance Funds Act, but due to sequestra - 2000, and was revamped in January, 2013. The Edward M. Spiro Phelps & Phillips, tion, effective March 2013, the program program focuses on non-violent juvenile and young NYCLA Member since 1977 LLP where she is a partner. She is funds have been cut jeopardizing the adult offenders (18-25) and is supervised by Spiro is a partner at Morvillo looking to help continue NYCLA’s reinstallation of the program. SOAR Magistrate Judges Joan M. Azrach and Cheryl L. Abramowitz Grand Iason & Anello P.C. legacy to promote reforms that can relied heavily on outside providers such Pollak). practicing commercial litigation. He have an impact on both the law and as the Fortune Society to re-acclimate 9 Id. at p. 7, fn. 24. was admitted to the New York bar in public policy . the ex-offenders into jobs and home life, 10 Id. at pp. 25-35. March 1977 and has been practicing but the funds for paying the providers July/August 2013 / The New York County Lawyer 15 SERVICE DIRECTORY TO PLACE YOUR AD CALL 631-427-7000

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Negotiation be willing to pay more for the services parties of common interests and goals that However, the first step was carved into the of an architect in exchange for the have been identified already, as well as Temple of Apollo at Delphi: ‘know thy - architect ordering materials at his trade the time and resources spent negotiating. self.’ By learning about your natural dis - (Continued from page 2) discount, which would not be available A negotiator can generate movement also positions, you can adopt styles and tech - to the client otherwise. Meanwhile, par - by asking hypothetical questions to gather niques that are best suited to your negotia - as belittling the other party’s alternatives, ties negotiating the sale of a business more information and create additional tion, and adapt to varying circumstances. making threats and warnings, walking may agree on a base price plus a per - options. Another strategy may be to table In this way, you can achieve the best pos - out, and table pounding, persevere. 11 centage of the business’ increased rev - a contentious issue and seek agreement sible outcome for your specific clients, enues if they have different expecta - on less difficult items. Although an and success generally as a negotiator. If you are naturally competitive, but want tions about the market value of the impasse can be frustrating, it is important to avoid the pitfalls of competitive bar - business in the future. If it is worth to show a positive attitude and dedicate Clara Flebus, Esq., LL.M., a NYCLA mem - gaining, you should concentrate on ask - more to a prospective tenant to move in yourself to reaching a solution. ber, is an Appellate Court Attorney in New ing more questions, and make a concert - early than it costs the vacating tenant to York Supreme Court, and Secretary for ed effort to understand what is really move out early, the latter may agree on Commitment Arts for Peace, a 501 (c) (3) charity, for important to the other side. Another tip is an early moving-out date in exchange Hopefully, all your hard work in bargain - which she negotiates on a regular basis. to avoid haggling over every issue, and for compensation. Finally, parties who ing and making concessions will produce She is a member of NYCLA’s Appellate consider making concessions on less have different risk preferences can cre - a negotiated solution. But, “[t]he goal of Courts, Arbitration and ADR, and Foreign important items. ate a mutually beneficial agreement by all negotiations is to secure commitment, & International Law Committees, and allocating risk to the more risk-tolerant not merely agreement.” 13 Lawyers Young Lawyers’ Section. Problem-Solving party for a price that is acceptable to the should consider employing devices that Problem-solving requires a set of tactics party that is more risk-averse. 12 may help guarantee the performance of References designed to explore parties’ interests, pri - the underlying agreement, such as secu - orities, and differences that can be inte - rity bonds, deposits in escrow accounts, 1 G. R ICHARD SHELL , B ARGAINING FOR ADVANTAGE , What if the other side is not willing to 28-30 (Penguin Books 2006 ). grated to reach a mutually satisfying disclose its interests, but instead focuses down payments, etc. It is equally impor - 2 See Gary Goodpaster, A Primer on Competitive agreement. In problem-solving, parties on positions and makes extreme tant to anticipate problems that may Bargaining , 1996 J. D ISP . R ESOL . 325, 326 (1996). make big concessions on issues that are demands? Be prepared to deflect these occur in the future. “Time bombs” can 3 See id . at 328 . less important, and small concessions on competitive tactics by sticking to prob - be avoided by including specific clauses, 4 See id . at 327. 5 See SHELL , supra note 1, at 120-121 . those that are more important. A simple lem-solving techniques . Reframe what such as non-disparagement, protection of 6 See id. at 121. way to figure out a party’s priorities is to your counterpart says as an option, sug - trade secrets, limitation on consequential 7 See id. at 125 . ask: “Do you care more about X or Y?” gestion, or possible outcome, and pro - damages, confidentiality, etc., in your 8 See id. at 140-142. Parties can create value in negotiation not pose discussing some other way to term sheet. In addition, a release of 9 See ROBER H. M NOOKIN , S COTT R. P EPPET & only by unearthing shared interests, but claims agreement should be used when ANDREW S. T OLUMELLO , B EYOND WINNING – resolve the issue. Do not fall into the trap NEGOTIATING TO CREATE VALUE IN DEALS AND also by trading on differences. of reacting to hard bargaining. appropriate. DISPUTES , 63-65 (Harvard University Press 2000). 10 See id. at 28-30. Options that exploit differences Impasse Becoming an effective negotiator requires 11 See id. at 24 . between the parties may be found in If there is a fundamental impasse, some - preparation and experience. As a lawyer, 12 See MICHAEL WATKINS , H ARVARD BUSINESS you can use your analytical skills to ESSENTIALS - N EGOTIATION , 60-61 (Harvard different access to resources, future times it is best to take a break and Business School Publishing 2003) . expectations, time preferences, and risk reassess the situation. An effective way to understand the negotiation process. 13 SHELL , supra note 1, at 191 . tolerances. For example, a client may jump start the negotiation is to remind the 16 July/August 2013 / The New York County Lawyer