It's Not Just “Lawyering”

JUNE 2015 VOL. 87 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue It’s Not Just Referrals Reducing Risk “Lawyering” Culture Shift Escrow Accounts The Law Practice Management Issue Engagement Letters Edited by Marian C. Rice THE NEW YORK STATE BAR ASSOCIATION

As a New York State Bar Association member you recognize the value and relevance of NYSBA membership.

For that, we say thank you.

Your commitment as members has made NYSBA the largest voluntary state bar association in the country. You keep us vibrant and help make us a strong, effective voice for the profession.

David P. Miranda David R. Watson President Executive Director BESTSELLERS FROM THE NYSBA BOOKSTORE June 2015

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Marvin N. Bagwell New York City Brian J. Barney Rochester Elissa D. Hecker Irvington Barry Kamins Brooklyn Jonathan Lippman New York City John R. McCarron, Jr. Carmel Eileen D. Millett New York City Thomas E. Myers Syracuse Gary D. Spivey Colorado Springs, Colorado Sharon L. Wick Buffalo Lawyer Referral and MANAGING EDITOR Daniel J. McMahon Albany Information Service e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Interested in expanding Tarrytown PUBLISHER David R. Watson your client base? Executive Director

NYSBA PRODUCTION STAFF EDITOR Joan Fucillo DESIGN Join the Lawyer Referral & Information Service Lori Herzing Erin Corcoran Dave Cape

Why Join? COPY EDITORS > Expand your client base > Benefit from our marketing strategies Alex Dickson Reyna Eisenstark > Increase your bottom line Howard Healy Kate Mostaccio Overview of the Program EDITORIAL OFFICES The New York State Bar Association Lawyer Referral and Information Service (LRIS) One Elk Street, Albany, NY 12207 has been in existence since 1981. Our service provides referrals to attorneys like (518) 463-3200 • FAX (518) 463-8844 you in 44 counties (check our website for a list of the eligible counties). Lawyers www.nysba.org who are members of LRIS pay an annual fee of $75 ($125 for non-NYSBA members). Proof of malpractice insurance in the minimum amount of $100,000 is ADVERTISING REPRESENTATIVE required of all participants. If you are retained by a referred client, you are Fox Associates Inc. required to pay LRIS a referral fee of 10% for any case fee of $500 or more. For 116 West Kinzie St., Chicago, IL 60654 additional information, visit www.nysba.org/joinlr. 312-644-3888 FAX: 312-644-8718 Sign me up New York: 212-725-2106 Los Angeles: 805-522-0501 Download the LRIS application at www.nysba.org/joinlr or call 1.800.342.3661 or Detroit: 248-626-0511 e-mail [email protected] to have an application sent to you. Phoenix: 480-538-5021 Atlanta: 800-440-0231 Give us a call! Email: [email protected] EUGENE C. GERHART 800.342.3661 (1912 – 2007) Editor-in-Chief, 1961 – 1998 CONTENTS JUNE 2015 IT’S NOT JUST “LAWYERING” The Law Practice Management Issue Edited by Marian C. Rice 10

14 Strategic Referral Relationships Enhance Growth by Carol Schiro Greenwald 19 Reducing Legal Malpractice Risks Preserving a Statute of Limitations Defense by Andrew S. Kowlowitz and Stefanie A. Singer 23 How to Shift Law Firm Culture DEPARTMENTS One Firm’s Story 5 President’s Message by Donna Drumm 8 CLE Seminar Schedule 28 Follow the Money 32 Law Practice Escrow Accounts: The Dangers of by Victor M. Metsch Excessive Delegation and Deference 38 Point of View by Henry G. Miller by Matthew K. Flanagan 40 Burden of Proof 34 Start Out Right by David Paul Horowitz Engagement Letters 42 Meet Your New Officers by Marian C. Rice 49 Attorney Professionalism Forum 52 New Members Welcomed 44 Disability Determinations, Judicial 61 Classified Notices Authority and CPLR Article 78 61 Index to Advertisers Part II 64 The Legal Writer by Chet Lukaszewski by Gerald Lebovits

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 © 2014 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 $30. Library subscription rate is $200 annually. 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 | June 2015 | 3 Advised and administered by The New York State Bar Association Insurance Program

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Call 1.855.USI.0100 PIN 406 Call today for more information on the insurance products available to New York State now for your FREE quote. Bar Association members, including professional Or go to www.mybarinsurance.com membership credit and risk management credit. PRESIDENT’S MESSAGE DAVID P. MIRANDA

The True Administration of Justice is the Firmest Pillar of Good Government

“To no one will we sell, to no one will we refuse or delay right or justice.” – Magna Carta

hese simple words from cen- The heart of the New York State To better understand the chal- turies ago endure and remain Bar Association’s mission is to pro- lenges we face, we have formed the Trelevant today. These words fit mote the rule of law and ensure Committee on the New York State perfectly as a caption to a photo of access to justice. In the year ahead, Constitution. The time is right to seri- one of our recent political leaders our Association will embark on initia- ously consider whether the governing who lost sight of why they were cho- tives to provide greater support to structure that has served us for so sen to serve us, or on a sign held by a programs that offer opportunities to long remains the best for us now and protester for whom our justice system bring access to justice to the poor and to accept the challenge to do better. has failed. underserved. We will work through- The Committee will be led by Henry Eight hundred years ago this out the state with our sister bars and Greenberg, a recognized leader on month, Magna Carta gave birth to legal service providers to help narrow the topic. The Committee will review our concept of fundamental liberty the justice gap. By providing equal and make recommendations about and justice. That concept journeyed justice to the poorest among us, we our State Constitution, and promote to our American colonies where it are all served for the better. initiatives designed to educate the was not merely accepted, but culti- legal community and the public. We vated, and ultimately ingrained in The State Constitution must advance the understanding that our government, constitution and the In recent years, our state has faced reforms to our justice system and hearts of the American people. Our the harsh realities of fundamental reforms to our state constitution are Bill of Rights develops the principles flaws in our justice system. Our not academic theories, but instead, in Magna Carta, assuring our citizens criminal justice system is more core necessities. a fair trial by jury, due process, and dependent on incarceration than protections from cruel and unusual rehabilitation; our grand jury sys- Court Restructuring punishment. Magna Carta marked the tem has lost our public’s confidence One significant issue is reform of beginning of the idea of a higher law, and needs reform; our system of New York’s court structure. Archaic one that is not susceptible to manip- separate courts prevents our great provisions in our state constitution ulation either by legislative acts or state from moving forward efficient- have built a patchwork system that executive mandate, one that no man ly. These issues and many more has become unnecessarily complex or woman, no matter how powerful, need our attention, our resources, and antiquated. While other states can rise above. It is this very idea of our resolve. We must use the col- have modernized their outdated guaranteed freedom and fairness, rec- lective strength of our voices and court systems, New York’s endures. ognized and embraced by our found- experience to play a positive role As a result, we suffer the frustration ing fathers, that is at the heart of the in evaluating and providing recom- and expense of unnecessary hurdles supremacy clause of the United States mendations with regard to those Constitution and our contemporary issues that impact our legal system David P. Miranda can be reached at concept of the rule of law. and our constitution. [email protected].

NYSBA Journal | June 2015 | 5 PRESIDENT’S MESSAGE When you love what you do, it shows. and roadblocks that affect taxpayers state, it also allows appellate courts the adoption of stringent criteria for and municipalities alike. Businesses to review documents already on file, its implementation and duration. and the business of our state are and maximizes time and cost saving stymied and drained of resources at benefits by reducing the number of Ethics Reform NAM ranked one of the top 2 ADR firms in the U.S. for the 2nd straight year a time when every dollar is precious. documents that would need to be Events taking place at the highest lev- National Law Journal Reader Rankings Survey Our Association has followed this filed and printed. els of state government have brought the issue of ethics reform to the fore- NAM ranked #1 ADR firm in NY for the 4th straight year front of today’s political discussion. Eight hundred years ago this month, In 2010, then-President Stephen P. New York Law Journal Reader Rankings Survey Magna Carta gave birth to our concept of Younger created the bipartisan Task Force on Government Ethics in NAM Mediators ranked #1 and #3 in the U.S. fundamental liberty and justice. response to the public’s increasing National Law Journal Reader Rankings Survey loss of confidence in state govern- crucial issue with great interest and Criminal Justice Reform ment; recent scandals involving state worked tirelessly to present a compel- We must also look to be a productive officials have only exacerbated the 7 of the top 10 Mediators in NY ling case for statutory and constitu- part of the dialogue on grand jury public sentiment. New York Law Journal Reader Rankings Survey tional reform as well as other means reform. Compelled by recent grand Our Task Force proposed recom- needed to modernize our court sys- jury decisions in our own state and mendations for reforming public 6 of the top 10 Arbitrators in NY tem. We support the consolidation around the country, various propos- sector ethics laws, focusing on four of our state’s major trial courts into als have emerged to reform our grand areas: (1) improving the structure of New York Law Journal Reader Rankings Survey a two-tier system wherein our cur- jury system. In the midst of present the state’s enforcement mechanisms rent nine distinct courts are repre- conversations about the current crisis in the area of ethics, consistent with sented by a statewide Supreme Court in confidence in our criminal justice our notions of fairness and due pro- and a statewide District Court. Under system, we must approach potential cess; (2) enhancing the ability of state such a restructuring, we have pro- reforms carefully, in a way that bal- prosecutors to bring criminal charges posed that the constitutional cap on ances the scales of our criminal justice where a public official failed in his Supreme Court Justices be abolished, system. Our Association, made up or her obligation to provide honest and that a Fifth Department be added of prosecutors and defenders, public services to the public; (3) enhanc- to the Appellate Division. and private attorneys, will work to ing requirements of public disclosure Restructuring our courts will not ensure that our voice embodies bal- where needed to increase transpar- alone suffice to cure our justice sys- ance in reforms that ensure our crimi- ency and the public’s knowledge of tem, however. The Association has nal justice system effectively and fair- potential conflicts; and (4) modern- long been a proponent of a consti- ly addresses those who break the law izing the ethics laws applicable to tutional amendment to implement and lets our law enforcement officials municipal and local governments. commission-based selection of judges, do their jobs with dignity and respect. Although the law has changed since a system that has served us so well at NYSBA has introduced compre- the report was issued to reflect some our Court of Appeals. Reform of the hensive initiatives intended to make of the concerns we had raised, we selection of judges will enhance public our criminal justice system more fair believe that these recommendations trust and confidence in the legal sys- and efficient in the hope that we can express a policy that remains crucial tem. Implementation of a commission- significantly reduce the tragedy of and relevant today. We are commit- based plan to appoint judges would wrongful conviction. Our Association ted to establishing a climate of ethi- eliminate the negative influence of has been at the forefront of the effort cal conduct that reinforces the public contested elections and provide an to require video recording of inter- interest and reinvigorates our citizens’ environment where the focus remains rogations as a way to help improve confidence in our state’s government. on the competence, temperament, and the criminal justice system. We helped I look forward to the challenges integrity of potential judges. secure funding for recording equip- of the year ahead with optimism and We have also made great strides in ment in our state budget; we collabo- vigor, knowing that the driver of our implementing the recommendations rated with several district attorneys Association’s initiatives and positions of our Task Force on the Electronic to implement a pilot project; and we comes not from political philosophy, Filing of Court Documents, which continue to promote the goal of man- but from our core beliefs and values, include the State Bar’s support of datory recording of custodial interro- and the experience and diversity of universal mandatory e-filing. E-filing gations. NYSBA also supports reforms our members. It is not only our diver- ® not only helps ensure uniformity in in the use of solitary confinement in sity of race, creed, gender and geog- The Better Solution the practice of law for attorneys prac- our prisons and jails by advocating raphy, but our diversity of thought ticing in different courts across the a profound restriction on its use, and which is our greatest strength. n 122 East 42nd Street, Suite 803, New York, New York 10168

6 | June 2015 | NYSBA Journal Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 | www.namadr.com When you love what you do, it shows.

NAM ranked one of the top 2 ADR firms in the U.S. for the 2nd straight year National Law Journal Reader Rankings Survey NAM ranked #1 ADR firm in NY for the 4th straight year New York Law Journal Reader Rankings Survey NAM Mediators ranked #1 and #3 in the U.S. National Law Journal Reader Rankings Survey 7 of the top 10 Mediators in NY New York Law Journal Reader Rankings Survey 6 of the top 10 Arbitrators in NY New York Law Journal Reader Rankings Survey

The Better Solution® 122 East 42nd Street, Suite 803, New York, New York 10168 Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 | www.namadr.com NYSBACLE Tentative Schedule of Summer 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.

Traditional and New Trends in Trade Book Employment Law 2015: Current and Cutting-Edge Publishing Issues for the Corporate Counselor and General (9:00 a.m. – 12:00 p.m.; live & webcast) Practitioner June 12 New York City (live & webcast) June 30 New York City Nuts and Bolts of Contract Drafting (live & webcast) First Time in the Summer! June 16 New York City Bridging the Gap – Summer 2015 (two-day program) The Evolving Rules of Professional Conduct: August 27–28 New York City (live program) Building Your Practice and Staying at the Cutting Edge Albany; Buffalo (video conference from NYC) (9:00 a.m. – 12:50 p.m.) June 16 Long Island June 19 Syracuse June 22 Rochester June 23 New York City; Westchester June 25 Buffalo June 26 Albany; Ithaca

Coming this Fall! Starting a Practice II Business Organizations E-Health Henry Miller Securities Arbitration Bridging the Gap, Fall 2015

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 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. NEW YORK STATE BAR ASSOCIATION Grow Your Practice: Legal Marketing & Business Development

Grow Your Practice introduces attorneys to marketing and management resources that focus on clients and complement today’s dynamic legal practice.

Order Now! NYSBA Members $50 | Non-members $65 PN:41265 • 302 pp., softbound

1.800.582.2452 www.nysba.org/pubs Mention Code: PUB3077 It’s Not Just The Law Practice Management Issue Edited by Marian C. Rice

became a lawyer because I like to practice law. I was project manager, crisis management consultant, finan- lucky enough to stumble upon my chosen area of cial analyst, psychologist or chief bottle washer, but Ipractice, representing attorneys, early in my career I quickly learned that being a good lawyer involves and never looked back. Contrary to popular belief, components of all these jobs. Practicing law may start attorneys make the best clients. I love to advocate their with delivery of services to clients, but it certainly positions, present written arguments, distinguish my doesn’t end there. adversary’s precedent, prevent and/or fix thorny situa- Frank H. Wu, Chancellor and Dean of the University tions, act as a sounding board and fashion remedies that of California Hastings College of the Law, writing for the let everyone get on with their lives. Huffington Post Blog, nailed it when he observed that I did not choose to become a business manager, “[v]ery few, if any, of the law firms that have ‘failed’ has administrator, marketing guru, public relations maven, foundered because the people employed there were lousy accountant, human resource department manager, lawyers.” Law firms fail from lack of good management:

10 | June 2015 | NYSBA Journal “Lawyering”

too much space; too much debt; too little revenues; too rich CLE offerings. Our goal is to direct the attention of much disagreement on how to divide the revenues; too the many, many talented lawyers out there to resources much emphasis placed on growth for growth’s sake; too that will bump up their skills in managing the practice of much faith (and money) sunk into lateral attorney com- law. The Committee is dedicated to providing resources mitments; too little attention paid to developing talented that enable attorneys to obtain the information needed attorneys within the firm; too much ego; too little leader- to manage their practices and get back to the primary ship; too much emphasis on the bottom line; too little goal of representing clients. Through CLEs and materi- respect afforded the firm’s culture. The list goes on and als located on the NYSBA website, the LPM Committee on. Not on the list? Bad lawyers. provides lawyers, law firm managers and legal profes- At the NYSBA Law Practice Management (LPM) sionals with information on practice management trends, Committee we start with the premise that lawyers will marketing, client development, legal technology and hone their “lawyering” talent elsewhere with NYSBA’s finance. Whether you’re a solo practitioner or a manag-

NYSBA Journal | June 2015 | 11 ing partner at a national law firm, you’ll find law practice the corrosive effect on a law firm is immeasurable. In a management materials designed to meet your day-to-day light-hearted style quite unlike the scholarly content of practice needs. Checklists, best practices, publications his informative blog, www.legalvictor.net, Victor drives and continuing legal education programs provide up-to- home the qualities we all want, look for and aspire to, as date information and practical tips to help you efficiently law partners. manage your law practice. Andrew Kowlowitz and Stefanie Singer gave us great In short, law practice management has endless facets, ideas on how to document the end of the client-attorney and we are pleased to showcase some diverse topics relationship. In my article, we’ll do a quick rewind and designed to enhance your “non-lawyering” skills in this talk about best practices in documenting the start of the volume of the Journal. client-attorney relationship – the engagement letter. I Even the best lawyer on earth has little to do without know. It is difficult to manage all these administrative clients. Marketing guru Carol Schiro Greenwald outlines tasks. But a well-thought-out engagement letter is not

Even the best lawyer on earth has little to do without clients.

step-by-step, focused strategies for effectively developing simply an administrative task – it is a substantive blue- and maintaining referral networks as a means of grow- print from which the legal services you will be rendering ing a law practice. Her innovative suggestions on how for your client flows. Treat it as such and you will man- to cultivate dependable referral sources open limitless age your client’s expectations and strengthen the client- opportunities for the thoughtful reader. attorney relationship. Take it from me – nothing disrupts the productive Finally, for those of you who really enjoy the finer practice of law more than having to defend a legal mal- points of trial practice and have had quite enough of practice claim. My colleagues Andrew S. Kowlowitz and the non-lawyering aspects of our profession, tune in to Stefanie A. Singer, of the law firm Furman Kornfeld & the Point of View of the incomparable lawyer’s lawyer, Brennan LLP, will let you in on a simple practice tip that Henry Miller of Clark Gagliardi & Miller, P.C. One of the will support a rock-solid defense to certain claims – and lowest moments of my CLE lecturing life was following provide you with a great marketing tool if used correctly. Henry’s extraordinary reenactment of the closing argu- No spoiler alert needed here – read the article. ments in Inherit the Wind. As the silence following his Donna Drumm’s experience spans all aspects of the oratory met thundering applause, stunned by his mag- legal profession, from practicing attorney to bar execu- nificent performance I miserably slunk to the podium tive director to entrepreneur. Her thoughtful article pro- to preach to recently admitted attorneys about the com- vides valuable information on firm culture – and how to paratively dreary principles of risk management. In his develop one in the face of a rudderless environment, be lesson-filled column and with his incomparable style, it a solo practice or an established firm. The real life case Henry profiles six excellent reasons why the peremp- study of one firm’s concerted effort to change its culture tory jury challenge is a necessity in our “perfect system to comport with the principal attorney’s personal beliefs of justice.” while increasing profitability and – amazingly – having I hope you enjoy this issue of the Journal and ask that fun, certainly gives one food for thought. you check out the LPM resources on the NYSBA website. Speaking of lateral hires, my much-missed former Let us know if you have a story you’d like to share that partner Matthew K. Flanagan explores one of the areas will help our members manage their practices, and please of law practice management that garners the most unfa- let us know if you have a topic you would like to see us vorable publicity when things go wrong. Matt echoes address. You can contact us at [email protected], or visit us my often expressed sentiment – there is little upside for on the website, www.nysba.org/LPM. n the attorney holding funds in an escrow account and, yet, there is tremendous exposure. His article explores not just the parameters of the ethical rules governing an Marian C. Rice, Editor of this issue of the Journal, the current co-Chair attorney’s escrow obligations but also the lessons learned of the NYSBA Law Practice Management Committee and past President from the strict application of the rules. of the Nassau County Bar Association, is the chair of the Attorney Liability Please: take the “pop quiz” authored by one of my Practice Group at the Garden City law firm of L’Abbate, Balkan, Colavita favorite attorneys, Victor Metsch of Smith Gambrell & & Contini, LLP and has focused her practice on representing attorneys in Russell, LLP. We can be scholarly, innovative attorneys professional liability matters for more than 30 years. at the top of our fields but if we are not “good” partners,

12 | June 2015 | NYSBA Journal

Carol Schiro Greenwald, Ph.D. ([email protected]) is owner of the New York–based consulting firm MarketingPartners. Ms. Greenwald helps firms create targeted growth strategies built around a lawyer’s or firm’s best clients and works with firm leaders to use tools such as alternative fees and legal process management techniques. The author of Build Your Practice the Logical Way: Maximize Your Client Relationships, Ms. Greenwald held a post-doctorate Eli Lilly fellowship at the Bunting Institute of Radcliffe College. She received her Ph.D. from The Graduate Center, City University of New York (CUNY).

Strategic Referral Relationships Enhance Growth By Carol Schiro Greenwald

referral is defined as “the act, action or an instance focus on identifying and establishing relationships with of referring,”1 or “a person recommended to such attorneys. The attorney’s value proposition would A someone or for something.”2 The verb “refer” explain how sharing client work with the boutique firm includes an array of meanings: enhances the referrer’s capabilities and guarantees a con- • “To think of, regard, or classify within a general tinuation of a similar level of client service. category or group”; Referrals can also be about recommending “for some- • “To allot to a particular place, stage or period”; thing” instead of someone. The something could be a • “To send or direct for . . . information or decision”; client request that is far afield from your expertise but • “To have relation or connection”; easily handled by a member of your referral circle. For • “To direct attention usually by clear and specific example, a mother needs a baby sitter, child therapist or mention.”3 after-school program. Or someone needs a car mechanic, Lawyers who view referring as a strategic process cre- doctor, broker, real estate agent, banker or accountant. ate a multi-layered approach that incorporates most of Having access to varied skill sets of vetted members of the meanings of the verb “refer.” Their process focuses on your referral network adds to your “social capital” – your finding referral sources to create connections, to recom- ability to be a connector, to introduce your contacts to mend, to send information, or to ask for something. Iden- others who can fulfill their needs. tifying, developing, monitoring and rewarding referral In this article we will look at referrals as a strategy. We relationships make sense as a strategy when they are all will identify different purposes, implementation activi- directed toward your firm or personal business develop- ties and ways to measure and reward. ment goals. For example, if the goal of an attorney in a boutique Referral Strategies firm is to cultivate referrals from other attorneys who Typically, attorneys see referrals as an ad hoc byproduct either do not practice in the same area or who often of networking and visibility activities such as blogging, find themselves with unsuitable opportunities that they newsletters, speeches, etc. They spend scant time think- pass along, then a strategic referral strategy would ing about the reason for wanting a referral in the first

14 | June 2015 | NYSBA Journal place, the kind of referral they want, or the process for Step I: Personal “Belly-Button” Analysis developing a strong, effective referral relationship. Think about what you do now and where you want to Referrers can come from a variety of sources: be in five or 10 years. Break down your practice into the 1. Colleagues, past and present, in your practice area parts you like and the parts you would prefer to hand off or a complementary one to others. For some, client counseling is their sweet spot, • Colleagues in various professions who all service for others it’s trial work or crafting the legal strategy. a key client Do you like the hand-holding and drama of a contested • Colleagues in your field who can hand off clients divorce, the high stakes of a multimillion dollar merger, too small for them to service or the “feel good” sensation when you work for legal aid • Colleagues in complementary fields whose clients clinics that represent those who cannot afford a private will need your expertise lawyer? 2. Vendors in your work and private life Once you’ve identified your ideal practice situation, 3. Clients past and present you need to think about the areas of your current practice 4. People who know of you through your outreach that will enable you to do more of your preferred kind activities of client interaction. For some attorneys, this just means • e.g., in-person or online networking, writing, more of what they are doing today. For others it may speaking mean some retooling to add a new sub-practice area or 5. Friends and family expand into a totally new arena. For example, a trust and • College and law school alumni estates attorney might want to segue into special needs • Parents of children who play on the same sports law or a corporate attorney might want to focus more on teams as your children local private business clients. • Members of your church or synagogue This leads to the next part of your personal inventory. “If you don’t know where you are going, any road will What kind of client do you prefer? Do you like working get you there.”4 To decide where to find your best refer- with in-house counsel or with businesses that don’t have rers you need to begin by defining your desired results. staff attorneys? Do you prefer corporate work or work To know how you want referrers to help you, you must with individuals? Do you want a national practice or a first know what you want. Do you want referrers to: local practice with more in-person face time with clients? • Help you build a particular kind of practice? Next, you want to look at the characteristics of the cli- • Add more of a specific kind of client? ent base you have selected. One way to begin this analy- • Complement your own service offerings to your sis is to focus on the 20% of your clients that produce clients? 80% of your business. Go back five years if you can and • Provide service resources such as complementary chart those clients in terms of their industry, legal needs, legal expertise or counsel from other professional revenue, and culture. areas? The “80/20” focus presumably overlaps with your Beginning with the end result, six steps will take you expertise concerning the needs, desires, chemistry and full circle through a referral strategy cycle. We will look constraints associated with those kinds of clients. Twen- at these steps in the rest of the article. ty-first century clients don’t want to pay for learning- curve time, so by aiming for more clients like those in Referral Strategy Cycle your “80/20” you should be focused on areas where you have sufficient knowledge and expertise. Personal Measure, "Belly- The final step is to combine the data into a concise Evaluate, Button" statement of your growth goal: what you want to do Revise Analysis and for whom. You may want to augment this goal with a view of the marketplace by creating a SWOT analysis (Strengths, Weaknesses, Opportunities and Threats), which considers the opportunities you are looking for in terms of your own areas of strength and weakness, Strategy Niche, Implemen- Targets, alongside the marketplace’s opportunities and threats. tation Persona For example, current weaknesses might need to be rem- edied with CLE courses if you plan to expand into a new area or additional personnel if you plan to grow quickly. Marketplace opportunities include positive trends in the prospect’s industry or demographic cohort, develop- Opportuni- Elevator ments related to the legal areas you want to focus on and ties Within Speech your own reputation. Threats would include competitors Niche or negative trends.

NYSBA Journal | June 2015 | 15 Your referral strategy should be constructed to further your criteria Then narrow the list of possibilities down the practice growth goals you just put together. to the 10 to 20 people who seem most relevant to your goals. As you move forward, this initial list will change. Step II: Define a Niche and the Targets Within It You will look for specific kinds of referrers and add them The niche can be defined in terms of the type of client, to the list, moving others off the list. a specific need, a geographic location, a specific service and/or your specific area of expertise. Selecting a niche Step V: Elevator Speech begins by identifying a broad client category: shipping Once you have an initial list you want to begin to reach companies or grocery stores or restaurants; baby boom- out to the initial 20 to discuss your mutual interests. But ers, entrepreneurs, elderly couples. Then drill down to a before you do that, create your elevator speech. This is sub-group, such as retiring baby boomers, tech entrepre- a major step because a referral-based growth strategy neurs, divorcing elderly couples. Or maybe it’s shipping requires you to educate your sources so that they know companies that move freight, national chains of grocery what you are looking for. stores, fast-food restaurants. You can drill even further You want your referral sources to: down to, say, employment issues in your company niche • Remember you or health issues among individuals. The more precisely • Articulate clearly what you do targeted the niche, the easier it is to develop referral • Memorize you – keep you top of mind strategies. • Prefer to refer prospects to you.5

Lawyers who view referring as a strategic process create a multi-layered approach.

Once you have a niche, use the data you collected to An elevator speech should be short and focused. Its create a prospecting target – a “Target Persona.” A per- purpose is to encourage conversation and follow-up sona is constructed to represent your perfect client. For questions, not anticipate them. The content should focus example, if your target is a business, identify the kind of on the benefits of your service for the target population business, industry, location, who would be your contact or niche you share with the referrer. For example, “We person, kind of problem, and legal solution. For a person, work with families with special needs children [target]. include age, gender, location, need, and legal solution. Cre- Using my knowledge of special needs opportunities and ating a target persona makes it easier to craft an elevator regulations and my background in trust and estate law speech that focuses on exactly what you are looking for. [features], I help them plan a very secure future for their child [benefit/value].” Step III: Identify Opportunities Within the Niche Asking someone for an introduction to anyone usu- The search for referral sources begins by identifying ally leads to no one. When the referrer’s notion of what people and places associated with your niche and target you want and why is vague you tend to fall off the radar. population. You want to know: Glance back at the initial definitions of “refer” and you • groups they belong to – professional associations, will understand why educating referral sources as to networking groups, affinity groups; and the focus and results of your endeavors in very specific • where they go for information they consider truthful terms makes it easier for the referrer to know the kind of and reliable. introduction that will be most beneficial. If you ask for The place to begin to find this information is to ask a precise kind of recommendation that is relevant in a your “80/20” clients who represent the niche or target, or precise kind of situation, the referral is more likely to put colleagues who share the same target market. Join Linke- two and two together correctly. dIn groups focused on your target niche or target persona and follow conversations to understand what they care Step VI: Referral Strategy Implementation – about and value. What Goes Around, Comes Around Now you are ready to create your strategic referral Referral relationships are about reciprocity. Often you network. will have to “go first.” Introduce a possible referral source to some of your contacts, suggest mutual marketing Step IV: Identify Strategic Referrers activities or befriend them in other ways. Those who only Begin by looking through your contact list for everyone take are soon dropped. with links to your persona’s characteristics, needs or solu- You are looking for people who will take the time to tions. You can also search LinkedIn for contacts who fit make “engaged introductions.” “An engaged introduc-

16 | June 2015 | NYSBA Journal Referrals

Referral Language: Fool’s Gold to Solid Gold What do you do well? What do you most like to do? Fools’ Gold: “Call my friend Charlie and tell him I Why do people buy what you sell [i.e., the benefits of said to call.” what you do]? Gold-plated: “I will make an email introduction to How do you provide value? Charlie and cc you.” [weak] Elevator Speech [20-25 words] “I will make an email introduction to “Core talkable difference”: what sets your offer Charlie and tell him why I think the two apart from others? of you should connect.” What kinds of referral sources can lead you to your Solid Gold: “I will set up a meeting with the three ideal client? of us.” Location, occupation, relationship to you, expertise Referral Courtesy: The Rule of Three What kinds of referral sources can help you sell more 1. Beginning: Thank the referrer when a referral is of the identified product or service? made and connect quickly with the referred. How can you add value to your referral sources? 2. Middle: Update the referrer if you connect with the referral. How will you educate them about your focus and capabilities? 3. End: If you get work, let the referrer know at the beginning and end of the engagement. If you get How will you make your message relevant to their the introduction but not the work, still thank the lives/needs/concerns? referrer. What activities/vehicles will you use to get your message across? Referral Strategy Worksheet How will you measure the value of each source? Directions: Fill in these areas as a prelude to selection of a referral strategy focus. Once you’ve answered these questions, craft a strategy Ideal client description: factual and emotional- for the next six months with activities, desired outcomes, chemistry responsibilities, due dates, estimate of success upon completion, next steps. Describe the product or service you want to sell:

Sample Tracking Form

Name/Title/ How did you meet Activities planned Number of referrals Number of referrals Names/Revenue of Company of Referral the Referral Source? with the person – FROM them TO them current clients from next 6 months the Referral Source

tion is a collaborative effort where the referral source example, if you want to focus on other lawyers, go to bar works with you to make sure you get connected to the association events. If your best referral sources are bank- new prospect.”6 When you work in concert with your ers or accountants, join their associations. Looking for referrer, it is easier to learn more about the prospect and more client referrals would lead to involvement in their customize your pitch based on “inside” information. schools, clubs, communities, etc. Working in tandem with your referrer also increases the You will want to limit your key referrer list to a small chances of making a solid connection because the pros- number of people because the rule of thumb for staying pect’s trust in the referrer naturally extends to you. top of mind is some form of meaningful communication Begin networking in-person and online in venues fre- every six to eight weeks. The contact need not be in per- quented by people who are or could become solid referral son. You could forward a relevant article, speak at one of sources. Finding the best networking locales is an itera- their events or write a piece for one of their newsletters tive process. If one group doesn’t work out, move on. For or blogs. To do this well requires attention to detail. If you

NYSBA Journal | June 2015 | 17 send someone something that is not relevant to them, the The creation of such groups requires an enormous message is worse than sending nothing at all. amount of trust among the participants. You will be shar- Since a referral strategy is a process rather than a ing confidences and strategies that you don’t want turned series of sporadic events, it is important to create habits against you. On the other hand, when done well these that encourage attention to your program. Schedule groups can give your targeted marketing a trampoline- time in your calendar to make appointments, reconnect. like boost. The membership will be chosen based on your Be sure to allow enough calendared time for meetings growth goals. so that you can prepare beforehand and summarize afterward. VIII. Metrics • Before a meeting: Even if the person you are meet- Typically when asked for a referral, attorneys give three ing as part of your strategy is a close friend, take a names – usually the last three people they met with or minute to Google him to see if anything new might talked to. A more strategic response would be to track be of interest. If the person is a new contact, Google referrals in and out, and give one name – the name of her so that you will be able to ask informed ques- someone who has been a good resource for you and who tions and steer the conversation to already identified you think will have chemistry with your client. The chart common interests. on page 17 is a sample tracking form that you can use in

Referral relationships are about reciprocity. Often you will have to “go first.”

• After the meeting: Take 10 minutes to write down an Excel spreadsheet. Firms with CRM programs can cre- the positive and negative parts of the meeting in ate reports that provide similar data. your CRM (customer relations management) system, in Outlook, or on an Excel spreadsheet. You need Some Final Thoughts to do this while the meeting is fresh in your mind A strategic referral process will maximize your business because as the event recedes your memory of it will development time, produce vetted prospects, lead to cli- change. You also want to note down your next steps ents who value what you want to sell, and create friend- – content and timing. ships. Just remember a few to-dos: • Be very honest with yourself when you create your VII. Personal Referral Circles growth strategy and ideal client. Personal referral circles are a more sophisticated referral • Think both wide and deep when you build your strategy. They are affiliations and alliances through which contact list. you work closely with a carefully selected group of refer- • During in-person meetings, talk less and listen rer contacts to reinforce each other’s resources and to more. make introductions that help each other’s practice. Such • Look for ways to help your referral sources – give to groups can serve a variety of purposes: get. • Mastermind groups that focus on specific member • Plan and document your activities. problems, offering advice on ways to resolve issues • Measure results and retool as needed. that reflect their own backgrounds and capabilities. • Enjoy the process and take pleasure in the • Client-centered groups that include key advisors rewards. n to one client who meet on a regular basis to share notes and discuss ways to produce better results for 1. Webster’s Ninth New Collegiate Dictionary (1986). the client. These groups are often an excellent idea 2. Dictionary.com. for solos and small firms interested in obtaining the 3. Webster’s Ninth New Collegiate Dictionary (1986). kind of clout large firms get from client teams. 4. Attributed by some to Henry Kissinger, a very similar sentiment was put • Prospecting affiliations that share networking and forth in Alice in Wonderland. visibility opportunities with each other. 5. Peter Helmer, “Building a Referral System,” Speech Handout (Dec. 2014), www.peterhelmer.com/wordpress/wp-content/uploads/Peter-Helmer- • Knowledge-sharing groups that meet regularly to Referral-System-v1.pdf. discuss pre-selected topics with each person contrib- 6. Bill Cates, “How Selling to Referrals Is Different Than Other Lead Types” uting to the knowledge pool from the perspective of (Jan. 7, 2015), http://blog.hubspot.com/sales/how-selling-to-referrals-is- his or her own specialty and expertise. different.

18 | June 2015 | NYSBA Journal Andrew S. Kowlowitz is partner with Furman Kornfeld & Brennan, and Stefanie A. Singer is an associate with the firm. Both Mr. Kowlowitz and Ms. Singer concentrate their practice on the defense of lawyers and other professionals.

Reducing Legal Malpractice Risks Preserving a Statute of Limitations Defense By Andrew S. Kowlowitz and Stefanie A. Singer

egal malpractice claims are highly disruptive to a Statute of Limitations and the Continuous law practice, draining the financial and emotional Representation Doctrine Lresources of the attorneys involved. One of the Pursuant to Civil Practice Law and Rules 214(6), a claim more streamlined and effective ways of disposing of a for legal malpractice must be commenced within three legal malpractice action is to pursue a statute of limitations years of the date of the alleged malpractice. New York defense. Preserving the ability to pursue such a defense is courts have consistently held that an action to recover often a matter of appropriately documenting the scope of damages for legal malpractice accrues on the date that the representation through the use of engagement letters, and alleged malpractice occurs, not on the date on which the documenting the conclusion of the attorney-client relation- malpractice is first discovered.1 ship through the use of disengagement letters. For example, let’s say Attorney Smith is retained This article provides a summary of the relevant law by Client, a lender, to represent her in connection with governing the statute of limitations for legal malpractice a loan secured by real property. Attorney Smith pre- claims, the “continuous representation” doctrine (which pares the mortgage and attends the closing yet fails to a client may attempt to invoke to toll the accrual of a record Client’s mortgage. Suppose further that Attorney statute of limitations claim), and basic – yet highly effec- Smith’s error is discovered five years after closing. In this tive – risk management advice law firms may utilize to instance, pursuant to the CPLR, Client’s legal malpractice maximize the chances of preserving a statute of limita- action accrued on the date of the error (when Attorney tions defense in the unfortunate event a legal malprac- Smith failed to file the document), not when Client first tice claim is filed. discovered Attorney Smith’s error.

NYSBA Journal | June 2015 | 19 Like most rules, there is an exception. The statute of 2008, when he effectively turned over the litigation file to limitations for a legal malpractice claim may be tolled the client, who had already consulted with another attor- pursuant to the continuous representation doctrine when ney to take over the handling of that case. an attorney continues to provide legal services to a client Conversely, the client argued that both claims for after the error is committed. When properly invoked, the legal malpractice were tolled by virtue of the defen- accrual of a claim for legal malpractice is tolled until such dant attorney’s “continuous representation” and, there- time that the attorney ceases to represent the client in fore, accrued when the Consent to Change Attorney connection with the matter from which the malpractice Stipulation was formally filed with the Court on or arises. about April 11, 2008. To invoke the continuous representation doctrine, a In Farage, the Second Department affirmed the lower plaintiff must establish (1) an ongoing representation con- court’s finding that the claims for legal malpractice, nected to the specific matter at issue in the malpractice which were commenced on March 31, 2011, accrued at action; and (2) clear indicia of an ongoing, continuous, the earlier point in time – when the defendant attorney developing and dependent relationship between the cli- returned the plaintiff’s file and correspondence between ent and the attorney.2 the parties evidenced a lack of “mutual understanding of

Disengagement letters should be used when a transaction or litigation matter has concluded naturally or when the client retains successor counsel.

As for the first prong cited above, an ongoing gen- the need for further representation.”5 The court further eral relationship between an attorney and a client will held that the defendant attorney’s filing of the Consent not provide a basis for a client to invoke the continuous to Change Attorney subsequently merely constituted representation doctrine. The continuing representation a “ministerial act” that did not implicate an “ongoing, after the commission of the error or omission must continuous, developing, and dependent relationship arise from the same matter in which the malpractice between the client and the attorney,” and was therefore occurred. insufficient to toll the accrual of the statute of limita- Next, the continuous representation doctrine does not tions.6 As a result, the court found that the claims arising apply where the attorney-client relationship has been from representation provided by the defendant attorney irretrievably broken, or where it is evident that the client involving the 2002 and 2005 accidents were time-barred. no longer continues to repose trust or confidence in his or There is an important risk management lesson to be her attorney.3 The breakdown of the attorney-client rela- learned from the Farage case: Appropriate documenta- tionship may manifest itself in one of many ways, such tion of the return of the client’s file and correspondence as a client refusing to communicate with the attorney memorializing the breakdown of the attorney-client rela- for an extended period of time, a client consulting with tionship served as a basis for the court to adopt the earlier replacement counsel, or a client unequivocally expressing accrual period of the legal malpractice action, thereby a distrust of the attorney. supporting dismissal of the legal malpractice action on For example, in the case of Farage v. Ehrenberg,4 the statute of limitations grounds. Appellate Division, Second Department was asked to consider when a claim for legal malpractice accrued in Documenting the Termination and Scope of an the context of underlying personal injury matters arising Attorney-Client Relationship from a 2002 accident and a 2005 accident. If confronted with a claim for legal malpractice, one of the In Farage, the defendant attorney argued, inter alia, more efficient, streamlined methods of disposing of such that the claim for legal malpractice arising from the 2002 a claim is for the defendant attorney to pursue dismissal personal injury action accrued, at the very latest, when of the action on statute of limitations grounds. Such an he received correspondence in November 2007 from application usually can be brought on a pre-answer, pre- the plaintiff’s successor counsel, indicating that plain- discovery basis pursuant to CPLR 3211(a)(5). Obtaining tiff viewed the defendant attorney as her “discharged dismissal of legal malpractice claims prior to discovery is attorney.” With respect to the underlying representation obviously beneficial from a cost savings standpoint, but related to the subsequent 2005 accident, the defendant it also affords dispositive resolution of the claim without attorney argued, inter alia, that the plaintiff’s legal mal- a court inquiring into the merits of the allegations of practice claim accrued, at the very latest, on March 13, malfeasance.

20 | June 2015 | NYSBA Journal From a risk management perspective, document- malpractice action, effective use of a disengagement letter ing the scope of the attorney-client relationship and the may provide the court with a clear cutoff point as to when conclusion of the attorney-client relationship is critical to the attorney-client relationship concluded. preserving a potential statute of limitations defense. This Disengagement letters should be used when a trans- is accomplished through the use of engagement letters action or litigation matter has concluded naturally (i.e., and disengagement letters. when the transaction is completed, or when the litigation has come to a “natural” end) or when the client retains Engagement Letters successor counsel to take over the handling of an ongo- Engagement letters are utilized to set forth the terms and ing matter, such as in the case of Farage, discussed above. the scope of the attorney-client relationship. The rules In this first instance, when an attorney-client relation- governing use of engagement letters – often referred to ship concludes naturally at the end of a transaction or as retainer agreements – can be found in Part 1215 of the litigation, it may appear intuitive that the attorney-client Rules of the New York State Unified Court System.7 In relationship is over and there is no further need to docu- addition to identifying the fee arrangement, the engagement the file. On the contrary, documenting a finite end ment letter should also state in detail the scope of the date of the attorney-client relationship is still critically representation. This ensures that the attorney and client important. Often a statute of limitations defense to a legal have a mutual understanding of each party’s respective malpractice action provides a close call for the courts, responsibilities. A detailed engagement letter may elimi- and hinges upon a matter of days. Clients who sue at the nate confusion and, in the event of a legal malpractice last moment may try to extend the accrual of a statute of action, provide the court with documentary evidence limitations by arguing that, despite the completion of a concerning the scope of the attorney-client relationship. transaction or the settlement of a litigation, the attorney This is best illustrated through an example: Client continued to advise the client (perhaps in subsequent retains Attorney Smith to draft various documents in telephone calls). In this case, effective use of a disengage- connection with the sale of his business, which Attorney ment letter may be considered persuasive documentary Smith completes. Attorney Smith’s engagement letter evidence by the court, when confronted with determining explicitly states that she was retained to assist with the the precise end date of the attorney-client relationship. sale transaction only. Shortly thereafter, a dispute with the purchaser of the business arises, and Client retains Attorney Johnson to represent him in connection with litigation involving the business dispute. Attorney Johnson contacts Attorney Smith to gather facts and collect information to assist with the litigation. Suppose further that, after the litigation concludes, Client brings claims for malpractice against both Attorney Smith and Attorney Johnson arising from the drafting of the transactional documents and the subsequent litigation. A detailed engagement letter, which clearly identifies the scope of Attorney Smith’s responsibilities (i.e., which was limited to preparing documentation related to the sale transaction), would limit Client’s ability to argue that Attorney Smith continued to provide representation to Client during the litigation, thereby extending the accrual of the statute of limitations. In other words, an engagement letter may be viewed by the court as documentary evidence supporting Attorney Smith’s position that the scope of her representation was limited, and may also support a potential statute of limitations defense to the extent the legal representation she provided concluded more than three years prior to the commencement of the legal malpractice lawsuit.

Disengagement Letters Another important tool for availing oneself of a statute of limitations defense is the use of disengagement letters – that is, written confirmation of the conclusion of the attorney-client relationship. In the event of a legal

NYSBA Journal | June 2015 | 21 The disengagement letter should explicitly state that a litigation matter, a lawyer discharged by a client prior the representation in the particular matter has ended and to the conclusion of the case should be mindful to docu- that the law firm plans to close its file. The letter should ment the conclusion of the attorney-client relationship be sent via certified mail, return receipt requested, to con- immediately, even before a Consent to Change Attorney is firm delivery to the client. Disengagement letters need filed with the court. This ensures that the earliest possible not only be used as a defensive law practice measure, but accrual date of legal malpractice action is preserved. may also be used as a marketing tool. For example, if a Similarly, when an attorney handling a transactional lawyer represents a client in connection with the sale of a matter is discharged before the natural conclusion of the home, the lawyer may write the client to confirm that the representation, the outgoing lawyer should be mindful to transaction has closed and the lawyer intends to close the write to the client memorializing that the attorney-client file. The lawyer may also wish to point out that her firm relationship has been terminated, and that the outgoing handles trust and estate matters and personal injury mat- lawyer does not plan to take further action on behalf of ters, and that the firm would welcome the opportunity to the client. work with the client again in the future. In the latter instance, where a lawyer is substituted by Conclusion replacement counsel before the litigation or transaction In sum, the key to maintaining an effective risk manage- has concluded, use of a disengagement letter is equally ment program is to incorporate basic techniques, such as important. In practice, determining when the original these, into everyday practice. Documenting the attorney- lawyer ceased providing legal services while a client client relationship at each stage is a simple yet effective matter is ongoing is often a difficult task for a court to tool for reducing the risk of a legal malpractice claim, and determine without clear documentation in the file. preserving a lawyer’s rights and defenses in the unfortu- In the case of Farage, the Appellate Division, Second nate event a claim is ultimately made. n Department cited the proposition that 1. See, e.g., Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001). [a]n affirmative discharge of an attorney by the client 2. See, e.g., Deep v. Boies, 53 A.D.3d 948 (3d Dep’t 2008). is immediate. By contrast, from the standpoint of adverse parties, counsel’s authority as an attorney of 3. See Taylor v. Paskoff & Tamber, LLP, 102 A.D.3d 446 (1st Dep’t 2013); Fontanetta v. John Doe 1, 73 A.D.3d 78 (2d Dep’t 2010). record in a civil action continues unabated until the 4. 124 A.D.3d 159 (2d Dep’t 2014). withdrawal, substitution, or discharge is formalized in a manner provided by CPLR 321.8 5. Id. at 167. For this reason, the Second Department found the 6. Id. at 164 (quoting Anseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038 (2d Dep’t 2013). attorney-client relationship effectively ended prior to the 7. https://www.nycourts.gov/attorneys/lettersofengagementrules.shtml. filing of a Consent to Change Attorney with the court, 22 N.Y.C.R.R. pt. 1215. when the client conveyed to her lawyer that he was dis- 8. Farage, 124 A.D.3d at 165. charged. The lesson to be drawn is that, in the instance of Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

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22 | June 2015 | NYSBA Journal How to Shift Law Firm Culture One Firm’s Story By Donna Drumm

o, something about your law firm isn’t working – • Imminent merger or acquisition of another law people are unmotivated, and there is a disconnect firm or practice with a different working culture. Sbetween client expectations and employee expectations. Or you are a solo practitioner, thinking to yourself, What Is a Law Firm’s Culture? “There has got to be another way!” By observing the core Generally, culture is, “Any group of people that engages values of the law firm held by those who run the firm, in some activity together will have a set of values, con- and developing a culture integration plan, you can have ventions, and ways of being that are unique to that par- the law firm you love. To prove it, we have included a ticular group.”2 case study of a law partner in a third-generation New A culture is a set of beliefs, behaviors, implicit agree- York firm who shifted, along with his partners and staff, ments, and practices that are so prevalent in a group a business-as-usual law firm to a thriving and profitable that they are essentially assumed. Every company and law practice, where one of the core values is to have fun. every law firm has a culture. Unfortunately, the culture Motivations for shifting a law firm’s culture may be as of most law firms is some version of – or contains some varied as the lawyer. These include elements of – the business-as-usual culture described • The need to manage risk, above. It contains beliefs, behaviors, and practices that • The desire to be more profitable, support people operating on their own, competing, • Client pressure, gossiping about, and undermining each other. While not spoken directly, the implicit agreements include • Increased or new responsibility in managing the some version of: “you don’t challenge me about my firm, poor work habits and I won’t challenge you about 1 • The need to enter into a new practice area, or yours.”3 Jordan Furlong, in his blog post “Vulture Culture,” Family-Run Firm offers an insider’s view: The leaders are family members, mother/daughter, hus- Culture is what people at the firm actually do every band/wife. The “leaders” are lawyers and may be non- day. In harsher terms, it’s what people get away with. lawyer family member administrators. Those who are not Culture is what actually happens. A law firm’s culture family members operate under an unspoken assumption is the daily manifestation of its performance expectations that they are at a disadvantage and will never achieve the and behavioural norms – what is encouraged and what influence that the family members have. is tolerated.4 Long-Term Management To borrow another definition of culture from the The firm has been in existence for many years. There is business world: “A company’s culture is all the shared a defined culture most likely listed in the mission of the values, beliefs and behaviors that determine how people firm, or historical values of the firm. The firm leadership do things in an organization.”5 has adopted an “if it’s not broke, let’s not fix it” attitude. Law practice management is a fascinating commingling of two disciplines – business and the practice of law. The Friend-Run Firm business of law is similar to running any American busi- The founding partners are friends from law school or oth- ness – payroll must be met, human resources rules and erwise long-term friends. Perhaps a lateral hire was made regulations must be adhered to. Yet when it comes to the who was one of the founding partner’s friends. Merit and revenue-producing arm of a business, a law firm is restrict- client base aside, the management must recognize this ed by ethics rules. We are restrained from pursuing clients assumption by the employees that they have an equal through advertising; we are restricted by marketing rules. chance in rising through the ranks. We are restrained from dropping unprofitable clients, and in many states can do so only with permission of the court. The Founder Effect While some clever legal managers have borrowed practices Law firm cultures . . . appear to exhibit some from corporate America (which, if they are lucky, some of major tendencies,” including a heavy dependence these companies are their clients) and innovated ways to on founders . . . once the founders depart, most law manage their colleagues and clients within noble, ethical firms eventually degenerate into competitive fac- structures, law firm management poses a unique challenge. tions and ‘‘a new culture based solely on economic power’’: [F]ounder effect is extremely important. In Unfortunately, studies of law firm culture are surpris- stable and prosperous firms of any size where the ingly sparse. As recently as 2002, founders remain active, their values and the practices [l]egal scholars have only recently begun taking law that derive from those values tend to remain ascen- firms seriously as an important arena – and agent – of dant, regardless of whether the founders occupy professional conduct. Drawing on management theo- positions of overt authority. ry, sociology, and cognitive psychology . . . [l]egal ethics The departure of the founders can be followed by what scholars, in particular, are turning to organizational [the writer] think[s] of as a ‘‘mythological’’ transitional theory and research for insights into the dynamics of phase, in which the founders are remembered, talked ethical decision making within firms and strategies for of, and thought of as powerful influences, and the 6 promoting ethical awareness and compliance. beliefs and practices they inculcated continue to be Very few law firms publicize their culture on their web- reinforced. sites or in their marketing literature. Interestingly, well- At some point, however, the powerful myth can known corporations – Avaya, Estée Lauder, Home Depot, degenerate into empty legend, or the founders can and Moody’s, to name a few – communicate their corpo- become merely names attached to nothing at all. rate culture on the company’s Human Resources page.7 When that happens, the firm’s cultural direction is up for grabs, with factions of existing lawyers and even Types of Law Firm Cultures potential merger or acquisition partners all competing Law firm culture is viewed introspectively by those who for dominance. are working there and outwardly by everyone else. The The most likely outcome . . . is a new culture.9 descriptions below identify internal cultures that occur in many small and solo firms.8 For the most part, founders Donna Drumm is an attorney in New York. She worked in private practice of the firm determine the culture. and at the Westchester County Bar Association as CLE & Publications Director and, later, Executive Director until 2014. A member of the New Non-management York State Bar Association’s Law Practice Management Committee for No set goals, lack of action plans and ability to implement over 15 years, she received her law degree from Pace University School strategic objectives. Culture is derived from those who of Law. work in the firm; there is no formal structure.

24 | June 2015 | NYSBA Journal Partner Expectations ed and what is acceptable behavior, particularly in an In work groups or practice groups, the partner leading environment where these expectations are not delineated. the group sets the culture for the work habits and ethics Associates that do not embrace the culture are in danger for the associates and staff. of becoming dissatisfied and leaving of their own accord, or being asked to leave by the firm. Solo Firms The culture of a solo firm is intensely personal, based on Risk Management: Grievances and the character, integrity and work habits of the attorney. Sanctions Reflect Law Firm Culture As the founder, practice leader, and face of the firm, even In speaking informally with members of grievance com- if all decisions were not made by the sole attorney they mittees in New York and New Jersey, the number one grievance lodged by clients against their attorneys is not returning phone calls or emails. A 2012 New York City Bar Association pamphlet, titled “How to Complain Law practice management About Lawyers and Judges in New York City,” instructs is a commingling of business clients on how to file complaints. Below is one example of the type of conduct that may result in discipline: and the practice of law. 1. Neglect. Lawyers are generally prohibited from neglecting their clients’ cases. Neglect does not occur merely because a lawyer fails to return a telephone are attributed to the attorney. The benefit of shifting the call as quickly as the client wishes, or because a case is culture of a solo firm is that the vision can be changed by not proceeding through the court system as fast as the one person with no need for buy-in or cooperation by oth- client might want. Rather, neglect occurs when a lawyer ers. The downside is the discipline in implementing the repeatedly and consistently fails to communicate with his process of shifting the culture must be exercised by the or her client, or where a failure by the lawyer to take same person. action means that the client has lost a valuable right, such as right to bring a claim, assert a defense, appeal Mergers & Acquisitions a decision or make a motion.12 Law firms can expand through lateral hiring, or merg- ing or acquiring another firm or practice group. Bain & A culture that allows client communications to drift Company, one of the largest global business consulting can occur at firms of all sizes. No one can anticipate firms, reported on a survey of executives who oversaw which client may file a grievance, but the prospect of mergers of their companies, saying that culture clash being admonished by a grievance committee is devastat- “was the No. 1 reason for a deal’s failure to achieve the ing to the individual attorney, and if made public, can promised value. In a culture clash, the companies’ fun- also be devastating to the reputation of the firm. damental ways of working are so different and so easily For example, in e-discovery disputes communication misinterpreted that people feel frustrated and anxious, is key, and the courts have become increasingly strict in leading to demoralization and defections. Productivity awarding sanctions. A comprehensive survey published flags, and no one seems to know how to fix it.”10 in the Duke Law Journal reviewed 401 cases where motions for sanctions were made pertaining to e-discovery issues Dangers of Overlooking Culture in federal court prior to January 1, 2010. Of the 401 cases, Personal Advancement 230 sanctions were awarded.13 Selena Rezvani, a reporter for The Washington Post, Discovery of electronic information requires the coor- describes dination of the client, the client’s technology team, and another critical element of law’s culture is how diffi- supervision by the attorney or legal team responsible cult it is to uncover the hidden rules of succeeding on for complying with the discovery rules. Of the 401 cases, the job. That onus, it seems, is largely the burden of the only counsel was sanctioned in 30 instances.14 The associate. I talked with Kelly Hoey, a lawyer-turned- various courts ruled that counsel failed to produce the venture-capitalist who spent the first 10 years of her requested discovery or communicate accurate infor- career as an associate in large law firm environments. mation to the court and opposing counsel in a timely Hoey noted that the single trickiest aspect of navigat- manner. E-discovery are a team sport. Members of a ing firm culture as a woman is “finding a powerful firm refusing to play by the rules are representative of a mentor who tells you straight-out how the law firm culture that condones holding back court-ordered infor- game is played,” and then “having that strong mentor mation or misrepresenting facts to opposing counsel and back you up when you play the game.”11 the court. Understanding the culture of a law firm requires the Regardless of the type of case, the dangers of over- sophistication to translate the nuances of what is expect- looking a culture that breeds non-responsiveness to

NYSBA Journal | June 2015 | 25 clients, or misrepresentation to opposing counsel or the himself about running a successful and profitable law courts, is destructive to the firm. firm. He read Stephen Covey’s 7 Habits of Highly Effective People and, at a friend’s urging, attended a business pro- A Law Firm’s Story – Assessing, Diagnosing and ductivity course.15 Shifting Law Firm Culture Following its recent growth, the firm now had an Brian Mittman, Markhoff & Mittman, P.C. office manager, and Brian and the manager talked about I became reacquainted with Brian Mittman, a disabil- inefficiencies in the office. “Why do people do this?” ity law attorney, during the 2014 holiday season while “Why can’t we get this done?” Brian also continued to we were volunteering at a soup kitchen in Westchester seek ways to harmonize his values of being present for County. He was joined by members of his firm – two his family and running a successful law firm in New attorneys, his part-time marketing person and his per- York City. “We were raised and schooled that this is how sonal assistant, whose title is Officer of Success. They you do it in New York,” he said. After meeting with a brought their own aprons, and the men took off their suit like-minded friend for a drink at 9:30 after work, they jackets and waited on the homeless and working poor, decided, “Enough is enough, one of our goals is to move ladling soup in the church basement’s kitchen. It was the practice out of the city.” clear to see he was excited to be participating with his co-workers outside the office for a cause they believed in. Assess Your Culture We chatted about the recent demise of Binder & Binder, Law firms have internal cultures – those values adopted another disability law firm. We started to talk about the by those who work in the office, and external cultures – business model, which led to a discussion about how judgments made by colleagues, adversaries, clients, court he runs Markhoff & Mittman. The comments below are staff and vendors about the comportment of the firm. Part excerpted from a telephone interview conducted January of assessing and diagnosing a firm’s culture is to observe 6, 2015. the internal and external firm culture. “I started as an associate in a third-generation family- founded law firm,” Brian said, describing the firm as a Internal Culture classic small New York City law firm, with approximately Exercise 1: 12 employees – two to four attorneys, mostly partners, • Walk through your office as a new client would for and support staff. “You showed up for work, responded the first time, what do you see? Does it match with to client phone calls and client walk-ins. We all did what the culture you wish to convey to your clients?16 we needed to do, there were lots of headaches and frus- • Is your office casual or formal? That’s the culture trations.” speaking. After the World Trade Center was attacked on • Are the office doors closed or open? That’s the cul- September 11, 2001, in an effort to recover from the real ture speaking. estate losses and tenant reluctance to return to the down- • Are clients greeted by a receptionist in a warm and town area around the World Trade Center, landlords and friendly manner? That’s the culture speaking. state and local governments offered financial incentives • Are attorneys referred to as Mr. and Ms. or by first for businesses to move into office spaces. Brian was a name? That’s the culture speaking. partner at the time his firm relocated downtown to Canal • What is the dress code for partners? Associates? Street in Manhattan. He enjoyed the logistics involved – Staff? That’s the culture speaking. moving and creating a new space with a classic law firm • Do you display awards in your reception area? feel with dark wood, big spaces and an impressive con- That’s the culture speaking. ference room. The working culture continued – you came into work, answered the phone, and had unscheduled External Culture meetings with walk-in clients. The risk paid off. Economic Exercise 2: development continued in the area and by mid-2003, the To assess your law firm’s external culture, think about firm got busier, growing from 12 to 20 employees. Due to and answer these questions: the increase in work and staff, he started to put systems 1. What firms would you consider similar to your law in place to respond to the rising demands of clients and firm? In what ways? firm members. 2. Do you respect or aspire to their values? Which By 2006, Brian and his wife were raising four young ones? children in Westchester County. The commute from his 3. What firms would you consider dissimilar to your home was three hours, round trip. He was typically get- law firm? In what ways? ting home at 9:30 in the evening. He remembers asking 4. Do you respect or aspire to their values? Which himself, “What is going on here?” His values of being ones? with his family and running a successful law firm were at Brian and his partners created the internal culture of odds. Right around the same time, he started to educate the law firm based on its location (lower Manhattan), fur-

26 | June 2015 | NYSBA Journal nishing it in a conservative manner, and viewing it as a an emergency, no incoming phone calls were directed “classic New York law firm.” The work ethic, “you come to attorneys and staff from noon to 1 p.m. Calls from to work, do your job and go home” was shared by all in new clients were directed to an answering service. Calls the firm. When he observed something wasn’t quite right received during the lunch hour were returned after lunch. – family vs. career, “why weren’t people doing things dif- ferently,” – he sought input from others in the firm, and Shifting the Culture began to educate himself to develop his goals. Brian identified changing personal habits and goals as Once he made the decision to move the practice out the hardest thing about shifting the culture of a law firm. of New York City to Westchester, it took seven months. “The toughest part is to work on yourself and lead by Although that is a remarkably quick turnaround, timing example, make sure everything you are doing is in har- was not on his side. In 2007, laws in his practice were mony with what you are saying. If you want people to changing and the economy was “tanking.” The environs not be on their cell phones, and you walk around with changed but the working culture was experiencing the your cell phone, there is a message that is communicated “same chaos, clients coming in without appointments, there.” Shifting culture and promoting change is an evo- we were doing things seat of the pants and working lution. “You go to an event, you take a seminar, you read really hard.” He continued to practice law and work on a book and then go into the office and say, ‘here’s what his business. He asked himself what he wanted out of it, we’re doing’ and then it would disappear.” assessed monetary goals, hours worked, and the types of Brian emphasizes that the process takes time. He has cases he wanted to work on. He engaged others in defin- been working for more than eight years integrating and ing the culture of the firm. “We kept saying even though communicating with his partners and staff to engender a we were doing a lot of work, we wanted a place where culture of “working hard and having fun – you can have it is calm, we need better communication.” More specifi- fun in this business, just like any other business.” n cally, accountability. 1. Carol Schiro Greenwald, Ph.D., et al. Grow Your Practice: Legal Marketing and Business Development Strategies 159 (NYSBA 2015). Implementing Process Management 2. Id. at 159, 160. See also Finding a Law Firm that Works: Lawyers Assistance Part of the day-to-day chaos was the constant stream of Program Facilitated by Robert Bircher. http://lapbc.com/wp-content/ unending phone calls. Brian tackled this over time with uploads/2012/11/Finding-a-Law-Firm-Culture-that-Works.pptx. three processes. The receptionist for the firm was tip-top, 3. Rich Goldstein & Ron Bynum, Creating a High Performance Law Firm Through a Culture of Collaboration, Law Practice Today (Jan. 2013) (American all the clients loved her voice, and she managed her role Bar Association) (emphasis removed.) http://www.americanbar.org/content/ effectively. She began to experience burnout. When she newsletter/publications/law_practice_today_home/lpt-archives/january13/ was asked what was going on, she answered that she was creating-a-high-performance-law-firm-through-a-culture-of-collaboration.html. “only answering phones.” Realizing she did not have the 4. Jordan Furlong blog post Jan. 22, 2013, http://www.law21.ca/2013/01/ vulture-culture/ (emphasis added); see also Gabriela Isturiz’s LinkedIn Blog: benefit of context, that is, an understanding of why cli- How Law Firm Culture Affects Productivity, Mar. 21, 2014, https://www.linkedin. ents were calling in a panic, or what insurance adjusters com/pulse/20140321222019-35152036-how-law-firm-culture-affects-profitability. did, Brian educated her by taking her to meetings. She 5. Dale Stafford & Laura Miles, Integrating Cultures After a Merger, Bain Brief then had a fuller appreciation of her role. Dec. 11, 2013, Bain & Co., accessed on the Internet Jan. 8, 2015. http://www. bain.com/publications/articles/integrating-cultures-after-a-merger.aspx. When the firm decided that mailing out certain reports 6. Elizabeth Chamgliss, Measuring Law Firm Culture, Firms, Legal Culture, from a governmental agency would benefit their clients, and Legal Practice Studies in Law, Politics, & Soc’y (2010), vol. 52, pp. 1–2 the mailing triggered even more phone calls. The firm (internal citations omitted), http://ssrn.com/abstract=1713999. learned that clients did not understand the report and a 7. Greenwald, supra note 1 at 163. huge percentage called to ask an attorney to explain it to 8. Id. at 161. them. All the attorneys were trained and competent in 9. Chamgliss, supra note 6 at pp. 8–9. answering the questions, yet it took time away from other 10. Stafford & Miles, supra note 5. work. In an attempt to reduce redundant phone calls, 11. Selena Rezvani, Large Firms Are Failing Women Lawyers, The Washington Brian and his team created a cover letter that explained Post (Feb. 18, 2014). Last visited Jan. 17, 2015. http://www.washingtonpost. com/blogs/on-leadership/wp/2014/02/18/large-law-firms-are-failing-women- the report. Each time the report was sent out, the cover lawyers/. letter was attached. The phone calls decreased. This sys- 12. New York City Bar Committee on Professional Discipline, How to Complain tem was tested when a new lawyer, who was not trained About Lawyers and Judges in New York City, New York City Bar Association (June on the process, sent out the report without the cover let- 2012) (emphasis added), http://www.nycbar.org/pdf/brochures/Complaints_ Lawyers_Judges/complain.pdf. ter. Predictably, the client called asking him to explain the 13. Dan. H. Willoughby, Jr. et al., Sanctions for E-Discovery Violations, Duke L.J., report. He was quickly trained on the new process. vol. 60:789 (2010). 14. Id. at 790. Firm-Wide Voicemail Practice 15. Nightingale-Conant, http://www.nightingale.com/. Another process used to create a calmer atmosphere in 16. Greenwald, supra note 1 at 163. the office and reduce incoming phone calls was to turn on the answering system during lunch. Unless there was

NYSBA Journal | June 2015 | 27 Follow the Money Escrow Accounts: The Dangers of Excessive Delegation and Deference By Matthew K. Flanagan

ending to a firm’s escrow account does not add to a lawyer’s possession.”2 That principle is embodied in a firm’s profitability, and attorneys who can avoid Rule 1.15 of the Rules of Professional Conduct, which Tdealing with their firm’s escrow accounts gener- contains precise requirements regarding records that ally do so. Tasks associated with maintaining an escrow must be maintained for attorney escrow accounts. Pur- account are menial, often thankless and almost invariably suant to Rule 1.15(d), attorneys must maintain records non-billable. Many attorneys delegate such tasks to trusted of all deposits into, and withdrawals from, any escrow staff members. Others defer to the firm’s managing partner accounts. The records must “specifically identify the date, or to partners who use the escrow account more frequently. source and description of each item deposited, as well as Escrow account signatories who defer or delegate to the date, payee and purpose of each withdrawal or dis- others do so at their own peril. As the Court of Appeals bursement.” The records must also identify all individu- reminded us in In re Galasso, “[f]ew, if any, of an attorney’s als for whom money is being held, the amount held for professional obligations are as crystal clear as the duty to each individual, the date or dates on which the money is safeguard client funds.”1 Although Galasso did not estab- disbursed, to whom it was disbursed, and a description lish “a new or heightened degree of liability for attor- of each disbursement.3 The attorney must also maintain neys,” the Court made it clear that, when client funds are “all checkbooks and check stubs, bank statements, pre- involved, a “high degree of vigilance” is required. numbered canceled checks and duplicate deposit slips.” Disciplinary proceedings against attorneys based on All entries in the records must, of course, be accurate. their failure to oversee escrow accounts or to review Failure to maintain records in accordance with the escrow account records are not uncommon. This article requirements of Rule 1.15 is deemed a violation of the will discuss the rules governing escrow accounts and the Rules of Professional Conduct and will subject the attor- extent to which tasks related to the maintenance of escrow ney to disciplinary proceedings.4 accounts can be delegated. It will look at situations in which attorneys who are signatories on escrow accounts The Delegation of Bookkeeping Tasks have been found to have breached their duty to safeguard for Escrow Accounts client money by failing to detect misconduct by others For many firms, the task of maintaining books and who had access to the accounts. It will also address the records for an escrow account is more than one attorney oversight lessons to be learned from In re Galasso. Matthew K. Flanagan is a partner in the Jericho, NY law firm of A Brief Review of the Rules Governing Catalano, Gallardo & Petropoulos, LLP, where his practice is concentrat- Escrow Accounts ed on the defense of legal malpractice and attorney liability matters. He Thorough and accurate recordkeeping for attorney is a frequent lecturer regarding ethics, legal malpractice defense, and escrow accounts “is the linchpin upon which [courts], professional liability matters. He is a graduate of St. John’s University clients and the public must rely to assure the preserva- School of Law. tion of funds belonging to clients or other persons in

28 | June 2015 | NYSBA Journal can handle. Some attorneys and firms, such as those who have exclusive control of his signature stamp and to issue act as settlement agents for banks, can receive and disburse all checks from the attorney’s escrow account using the hundreds of thousands of dollars of client funds on a daily stamp, with little or no supervision from Duboff. Dur- basis and, out of necessity, must delegate some bookkeeping the time that Island Mortgage controlled Duboff’s ing tasks associated with maintaining escrow accounts. account, there were periods when the accounts had an It is permissible to delegate banking and bookkeeping insufficient balance to meet the attorney’s escrow obli- responsibilities for an escrow account to a non-attorney. gations, and more than one individual failed to receive The Court of Appeals said as much in In re Galasso,5 and loan closing funds disbursed from the account. Duboff Hon. A. Gail Prudenti, former Presiding Justice of the received a five-year suspension based on a number of Appellate Division, Second Department, and currently charges, including allowing a non-attorney to issue the Chief Administrative Judge for the Courts of the State checks from his attorney escrow account, allowing the of New York, called the delegation of banking and book- comptroller of Island Mortgage to issue checks from keeping responsibilities “perfectly permissible and often the account with little or no supervision and delegating inevitable.”6 responsibility to review monthly statements to others, The delegation of recordkeeping and other tasks without instructing them to advise him of any bounced relating to escrow accounts to others, be they lawyers checks, stop payment orders or negative balances. or nonlawyers, must be done with care. Rule 5.3 of the In re Galasso caused concern among some members Rules of Professional Conduct provides that “[a] law- of the Bar because the respondent attorney, who did not yer with direct supervisory authority over a nonlawyer knowingly surrender control of his escrow account, was shall adequately supervise the work of the nonlawyer, as suspended when it was discovered that money had been appropriate,”7 and Rule 5.1 requires lawyers with man- stolen from the account by one of his employees. The agement responsibility in a law firm to “make reasonable respondent attorney, Galasso, had agreed to hold $4.8 efforts” to ensure that other lawyers in the firm comply million in an interest-bearing escrow account on behalf with the Rules.8 of a client who was involved in a matrimonial proceed- Complete deference to a co-signatory can lead to a ing.12 Galasso and his partner completed an application disciplinary investigation when problems occur with the to open an escrow account at a local bank, and Galasso account. Under Rule 1.15(e), only attorneys can be signa- gave the application to his office manager/bookkeeper, tories on escrow accounts, but attorneys are not free to who also happened to be his brother.13 Galasso’s brother assume that, because a co-signatory is an attorney, he or altered the application to include himself as a signatory she will abide by the requirements of Rule 1.15. Thus, an and to permit Internet transfers.14 The brother proceed- attorney can be subject to discipline even where he or she ed to withdraw more than $4 million from the account did not convert or commingle funds, was not aware that a and concealed his transfers by having the bank send the co-signatory converted funds or mishandled the account, actual account statements to a post office address, and and reported the problem as soon as it was discovered. then sending fabricated statements to the firm.15 The One such instance was seen in In re Cardoso.9 There, the brother also had access to the firm’s primary escrow respondent, a criminal attorney, left the handling of his account and made unauthorized withdrawals of funds firm’s escrow account to his partner, who handled real from that account as well, resulting in hundreds of estate work. Upon discovering improprieties in his part- thousands of dollars in losses for two of the firm’s other ner’s handling of the account, the respondent dissolved clients.16 the partnership and reported the matter to the Grievance The disciplinary charges against Galasso were based Committee. However, because he had admittedly failed on his failure to deliver the funds held in escrow to the to review the firm’s financial and bookkeeping records firm’s client, and also on his failure to properly supervise for a year, a disciplinary proceeding was brought against his brother, a non-lawyer employee of his firm, in viola- him, and he received a public censure. tion of Disciplinary Rule 1-104(d)(2), which was a prede- The public censure in Cardoso was consistent with the cessor to Rule 5.3 of the Rules of Professional Conduct.17 discipline in other cases in which the offending attorney Galasso maintained that he did not knowingly relinquish had no disciplinary history and the co-signatory’s misap- control over his firm’s escrow account, that he periodi- propriation or mishandling of the account was reported cally reviewed documents showing the balances in the promptly upon discovery.10 firm’s escrow accounts and that he unwittingly relied on More egregious instances of attorneys relinquish- the fabricated bank statements created and sent to him by ing control of escrow accounts have led to more serious his brother. He also pointed out that the district attorney discipline. The most extreme example is In re Duboff,11 who prosecuted his brother had submitted a letter stating in which the attorney agreed to act as a mortgage loan that no one else at the firm knew of Galasso’s brother’s settlement agent for Island Mortgage Network, which thefts and that nothing in the fabricated documents cre- would later be shut down by federal authorities. Attorney ated by Galasso’s brother would have raised any suspi- Duboff permitted the comptroller of Island Mortgage to cions about the accounts.

NYSBA Journal | June 2015 | 29 Galasso was suspended by the Appellate Division, to those records. The corresponding bank statements must Second Department, for two years.18 After the Court of also be reviewed. Although, as Galasso demonstrates, those Appeals granted Galasso leave to appeal, several bar statements can be manipulated, it is more time-consuming associations sought to file amicus curiae briefs in support and requires a more sophisticated thief, and there are ways of Galasso’s appeal, with some asserting that strict liabil- to ensure the accuracy of the statements (by, for example, ity had been imposed and others asserting that suspen- reviewing the statements online). sion was too harsh a penalty.19 The Court of Appeals, in affirming the charges against Galasso, rejected the Have Direct Contact With Your Bank arguments of Galasso and the bar associations and found The second post-theft measure taken by Galasso’s firm, that Galasso had “ceded an unacceptable level of control” and tacitly endorsed by the Court, was creating direct over the firm’s escrow accounts to his brother.20 contact with the firm’s bank.27 Galasso’s brother was permitted to open the accounts himself, and thus, unbe- The Lessons of Galasso knownst to Galasso, was able to have himself placed on While some have maintained that the Court of Appeals’s one of the escrow accounts as a signatory.28 He was also decision in In re Galasso imposes a strict liability standard,21 able to submit an application that permitted Internet the Court did not establish liability without fault, and a transfers from the fund, even though the original applica- closer look at the facts of Galasso confirms that. The deci- tion signed by Galasso did not permit such transfers.29 sion simply reaffirms that an attorney’s fiduciary duty to Once the escrow account was opened, Galasso’s broth- safeguard client funds is non-delegable, and that attorneys, er became the “conduit for information from the firm’s while delegating tasks associated with the maintenance of bank.”30 If deposits were to be made, it was the brother escrow accounts, cannot ignore their obligation to oversee who made them. When a discrepancy regarding the inter- the account and supervise those with access to it. est rate was raised by the accountant for the matrimonial Nor did the Court impose financially onerous require- client for whom the $4.8 million was being held, Galasso ments on attorneys who safeguard client funds, as others assigned his brother to address it with the bank.31 Coun- have maintained.22 To the contrary, the Court suggested sel for the Grievance Committee argued that, had Galasso specific oversight measures which, for most attorneys made a single call to the bank when the discrepancy was and firms, should not result in significant added costs or pointed out, the fraud would have been detected and the expenditures of time. theft of $3 million would have been prevented.32 The oversight measures suggested by the Court were Direct contact with the bank can consist of noth- those taken by Galasso’s firm after the thefts – measures ing more than personally opening the firm’s escrow which, the Court said, would have “mitigated, if not account and then periodically reviewing account state- avoided, the losses,” if they had been implemented ear- ments online. The Court of Appeals did not suggest lier.23 The suggested measures, and the other lessons of that the attorney himself must personally deposit each Galasso, are outlined below. check at the local branch of his bank, but if any questions relating to the account are raised, either by the client, a Perform Periodic Reviews and Look Beyond Your staff member or an outside auditor, the attorney himself Firm’s Internal Records should contact the bank. Galasso’s brother had access to both the special escrow account created for the money held for the firm’s matri- Make a Big Deal About Any Discrepancy monial client and the firm’s primary escrow account, and “A discrepancy in an escrow account should, at a mini- he stole from both. While he fabricated bank statements mum, be alarming to a reasonably prudent attorney.”33 for the former account to conceal his thefts, he did not So said the Court of Appeals in Galasso, and it may be the have to do so for the primary account because no one most instructive statement in the decision. The Grievance ever asked him for the bank statements for that account.24 Committee’s counsel argued that, when the discrepancy He prepared documents purportedly reflecting the bal- was noted by the client’s accountant, Galasso asked his ance in the primary escrow account, without providing brother to investigate it and then took no steps to verify the corresponding bank statements.25 his brother’s explanation.34 That failure, according to the “Personal review of the bank statements” was one Grievance Committee, was part of the reason that the of the post-theft measures adopted by the firm that the brother’s wrongdoing continued to go undetected.35 Court said might have prevented the thefts.26 The Court Discrepancies in balances can and do occur frequently, did not specify how frequently account records should be and in most cases, they are the result of innocent errors. reviewed, but it is suggested that escrow accounts should But attorneys should never assume that they are. Any be reviewed monthly or quarterly. Although the periodic discrepancy must be investigated thoroughly by the reviews should include an examination of internal records attorneys who are signatories on the account, not by a reflecting deposits and disbursements and the information subordinate. Although the individual or individuals who required by Rule 1.15(d), the reviews should not be limited are primarily responsible for bookkeeping tasks should

30 | June 2015 | NYSBA Journal 8. 22 N.Y.C.R.R. § 1200.5.1(b)(1). be consulted, they should not be relied on to conduct 9. 152 A.D.2d 157 (2d Dep’t 1989). any investigation themselves. The discrepancy could be 10. See, e.g., In re Marshburn, 70 A.D.3d 231 (1st Dep’t 2009); In re Linn, an indication of wrongdoing by those individuals, or 200 A.D.2d 4 (2d Dep’t 1994). incompetence. In either case, it is a potential problem for 11. 21 A.D.3d 206 (2d Dep’t 2005). the signatory attorneys who, unlike the subordinate, are 12. 19 N.Y.3d at 691. 36 the ones charged with the fiduciary duty. 13. Id. at 692. 14. Id. Conclusion 15. Id. When money goes missing from an attorney’s escrow 16. Id. at 692–93. account, the attorney will not find a sympathetic ear at 17. 94 A.D.3d 30, 31–38 (2d Dep’t 2012). the Appellate Division or the Court of Appeals. Attorneys 18. Id. at 37. must exercise vigilance in safeguarding client funds and 19. See Andrew Kershner, Bars Rally Around Suspended Attorney, N.Y.L.J., ensuring that client funds are not lost because of the neg- Mar. 29, 2012. ligence or misappropriation of co-signatories or employ- 20. 19 N.Y.3d at 694. ees, or the criminal acts of others. If a client who entrusts 21. Id. money to an attorney loses that money, the Grievance 22. Compare David S. Hammer & Richard M. Maltz, Escrow Accounts After Committee and the courts will focus squarely on the “Galasso”: You Are Your Brother’s Keeper, N.Y.L.J., July 29, 2014 (arguing that oversight measures the attorney had in place, as well as Galasso “imposes (or appears to impose) a heavy new burden of financial oversight”). the training and supervision of staff members involved 23. Galasso, 19 N.Y.3d at 694. in the maintenance of the accounts. Reliable oversight 24. See Brief for Petitioner-Respondent Grievance Committee for the Ninth measures will leave the attorney in a better position to Judicial District in Matter of Galasso, dated July 31, 2012 (Grievance Commit- defend, or even avoid, a disciplinary proceeding in the tee Brief) at pp. 43–47. unfortunate event that money being held for a client is 25. Id. misappropriated or stolen by another but, more impor- 26. Galasso, 19 N.Y.3d at 694. tant, the measures will help prevent client losses from 27. Id. occurring in the first place. n 28. Id. at 692. 29. Id. 1. In re Galasso, 19 N.Y.3d 688, 694 (2012). 30. Grievance Committee Brief at p. 51. 2. In re Sack, 74 A.D.3d 1697, 1698 (3d Dep’t 2010). 3. 22 N.Y.C.R.R. § 1200.15(d)(1)(ii). 31. Id. at p. 37. 4. 22 N.Y.C.R.R. § 1200.15(j). 32. Id. at p. 36. 5. Galasso, 19 N.Y.3d at 695. 33. Galasso, 19 N.Y.3d at 695. 6. Hon. A. Gail Prudenti, Be Wary of Delegating Bank and Bookkeeping Respon- 34. Grievance Committee Brief at p. 37. sibilities, 35 Westchester B.J. 57, 58 (2008). 35. Id. 7. 22 N.Y.C.R.R. § 1200.5.3(a). 36. Galasso, 19 N.Y.3d at 695.

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NYSBA Journal | June 2015 | 31 LAW PRACTICE BY VICTOR M. METSCH

Are You a “Good” Partner? ou’re a partner in a law firm – large or small 5. Do you review all substantive work by associates – and at the end of the day, you satisfy your before it goes out or is filed? Yclients’ needs and do enough business to practice 6. Do you give associates time budgets and deadlines comfortably. You’re meeting your goals – but are you on work? a good partner? And how do we define that term? Is it 7. Do you give associates prompt feedback on their like being a good roommate? A good parent? Teacher? work product? Student? Partnership requires a synthesis of all of these 8. Do you treat your partners as equals? roles, among countless others. 9. Do you treat your partners with respect? Evaluating your performance as a partner goes well 10. Do you help a partner who is “swamped”? beyond billings and bringing in new business. Ask 11. Do you assist a partner or associate who is having a yourself the following questions and see how “good” you family or personal problem? really are. 12. Have you introduced your clients to other partners?

Are You an Effective Leader? Does Your Staff Feel Appreciated? 1. Do you lead or simply manage? 1. Do you treat your staff with respect? 2. Are you proactive or simply reactive? 2. Do you give your staff work throughout the day so 3. Do you avoid waste and redundancy? as to avoid day-end stress? 4. Do you share credit when things go right? 3. Do you thank your staff for a special effort or a job well done? Are You a Team Player? 4. Do you coordinate with colleagues with whom you 1. Do you prioritize work for associates? share an assistant? 2. Do you ask associates about work/deadlines for 5. Does your assistant cover tasks for the firm to the others when giving them assignments? same extent as others? 3. Do you coordinate assignments for associates with your partners? How Do You Handle Billing and New Business? 4. Do you proactively mentor (or just judge and criti- 1. Do you enter your time on a regular basis? cize) associates? 2. Do you bill your clients at least once a month?

32 | June 2015 | NYSBA Journal CONNECT WITH NYSBA 3. Do you follow up your accounts receivable once a week? Visit us on the Web: 4. Do you address issues with clients who have ceased www.nysba.org to be responsive to requests for payment? 5. Do you do conflict searches on new clients/matters? Follow us on Twitter: 6. Do you get signed retainer agreements from new www.twitter.com/nysba clients before commencing work? 7. Do you get advance/evergreen retainers on new cli- Like us on Facebook: ents/matters? www.facebook.com/nysba 8. Do you get prior approval from management committee on all special fee arrangements? Join the NYSBA LinkedIn group: 9. Do you get a second opinion on contingent fee mat- www.nysba.org/LinkedIn ters? 10. Do you get a second partner to review new litigation matters? 11. Do you avoid non-reimbursable expenses? 12. Do you have your clients pay large out-of-pocket expenses directly? 13. Do you routinely reduce time charges before you send out bills? 14. Do you routinely grant clients concessions on billed amounts?

Are You an Island? 1. Do you think running the firm is someone else’s job? 2. Do you leave work to the last minute? 3. Do you blame associates for your own failure to supervise? 4. Do you think you are the only partner who is working? 5. Do you think that your work is the most important in the office? 6. Do you think that you are the only partner dealing with difficult clients or complex problems? 7. Do you think that you are the only partner who has to address emergencies? 8. Do you think that you are the only partner with ■ Court & Litigation One Grand Central Place family/health/other issues? 60 East 42nd Street ■ BankruptCy & Depository Suite 965 Are you really a “good” partner? n New York, NY 10165 ■ trusts & estates 212-986-7470 Tel ■ inDemnity & misCeLLaneous 212-697-6091 fax

■ LiCense & permit [email protected] Victor M. Metsch is Of Counsel in the Litigation, Alternative Dispute Resolution and Appellate Practices of Smith, Gambrell & Russell, LLP in New York City. Mr. Metsch practices primarily in the area of commercial dispute resolution. He has served on various court and professional responsibility committees of the New York City Bar Association, such as the Committee on State Courts of Superior Jurisdiction; the Committee on Professional and Judicial Ethics; the Committee on Professional urety ond pecialiStS Discipline; the Committee on Professional Responsibility; the Committee S B S on the Judiciary; and on various court committees of the New York State Bar Association. He received his B.A. from the New York State School of Industrial and Labor Relations at Cornell University and his J.D. from New 212-986-7470 York University School of Law.

NYSBA Journal | June 2015 | 33 Marian C. Rice, current co-Chair of NYSBA Law Practice Management Committee and past President of the Nassau County Bar Association, is the chair of the Attorney Liability Practice Group at the Garden City law firm of L’Abbate, Balkan, Colav- ita & Contini, LLP and has focused her practice on representing attorneys in professional liability matters for more than 30 years.

Start Out Right Engagement Letters By Marian C. Rice

ince 2002, New York attorneys have been required derstandings that lead to claims. In other situations, the to enter into written engagement letters document- connection may not be as obvious. But the absence of a ing the terms of their relationship with each of their written engagement letter may be emblematic of a larger S 1 clients. Matrimonial attorneys have had to do so for even client communication issue, and poor client communica- longer.2 Every professional liability insurance application is a significant source of legal malpractice claims and tion asks whether the attorney or law firm uses written grievances against attorneys. engagement letters on each of its matters. According to The absence of a written agreement does not neces- Michael Furlong, Vice President – Underwriting at CNA sarily determine whether a client-attorney relationship Insurance Co., the NYSBA-endorsed professional liability exists. A clear, unambiguous engagement letter assists insurer selected by our sponsored broker, USI Affinity, each of the parties in understanding their respective slightly more than 50% of law firms report regular use roles and promotes good client relations. Considering of engagement letters containing all the essential recom- that the law is a service profession and there are so many mended elements of such letters. Yet less than 20% of law law firms available, it is odd that poor client-attorney firms have utilized engagement letters in reported claims. relationships continue to cause legal malpractice actions Based upon current information, it seems the majority of and grievances. Part of the problem is client perception. claims filed against attorneys involved representations No one is ever at their best when hiring an attorney. where the attorney and client did not enter into a written When clients come to us, they have a problem and look engagement letter. to their attorney to fix it. At a minimum they are looking Is there a correlation between the lack of a written for responsiveness. Nevertheless, the 2012 study of the engagement letter and legal malpractice claims? Well- American Bar Association Standing Committee on Law- drafted engagement letters will often prevent the misun- yers’ Professional Liability looked at a cross-section of

34 | June 2015 | NYSBA Journal legal malpractice claims during the period of 2008–2011 sion will generate increased exposure to the attorney and reported that nearly 15% of all claims were caused for services the original engagement may never have by poor client-attorney relationships.3 contemplated. It is perfectly acceptable for a lawyer to One of the most important components of client reasonably limit the terms of the engagement, provided satisfaction and a healthy client-attorney relationship is the client knows of the limitations and gives his or her full and frank communication between the attorney and informed consent.7 A plainly worded provision setting client. The first step toward the goal of client satisfaction forth the defined scope of the services to be performed is an understanding of the purpose of the retention, the is one of the most important risk management tools an terms under which services will be provided, and the attorney can adopt. If the intended engagement does not respective responsibilities of the attorney and the client. include appeals, the engagement letter should say so. If The second step is reducing to writing the agreement the attorney represents the executor but an accounting reached with the client. professional is separately retained by the estate to prepare the estate tax returns, spell it out in the engagement letter. The Court Rules Do not let the services rendered “creep” beyond Under Part 1215 of the court rules, written engagement the originally defined scope without documenting the letters are mandatory for all representations where the fee expanded services being provided. A simple amendment is expected to be $3,000 or more, unless the “services are to the original agreement will suffice. Rendering services of the same general kind as previously rendered to and beyond those originally requested without documenting paid for by the client.” Similarly, the N.Y. Rules of Profes- the increased responsibility vitiates the benefit of a finely sional Conduct (Rules) require that the written engage- crafted scope of services provision. ment letter explain the scope of the services rendered and the fee and expenses to be charged, and contain a state- Fees and Expenses ment of the client’s fee arbitration rights under Part 137.4 The court rules require that the engagement letter set A clearly written engagement letter will assist an attorney forth the financial terms of payment. Additional issues in complying with the ethical requirements as to the that should be addressed include the frequency of pay- scope of engagement and allocation of authority between ment, the definition of the expenses for which the client the attorney and client.5 Attorneys handling domestic will be responsible, a general outline of the steps involved relations matters must comply with separate procedures in the representation and the time frame within which the detailed at Part 1400 of the court rules. client may expect to know the outcome of the retention. Disputes over fees disrupt the client-attorney relationship Whom Do I Represent? and are a constant source of non-payment – or worse, Failure to address the seemingly simple question of the malpractice claims and grievances. Estimating the cost identity of the client leads to a host of problems ranging of the representation, subject to updates as the matter from confidentiality issues to conflict conundrums. As proceeds and unanticipated events occur, will go a long a result, the engagement letter should explicitly specify way toward avoiding misunderstandings. If the client’s the identity of the client whose interests are being rep- reaction to the cost of the engagement is of concern at the resented. Equally as important is a definition of those outset, the problem will not get better with time. Even parties whose interests are not being represented by stellar results pale when attorney fees mount beyond the the attorney (with separate notification to individuals client’s expectations. or entities who might believe their interests are being An engagement letter is a contract, the terms of which covered by the retention). When representing a business are set once executed. As the Court of Appeals has rec- organization, particular care should be taken to explain to ognized, however, “attorney-client fee agreements are a the constituents of the organization that the organization matter of special concern to the courts and are enforce- is the attorney’s client and the interests of the organiza- able and affected by lofty principles different from those tion may not be aligned with those of the constituents.6 applicable to commonplace commercial contracts.”8 A Engagement letters in the trusts and estates field should revised fee agreement entered into after the attorney has also identify the attorney’s client to avoid the common already provided legal services is reviewed with height- misconception by relatives of the client that the attorney ened scrutiny, because a confidential relationship has is the “family” lawyer. been established and the opportunity for exploitation of the client is enhanced.9 Rule 1.5 states that “[a]ny changes Scope and Scope “Creep” in the basis or rate of the fee or expenses shall also be Attorneys often labor under the misapprehension that communicated to the client.” If it is anticipated that the broader and more general the engagement letter, the hourly rates may change throughout the representation, greater the likelihood that additional services will be the engagement letter should spell out the circumstance requested. One does not follow the other. It is certain, warranting change. Additional factors which may negate though, that a broadly worded scope of services provi- the ability to change the terms of compensation include

NYSBA Journal | June 2015 | 35 the sophistication of the client and the timing of the by the court, as well as mediation programs sponsored by requested change. To condition the continuation of legal bar associations. work when deadlines loom on the renegotiation of legal fees is impermissible.10 Staffing An attorney may not charge unreasonable fees or The adage that clients build relationships with attorneys, expenses.11 The factors that weigh in on reasonableness not law firms, is true. No client appreciates being passed include: to another attorney the moment the engagement letter 1. the time and labor required; is signed. To foster the trust and confidence of a client, 2. novelty of the issue presented and skill required to it is important to identify from the outset the attorneys perform the requested tasks; involved in the representation. Introduce the involved 3. the extent to which the engagement would preclude attorney(s) at the first meeting. Given the ever-increasing the attorney’s ability to service other clients; penchant for lateral movement in the legal profession, cir- 4. the usual and customary fee for similar services; cumstances and even the subject matter of engagements

Well-drafted engagement letters will often prevent the misunderstandings that lead to claims.

5. the amount involved and the results obtained; may shift with time. As a result, the engagement letter 6. the time limitations imposed by the client or the should indicate that the law firm reserves the right to circumstances; appropriately staff the engagement. If there is a change of 7. the nature and length of the client-attorney relation- assigned attorneys, get ahead of the issue by advising the ship; client up front and do not charge the client for the time 8. the experience and reputation of the attorney; and incurred in getting the new attorney up to speed. 9. whether the fee is fixed or contingent. No one factor is determinative. Rather, the “reasonable- Client Communication ness” of the fees provided for in the engagement letter is The scope of an attorney’s ethical obligation to commu- the client’s understanding of the amounts charged and nicate with his or her client is set forth in Rule 1.4. An the reasons for the fee structure. However, even if a cli- attorney must keep the client apprised of all material ent has provided his or her informed consent in advance, events in the representation and promptly respond to a fee disproportionate to the work performed will not the client’s reasonable requests for information. Remem- be allowed and may form the basis for a grievance and ber that this ethical rule is not aspirational. It is conduct order of restitution. The burden of demonstrating that the required in order to avoid attorney discipline. Fostering a engagement letter is “fair, reasonable, and fully known strong client-attorney relationship requires more than the and understood by their clients” rests with attorneys.12 minimum mandate. The engagement letter should also spell out the con- Misunderstandings can be avoided by an upfront sequences of the client’s failure to timely pay legal fees agreement as to the frequency and means by which the owed. The tolerance a law firm has for unpaid invoices client will be kept apprised of the status of the proceed- may differ from client to client, but keeping track of ings. Addressing the issue in the engagement letter man- troublesome accounts receivable and taking appropriate ages expectations from the start. While email has become action if requests for payment are ignored is an important a common means of communication, attorneys must function of firm management. Conservative estimates caution their clients that no client-attorney privilege will place the likelihood of a legal malpractice counterclaim in attach to substantive communications made where there response to a suit for fees at 25%,13 with anecdotal reports is a significant risk that the communications will be read at more than double that figure. There is no question that by a third party.15 suits for unpaid legal fees provoke retaliatory malpractice claims. While the ability of a law firm to extricate itself Conflicts from an engagement in New York depends upon compli- If an actual or potential conflict of interest exists, the man- ance with Rule 1.16 and, if the matter is litigated, permis- ner in which the conflict is being addressed should be sion of the tribunal,14 attorneys must pay close attention spelled out in the engagement letter. The ability to iden- to accounts receivable and ensure clients do not fall too tify, analyze and resolve conflicts of interest is a critical far behind in payment without addressing the issue. If component of being a good lawyer. It is not always easy. a dispute over fees arises, work with the client and take Discuss issues that arise with your colleagues (without advantage of the Part 137 arbitration program mandated divulging confidential information) and take advantage

36 | June 2015 | NYSBA Journal of ethics hotlines. If a conflict exists, the client’s informed one employs the analysis utilized by the majority of the consent must be obtained for any waiver to be effective. ethics opinions on the issue, there is little in a file that To obtain the client’s informed consent under the Rules may be unqualifiedly categorized as materials belonging of Professional Conduct, an attorney must provide the to the attorney. client with sufficient information so the person can make Outlining the attorney’s document retention policy an informed decision after the attorney has explained the in an engagement letter is the first step in advising the material risks of waiving the conflict and the reasonably client that there is a finite period of time in which copies available alternatives.16 Remember that not every conflict of the file may be obtained. Reiterating the policy at the can be waived and that the consequences of failing to time the representation terminates provides the client adequately analyze a conflict can be devastating to both with the opportunity to obtain the file if desired before the client and the law firm. destruction. Purely for the purposes of risk management, the retention policy should exceed the longest period of The Client’s File limitation applicable to claims against attorneys and a Attorneys are obligated to ensure a litigation hold is in copy of the file should be maintained before it is returned place and the preservation of data is maintained from to the client during that period. Technological advances the moment it becomes reasonably evident that a dispute in scanning documents makes this process less cumber- exists. Reference to the client’s role in the preservation some than retaining hard copies of the documents. obligation should be spelled out upon engagement. While the details of the client’s obligations should be Conclusion outlined in a separate document (and reiterated through- The practice of law requires implementing adminis- out the engagement), a cursory reference to the need for trative obligations that didn’t exist in years past. The the client to safeguard data and cease routine document requirement that written engagement letters be entered destruction policies is warranted. into in most representations, however, has given us the The disposition of a client’s file following the conclu- opportunity to develop open communications with the sion of the engagement should also be addressed up client from the start. The time taken to draft a clear and front and reiterated when the representation ends. While unambiguous engagement letter will repay the attorney Rule 1.15(d) requires attorneys to maintain specified many times over by fostering a good relationship with bookkeeping records for a period of seven years, there the client, increasing prompt payment for services ren- is no similar bright line rule articulating the period of dered and reducing the possibility of a malpractice claim time for retaining closed client files. Various appellate or grievance. n rules mandate that virtually every document in a file involving a claim for personal injury, property damage, 1. N.Y. Comp. Code, R. & Regs. tit. 22, pt. 1215 (N.Y.C.R.R.). wrongful death, loss of services resulting from personal 2. 22 N.Y.C.R.R. pt. 1400. injuries, due to negligence or any type of malpractice, 3. See Profile of Legal Malpractice Claims 2008–2011 (ABA 2012). and claims in connection with condemnation or change 4. 22 N.Y.C.R.R. pt. 137. of grade proceedings, be maintained for seven years as 5. Rule 1.2. well.17 These court rules, however, do not authorize the 6. Rule 1.13(a). law firm to destroy the client’s file when the representa- 7. Rule 1.2(c). tion is concluded. 8. In re Cooper, 83 N.Y.2d 465, 472 (1994). Ethics opinions divide the components of a closed file 9. In re Lawrence, 24 N.Y.3d 320 (2014); see, e.g., NYSBA Ethics Op. 910. into four general categories: (1) documents belonging to 10. Brooks v. Lewin, 48 A.D.3d 289 (1st Dep’t 2008). the attorney; (2) documents the attorney is under a legal 11. Rule 1.5(a). duty to keep; (3) documents the client must keep; and (4) 12. Shaw v. Mfrs. Hanover Trust Co., 68 N.Y.2d 172, 176 (1986). the remaining majority of documents found in an attor- 13. 1 Legal Malpractice § 2:113 (Thompson Reuters 2015). 18 ney’s file. Documents belonging to the attorney may be 14. CPLR 321. disposed of provided the lawyer has no other legal duty 15. ABA Formal Op. 11-459. to keep the materials and there is no apparent indication 16. Rule 1.0(j). the client has a need for the file. The problem with this 17. See, e.g., 22 N.Y.C.R.R. § 691.20(f) “Preservation of records of claims and subjective analysis is evident. All of the opinions sidestep actions.” the issue as to what constitutes documents belonging 18. The Association of the Bar of the City of New York Comm. on Profession- to the client because this issue is a question of law for al & Judicial Ethics, Formal Op.1999-05; New York County Lawyers’ Ass’n the courts. The Court of Appeals has held that upon Comm. on Legal Ethics, Formal Op. 725 (1998); NYSBA Comm. on Profes- sional Ethics, Op. 623 (1986); The Association of the Bar of the City of New termination of a client-attorney relationship, where there York Comm. on Professional & Judicial Ethics, Op. 1986-4; Nassau County is no claim for unpaid fees, the client is presumptively Op. 81-10. accorded full access to the entire file, including docu- 19. Sage Realty v. Proskauer Rose Goetz & Mendelsohn, LLP, 91 N.Y.2d 30 (1997). ments otherwise considered attorney work product.19 If

NYSBA Journal | June 2015 | 37 POINT OF VIEW BY HENRY G. MILLER Henry G. Miller is the senior member of Clark, Gagliardi & Miller, P.C., in White Plains, NY, and he has been actively trying cases of all types for more than 40 years. Mr. Miller is Past President of both the New York State Bar Association and the Westchester County Bar Association and is one of very few trial attorneys in the country who has been both a Regent of the American College of Trial Lawyers and a Director of the International Academy of Trial Lawyers. He is a frequent guest on television and radio and a sought-after lecturer on all aspects of trial practice. He is the author of Settlements in the Art of Advocacy series, editor of the New York Practice Guide on Negligence and, most recently, On Trial: Lessons from a Lifetime in the Courtroom.

The Necessary Peremptory Challenge

ver the years, I’ve heard some You can feel it. He bristles when you deadlocked. The vote is four to two reformers argue for the aboli- talk to him. But he’s clever. He wants for Little Hilda. But in New York, you Otion of peremptory challenges to sit. He wants to do justice. He need at least five out of six in a civil because they allow lawyers to excuse gives model answers of propriety. You case to make a verdict. jurors without any reason. They claim decide, of course, to use a peremptory What happened? Mr. Cotton per- it gives rise to an opportunity for challenge. The judge reminds you that suaded one fellow juror, tiny Mr. Meek, prejudice. under the new reform, there are no to vote no. He argued the world would Here are six jurors who prove why peremptory challenges. He stays. The come to an end if everybody could just the peremptory challenge is necessary. trial goes well for you. You think it’s in sue for a little negligence: “Today it’s the bag. But to your amazement, your soothing cream, tomorrow it could be Mary Sweet client is convicted. You learn they were cotton.” You like Mary Sweet, but something originally for you 11 to 1, but Lee J. nags at you. She frowns when you Cobb turned them around. “These kids Millie Madre speak. She turns away when you look will kill us if we don’t stop them.” And You want mothers on your jury. You at her. Yet, her answers are perfect. there was no Henry Fonda to stop Lee represent one. Your client was clearly She is exactly what you’re looking for. J. Cobb this time. misdiagnosed. She didn’t have cancer But you have no peremptories under but the report said she did. Her breast the new system. You have to keep her. Mr. Cotton was removed unnecessarily. An easy She turns the jury against you. You You represent little Hilda Hurt. Her case for the plaintiff. On the jury lose. What happened? It turns out you whole body hurts from oozing sores comes sweet Millie Madre. A mother. look and talk just like Uncle Mike – she got from using Sally’s Soothing You like her. But she mentions she has the worst human being she has ever Ointment. The proof was clear. The a daughter in medical school. Millie known. What? You don’t think this makers knew that many were allergic Madre just might identify with the happens? You don’t pick juries, do you? to their not-so-soothing ointment but doctor who made the misdiagnosis. they suppressed any warning. On the Her daughter could do that innocently Lee J. Cobb jury comes Mr. Cotton. He’s a sales- some day. You go to challenge her. You A young Hispanic man accused of a man, a seller of cotton. He is a loud can’t. Millie says she won’t identify mugging asks you to defend him. You mouth. He will be a leader. You know with the defendant. The judge says check him out. His story holds up. He he hates product liability claims. He no to a challenge for cause. You go didn’t do it. He left before his friends fears his product will be next. But to use a peremptory. “No,” the judge did do it. You can’t believe your luck. you can’t get him off for cause. He says. “Did you forget, counselor, we It finally happened. You have a case gives the right answers. There are no have the new enlightened system. No where you truly believe your client is peremptory challenges. You’re stuck. peremptory challenges. We’ve elimi- innocent. You feel like Clarence Dar- He stays. Your case goes in like a nated prejudice from our system in row and Gregory Peck all wrapped dream. The courthouse regulars and order to find a more perfect system of in one. On the jury comes a guy who the judge all predict a big verdict for justice.” looks and talks like Lee J. Cobb in that little Hilda Hurt. After three days, You know the rest. Sweet Mil- movie Twelve Angry Men. He’s angry. the jury announces they’re hopelessly lie Madre with great passion domi-

38 | June 2015 | NYSBA Journal POINT OF VIEW nates the jury. The defendant-doctor Bubba and Butch school-supervised activity?” you ask. becomes, in effect, her daughter. The You represent a young black teenager “I can be fair,” they both answer in a doctor wins. from a wonderful family. He’s paraple- cold voice. gic from playing a school-supervised You can’t get them off. New sys- Willie Worker activity of jumping on a trampoline tem. No challenges. You rush out to You’re defending Mr. Kindly, a good to make baskets. The school had been see if the settlement offer is still on the employer. He gave an employee, Mr. repeatedly warned this was danger- table or at least something close to it. Ingrate, a chance to be his partner. The ous. Children got hurt. The school employee made a lot of money but got never stopped the activity. Now, your My Conclusion greedy and wanted more. He sued Mr. teenage client is paraplegic. You want more? I could give you Kindly for breaking promises, a weak You tell the jury during selection 200 or so more jurors, but you get case, but enough to get to a jury. Mr. you represent a black family – lovely the idea. Kindly was a wonderful witness. Mr. people – working people. Bubba and I, too, have a dream, but, as a trial Ingrate was a poor witness. Butch, two tough-looking white guys lawyer, I have to live in the real world, But on the jury, you were stuck in their 30s, sit in the first and sec- the world as it is, not the world as it with Willie Worker. You couldn’t get ond jury seats. They glare at you. should be. A world where race, ethnic- him off. No challenges available. He They wear T-shirts. Their hair is so ity, gender and just plain old prejudice, was obvious. Willie hated all employ- short skin is showing. They have big irrespective of race, color or creed, ers. He still thought we were back in muscles. They work out. Blue collar play a great role. The one answerable the days when 10-year-old children guys who work in construction. They defense to those who would eliminate worked 12 hours a day in the mines. look like they haven’t smiled in 30 peremptory challenges and change the He didn’t give Mr. Kindly a chance. years. You look but can’t find any system is simple: Human nature, with You know the rest. Willie poisoned compromising tattoo. “Can you be fair its powerful prejudices, will not soon the jury against Mr. Kindly. to a young black man engaging in a change. n

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NYSBA Journal | June 2015 | 39 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

David Paul Horowitz ([email protected]) has represented plaintiffs in personal injury cases for more than 25 years and is “of counsel” to Ressler & Ressler in New York City. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the 2008 and forthcoming 2014 Supplements to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches inter alia, New York Practice at Columbia Law School and Brooklyn Law School. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee, and is a frequent lecturer and writer on these subjects.

“No Excuses”

Introduction testimony. Rejecting both, the Second consequences of plaintiffs’ deposi- Last issue’s column discussed two Department held: tions.9 divergent lines of cases applying the The plaintiff failed to raise a triable CPLR 3116(a) requirement that a depo- issue of fact in opposition to that Origin of the “Rule” nent furnish “a statement of the rea- branch of the defendants’ motion. So what is the authority for rejecting 1 sons” why a change in a witness’s The correction sheet attached to these affidavits out of hand? Work- deposition transcript has been made. the plaintiff’s deposition transcript ing backward from the cases cited The June column discusses a parallel presented feigned issues of fact to by recent cases yields interesting line of cases where witnesses in sum- tailored to avoid the consequences results. For example, New v. New York 10 mary judgment motions submit affi- of his earlier deposition testimony, State Urban Development Corp. cites davits that contradict critical elements and was, therefore, insufficient to Washington v. New York City Board of 11 of their deposition testimony. Label- raise a triable issue of fact. The Education: 2 ing these affidavits “feigned” or “tai- correction sheet contained no state- Plaintiff failed to submit evidence 3 lored” testimony, many courts have ment of reasons for making the sufficient to raise a triable issue rejected them and considered only the corrections. The plaintiff’s affidavit of fact. The assertions in her bill deposition testimony, with the result also presented feigned issues of of particulars and affidavit that that summary judgment is generally fact designed to avoid the conse- she slipped on a wet and slippery granted to the other side. quences of his earlier deposition condition caused by an “unknown testimony, and was likewise insuf- liquid” or “semi-liquid” substance, “Designed to Avoid . . . ficient to raise a triable issue of submitted in opposition to defen- Consequences” fact. Therefore, the Supreme Court dant’s motion for summary judg- 4 In Kudisch v. Grumpy Jack’s, Inc., the properly granted that branch of the ment, contradict her prior 50-h plaintiff submitted affidavits in oppo- defendants’ motion . . . for sum- hearing testimony that she did not sition to the defendant’s motion for mary judgment . . . and properly know what caused her to fall. Her summary judgment, which the Second denied that branch of the plaintiff’s claim that she thought the exam- Department declined to consider: cross motion which was for sum- ining attorney was asking if she In opposition, the plaintiffs failed mary judgment.7 knew exactly what caused the acci- to raise a triable issue of fact. Rath- dent is unpersuasive, especially in er, their affidavits, in which both Equally unsuccessful is the use of a view of the fact that the examining plaintiffs made statements contra- non-party affidavit to compensate for attorney had asked her multiple dicting their deposition testimony, a plaintiff’s deposition testimony. In times and in various ways if she appear to raise feigned issues of New v. New York State Urban Devel- knew what she slipped on. Each 8 fact to avoid the consequences of opment Corp., the First Department time, plaintiff responded that she their testimony and, thus, were rejected the non-party affidavit: did not know or had “no clue.” insufficient to defeat summary We add that the affidavit of Madi- Because the affidavit and bill of judgment.5 son’s former employee was irrel- particulars can only be considered evant inasmuch as it does not to avoid the consequences of her In Garcia-Rosales v. Bais Rochel address the issue of how the assail- prior testimony, they are insuffi- 6 Resort, the plaintiff committed the ant gained entry into the building. cient to raise an issue of fact.12 dual sin of submitting deposition Moreover, the affidavit appears to corrections and an affidavit, both of have been tailored to avoid the The authority cited in Washington, which contradicted critical deposition Fernandez v. VLA Realty LLC, noted:13

40 | June 2015 | NYSBA Journal Issues of fact and credibility are not pletely, by affiants who speak with cept is apparent. The authority cited by ordinarily determined on a motion knowledge. There must be a failure Judge Hogan? There is none.22 for summary judgment. But where on the part of the defendant to sat- self-serving statements are submit- isfy the court “by affidavit or other Conclusion ted by plaintiff in opposition that proof” that there is any basis for his Having located, I think, the origin of “clearly contradict plaintiff’s own denial or any truth in his defense. the rule permitting courts to ignore deposition testimony and can only The case must take the usual course affidavits submitted in opposition to be considered to have been tailored if less than this appears. To justify summary judgment where the “the to avoid the consequences of h[is] a departure from that course and court [is] be convinced that the issue earlier testimony, they are insuf- the award of summary relief, the is not genuine, but feigned,” I will ficient to raise a triable issue of fact court must be convinced that the attempt to tie together all three col- to defeat defendant’s motion for issue is not genuine, but feigned, umns dealing with “feigned” testimo- summary judgment.”14 and that there is in truth nothing to be tried.19 ny, whether submitted via deposition Fernandez cites as its authority Phil- errata sheets or affidavit, in the July/ lips v. Bronx Lebanon Hospital:15 Judge Cardozo cited as his author- August issue. While issues of fact and credibility a 1923 Court of Appeals decision, Until then, enjoy the onset of ity may not ordinarily be deter- General Investment Co. v. Interborough summer. After last winter, we deserve 20 n mined on a motion for summary Rapid Transit Co., by Judge Hogan: it.

judgment, where, as here, the The argument that rule 113 infring- 1. CPLR 3116(a). es upon the right of trial by jury self-serving affidavits submitted 2. See, e.g., Kudisch v. Grumpy Jack’s, Inc., below. by plaintiff in opposition clearly guaranteed by the Constitution 3. See, e.g., New v. N.Y. State Urban Dev. Corp., 110 contradict plaintiff’s own deposi- cannot be sustained. The rule in A.D.3d 531 (1st Dep’t 2013). tion testimony and can only be question is simply one regulat- 4. 112 A.D.3d 788 (2d Dep’t 2013). ing and prescribing procedure, considered to have been tailored 5. Id. at 791 (citations omitted). whereby the court may summar- to avoid the consequences of her 6. 100 A.D.3d 687 (2d Dep’t 2012). ily determine whether or not a earlier testimony, they are insuf- 7. Id. at 687–88 (citations omitted). ficient to raise a triable issue of fact bona fide issue exists between the 8. 110 A.D.3d 531 (1st Dep’t 2013). to defeat defendant’s motion for parties to the action. A determina- 9. Id. at 532 (citations omitted). summary judgment.16 tion by the court that such issue is presented requires the denial of 10. 110 A.D.3d 531. And the authority cited by the Phil- an application for summary judg- 11. 95 A.D.3d 739 (1st Dep’t 2012). lips court? There is none.17 ment and trial of the issue by jury 12. Id. at 740 (citations omitted). at the election of either party. On 13. 45 A.D.3d 391 (1st Dep’t 2007). Finding “Feigned” the other hand, if the pleadings 14. Id. at 391 (citation omitted). In search of the origin of the rule, the and affidavits of plaintiff disclose 15. 268 A.D.2d 318 (1st Dep’t 2000). earliest mention I found was in a 1925 that no defense exists to the cause 16. Id. at 320. Court of Appeals decision, Curry v. of action, and a defendant, as in 17. In fairness, I have not attempted to trace each Mackenzie,18 by no less than Judge the instant case, fails to contro- decision back to its original source, but I did ran- Cardozo: vert such evidence and establish by domly select the New case, and have obtained the same result in the past. affidavit or proof that it has a real Civil Practice Rule 113 permits 18. 239 N.Y. 267 (1925). defense and should be permitted summary judgment at times in to defend, the court may determine 19. Id. at 269–70 (citation omitted). favor of a plaintiff though material that no issue triable by jury exists 20. 235 N.Y. 133 (1923). averments of his complaint have between the parties and grant a 21. Id. at 142–43. been traversed by the answer. To summary judgment.21 22. While I am no student of early 20th century that end there must be support- Court of Appeals practice, if Judge Hogan was ing affidavits proving the cause of While Judge Hogan’s decision did good enough for Cardozo, he is good enough for action, and that clearly and com- not use the word “feigned,” the con- me. Follow NYSBA on Twitter Stay up-to-date on the latest news from the Association www.twitter.com/nysba

NYSBA Journal | June 2015 | 41 MEET YOUR NEW OFFICERS

President President-elect David P. Miranda Claire P. Gutekunst David P. Miranda, of Alba- Claire P. Gutekunst took ny, took office June 1 as office June 1 as president- the 118th president of the elect of the 74,000-member 74,000-member New York New York State Bar Asso- State Bar Association. ciation. Miranda is a partner at Gutekunst is an inde- Heslin Rothenberg Farley pendent arbitrator and and Mesiti in Albany. He mediator. She established is a trial attorney whose her practice in April 2012, intellectual property law and assists companies, practice includes trade- organizations and individ- mark, copyright, trade uals to efficiently resolve secret, false advertising, patent infringement and Internet disputes in a confidential, cost-effective manner. issues. In 2012, Gutekunst was appointed as special master A 26-year member of the State Bar Association, Miran- for the New York City Asbestos Litigation, where she da has served as president-elect and secretary of the served a 15-month term. Prior to that, she was a partner Association and as a member of its Executive Committee in the Litigation Department at Proskauer Rose LLP in and House of Delegates. He is past chair of the Electronic New York City. During her nearly 30 years at Proskauer, Communications Committee and the Young Lawyers she handled complex commercial disputes. She also Section, and co-chaired the Special Committee on Stra- served as an advocate or mediator in mediations and tegic Planning. He also served as chair of the Special arbitrations. Committee on CLE and was co-chair of the President’s Active in the State Bar Association for 27 years, Committee on Access to Justice. Gutekunst served as treasurer from 2011–2013. She pre- He is a member of NYSBA’s Intellectual Property viously served on the Executive Committee as vice- Law Section, Commercial and Federal Litigation Section, president for the First Judicial District and as a member- Committee on the Annual Award, Committee on Con- at-large. Gutekunst chaired the Membership Committee, tinuing Legal Education and Membership Committee. Committee on Women in the Law and Strategic Planning Miranda is an arbitrator of intellectual property dis- Advisory Committee and was vice chair of the Dispute putes for the National Arbitration Forum and American Resolution Section. She is a member of the Commercial Arbitration Association. He is a past president of the and Federal Litigation Section’s Executive Committee, Albany County Bar Association. In 2009, he served on the the Committee on Diversity and Inclusion and the Mem- Independent Judicial Election Qualification Commission bership Committee. for the Third Judicial District of the State of New York. Gutekunst is a member of the Advisory Council, In 2002, then-Chief Judge Judith S. Kaye appointed him the National Task Force on Diversity in ADR and the to the New York State Commission on Public Access to Arbitration Committee of the International Institute for Court Records. Conflict Prevention and Resolution. From 2004 to 2015, In 2001, he received the Capital District Business she chaired the Advisory Council of the YWCA-NYC’s Review’s 40 Under Forty Award for community involve- Academy of Women Leaders. Between 1997 and 2005, ment and professional achievement. Gutekunst served on the Governor’s Temporary Judicial He was editor-in-chief and contributing author of Screening Committee, the New York State Judicial Screen- The Internet Guide for New York Lawyers in 1999 and 2005, ing Committee and the First Department Judicial Screen- published by the NYSBA, is the author of “Defamation in ing Committee. Cyberspace: Stratton Oakmont, Inc. v. Prodigy Services Co.,” Gutekunst, of Yonkers, received her undergraduate published in the Albany Law Journal of Science & Technol- and master’s degrees from Brown University and her law ogy, and “New York Intellectual Property Law Review” degree from Yale Law School. published in the New York Appeals issue of the Albany Law Review in 2012. A resident of Voorheesville, Miranda graduated from the State University of New York at Buffalo and earned his Juris Doctor from Albany Law School.

42 | June 2015 | NYSBA Journal Secretary Treasurer Ellen G. Makofsky Sharon Stern Gerstman Ellen G. Makofsky, of Gar- Sharon Stern Gerstman, den City, New York, has of Buffalo, New York, has been elected secretary of been re-elected treasurer the New York State Bar of the New York State Bar Association for a second Association. term. Gerstman is of coun- As the founder of sel to Magavern Magav- Makofsky & Associates, ern Grimm in Buffalo. She P.C., Makofsky concen- concentrates her practice trates her practice in elder in the areas of media- law, special needs and tion and arbitration, and trusts and estates. appellate practice. A 28-year member of the State Bar Association, Makof- A 34-year member of the State Bar Association, Gerst- sky is a member of the House of Delegates. She was a man previously served on the Executive Committee as an member-at-large on the Executive Committee for four Eighth Judicial District vice-president. She is a member of years. She chaired the Elder Law and Special Needs Sec- the House of Delegates, Finance Committee, CPLR Com- tion and is the immediate past secretary of the Senior mittee, Dispute Resolution Section, and Torts, Insurance Lawyers Section and a member of the Trusts and Estates and Compensation Law Section. Law Section. She is the co-chair of the Women in the Law She was chair of the Committee on Civil Practice Law Committee and is a member of the Committee on Con- and Rules and the Special Committee on Lawyer Adver- tinuing Legal Education and the Membership Commit- tising and Lawyer Referral Services. She previously tee. She serves as the chair of the Task Force on Powers co-chaired the Task Force on E-Filing and the Special of Attorney. She also is immediate past president of the Committees on Lawyer Advertising and Strategic Plan- National Academy of Elder Law Attorneys, New York ning. She also served on the American Bar Association’s Chapter. Board of Governors for three years and is a member of the A resident of Manhasset, Makofsky graduated from ABA’s House of Delegates. Boston University and earned her law degree cum laude A resident of Amherst, Gerstman graduated from from Brooklyn Law School. Brown University and earned her law degree from the University of Pittsburgh School of Law. She received a master’s degree from Yale Law School.

NYSBA Journal | June 2015 | 43 Disability Determinations, Judicial Authority and CPLR Article 78 Part II By Chet Lukaszewski

Chet Lukaszewski formed Chet Lukaszewski, P.C. in 2008. The firm’s art I of this article, published in the May Journal, primary areas of practice are New York City and State municipal disability pensions, as well as Social Security Disability claims and personal injury gave an overview of the current interpretation by matters. Prior to opening his law firm, Mr. Lukaszewski worked for a Pthe courts of the judicial authority possessed by foremost disability pension and Social Security disability firm throughout judges under N.Y. Civil Practice Law and Rules Article law school. After being admitted to the bar in 2001, he concentrated 78, where municipal retirement systems and pension exclusively on personal injury work for several years, before returning to funds can deny sick and injured civil servants disability disability pension law, eventually becoming the lead litigator in one of retirement pensions by finding an applicant not to be the top firms practicing in that area at the time. Now, he is recognized as disabled, even if the finding is repeatedly deemed by the one of the leading disability pension law attorneys in New York. courts to be unlawful. This is because the courts have held that New York state judges do not possess the power

44 | June 2015 | NYSBA Journal in an Article 78 proceeding to find a disability where has deemed the determination to be legally improper. A a pension agency’s medical board has not; a judge can disability pension Article 78 proceeding usually spans 10 only remand for reconsideration an application found to 18 months from the filing of the petition to the receipt to be improperly denied. This second part of the article of a decision. If an application is remanded to a pension covers CPLR Article 78 as it relates to municipal disabil- agency by the court, it will be several more months before ity retirement pensions and reviews the cases that have the often lengthy reconsideration process begins, and that established this “rule of law.” is when the agency does not appeal the court’s decision. If the agency appeals, the process becomes longer and The Law costlier, as appellate printing costs, even for the respon- Hundreds of thousands of New York citizens work in civil dent in such a case, are usually over $1,000 (and generally service jobs, and their memberships in municipal pension $3,500–$5,000, if the worker loses the Article 78 challenge funds and retirement systems and their entitlement to and brings the appeal), and appeals usually involve addi- pension benefits accruing thereunder are not a gratuity. tional attorney fees, which are typically several thousand All municipal pension agency members have a pension dollars. contribution deducted from every paycheck they receive; it is those monies that primarily fund their retirement Brady v. City of New York pensions. In addition, civil servants enter their occupa- A careful review of the holdings of the courts that are tions believing a retirement pension will be in place when seen as having established the “rule” that judges are they complete their careers, whether by performing the prohibited from finding disability in Article 78 proceed- requisite number of years of service, or if after a certain ings involving pensions for municipal workers calls amount of time on the job, they become disabled and can into question whether said rule actually has definitive no longer do their job. The New York State Constitution legal support. The courts in disability pension matters Article V § 7, establishes that “membership in any pen- often indicate that “as is well established, courts cannot sion or retirement system of the state or of a civil division weigh the medical evidence or substitute their own judg- thereof shall be a contractual relationship, the benefits of ment for that of the Medical Board,” citing the Court of which shall not be diminished or impaired.” The Court Appeals decision in Brady v. City of New York4 as support. of Appeals has said that a remedial statute enacted for However, Brady involved the question of whether a police the benefit of a civil servant, such as the disability pen- officer was off duty at the time of his death, which would sion laws, “should be liberally construed in their favor.”1 determine whether his widow would receive line-of-duty Moreover, the courts have maintained that disability pen- death benefits. There was no question about a medical sion laws are in place to assure the availability of such board making a determination of whether or not a dis- benefits to a municipal employee who is permanently ability for full duty existed. incapacitated for duty.2 The Court of Appeals has also Courts often cite the Brady decision when setting forth stated that pension agencies are required to act “lawfully, the aforementioned rule. However, that section involves with due regard to the essential evidence and in a nonar- only the issue of whether the board considered evidence bitrary fashion.”3 of the deceased officer being on or off duty when he died, Nevertheless, those involved in disability pension law and whether the fund’s Board of Trustees merely adopted will say there are instances where seemingly disabled a finding that was clearly deficient. The Board of Trustees workers are denied disability pensions by New York’s oversees the administration of a pension agency and ren- municipal pension funds and retirement systems – a fact ders final determinations on disability pension applica- demonstrated by the courts regularly deeming applications. It is bound by a medical board’s finding of whether tion denials to be improper. In many of these cases, the or not a disability exists, but it has the ultimate power to only recourse for a denied applicant is an Article 78 determine “causation” when a disability is found. Specifi- proceeding challenging the denial. It is in these proceed- cally the decision states: ings that judges lack the authority to award a disability In this case, it appears that the board [of Trustees] pension. merely adopted the recommendation (*606) by the In many disability pension Article 78 proceedings, the medical panel which, in turn, had relied on an incom- pension agencies are found to have met the applicable plete investigation which resulted in a purely con- standards in denying applications and their determina- clusory report that the deceased was off duty at the tions are upheld. But in the cases where they are not, it time of his death. The board could not so delegate its seems contrary to the language of CPLR Article 78, and independent responsibility for the determination of overly limiting to judicial authority, to not allow a judge the issue upon which depended the granting or denial to determine that a permanent disability for full duty has of the petitioner’s application. The implications of been shown. This seems particularly true in light of the this failure to make an independent evaluation and fact that a pension agency could keep refusing to find determination are acutely apparent in the abundance a disability to exist, no matter how many times a court of documentary evidence in the form of duty charts

NYSBA Journal | June 2015 | 45 and the testimonial evidence from the deceased’s com- that in a case where a disability (or death) is found to manding officer and the detectives who worked under exist by a medical board, a court does have the power to his supervision, all of which evidence was clearly determine the cause of the disability and award a disabil- available within the police department itself but was ity pension.13 Thus, perhaps Brady has been improperly never considered by the pension board.5 interpreted and relied upon by the courts to establish the supposed rule of law that judges cannot find a disability Note that Daley v. Board of Estimate City of New York,6 to exist in an Article 78 proceeding. referenced as support by the Brady Court, also involved It must be noted that in denying NYPD Officer a pensioner’s death and the need to determine whether Michael Mazziotti retroactive pension benefits to the the death was related to his line-of-duty efforts; it in no date of the original improper denial of his application, way involved the issue of disability. Thus it is perplexing as discussed in Part I, despite both court orders finding

Hundreds of thousands of New York citizens work in civil service jobs.

how the courts have derived the proposition, “as is well the pension fund’s findings to be unlawful, and despite established, courts cannot weigh the medical evidence the fact that when he was finally approved seven years or substitute their own judgment for that of the Medical after filing his application, was based upon essentially the Board,” from the Brady case, and that portion of the deci- same facts and medical evidence proffered throughout, sion in particular. In a case where the issue is whether a the court in Mazziotti v. Kelly14 wrote, and cited as the death is line-of-duty related, why has the Brady decision basis for its determination: come to be the basis for the rule that judges cannot find a Thus, to award petitioner WTC-ADR [the 9/11 line of disability to exist in an Article 78 proceeding? duty disability retirement pension he was awarded] to the date of any of the Medical Board’s prior recom- The “Definitive Authority” mendations to deny his WTC-ADR or ODR applica- The case currently considered the definitive authority tions the court would have to make a finding that at on whether a court can find a disability where a medical a given point petitioner was disabled for full duty board has not is Borenstein v. New York City Employees’ police work as a result of his WTC related psychologi- Retirement System.7 In Borenstein, the Court of Appeals cal issues as a matter of law. This court simply cannot overturned the Appellate Division, First Department’s make such a determination as it is well settled that the ruling that a medical board’s no-disability finding was threshold question of whether an applicant has the irrational, based upon the medical evidence in the record, injury claimed and whether that injury incapacitates and thus the applicant was entitled to the disability pen- the applicant from the performance of duty is solely sion sought. The Borenstein Court noted: “In the end, for the Medical Board to decide.15 the Appellate Division here did what it should not do: If, in the years following the Brady case that decision ‘substitute [its] own judgment for that of the Medical came to be referenced as standing for a proposition that Board,’” citing Brady.8 The Borenstein Court also cited it truly did not, then it would lend further support to the as support the Appellate Division, Second Department call for revisiting the issue in the Legislature and/or the case Santoro v. Board of Trustees,9 which upheld a disabil- courts. ity pension denial based upon a no-disability finding. Santoro referencing Brady, stated, “It is well settled that The Language of CPLR Article 78 courts cannot weigh the medical evidence or substitute The CPLR states that an Article 78 proceeding can be their own judgment for that of the Medical Board.”10 The brought against a “body or officer,” can only challenge final case cited by Borenstein as support for the proposi- a decision that is final, and must be commenced in the tion was Appleby v. Herkommer.11 There, the court also supreme court of the county. The relief sought can include stated that “[a]s is well established, courts cannot weigh mandamus (an order from a high court to a lower court, the medical evidence or substitute their own judgment or to an authority, instructing it to perform an action or for that of the Medical Board,”12 citing Brady. However duty) or prohibition, or certiorari to review. Currently in Appleby, like Brady, did not involve the issue of disability disability pension challenges , a review and vacatur of the vs. no disability; it involved the question of whether a no-disability finding is all that can be sought via the relief police officer’s line-of-duty job stress had resulted in a of certiorari to review. One cannot seek a pension award heart condition, which contributed to his death. Note under the court’s power of mandamus, often referred

46 | June 2015 | NYSBA Journal to as the “power to compel,” which is available to peti- to review a determination, the judgment may “annul or tioners in countless other Article 78 proceedings. CPLR confirm the determination in whole or in part, or modify Article 78 states that the expression “body or officer” it, and may direct or prohibit specified action by the includes every court, tribunal, board, corporation, officer, respondent.” Yet, the Court of Appeals has determined or other person, or aggregation of persons, whose action that it is not within the purview of New York state judges may be affected by a proceeding under the article. It spe- to find a “disability” in an Article 78 proceeding involv- cifically indicates that whenever necessary to accomplish ing a disability pension, despite their being allowed “substantial justice,” a proceeding under the article may to determine the cause of a disability in such a case.16 be maintained against an officer exercising judicial or Article 78 also specifically states: “If a triable issue of quasi-judicial functions, or a member of a body whose fact is raised in a proceeding under this article, it shall term of office has expired. Also, any party may join the be tried forthwith.”17 However, currently, a judge cannot

Their memberships in municipal pension funds and retirement systems and their entitlement to pension benefits accruing thereunder are not a gratuity. successor of such an officer or member of a body or hold a trial as to the issue of whether a petitioner is in other person having custody of the record of proceed- fact disabled for his or her job title. In a disability pension ings under review. It would seem that based upon the Article 78 proceeding, when a judge evaluates the propri- language of the statute, there should be no prohibition on ety of a no-disability denial, the law says that the burden judges possessing the power to find a disability to exist of proving one’s incapacity for full duty and its cause in an Article 78 proceeding brought against a retirement is placed upon the applicant; if the applicant is deemed system or pension fund, and to award a disability pen- not to have met this burden, then the pension agency’s sion, under the power of mandamus, so as to accomplish denial is proper and cannot be disturbed.18 The law is “substantial justice.” clear that, during the application process, the threshold As per the language of CPLR Article 78, the following question of whether an applicant has the injury claimed questions can be raised in such proceedings: and whether that injury permanently incapacitates the 1. whether the body or officer failed to perform a duty applicant from the performance of full duty is solely for enjoined upon it by law; or the agency’s medical board to determine. If the medical 2. whether the body or officer proceeded, is proceed- board certifies that the applicant is not medically disabled ing or is about to proceed without or in excess of for duty, the agency’s board of trustees must accept that jurisdiction; or determination and deny the application.19 A medical 3. whether a determination was made in violation of board is legally permitted to differ with an applicant’s lawful procedure, was affected by an error of law or doctors’ findings and conclusions, and the findings and was arbitrary and capricious or an abuse of discre- conclusions of all other entities and agencies, no matter tion, including abuse of discretion as to the measure how consistent said outside findings may be.20 The law or mode of penalty or discipline imposed; or states that any difference in opinion between the medical 4. whether a determination made as a result of a hear- board and any of an applicant’s physicians is a conflict of ing held, and at which evidence was taken, pursu- medical opinion, which is solely within the province of ant to direction by law is, on the entire record, sup- the medical board, and that conflicting medical opinions ported by substantial evidence. alone provide no occasion for judicial interference.21 With The petitioners in most no-disability pension Article such great deference being afforded to pension agencies 78 proceedings assert that the pension agency’s medical and their doctors, when a court nevertheless finds a no- board failed to perform a lawful evaluation of their appli- disability denial to be legally improper, why not allow for cation, and thus the finding and application denial were the judge to deem a disability to have been demonstrated arbitrary and capricious and an abuse of discretion, based and to award the pension sought? The language of CPLR upon facts of the matter, including the medical evidence Article 78 does not seem to preclude such power. presented, the realities of their diagnosed conditions, and The general standard in disability pension denial the realities of the full duty requirements of their job title. Article 78 proceedings is whether the determination is CPLR Article 78 indicates that a court “may grant the arbitrary and capricious, and without sound basis in petitioner the relief to which he is entitled,” or may dis- reason, and is generally based upon the administrative miss the proceeding either on the merits or with leave to record that was before the pension agency.22 The spe- renew. It also states that, if the proceeding was brought cific standards and elements that are to be applied and

NYSBA Journal | June 2015 | 47 evaluated by judges include whether a medical board’s permanent disability for full duty has been shown; and a decision was based on “substantial,” “credible” evidence, judge can also set aside a pension denial and award the whether “all essential facts” were “investigated,” wheth- pension sought when concluding as “a matter of law” er the decision was “rational,” and whether the reasoning that a disability was the “natural and proximate result of for the decision was fully “articulated.”23 a service related accident.” Then, it stands to reason that “Credible evidence” has been defined by the Court New York’s judges can also determine that a permanent of Appeals as “evidence that proceeds from a credible disability for full duty has been shown to exist as a mat- source and reasonably tends to support the proposition ter of law. for which it is offered . . . must be evidentiary in nature Closing the legal gap that allows for pension funds and not merely a conclusion of law, nor mere conjecture and retirement systems to be immune from being com- or unsupported suspicion.”24 Pension agencies have a pelled to award a disability pension, no matter how many duty to applicants to handle cases in a fair and equitable times the courts find a denial to be unlawful, would manner, and to consider the totality of the evidence and limit potential abuses of power by pension agencies, and circumstances surrounding an application.25 Moreover, ensure that more disabled civil servants receive the pen- a denial cannot be conclusory or based upon a “bald sion benefits they deserve. We must trust in the abilities finding” by a medical board.26 The extent and in-depth of New York’s judges and empower them, in the appro- nature of these considerations and factors evidences priate cases, to find injured workers to be disabled and the great familiarity and understanding that a judge award them the disability retirement pensions to which unquestionably gains about an application in an Article they are entitled. n 78 proceeding. 1. Mashnouk v. Miles, 55 N.Y.2d 80, 88 (1982). Conclusion 2. O’Marah v. Levitt, 35 N.Y.2d 593, 596 (1974). The Court of Appeals has found that a medical board’s 3. VR Equities v. N.Y. City Conciliation & Appeals Bd., 118 A.D.2d 459 (1st Dep’t 1986). determination denying a disability pension where the 4. 22 N.Y.2d 601 (1968). medical board itself does not perform a physical exami- 5. Id. at 605–06 (citing Daley v. Bd. of Estimate City of N.Y., 267 A.D. 592 (2d nation of an applicant can still be deemed to be legally Dep’t 1944)). sufficient, as that Court has held that sound medical 6. 267 A.D. 592. conclusions can be reached based solely upon the review 7. 88 N.Y.2d 756 (1996). of medical evidence.27 Judges presiding over Article 78 8. Id. at 761 (citing Brady, 22 N.Y.2d 601). proceedings should be perfectly capable of performing 9. 217 A.D.2d 660 (2d Dep’t 1995). such review. Granting judges the power to find disability in Article 78 proceedings would not result in a flood of 10. Id. at 660. approvals that would drastically impact pension agen- 11. 165 A.D.2d 727 (1st Dep’t 1990). cies and, in turn, potentially burden taxpayers, who 12. Id. at 728. could be looked to if municipal pension agency fiscal 13. Meyer v. Bd. of Trustees, 90 N.Y.2d 139 (1997). deficits were to ensue; nor would it result in a pension 14. Index No. 101666/13 (Sup. Ct., N.Y. Co. May 1, 2014). award in every no-disability case. Just as many denials 15. Id. (citation omitted). would be upheld, and a remand for clarification and a 16. Borenstein, 88 N.Y.2d 756; Canfora v. Bd. of Trustees, 60 N.Y.2d 347 (1983). more appropriate review, as opposed to a pension award, 17. CPLR 7804(h). would still likely comprise the majority of judgments in 18. Evans v. City of N.Y., 145 A.D.2d 361 (1st Dep’t 1988); Archul v. Bd. of Trust- favor of petitioners in such cases. A disability finding ees, 93 A.D.2d 716 (1st Dep’t), aff’d, 60 N.Y.2d 567 (1983). and pension award would be a remedy used only in the 19. Zamelsky v. N.Y. City Emps.’ Ret. Sys., 55 A.D.3d 844, 845 (2d Dep’t 2008). most extreme and obvious of cases. If necessary, limita- 20. Manza v. Malcolm, 44 A.D.2d 794 (1st Dep’t 1974); Russo v. Bd. of Trustees, tions could be placed upon the exercise of said power. 143 A.D.2d 674 (2d Dep’t 1988). For example, it could be established that at the very least, 21. Manza, 44 A.D.2d 794; Muffoletto v. N.Y. City Emps.’ Ret. Sys., 198 A.D.2d 7 (1st Dep’t 1993); Borenstein, 88 N.Y.2d 756; Scotto v. Bd. of Trustees, 76 A.D.2d judges would be required to hold a trial under the pow- 774 (1st Dep’t 1980), aff’d, 54 N.Y.2d 918 (1981). ers of CPLR 7804(h), where the petitioner would need 22. Pell v. Bd. of Educ., 34 N.Y.2d 222 (1974). to appear, before finding a disability to exist, similar to 23. Borenstein, 88 N.Y.2d 756; Meyer, 90 N.Y.2d 139. Workers’ Compensation and SSD hearings. Action by 24. Meyer, 90 N.Y.2d at 147 (internal citations omitted); Baranowski v. Kelly, 95 the Legislature or courts is needed either in the form of A.D.3d 746 (1st Dep’t 2012). an amendment or addendum to CPLR Article 78 or a 25. Brady v. City of N.Y., 22 N.Y.2d 601 (1968); Kiess v. Kelly, 75 A.D.3d 416 judicial re-visitation of this issue. A New York state judge (1st Dep’t 2010); see Diaz v. Kelly, 98 A.D.3d 425 (1st Dep’t 2012); Kelly v. Bd. of can uphold a disability pension denial as being lawful, Trustees, 47 A.D.2d 892 (1st Dep’t 1975). based upon a finding that it was supported by “substan- 26. Costello v. Bd. of Trustees, 63 A.D.2d 894 (1st Dep’t 1978); Bennett v. Bd. of Trustees, 20 A.D.2d 522 (1st Dep’t 1963). tial” and “credible” evidence, when “all essential facts” 27. Meyer, 90 N.Y.2d at 145–46. are “investigated,” and can rationally determine that no

48 | June 2015 | NYSBA Journal ATTORNEY PROFESSIONALISM FORUM

To the Forum: tiality of Tribunals and Jurors. While the outcome of the case. The attorney I am currently a mid-level associate at lawyers are strictly prohibited from spoke with the lawyer/foreperson, a prominent New York law firm. Two having any direct or indirect commu- stating, in sum and substance, that “the years ago, I served as the foreperson of nication with a juror during trial under verdict doesn’t make any sense,” and the jury in a medical malpractice trial Rule 3.5(a)(4), post-trial contact with asked how she arrived at the decision in Manhattan Supreme Court. After jurors is a different matter. Generally, to find for the defendant. The lawyer/ the conclusion of the trial, we returned post-trial communications and contact foreperson did not want to discuss a verdict in favor of the defendant. I with jurors are permissible after the the case, telling the attorney she felt recall that as everyone was filing out jury has been discharged under Rule “attacked” by his approach. of court, the plaintiff’s counsel (Peter 3.5(a)(5) unless “(i) the communication Thereafter, the attorney “had a Perturbed) approached me and began is prohibited by law or court order; (ii) hunch” that the lawyer/foreperson to speak in a harsh manner as to his the juror has made known to the law- had “lied” during the voir dire of the and his client’s dissatisfaction with the yer a desire not to communicate; (iii) jury panel and also believed that she verdict. We then walked in different the communication involves misrepre- had improperly influenced the jury directions out of court and I just wrote sentation, coercion, duress or harass- in its deliberations. As a result, he Peter’s behavior off as just sour grapes ment; or (iv) the communication is an researched her background and discov- from another obnoxious lawyer. attempt to influence the juror’s actions ered that she was a first-year associate Last month, the partner in charge in future jury service.” Rule 3.5(a)(5); at a law firm. He then called her firm of my department came into my office see also NYSBA Comm. on Prof’l Ethics, and confirmed that the firm defends and said he received a long-wind- Op. 246 (1972) (following discharge of litigants when they are sued by others. ed email from Peter that accused me a jury, lawyers may communicate with Although the attorney believed that of lying during the voir dire process jurors concerning the verdict and case); there was a violation of Rule 3.5(d) of prior to trial and being unfairly biased Am. Bar Ass’n Ethical Consideration the RPC, which prohibits misconduct toward his client. As much as I know 7-29 (“After the trial, communication by lawyers on juries or in voir dire, he that my superiors honestly believe that by a lawyer with jurors is permitted so put the matter aside in 2008 and did I would not act in the manner claimed long as he refrains from asking ques- not make a complaint. Unfortunately, by Peter, I am deeply disturbed by the tions or making comments that tend he did not let the matter end there. scurrilous accusations made against to harass or embarrass the juror or to Four years later, the attorney revis- me and I am concerned that it could influence actions of the juror in future ited his grievances against the lawyer/ damage my professional reputation in cases.”). foreperson, who was now a partner at other avenues of the legal community. Here, Peter Perturbed appears to be another firm. He sent this email: My question to the Forum: Could in violation of Rule 3.5(a)(5)(iii), com- SUBJECT: ALL THESE YEARS Peter be subject to discipline if I report municating with a juror after the jury LATER I WILL NEVER FORGET him, and if so, what level of punish- has been discharged, by a communica- . . . THE LIAR . . . ment could he receive? tion that involves harassment. Peter Sincerely, also appears to have violated Rule After numerous multi-million dol- Heather Harassed 8.4(h) of the RPC (formerly Disciplin- lar verdicts and success beyond ary Rule 1-02(A)(7)), which provides anything you will ever attain in Dear Heather Harassed: that a lawyer or law firm shall not your lifetime, I will never forget The simple answer to your question “engage in any conduct that adversely you: the bloated Jury [Foreman] is “yes.” Peter may be subject to dis- reflects on the lawyer’s fitness as a that I couldn’t get rid of and that cipline. In fact, in In re Panetta, 127 lawyer.” misled and hijacked my jury. You A.D.3d 99 (2d Dep’t 2015), the Appel- As stated at the outset, In re Panetta lied, said you had no involvement late Division, Second Department illustrates our point. The attorney’s in defense – no biases. It was all recently dealt with a situation similar client in the underlying case sued the bullshit. You deprived a very nice to what you describe. In that case, city after she suffered a fractured foot, lady, [Patty] Hartman, from recov- rather than issue a private sanction, the allegedly due to a defect in the side- ering in a smoking gun liability court unanimously held that a public walk. One of the jurors, who at the case. You either had no idea of censure was the appropriate sanction time was a first-year associate at a law what the concept of probable cause for harassing conduct toward a jury firm, was selected as the foreperson of meant or you misled the jurors foreperson, who also was an attorney. the jury. After a trial in 2008, the jury because you were defense oriented. The situation you describe is gov- returned a unanimous verdict in favor The attorney also went on to dis- erned by Rule 3.5 of the New York of the city. The trial judge permitted parage the city’s attorney, writing, Rules of Professional Conduct (RPC), the attorneys to approach the jurors “You rooted for the underdog, a totally Maintaining and Preserving the Impar- and, if they wanted to, to talk about incompetent corporate counsel, out-

NYSBA Journal | June 2015 | 49 gunned and stupid. I will never for- (2006), is an example. In that disciplin- dishonesty during the process. Attor- get the high-fives after the trial you ary proceeding, a judge’s post-verdict neys should not take matters into their tanked[,] between you and a clue- remarks to jurors, which were critical own hands and send accusatory com- less [corporation] counsel.” The attor- of the jurors for their verdict and were munications to a juror. See N.Y. County ney’s message concluded with ‘“I feel viewed as “insulting and denigrating” Lawyers’ Ass’n Comm. on Prof’l Eth- attacked.’ Well you should get attacked to them, were found to violate various ics, Formal Op. 743 (May 18, 2011) (“In you A-hole. Good Luck in Hell.” provisions of New Jersey’s Code of the event the lawyer learns of juror When the Grievance Commit- Judicial Conduct. Id. at 503–05. Because misconduct . . . the lawyer may not tee ultimately questioned him about the judge was cited for numerous unilaterally act upon such knowledge his behavior, the attorney expressed other incidents of misconduct and was to benefit the lawyer’s client, but must remorse and explained that he was found to have violated various canons promptly comply with Rule 3.5(d) and going through an emotional “roller of New Jersey’s Code of Judicial Con- bring such misconduct to the attention coaster” due to a family illness and duct, he was ultimately suspended for of the court, before engaging in any financial pressures when he sent the 30 days without pay from his judicial further significant activity in the case.”). email. In reviewing the totality of the duties. Id. at 505–15, 528. Should you report this kind of circumstances, the Second Department Your question raises issues similar to conduct? We think that reporting this found the isolated nature of the attor- those in Panetta. Peter Perturbed here conduct is appropriate. Under Rules ney’s conduct, the “stressors” that the has communicated with your employer 3.5(d) and 8.3 of the RPC, you may be attorney was facing in his personal and has made accusations about you ethically bound to report the miscon- life around the time he sent it, and two years after the trial in what appears duct you have described. Rule 3.5(d) his expressions of regret and remorse, to be an attempt to harass or embarrass states, “A lawyer shall reveal promptly to be mitigating factors in his pun- you. Without the benefit of all the facts, to the court improper conduct by a ishment. Panetta, 127 A.D.3d at 102. it is unclear whether Peter’s conduct member of the venire or juror, or by The court ultimately concluded, how- rises to the level of public censure or another toward a member of the venire or a ever, that the attorney’s “email . . . some other form of discipline, such as juror or a member of his or her family was designed to harass [the lawyer/ a monetary fine, suspension or some of which the lawyer has knowledge” foreperson], and his conduct adversely other private sanction. There are several (emphasis added). Moreover, Rule 8.3, reflects on his fitness as a lawyer,” factors that must be considered, includ- “Reporting Professional Misconduct,” in violation of Rules 3.5(a)(5)(iii) and ing, inter alia: expressly provides that “(a) A lawyer 8.4(h), and determined that the attor- 1. Was this an isolated incident of ney was to be publicly censured for his Peter’s misconduct? The Attorney Professionalism Committee professional misconduct. 2. Has Peter contacted other jurors invites our readers to send in comments Other courts have similarly stated in this case or in other cases? or alternate views to the responses that post-verdict communications with 3. Has Peter been involved in other printed here, as well as additional jurors that are abusive or harassing in incidents of misconduct? Etc. hypothetical fact patterns or scenarios to any way would violate their state’s What is clear, however, is that com- be considered for future columns. Send ethical rules of conduct and would munications that harass jurors violate your comments or questions to: NYSBA, expose the attorneys to sanctions. See, Rule 3.5(a)(5)(iii) and may also be a One Elk Street, Albany, NY 12207, Attn: e.g., Struski v. Big Y Foods, Inc., 2000 WL violation of Rule 8.4(h) (conduct that Attorney Professionalism Forum, or by 1429478, at *5 (Conn. Super. Ct., Sept. adversely reflects on the lawyer’s fit- e-mail to [email protected]. 11, 2000); Comm’n for Lawyer Discipline ness as a lawyer). It should be obvious This column is made possible through v. Benton, 980 S.W.2d 425 (Tex. 1998) to any attorney that this kind of contact the efforts of the NYSBA’s Committee on (holding that the state may regulate with a juror is inappropriate and is Attorney Professionalism. Fact patterns, an attorney’s post-verdict communi- likely to get one in trouble. Harassing names, characters and locations presented cations with jurors to prevent juror a juror goes to the very integrity of the in this column are fictitious, and any resem- harassment); Lind v. Medevac, Inc., 219 judicial system since it serves to intimi- blance to actual events or to actual persons, Cal. App. 3d 516 (Cal. Ct. App. 1990) date jurors and discourage jury service. living or dead, is entirely coincidental. These (attorney’s letter to members of jury If an attorney has a legitimate belief columns are intended to stimulate thought after trial asserting that fellow member that a juror has somehow acted inap- and discussion on the subject of attorney of bar may employ “sharp investiga- propriately, he or she has a remedy. professionalism. The views expressed are tive tactics” to “impeach” jury’s ver- Under Rule 3.5(d), the attorney must those of the authors, and not those of the dict and have it set aside as “improp- promptly report such impropriety or Attorney Professionalism Committee or er” violates the RPC). misconduct by the juror to the court. the NYSBA. They are not official opinions Even judges can be sanctioned for That is the correct way to address any on ethical or professional matters, nor improper post-verdict jury commu- concern an attorney may have with should they be cited as such. nications. In re Mathesius, 188 N.J. 496 respect to a juror’s purported bias or

50 | June 2015 | NYSBA Journal who knows that another lawyer has QUESTION FOR THE payment becomes due. During that committed a violation of the Rules conversation, he emphasized that this of Professional Conduct that raises a NEXT ATTORNEY information is confidential and can- substantial question as to that lawyer’s PROFESSIONALISM FORUM not be disclosed to anyone. During honesty, trustworthiness or fitness as a the mediation, plaintiff’s counsel com- lawyer shall report such knowledge to I’m a commercial litigator in New municated a final demand to my cli- a tribunal or other authority empow- York. I recently was asked to mediate ent, which my client indicated he was ered to investigate or act upon such a commercial contract case, which is willing to accept. I did not disclose the violation” (emphasis added). Here, in pending in the Commercial Division information that my client shared with our view, Peter has crossed the line, in the Supreme Court of New York, for me, either to the mediator or plaintiff’s and this type of inappropriate behav- one of my clients who is the defendant counsel. ior should not be tolerated. in the action. The morning right before My question to the Forum: Did Sincerely, commencement of the mediation, my I have an obligation to disclose my The Forum by client informed me that his business client’s confidences under the circum- Vincent J. Syracuse, Esq. has been doing “lousy” and that even stances? What should I have done? Is ([email protected]) and if the parties were to reach a settle- there anything I should do at this time? Maryann C. Stallone, Esq. ment, he nevertheless intends to file Sincerely, ([email protected]) for bankruptcy before the settlement Concerned Counsel Tannenbaum Helpern Syracuse & Hirschtritt LLP

NEW YORK STATE BAR ASSOCIATION ATTORNEY ESCROW ACCOUNTS Rules, Regulations and Related Topics Fourth Edition

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EDITOR PRODUCT INFO AND PRICES Peter V. Coffey, Esq. 2015 / 436 pp., softbound Englert, Coffey, McHugh & Fantauzzi,LLP PN: 40264 Schenectady, NY NYSBA Members $60 Non-members $70 ASSISTANT EDITOR Order multiple titles to take advantage of Anne Reynolds Copps, Esq. our low flat rate shipping charge of $5.95 Law Office of Anne Reynolds Copps per order, regardless of the number of items Albany, NY shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be Get the Information Edge based on destination and added to your total. 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB3075

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Katz Parente Marissa C Carro Daniel Paul Dykes Dena B. Guttmann Chelsea Teresa Kelly Anna Badalian Ralph Carter Timothy P. Eardley Alice Yuk Ning Ha Jesse Kevin Kennedy Eugene Baek Sharon Michelle Casola Jake Alexander Ebers Kodey M. Haddox Erica Lyn Kerman Amanda Mauriello Baker Joseph Michael Castelli Yamilet Evelein Echeverria Taylor S Hahn Joseph Nicholas Kiefer Sara Jane Baldwin Michael Cary Castellon Maroun El Hachem Peijun Han Jared Robin Killeen Jeremy S. Barber Edgar Chakarian Andrew Harry Elkin Sophia Ahrum Han Edward T Kim Georgia Boone Barker Grady Chang Robert Ennis Laura Prebeck Hang Esther Kim Abigail Beatrice Barkwell Hae Cheong Chang Nicole Alexis Escobar Benjamin Ashby Hardesty June J Kim Elysa Jeanette Baron Kimberly Jane Channick Atoosa Esmaili Alex David Harris Jordan Lisent King Robin Leo Barriere Angela Chao Erica Hava Esposito Ryan Joseph Harris Zachary J King Kelly Patricia Bartley Jessica Jade Chao Evan Douglas Ewing Jaclyn Dale Hart Samantha Liza Kingsley Mallory Blair Beberman John Moses Cheever Haben Fecadu Zachary Philip Heller Evan Ross Kirsch Stephen Charles Behymer Matthew Lief Cheifetz Melissa Faith Feig Min Wook Heo Thaddeus Rajesh Kleckley Santiago Bejarano Isaza Irisa Chen Eric Matthew Feinstein Elizabeth Clark Hersey Alexis Estela Kleiman Tobal Samuel A. Benjamin Johnston Wayne Chen Remy E. Feldman Zachary Robert Herz Edward Charles Klein Alain David Bensimon Lester H Chen Micah Festa Fergenson Alyssa Anne Hill Michael W Kobb Sarah Elizabeth Berens Dasha Chestukhin Yvette Elise Ferrer Jennifer Renee Hill Joseph Keith Kobylka Sean Matthew Berens Tae Ho Cho Breanna Elizabeth Fields Angela Michelle Hitchcock Erika Michelle Kolb Lauren Bergstrom Won Joo Choe Daniel Elliot Fine Ashley Renee Hodges Alaizah Alnoor Koorji Adam Berkey Yoon Young Choe Beck S. Fineman Daniel A. Hoffman Jonathan Harris Koppell Arnaldo Bernardi Andrea Ann-yee Chui Alec Blaine Finley David Haywood Holmberg Danielle Marni Koves Edward Thomas Williams Dasom Chung Jeremy Bo Fischer Devon Charles Holstad Raj Krishnan Bersuder Eliza Rose Ciccone David Fitzmaurice Allison A. Holzberg Louise Molly Kruger Christopher Tilney Bevan Dustin Thomas Clark Stephen Alexander Fleming Peter Hong Adi Krupsky Rachel Horton Bevans James Phillip Clarkin-Breslin Dominique Nicole Forrest Matthew Glenn Horowitz Leslie Conard Krusen Ravi Rajesh Bhagat Barbara Mary Clear Matthew David Fox Nicholas Howell Horsmon Guan Hua Kui Daksha Bhatia Jamie Patrick Clouser Yulia Michelle Fradkin Edvin Hot David M. Kusnetz Jeffrey Biel Katherine P Cocklin Francisco Manuel Franco Hung-yi Hsiao Christopher Ralph La Motte Perri L. Birnbach Jeremy Tibbetts Coffey Rodriguez Kevin Chi-wen Hu Harold Stewart Laidlaw Demetri Brumis Blaisdell Ilyssa L Coghlan Beatrice Catherine Franklin Tim Huang Perry Allison Lasicka Gillian G. Bland Matthew Michael Cognetti Sylvain Frayer Carly Alison Hudson Abbye Lawrence Jonathan Harry Blanksteen Dori Yona Cohen Emily Rachel Freeman Naomi Chi-chia Hung Benjamin Gordon Harry Lazar Lee Michael Blum Justin Adam Cohen Leah Stephanie Friedman Jenny Irene Hurwitz Christina Bora Lee Andrew David Blumenthal Sabrina Joy Cohen Lindsey Friedman Jung Eun Hwang Michelle H Lee Daniel Jordan Blumenthal Jessica Ann Cohen-Nowak Tova D Friedman Juan Eduardo Ibanez Gomien Min Kyung Lee Jane Elizabeth Bobet Nicholas John Colombo Julie Ann Fulop Ramy Ibrahim Victoria Jiha Lee Courtney Elliott Bobrovnikov Shane A. Correia Joseph Thomas Gallagher Victoria Ilukhina Yena Lee Jonathan Leavitt Bodansky Lynnette Cortes Michael Edward Gallagher Susan Emilie Imam Andrew Jonathan Leff Richard Bohm Bianca N. Costa Rodriguez Robert David Gallo Adriana Tania Ingenito Youri Stephane Legrand Hector Jerome Endaya Vanessa Costantini Alexander Gefter Daniella Isaacson Andrea Lynn Leshak Bondoc Kaitlyn Elizabeth Curley Joshua Stephen Gelb Marni M. Isaacson Byron Jeffrey Lewis Lauren Alana Bowman Ryan Dahan Philip James George Jacob Itzkowitz Daini Li

52 | June 2015 | NYSBA Journal Ruby Xiaotong Li Joshua Daniel Neifeld Dina Neda Rezvani Rebecca Shieh Sarah Louise Walton Steven Yiliang Li Amy Katherine Nemetz Daniel Ribeiro De Lemos Michelle Junie Shin Robert Bayne Warfield Xiaoyu Chris Liang Takeshi Nemoto Sternick Stacy Lynn Siegel Tyler William Warner Elliot Solomon Lief Meghan Lorraine Newcomer Andrew Hart Rice Anne Elizabeth Silver Ross M. Wasserman David Samue Lightstone Sara Francis Nichols Lukas David Richards Ariel Tk Simon Brian Michael Waterman Miguel Andres Lilly Elizabeth Marie Niles Kyle Andrew Rifkind Sameer Singh Adam Joseph Watts Shawn Wei Kang Lim Ida Rose Nininger Daniela Rios Jeffrey Adam Sipos Jennifer Ashley Weeks Edward Robert Linden Emma Elise Noftz Jeffrey Adam Ritholtz Jonathan Philip Sirulnick Jessica Kate Weigel Nicole Elizabeth Lindgren John Joseph Nogueras Edgar Rivera Christina Melissa Skaliks Stephen Roger Weingold Anna Linetskaya Carolyn M. Norton Peter John Robau Elizabeth Anne Skeen Nitzan Weizmann Maxwell Dillon Liporace Brett M Novick Brett Eric Robin Christian Skinner-Klee Aaron Christopher West Chuan Liu Leah Michelle Nudelman William Francis Roegge David Slovick Ashley Shinwon Whang Lisa Liu Aviva Becky Nusbaum Brandie Layla Rollins Sophia Sorella Sofferman Benjamin G. Wiener Shyuan Liu Evan James O’Brien Ethan Daniel Roman Lauren Elizabeth Sandberg David Bruce Wilkins Wendy Liu Stephen Aidan O’Connor Anna Elizabeth Romefelt Springer Lorilei Alicia Williams May Caroline Lolli-Ghetti Chelsea Lin O’Donnell Kate Hilary Romick Arthi Sridharan Joseph B. Williamson Erika Patricia Lopez David Robert O’Steen Adam David Rose Lilia S Stantcheva Brooke Jillian Willig Stefanie Lynn Rubin Lourenco Kimberly A. O’Toole Benjamin Chad Rose Alexander Phillip Stark Sally Vold Winters Michelle H Lu Lauren Obee Rebecca June Rosedale Bethany Constance Stein Jeffrey Augustus Wojcik Benjamin Israel Lubarsky Martin Paul Oberst Joanna Doris Rosenberg Emily F. Stein Amelia Wong Steven Henry Lugerner Benjamin Don Oheb Julie Ann Rosenberg Edit Stelczner Humbert Wong Michelle Mengxi Luo Ariana Rameen Omar Anna Hassel Rosenblatt Chelsea Sandra Stevens Miae Woo Susan Shenshen Luo Marlon Javier Orozco Michael Aaron Rosenblum John Robert Stewart Robert Matthew Worden Evin Brooks Luongo Spencer S. Orton Lauren Kelley Ross Jamie Ann Stinson Domonique Worship Trevor Clark Lynch Aadhithi Padmanabhan Amanda Agnieszka Aaron Eduard Stolpen Jessica Wright Katherine Virginia Mackey Erica M. Palaia Rottermund David Andrew Stoopler Jin Hui Wu Ritesh Kishore Mallick Alice Hexiang Pang Jessica M. Rubenstein Rikki Drew Studley Shehla Wynne John Monahan Maloy Juyon Eileen Park Daniel M. Rubin Maxwell H. Sturman Yizhou Xu Gila Mandelcorn Katherine Jina Park Melissa Ingeburg Ruhry Maria Alejandra Del Carmen Andrea Kristine Yankovsky Vanessa Ruth Mander Adam Philip Pascarella Hugo Ruiz De La Torre Suarez Rodriguez Zuo Yi Matthew Asher Marcucci Danielle Nicole Paschal Carla Russo Sarah Elizabeth Sullivan Christopher Jin Yu Lesley Anne Mardon Elyse L. Patterson Catherine Marian Ryan Gabriella Sultanik Li Yu Rachel L. Mark Andrew Sean Peace Heather Katrina Sager Kristen Sahaana Surya Jeffrey Wai Yuan Amy Elizabeth Markel Eyal Peled Katherine Milann Salzman Raquel Eve Swartz Matthew T Zagelbaum Gregg Eli Marmaro Martin Pepeljugoski Elizabeth J. Sandercock Stephanna Francesca Michael Jacob Zaken Jamie Michelle Marr Eric Laurence Perelman Robert Francis Sanzillo Szotkowski Royce Liverant Zeisler Holly Meredith Martin Diego Perez Ara Adam Jeremy Sapper Meher Javid Talib Arthur Henry Zelmati Amy Rose Marvin Montour Anthony Joseph Perrotto Sylvi Lempi Ottlia Sareva Kathryn Anne Taylor Jeanne-paloma Zelmati Sharmeen Mazumder Sarah Jane Petersen Steven Nathaniel Sasmor Melanie Rachel Taylor Richard Peter Zemsky Caroline Elizabeth McInerney Danielle K. Petrillo Douglas Brian Sayranian Teresa Ai-shiung Teng Anthony Zhang Brandon Andres McKenzie Rachel Phillips Giuseppe Maria Antonello Andrew James Terjesen Elizabeth Jianing Zhang Eileen Marie McNamara Rebecca Adar Phipps Scaravilli Rajiv Vijay Thairani Haiyun Zhao Elizabeth Christine McNichol Julia Claire Pilcer Melanie Braune Schaschl Anuja Diwakar Thatte Haiyan Zhou Lauren Evelyn Melkus Caitlin Piper Dylan Jake Scher Kathleen Rebecca Thomas Mengzhe Zhou Eliza Robin Meltzer Matthew Jacob Platkin Lisa A. Schlesinger Jessica Marie Thompson Mo Zhou Hannah Menda Matthew Lucas Ploszek Michael Johnson Schmale Jillian Ashley Tivin Rae Zhou Miheer Vilas Mhatre Michelle Anette Pope Phillip Peter Konrad Schmidt Maria Leonor Tobia Diaz Qi Zhu Alexander John Miachika Mojdeh Pourmahram Samantha M. Schonfeld Andrew Simon Todres Xiao-wen Zhu Ethan Wilson Middlebrooks Rivers Davis Powell Melvin L. Schweitzer Adam Ross Toporovsky Kyle Zimmerman Piper Anne Miles-Coccaro Shilpa Prem Justin Paul Sciabbarrasi Cristina Lauren Toscano Catalin Sebastian Zonte Lila Rebecca Miller Daniel A. Principato Nicholas Hugh Scott Kristen Joy Trad Esther Joy Zuckerman Samantha Ritvo Miller Corinna Lynn Provey Christina Marie Seda Yevgeniya Tsalyuk John Allen Zumpetta Steven Harold Miller Jennifer M Puchalski Peter Charles Seel Homer Boyd Turgeon SECOND DISTRICT Jenna Lauren Mintzer Lisa B. Quattrocchi Elizabeth D. Segal Chiara Benedetta Ujlaki Joseph F. Abadi Ashley Robson Mistretta Helen Quigley Sanjukta Sen James Allen Unger Rashida J. Adams Eric Jordan Mogel Brian Fien Rabkin Antony Alexander Serban Tiferet G. Unterman Gershon Akerman Elizabeth Katherine Monahan Moritz Tobias Raepple Amanda D. Sewell Anjum Naz Unwala Vahob K. Alimov Brigid Mary Morris Pallav Raghuvanshi Nina Shah Paola Uriarte Robert Christopher Almon William Philip Morrison Emma Phaff Raviv Jahaan Akilah Ruth Shaheed Laura Johanna Helina Matthew Christopher Jacob Joshua Moss Emily Kathryn Raymond David Adam Shapiro Vaelitalo Anderson Noah Jacob Moss Brittni Reaser Ilana M. Shapiro Jose Mario Valdes Fitzgerald Angrand Andrew Thomas Murphy James Norton Reed Shabri Sharma Lauren Ann Valle Sarah Jocelyn Arena Sean Patrick Murphy Donald John Reinhard Anne Elizabeth Shaughnessy Karina C. Van Ginkel Assaf Ariely Sanjay Gadde Murti Sophie E. Reiter Joshua Tyler Shelton Joice Varughese Laura Portney Armstrong Caitlin Linnihan Naidoff William Davio Reiter Samuel K. Shenfeld Jacob Moshe Victor Katia Asche Michael Andreas Nance Gregory Alan Renick Kevin Alan Sherrin Katrina E. Waizer Christopher James Asta Shireen Nasir Cory Merrill Reno Casey Rose Shevin Charles G. Walker Robin Brooke Axelman Stefanie Elizabeth Neale Juliana Reno David Shieh John Joseph Walsh David Allen Babbott

NYSBA Journal | June 2015 | 53 Mark Balken Jeremy Hanson Lauren Lee Pettiette FOURTH DISTRICT Anequa Olivia Campbell Stephen Ballentine Joel David Harding Ashwin Dilip Phadnis James R. Dye Kelly Ann Campbell Christopher James Bateman Galiah Jeanette Harel Anjanette Dixon Pierre Joseph Frank Izzo Sara Beth Carissimi Gill Benedek Kelly L. Hartnett Anne-valerie Prosper Linda Louise Richardson Christine Cavanagh Nicole Vladi Berkovich Mallory Elysse Harwood Thomas Anthony Quinn Walter L. Williams Michele Chavez Ariel Ilene Berkower Julian Maurice Hill Ramya Ravishankar Andrew John Ciccaroni FIFTH DISTRICT Aaron M Bernstein Mariam Aida Hinds Aaron Emanuel Reichlin- Diane T. Clarke Jessica Chiavara Glenn Alan Berry Connie Hong Melnick Danielle Coysh Adam Ryan Hebert Christopher James Beshara Peter Horn Jacob I. Reiser Lindsey Carolyn Crecco Sabrina Margret Bierer Samia Akther Hossain Cynthia Rios SIXTH DISTRICT Mary-Ann Czak Jacqueline Price Birnbaum Fielding Evan Huseth Jesse Alan Rockoff Catherine Mildred Hannan Vincent Anthony Depasquale Michael Brasky Gail L. Hyman Sabine Rospide William H. Hartwell Danielle M. Drasser Marvin Jonathan Brice Cheddi Berret Jagan Abraham Rubert-Schewel Alexander G. Jochym Lisa Constance Esposito Gabriel Benjamin Brunswick Kevin Eli Jason Meredith Hope Schlacter Chad Michael Pollard Jaclyn Alyssa Feldman Jalise Revon Burt Alfred Brill Jensen Mario Schollmeyer Minwoo Ryu Brendan Forrest Friedman Megan Dorathea Byrne Yanwen Ji Jonathan Samuel Schulman Zachary James Wegmann Victoria Nicole Galante Victoria Elissa Garel Romy Elisabeth Carr Janet Katherine Jones-Duffey Anna Therese Scott SEVENTH DISTRICT Lisa M. Gioia Michael Anthony Casertano Jonathon Thomas Junig Diana Serebrenik Joshua Raymond Bennett Andrew Marc Gordon Jeanette Cepeda Joanna C. Kahan Jaana Paula Helena Serres Erin Kathryn Erturk Suzanne Marie Grassel Chiwon Chang Kevin Kehrli Jose Miguel Sevilla Cynthia Hongbing Zhang Phylicia Melissa Ann Charles Whitney A. Kelem Nutan Sewdath Elliot M. Hamlet Robert Amory Myers Chester Kristopher John Kendall Adam Wallace Sgro EIGHTH DISTRICT Sara Jean Herchenroder Joshua Chow Anthony Ramon Keys Kiran Sheffrin Molly Bayliss Marissa Anne Hercules Hyo Jung Chung Olha Khomyak Elaine Nicole Simeon Seungmin J. Jung Steven Paul Hollander Cassye Maureen Cole John Kiritsis Fletcher Nathaniel Smith Zachary Travis Weiner Ryan James Hough Sarah Elizabeth Coleman Martha Ann Benjamin Forman Smyser NINTH DISTRICT Brittany Lafaye Johnson Kathleen Tully Conlon Koutsogiannopoulos Naomi Rachel Sosner Marc Appel Jennifer Maria Johnson Scott Harlan Coomes Peter Aaron Kovacs Nicole Martha Sosnowski Anna Belova Laura Elizabeth Johnson Benjamin F. Cooper Elvira Ruslan Kras Alexander Thomas Syverson Maria Brittany Biaggi Kellianne C. Jones Catherine Beatrice Cooper Emma Mika Kurose Keith Michael Szczepanski George W. Blyler Meredith E Kalman George Stevenson Davis Thomas Owen Lavander Erin Belkis Tasova Daniel Anthony Bonamassa Tahira Karanjawala Reginald Davis Charity Eunah Lee Christel Yumun Tham Ariel Bouskila Stephanie E. Kass Sara Dayan Paula Marissa Lequerica- Orla Gobrena Thompson David Charles Calvello Eric Edward Kavanagh Polina Demina Sternberg Kevin Yingzhen Toh Angela Nicole Capello Deena Khalifa Rebekka Pauline Denenberg Kristiina Helena Leskinen Peter Travitsky Jillian Ashley Castrellon Raymond Anthony Klein Alisa S. DeRosa Karen Ellen Leve Ashley Maria Gonzalez Brett Childs Matthew Dennis Lavoie Ari John Diaconis Amanda Marie Levendowski Tucker Erin Michelle Davis Jenny Lynn A. Lazar Adrian Andres Diaz Jesse Thomas Levitsky Robert Alexander Underwood Cassie Theresa Dogali Kelly Nicole Leonard Angel Siegfried Diaz Kevon Dawson Lewis Rebecca Vainer Miriam Eckenfels-Garcia Matthew Adam Leonhardt Stephanie Drotar Susanna Pearl Lichter Caroline Julia Vega Meghan Violet Embry Eric Levine Ashley Rose Eisenberg Samuel Mark Light Cynthia Yolanda Ventura Matthew Henry Goldstein Xinyue Li Benjamin David Elga Sara Elizabeth Liss Julian Veshi Sean M. Hobbs Elkanna Sari Light Patrick Kenneth Allen Elkins Alicia Carmen Lobeiras Matthew Villar William Thomas Hughes Thomas Anthony Lumpkin Matthew R. Engel Daniel Raymon Lorme Alastair Julian Waithe Elaine Catherine Iarocci Patricia Yvette Medina Evan Matthew Ezray Joanne Elise Luckey Adam Jeremy Waks Sarah E. Kelland Nicole Meghan Megale Najah Aaquila Farley Charles Michael Lupica Jade M. Wallace David Lapa Alison Christine Meigh Abbey Leigh Farnsworth Adam David Lynn Shantel Watters Sean R. Levin Lauren Tracey Michalski Adam Lowell Farnsworth Jonathan A. Lynn Marc Stanton Werner Alexa Blaine Lutchen Hamza Hasnat Ahmad David I. Feinstein Paul F. Maiorana Natalie Race Whitaker James Peter Maver Minhas Audrey Sarah Minnie Sarah Esther Manley Jeremy Whiteman Christian Dominick McCarthy Melissa Zabeeda Mohabir Feldman Gregory Mantych Gabrielle C. Wilson Allison Nicole Netto Katelyn Marie Moloney Dinisha Fernando Gillian Maranga Daniel Wolff Eric David Parker Kenneth Robert Morgillo Temimah Friedman Sonya Matejovic Joshua R. Wueller Aleah Rose Quigley Brian Thomas Murtha Jolan Futaki Jason Scott Matuskiewicz David Pu Yin Kimberlee Ann Scalia Rosemary Spring Ortiona Alyssa Emily Galinsky Victoria N. Medley Eugenia Zhurbinskaya Anthony A. Scarpino Mona Rajen Patel Rebecca Jane Gannon Alexander John Friesen Metz Maria Zubair Robert M. Schechter Pavlo Pavlatos Alexandra Kathryn Ghiorzi Carolyn L. Miller Olga Zverovich Janet Pearsall Sistare Julianne Marie Prisco Alicia B. Gilbert Lora Minicucci Daniel Rabanipour THIRD DISTRICT Eric Alan Thorsen Lisa Ann Littell Smith Lara Ariella Miranda Gaffar Jacob Alexander Rudman Darren Jon Del Dotto Sarah Elizabeth Tuttle Gilbreath Michael Jeremy Molina Robert Paul Sainvil Daniel Gartenstein Andrew Warren Goering Charles Stephen Mottier TENTH DISTRICT Jonathan Joseph Sardelli Oksana Vinchislavovna Jeremy Michael Purkey Jared Christopher Nardilla Ahmad Mustafa Abdelaziz Nicole Lauren Scherer Golovina Goldstein Ivan Ng Philip J. Artusa Jared Ezra Schroder John Scott Griese Bryan Matthew Gottlieb Kristina Cee-mun Ng Elisabeth Benet Avallone Erin R. Schwartz Margot Marie Hanstein Timothy Haslam Gray Alex Weston Nordholm Matthew R. Bastin Moshe Dov Segal Amanda Judith Kukle Alex Rachel Guiterman Miya T. Owens Brendan A. Bertoli Joshua Craig Shack Andrew William Neidhardt Christopher Frederick Hahm Gregory Frank Ozzimo Christian Peter Bodner Sneha Mukesh Shah Lisa Danielle Kahn Weinstein Lauren Clair Hall Justine Michelle Pelham Patrick Michael Butler Nahid Aftab Shaikh William Jeffrey Wyatt Mark Joseph Hanna Jonah Ari Peppiatt Taylor Anne N. Calogrias Aarti Sheth

54 | June 2015 | NYSBA Journal Sam Brooks Smith Kathleen Victoria Judith Shir Marisela Rosina Sigona Francisco Eduardo Castillo- Katherine Nowland Galle Alexis D. Soshnick Meara Malgorzata Soltys Ruiz Lan Gao Max Joseph Sullivan Thomas Joseph Mennecke Marina Tricorico Caroline Cavassin Klamas Osvaldo Garcia Francis J. Sweeney Anthony Joseph Micallef Gerard Justin Cedrone Andrew Kabnick Garden OUT OF STATE Kimberly Ann Sweeney Victoria Mikhelashvili Aretha Chakraborti Bryan Andrew Garner Tsan Abrahamson Stuart Elliot Szlafrok Rachael Jordan Morgan Theresa Louise Chalhoub Apurv Gaurav Laura Faye Achoneftos David S. Torreblanca Jessica Marie Olive Salma T. Chand John Michael Geise Andreas Michael Adler Reuben Marc Weisfeld Alexandria Pappas Ho Kyung Chang Rebecca Rose Gelozin Khushboo Agarwal April Gloria White-Small Kasey Shea Parente Aliesje Gail Chapman John William Gerlach Carlos Ignacio Aguilar Ahbra Loretta Williams Chanwoo Park Xinzi Chen Christine Lynn Gertsch Setenay Akdag Andrew Lesly Williams Jullia Juyeon Park Anil Kumar Choudhary Michael Christopher Gibson Evan Reeves Alonzo Brian Russel Woods Yuzhe Pengling Jannie Chung Julian James Orkin Ginos Meriam Nazih Alrashid Sharon Shoshana Yehoshua Francisca Ana Petrescu Jason Chung Sidney Leonard Gold Rebecca Justine Andreoli Kevin Yim Kimberly Rai Yuen Yi Chung Shoshana Ruth Golden Antoine Angles D’auriac Sydney Elizabeth Raife Alexandra Mary Claps Sydney Adam Goldenberg ELEVENTH DISTRICT Elizabeth Easley Apostola Aliaksandra Ramanenka Richard Arlie Coats Evan Goldinger Allison Kimberly Apolo Denise Apostolakis Kristen M. Ramos Mayan Cohen Dovid Y. Goldman George Aprilakis Alexander Argyris Samuel Alfred Ramos Emily Carrie Cole Tatiana Golikova Heather N. Babione Molly Armus Yanfei Ran Sarah Anne Collins Thomas Henry Good Alexander Viktorovich Guillermo Carlo Artiles Max Raskin John Wilson Cording Ilene Renee Goodman Bondarenko Daniel Warner Asher Francois Miguel Restrepo- Erin M. Covert Evan Matthew Gordon Caitlin Frances Breen Laura Kimiko Ashikaga Serrano John E. Crandon Jeremy Howard Gottschalk Joannah Michelle Ariola David Louis Attanasio Samantha Jo Ribeiro Michelle Lauren Cummins Denise M. Graham Caneda Cynthia Nicole Baker Ali Hassan Salameh Katherine Amy Cunningham Heather Violet Graham Conor David Carrigan Amy L. Ballard Julie Elizabeth Silvia Myriam Daher Peter F. Granoff Xue Chang Daniel Brasil Becker Zubin Daniel Soleimany Wen-chuan Dai Nicholas James Grau Kiran Kaur Cheema David Wayne Beehler Anetta Sookhdeo Sara Dalrymple Eric Louis Green Savannah Hui Ling Chin Jeffrey Allen Beer Joseph Spedale Samantha A. Daniels Ryan Anthony Green Kostian Ciko Jennifer Marie Berardo Marianne E. Stewart Talia Gayle Danon Emma Catherine Lemin Phillip Scott Crain Evan Andrew Berger Jennifer Katherine Strashnick Troy Anthony Darmanin Greenwood Alexander Nathan Cross Labinot Alexander Berlajolli David Stuart Surry Martha A. Dean Daniel Raymond Griffin Michael James Curtis Jing Bian Boris Tadchiev Danielle Elizabeth Debold Gregory S. Grigorian Emmanuel Fashakin Mordechai Biegeleisen Jason Leonard Tillman Lawrence J. Del Rossi Lauren T. Grodentzik Keith Lawrence Felsenfeld Anna Larissa Bijelic Steven Thomas Traditi Greg A. Delfiner Daniel Simon Guarnera Jose Alejandro Fernandez Drinald Vangjel Bilcari Colin T Vaughn-Casey Craig Randall Dell Jayita Guhaniyogi Rebecca Fleur Furman Jonathan Black Shengao Xu Joshua David Detzky William Lee Guice Michael Galen Alissa Ellen Blechner Betty Yusupov Andrew G. Devore Vincent Guilaine Laura Alexandra Garcia Patrick Dillon Bloomstine Tzipora Zelmanowitz Emma Katherine Dinan Hina Gupta Margot Elena Gendreau Richard Alexander Bodnar Julie Bozena Zgoda Xiaoyu Ding Sadaff Shokatali Habib Hanaiya Ikea Gholson Brian Christopher Bohm David Michael Disegna Scott Pacific Haggmark Max Joseph Goldman TWELFTH DISTRICT Iurii Boiarshinov Beth Ann Dodson Elizabeth Margaret Hague Alex Joseph Gorman Dyana Jane Boxley Konstantin Bondarenko Jie Dong John James Hall Londyn Shea Graham Christopher A Carrion Tess Meiling Borden Christopher J. Donnelly Kristen Lynn Neyhart Jenny Lian Greisman Jillian Coogan Lucia Borjas De Suarez Lianna Elise Donovan Halliden Jonathan W. Greisman Odessa Malika Haley Salvia Nadine M. Doolittle Gregory Lawrence Halperin Mikhail Guseynov Jonathan Oscar Hurt Shari Bornstein Alexander Jerome Douglas David A. Hamid Bessie Hadjigeorghi Crystal A Jackson Bethany Lynne Boucher Michael Doumet Minsuk Han Lindsey Violet Harriman Sha-tehl Mayo Susan Marie Bourque Valerie Duchesneau Ni Han Yue He William A. Porter Gregory Allan Bray Olivia Min-tsyr Duh Joshua Keith Handell Douglas Jon Hollins Nathan Albert Potek Joseph C. Brennan Xerona Genevieve Duke Robert John Hankes Cindy Horowitz Travis Clark Reynolds Elijah Packard Bresley Alex Michael Dzioba Kaori Hara Andrea N. Hovnanian Johanna Sanchez Spencer W. Brielmaier Zachary Neil Eddington Omid Harraf Sarah Lane Huff Yesy Arturo Sanchez Rebecca S Broches Benjamin Zachary Eisenstat Alexandra Dianne Harwin Ismael Iniguez Sabriya Fareeda Senhouse Eric Louis Brown Solomon Suppes Eppel Christine Anne Hathaway Michelle C. Johnson Holmes Katie Alisa Serrano Whitney Syfan Brown Halley Wilder Epstein Robert M. Hayes Michael Ryan Jones Jasmin Elena Torres Aaron Charles Brownell Christian Tyler Evans Fiona Lavinia Hall Heckscher Brett Walker Joseph Courtney Delano West Ariel Leigh Bucher Kathleen Ann Faehner April Renee Doxey Heidt Sumaiya Khalique Amanda Amelia Butler-Jones THIRTEENTH DISTRICT Gerard William Farrell Susan Klein Hennessey Sojeong Kim Artyom Byk Robbin Pathil Antony William Cantwell Fay Alexander Ethan Hernandez Anna Kordas Benjamin Garrett Cain Bishoi Aziz Christina Marie Fetterhoff Santiago Herrera Christine Alyse Kuveke Carrie Ellen Cammarano Kathleen Marie Dailey Jacob Mandel Fisch Daniel Paul Herrmann William Anthony Labate Sara Canby Andrew John Dalack David Paul Force Kevin Leslie Hicks Megan Faith Law Lauren Marie Capaccio Jaclyn Christine Feeney Kiosha L Ford Derrell Darwin Hill Daniel H Lewkowicz Denis John Carey Mario John Giammarco Michele Formaggio Donna M. Hill Lulu Li Pamela Abalos Carranza Amanda Giglio Edwige Germaine Fowo Richard Peter Hofmann Eric Wan-jin Lin Christopher P. Carrington Christina Marie Martinez Tamlyn Margaret Frederick Margaret Cameron Holden Dwight W. Loines Ryan Scott Carroll Christina Evie Reyes Joshua Aaron Freiman Alizabeth Alexandria Holland Hannah Rachel McCuiston DeMario Carswell Sundas Saeed Hilary Potash Fruitman Maide Tuhu Holloway Jacqueline Elizabeth Maria Rosa Casado Dionne A. Shuler Maria Anna Fufido Aaron Bethea Hopkins McIntosh Myrthala G. Castillo Sordia

NYSBA Journal | June 2015 | 55 Jingyi Huang Randi H. Lee Patrick James Mulqueen Elgun Pashazade David Rodibaugh Yu Ying Huang Won Hee Elaine Lee Takuji Murakami Parag Girish Patel Igor Rogovoy Terrence John Hull Caroline Weaver Lenci Shaun Michael Murphy Puja Patel Marie-lea Noelle Rols Zafreen Jamaluddin Husain Karen Allison Lessick Bridget Ann Musselman Claire Marie Pendergast Steven Michael Rosato Joshua Sidney Hyman Jonathan David Levitan Yuki Nakamura Renuka Damayanthi Perera Elizabeth Claire Rosen Amtul-nasir Iddrisu Ashley Denning Lewis Khashayar Naraghi Natalie Ann Perez Tyler Michael Ross Alexander Il Grande Ziyue Liang Heather Benson Nelson Rachel Nicole Perillo Nicholas Roy Rowe Marisa Imazu Zichen Liao Melissa Ashley Nelson Lauren Ashley Perrella Zachary Cook Rozen Brian Francis Irving Filipe Fernandes Porto Lima Maksim Nemtsev Jennifer Lauren Personette Andrew Clive Russell Juan Jose Itriago Na Lin Kevin Bernard Newman Bryan William Petrilla Pamela A. Russell Scott Richard Jacobsen Caren Ann Litvin Mary Truong Nguyen Andrea Nichole Petrou Emily Truta Sabo Michael Jacobson Pengwei Liu Ian Poland Noetzel Henry Charles Phillips Suraya Sabri Thomas Gerald James Xiaolong Liu Walter Wilhem Noss Ian Fazzi Plummer Kristine Chung Salcedo Anne Mary Jasorkowski Michael Joseph Locke Michelle Renee O’Brien Alissa Renee Pohlman Robby Lee Ray Saldana Richard Raymond Jennings Patria Nellie Lohvinski Sean Thomas Liam O’Connell John Richard Pollino Christina Mieko Samons Timothy Matthew Johnston Adam Jay Longenbach Stephanie Maria O’Neill Robert Francis Poppiti Anielka Del Socorro Sanchez David Gregory Jordan Laura Maria Lorenzo Chinyere C.V. Ofoma Philip Anthony Portantino Godinez Hyung Sup Jun Robert Desmond Lorfink Adetunji Oluwale Alex Timothy Potter Marta Sanchez-blanco Sungin Jung Christine Louissaint Ogunmefun Jill Sara Pritzker Kennedy Anne Sanderson Elisabeth Eretta Juterbock Mary Olga Lovett Pia Pernille Sommerfeldt Oien Daniel Thomas Quandt Paolo Vinalet Santonocito Avi Tzvi Kamionski Justin Henry Lubas Yasushi Okamoto Claudia Sofia Quinones Vila Nadav Sapeika Nir Karmi Gustav Bo Anders Lundquist Luiz Felipe Vargas Dos Santos Dina Ragab Terese Prima Joana Saplys Allen Ramana Kathir Hofverberg Co Oliveira Isaac Solomon Raisner James Joseph Sawczyn Satoshi Kato Zengliang Luo Jayne Elizabeth Olm-Shipman Farzad Ramin Laura I. Schaefer Jason Farrell Kaufman Justin Grant Lurie Ana Oparaku Saba Anwar Haq Rashid Caroline Susan Schmidt Asta Kederyte Samuel Mills Lyddan Marcelo Jose Ovejero Neira Jasmine Rasool Matthias Schrader Duran Lawrence Keller Lin Ma Georgina Kirby Owino-Trice Kelsey Rose Raycroft Catherine Jeanine Schur Jocelyne Elizabeth Kelly Andrew L. Mackerer Grzegorz Owsiany Rayna Delaviev Reid Laura Schwartz Brian Benjamin Kennedy Kristin Arina MacLeod-Ball Beth Anne Pacifico Michael Patrick Rekola Allison Lynne Segal Devin Wyatt Kenney Eric David Madden Claire Padie Jonathan Meir Rhein Ari Hayden Segal William Norman Kent Jenevieve Janis Maerker Courtney Ashe Palko Luke Anthony Ricci Reade William Seligmann Sarah Anderson Kettenmann Daniela Margarita Mahan Spiro Papadolias Cristina Maria Rincon Andrew Frederick Sellars Islam Khalfi Soler Eujean J. Park John Roberti Selim Serbes Brian James Killoy Julia Miranda Mako Sang Jin Park Alexandra Marie Robertson Donald Elliot Shackelford Dahyun Kim Corinne Bridget Maloney Sungmi Park Patrick Dutra Rodefeld Benjamin Edward Shea Eisuke Kimura Michael Malyar William Clark Kinder Patricia Anietia Mann Bradley Stephen King James Chapman Manning Gillian Marie Kirsch Tracey Carol Manoff Tiffany Ko Jennifer Anne Marler In Memoriam Makoto Koinuma Christine Ann Marlewski Evridike Kollis Jamie Jonathan Marr Ronald H. Alenstein Guido Gabriele Irving Perlman Michal Konig Alexander Thomas Marriott New York, NY Garden City, NY East Meadow, NY Benjamin Jason Korn Washcarina Benita Martinez Robert John Kornhaas Alonzo Richard J. Bartlett Arthur James Giorgini Romeo A. Ramson Jason Edward Kornmehl Dianna Michelle Martinez Glens Falls, NY Lindenhurst, NY Jamaica, NY Alex Evan Korona Soler Allen Beldock Gary W. Johnson Donald J. Robinson Arun John Kottha Kiarra Wynee Mason New Milford, CT Staten Island, NY Manchester, VT Laura Nawrocki Krcmaric Meredith Martin Mason Ulrich Schweitzer Elina Kremen Justin Ross Masterman John J. Caswell Paul J. Kalina Kew Gardens, NY Hartsdale, NY Chandra Miriam Kurien Kyle Alan Mathews Syracuse, NY Maxine Jordan Kutner Adia Zuri May Jerome S. Cohen Lawrence M. Kenney John W. Sinon Jason Anthony Laberteaux John David Mayberry Matamoras, PA Islandia, NY Garden City, NY Cataldo Louis Lafiandra Michael Jimison McDermott Norman Howard Dachs Burton J. Kloster Ernest R. Steigman Nathaniel Jianming Lai Chemere Kesha McField Woodmere, NY Wilton, CT New York, NY Daniel P. Laine Meghan Delaney McLoughlin Samyr Laine Danielle Elizabeth Meeks Carl M. Erman Jonathan J. Lanman Robert E. Stevens Greig James Lamont E. Giovannie Mercado Staten Island, NY White Plains, NY Rochester, NY James Ellsworth Landis David Todd Miller Leonard G. Florescue Sam Maislin Martin C. Sukenik Brittany Lauren Lane Jessica Lynn Millward Pittsford, NY Buffalo, NY New York, NY Leroy James Langeveld Stergios Milona Sarah Kathleen Lash Hery Min Martin Fogelman Eugene D. McGahren Allen D. Werter Jennifer Lawrence Fei Mo Huntington, NY Yonkers, NY Smithtown, NY James Flannery Layman Francesca M. Montalvo Richard H. Freeman David S. Mulchinock Lyonel E. Zunz Benjamin Rhodes Lee Robert Harris Montgomery New York, NY Princeton, NJ New York, NY Jinah Lee Caroline Leigh Moran Jun-ki Lee Joseph Matthew Morgese Robert P. Patterson Kiwoong Lee Jonathan Grant Morton New York, NY Philip Winston Lee Jules Mugema

56 | June 2015 | NYSBA Journal Boris Sherbatov Daniel Davis Straus Yongzhu Tian Anandh Venkataramani Xinyi Xie Sherin S. Sherif Franklin R. Strokoff Aaron Joseph Tierney Justin C. Vine Mark Yampaglia Tomoya Shinjo Daniel Francis Suraci Karun Arun Tilak Jessica Lee Vinolas Fangyu Ye Masataka Shitanishi Kaitlin Elizabeth Sweeney Vanessa Tisci Nicole M. Waknine Cori Leonard Young Surabhi Shukla Krzysztof R. Swiatek Rachel Read Tobias Xiaodan Wang Duo Yu Amy Sieminski Rebecca Ruth Szucs Dominique Tonacchio Zhenghui Wang Gang Yuan Scott Craig Silverman Kaedeko Takagi Mary Kathleen Treanor Zhi Wang Chase Evan Zachary Diana Sirila Tomohiko Takahashi Sean Benjamin Treanor Qiqi Wei Rafael X. Zahralddin-aravena Alana Danielle Sisnett Andrew Wing Kee Tam Nathaniel Albert Tripp Yujia Wei Benjamin Reed Zakarin Varnitha Siva Guangjun Tang Philip Berkeley Trout Matthew Henry Weinberg Michael Zeller Harry William Skene Mengyun Tang John Sangchu Tsai Aimee Suzanne Weiner Daniel Zemel Ruta Kalvaitis Skucas Qin Tao Chi Ching Tsang Amanda Eve White Lu Zhang David Saul Small Ian Ross Targovnik Jenifer V. Turriziani Jeffrey J. White Shanglian Zhang Andrew David Morant Smith Laura B. Tatelman Joseph P Valentino Thomas William Whitehead Lei Zhao Shoshana T. Smolen David R Tawil Emily Elizabeth Vance Marina Valentinovna Williams Xin Zhao Jason Matthew Sokel Mark Daniel Taylor Maarten Walter Elza Brandon Lee Wolff Yunzhi Zhao Natalia A. Sokolova Randy Emilio Tejeda Vanderhaeghe Julian G.G. Wolfson Ruizhe Zhou Isaiah Soval-levine Shanmuganathan Jazmin Nichole Vargas Stacey Keoki Tuck See Wong Lance Alan Zinman Robert Christopher Staley Kuppamuthu Thever Lyndel Anne Vargas Daniel Hirotsu Woofter James Henry Zivney Ryan John Starks Leslie C. Thorne Jorge L Vasquez Jeffrey Allan Wothers Alyson Marie Zureick Terry Walker Stratton Xin Ted Tian Claudia Natalia Velez Jonathan Wright

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NYSBA Journal | June 2015 | 57 The Legal Writer Continued from Page 64 [and] the amount involved was else- If you submit a written motion, and is unprepared to address the new where stated in the pleading.”33 comply with CPLR 4405 and 4406.44 matter, the court may grant a short CPLR 3017(c) bans ad damnum claus- Your motion must be made to the adjournment to allow your adversary es in complaints alleging personal inju- judge who presided over the trial.45 to secure the witness or proof need- ry or wrongful death.34 A party may You have 15 days after the decision, ed.22 The court may require the mov- demand a statement of the amount the verdict, or discharge of the jury to ing party who seeks to amend the pleader believes it’s entitled to. move post-trial under CPLR 4404.46 pleadings to pay “the objector the costs One scholar has noted that the First The 15-day period isn’t a statute of of securing the belated proof.”23 Even Department’s rule on amending ad limitations; a court has the discretion though CPLR 3025(c) is a generous damnun clauses has become relaxed, to extend the time period under CPLR rule, “an amendment at the trial stage whereas the Third Department’s rule 2004.47 Appealing a final judgment that requires an adversary to get new has become stricter.35 Follow your won’t “cut off the trial court’s power to proof to meet it is not always remedia- department’s rules. grant a post-trial motion under CPLR ble by mere conditions and is therefore 4404, but argument or submission of not granted for the asking.”24 Post-Trial Motions the appeal will.”48 You may move post-trial if you “dis- You’re allowed “only one formal Motion to Amend Pleadings to agree[], in whole or in part, with the post-trial motion under CPLR 4404.”49 Assert a New Theory verdict.”36 Any party may move for And “each party shall raise by the You may amend your pleadings during post-trial relief.37 motion or by demand under rule 2215 trial to assert a new theory if the amend- Consult CPLR 4404(a) if you’re every ground for post-trial relief then ment won’t prejudice your adversary.25 moving for relief after a jury trial. Con- available [to the party].”50 A court might commit error if it allows sult CPLR 4404(b) if you’re moving for If you lose your CPLR 4404 motion, you to amend your pleadings with- relief after a bench (nonjury) trial. you may still obtain relief under out granting an adjournment to your Under CPLR 4404(a), a court may CPLR 5015(a), “the statute that autho- adversary to permit your adversary to set aside the verdict and grant judg- rizes vacatur of judgments on cer- prepare a defense; a new trial might ment to the party entitled to a judg- tain grounds.”51 Some of the grounds be required.26 A court will likely grant ment as a matter of law. This is also under 5015(a) include newly discov- your motion if “the responsive proof called judgment notwithstanding the ered evidence, or fraud, misrepresenta- would have been the same whichever verdict, or judgment nov.38 Or a court tion, or other misconduct. conclusory theory or ground had been may set aside the verdict and order a The technical rules for moving after pleaded.”27 new trial on the basis that the verdict is a bench trial under CPLR 4404(b) are In opposing your adversary’s contrary to the weight of the evidence. the same as moving after a jury trial motion, demonstrate that your adver- You may move post-trial under under CPLR 4404(a). The court’s pow- sary’s motion should be denied because CPLR 4404 even if you didn’t move ers under CPLR 4404(b) are “more you “would have prepared different under CPLR 4401 (for a judgment as a extensive” than under CPLR 4404(a).52 proof with which to respond to the matter of law, also known as a directed Under CPLR 4404(b), the court may altered ground.”28 Or, in addition to or verdict) during the trial: “One is not “make new findings and conclusions, in the alternative, ask for an adjourn- a condition precedent to the other.”39 take additional testimony if need be, ment to “gather[] . . . such proof.”29 For more information on moving for and render a new and entirely differ- a directed verdict, consult Part XLI of ent decision, while in a trial by jury the Motion to Amend the Ad Damnum this series on civil-litigation documents judge’s powers are necessarily more Clause in the May 2015 Journal. Nonetheless, restricted.”53 The ad damnum is “the amount “a party who loses the verdict and An appellate court “stands in the demanded in the wherefore clause of wants judgment n.o.v. is in a more same position as the trial court.”54 a money complaint.”30 A party assert- consistent position if [the party] can After a bench trial, an appellate court ing a counterclaim may also move show that [the party] moved for judg- “can therefore make whatever findings to amend its ad damnum clause. A ment as a matter of law before the jury it determines the trial court should court has the discretion to grant your retired.”40 have made and render judgment motion to amend your ad damnum A court may grant relief CPLR 4404 itself.”55 clause before, during, or after a trial sua sponte.41 absent prejudice to your adversary.31 Practitioners move under CPLR Motion for a Judgment Formally move to amend the ad 4404 “promptly upon the delivery of Notwithstanding the Verdict damnum clause.32 the verdict [or court’s decision], and (JNOV or Judgment NOV) A court will likely grant your motion made orally in the courtroom.”42 But The standard is similar whether you to amend the ad damnum clause if the each party is entitled to submit a for- move before the verdict under CPLR error is a “typographical oversight . . . mal, written motion.43 4401 or whether you move after the

58 | June 2015 | NYSBA Journal verdict under CPLR 4404(a) for a judg- arouses [the court’s] suspicions and tampering.81 You might, for example, ment nov.56 makes it uncomfortable, although [the discover that one of the jurors is relat- A court will grant your motion court] cannot say clearly that the result ed to the defendant but that the juror for judgment nov if “no valid line of can go in only one direction.”69 The never disclosed that information dur- reasoning and permissible inferences verdict might be against the weight of ing jury selection.82 [exist that] could possibly lead ratio- the evidence if a court believes that the nal [people]” to the jury’s conclusion testimony at trial was “incredible, or Additur and Remittitur based on the evidence at trial.57 [that a witness’s] story . . . [is] morally Additur and remittitur are mecha- A court may grant judgment nov to improbable.”70 The verdict might be nisms by which the court may raise defendants or plaintiffs.58 against the weight of the evidence if or lower, respectively, a jury’s verdict If a plaintiff hasn’t made out its counsel’s misconduct influenced the on damages in a money action if the prima facie case, judgment nov for the jury’s verdict.71 A court may grant a court believes that the jury’s damage defendant is appropriate.59 new trial even if the “evidence is suf- award is inadequate or excessive.83 A A court may not consider credibility ficient to support the verdict.”72 remittitur can reduce a jury’s verdict on a motion for judgment nov.60 CPLR 4404(a) allows a court to “to a fraction of what the jury has set, Move for judgment nov if a jury grant a new trial in the interest of jus- and an additur can multiply it several makes findings based on its own theo- tice.73 A court will order a new trial in fold.”84 ry of the case but the evidence doesn’t the interest of justice only on evidence Generally, a court may not raise support the theory.61 that “substantial justice has not been or lower the amount “directly, at A jury’s inconsistent verdict may done.”74 Any ground you can raise on least not in personal injury and like result in a new trial and may result in appeal, raise in your motion for a new cases involving unliquidated dam- a judgment nov for a party.62 trial in the interest of justice: “[T]he ages, because the setting of damages If a court grants judgment nov scope of such a motion is limited only is strictly a jury function.”85 A court under CPLR 4404 — after the jury has by counsel’s imagination.”75 may grant a new trial “‘unless’ the returned its verdict and the court dis- Defining the weight of the evi- defendant stipulates to a higher sum agrees with the verdict — an appellate dence is “elusive if not impossible: the (‘additur’) or the plaintiff stipulates to court may reinstate the verdict if it dis- ‘weight’ of the evidence involves the a lower one (‘remittitur’).”86 agrees with the trial court’s ruling.63 If judge’s viscera as much as [the judge’s] The amount the court sets “and the a court grants a directed verdict under intellect.”76 It is based on a judge’s one to which the party is required to CPLR 4401 without letting a jury con- experiences in presiding over cases stipulate or face a new trial, represents sider the issues, an appellate court that and writing decisions.77 the minimum (in the case of additur) disagrees with the judge has no verdict Comply with CPLR 4405 and 4406 or the maximum (in the case of remit- to reinstate and will therefore order a when moving for a new trial based titur) found by the court to be permis- new trial. on the weight of the evidence, as sible on the facts.”87 explained above. You may move orally. Additur and remittitur are within Motion for a New Trial on the You may also move by filing formal, a trial court’s and an intermediate Weight of the Evidence written motion papers with the judge appellate court’s (Appellate Division) Under CPLR 4404(a), a court may who presided at the trial: “[I]t is only discretion.88 Judges will agree to dis- grant a new trial “instead of awarding that judge who holds the scale on agree about the maximum and mini- outright judgment to the other side.”64 which the evidence in the case may mum amounts of a jury’s verdict.89 The A court will grant a new trial if it’s be ‘weighed.’”78 Move within 15 days amount the trial court chooses is “the “dissatisfied with the verdict, enough after the verdict.79 product of the [judge’s] whole experi- to reject it but not quite enough to ence brought to bear on the facts that direct judgment notwithstanding it.”65 Motion to Reconsider have been tried before [the judge].”90 A court might order a new trial when Ask the court to “order the jury to An appellate court may disagree with it isn’t confident that a party is entitled retire again to reconsider the verdict the trial judge and readjust the trial to judgment as a matter of law and because the ultimate decision is not court’s amount.91 thus finds the verdict contrary to the established by the findings of fact the A court may alter a jury’s damage weight of the evidence.66 Weighing the jury has indicated.”80 award if the award “‘deviates materi- evidence is in the court’s discretion.67 ally from what would be reasonable Because no precise standard exists Motion for a New Trial: compensation.’”92 to weigh the evidence, “[t]he key is Jury Prejudice or Jury Tampering If the court orders a new trial, the the judge’s common sense reaction Although a court rarely grants motions trial is “usually limited to damages to the evidence.”68 The verdict might for a new trial, a court might be inclined only, but it can be for liability as well be against the weight of the evidence to grant your motion if you can dem- if . . . liability is intertwined with dam- when “something about the case . . . onstrate jury prejudice, misconduct, or ages . . . [such as] where . . . difficult

NYSBA Journal | June 2015 | 59 questions of impact or causation [exist] 12. Id. 46. CPLR 4405. in a personal injury case.”93 13. Broder, supra note 5, § 28.4, at 523. 47. Siegel, supra note 7, § 405, at 711. The law used to be that a party’s 14. Siegel, supra note 7, § 404, at 707 (citing Diemer 48. Id. v. Diemer, 8 N.Y.2d 206, 212, 203 N.Y.S.2d 829, 834, stipulation to a high (additur) or low 49. Id. 168 N.E.2d 654, 658 (1960)). (remittitur) amount meant that the 50. CPLR 4406. 15. Id. § 404, at 708. party was barred from appealing “even 51. Siegel, supra note 7, § 405, at 711. 16. Id. the liability finding on the ground that 52. Id. 17. Id. signing the stipulation deprived the 53. Id. 94 18. Id. party of ‘aggrieved’ status.” A party 54. Id. may now appeal the liability finding 19. Id. 55. Id. despite the stipulation.95 If you accept 20. Id. (citing Harbor Assocs. Inc. v. Asheroff, 35 A.D.2d 667, 668, 317 N.Y.S.2d 897, 899 (2d Dep’t 56. Id. § 405, at 709. a stipulation and “final judgment is 1970)); Diemer, 8 N.Y.2d at 212, 203 N.Y.S.2d at 57. Birnbaum et al., supra note 1, § 38:20 at 38-8. entered on the changed figure . . . [your 834, 168 N.E.2d at 658; but see Broder, supra note 58. Id. adversary] can still appeal it.” 5, § 28.4, at 524 (citing Andres v. Perry, 81 A.D.2d 848, 849, 438 N.Y.S.2d 852, 853 (2d Dep’t) (“And, 59. Id. If you’re confronted with an additur even after the testimony had been completed at 60. Id. § 38:21 at 38-8. or remittitur order, you have several trial, counsel did not see fit to move to conform options.96 You may refuse a stipula- the pleadings to the proof. Clearly, plaintiffs 61. Id. § 38:22 at 38-8. consistently and persistently chose to proceed 62. Id. § 38:27 at 38-11. tion and opt for a new trial. Or you solely on the theory of negligence. Accordingly, may stipulate to the court-set figures. the judgment must be reversed and the complaint 63. Siegel, supra note 7, § 405, at 710. Or you may appeal the court’s order. dismissed.”), aff’d, 54 N.Y.2d 795, 796, 443 N.Y.S.2d 64. Id. § 406, at 711. 610, 610–11, 427 N.E.2d 769, 769 (1981)). Which option you choose will depend 65. Id. § 406, at 712. 21. Id. § 404, at 708. on whether you stand to do better in a 66. Id. § 406, at 711. 22. Id. new trial.97 67. Id. § 406, at 712. 23. Id. If you’re seeking to challenge the 68. Id. 24. Id. amount of an additur or remittitur, 69. Id. 25. Birnbaum et al., supra note 1, § 37:64, at 37-20; challenge it before a new trial occurs.98 70. Id. Broder, supra note 5, § 28.4, at 525 (citing Nixon In the next issue of the Journal, the Gear & Machine Co. v. Nixon Gear, Inc., 86 A.D.2d 71. Id. Legal Writer will discuss motions for 746, 746 , 447 N.Y.S.2d 779, 781 (4th Dep’t 1982)). 72. Id. attorney fees. n 26. Birnbaum et al., supra note 1, § 37:64, at 37-20. 73. Id. § 406, at 711. 27. Siegel, supra note 7, § 404, at 707; accord Birn- 74. Birnbaum et al., supra note 1, § 38:32 at 38-12. baum et al., supra note 1, § 37:64, at 37-20. 75. Id. Gerald Lebovits ([email protected]), an 28. Siegel, supra note 7, § 404, at 707. acting Supreme Court justice in Manhattan, 76. Siegel, supra note 7, § 406, at 711. 29. Id. is an adjunct professor of law at Columbia, 77. Id. § 406, at 712. 30. Id. § 404, at 708. Fordham, NYU, and New York Law School. 78. Id. § 406, at 713. He thanks court attorney Alexandra Standish 31. Birnbaum et al., supra note 1, § 37:63, at 37-19; Siegel, supra note 7, § 404, at 708–709. 79. Id. for her research. 32. Birnbaum et al., supra note 1, § 37:63, at 37-20 80. Helewitz, supra note 36, at 154. (citing O’Reilly-Hyland v. Liberty Mgmt. & Constr. 81. Id. Ltd., 32 A.D.3d 765, 766, 822 N.Y.S.2d 243, 245 (1st 82. Id. 1. 2 Edward L. Birnbaum, Carl T. Grasso & Ariel Dep’t 2006)). E. Belen, New York Trial Notebook, § 37:60, at 83. Siegel, supra note 7, § 407, at 713. 37-18 (2010). 33. Broder, supra note 5, § 28.4, at 524. 84. Id. supra 2. Id. § 37:61, at 37-18. 34. Birnbaum et al., note 1, § 37:63, at 37-19. 85. Id. 35. Siegel, supra note 7, § 404, at 708–709 (citing 3. Id. (citing CPLR 3025(b)). Natale v. Pepsi-Cola Co., 7 A.D.2d 282, 284, 182 86. Id. 4. CPLR 3025(b). N.Y.S.2d 404, 407 (1st Dep’t 1959)). 87. Id. 5. Aaron J. Broder, Trial Handbook for New York 36. Jeffrey A. Helewitz, New York Civil Practice 88. Id. Lawyers § 28.4, at 526 (3d ed. 1996). 154 (2000). 89. Id. 6. Id. 37. Id. 90. Id. 7. David D. Siegel, New York Practice § 237, at 38. Siegel, supra note 7, § 405, at 709 (noting that 82 (5th ed. 2011) (Jan. 2015 Supp.) (citing Alrose “[t]his stands for non obstante veredicto, Latin for 91. Id. § 407, at 714. Oceanside, LLC v Mueller, 81 A.D.3d 574, 575, 915 ‘notwithstanding the verdict’”). 92. Id. N.Y.S.2d 643, 644 (2d Dep’t 2011); Am. Cleaners, Inc. 39. Siegel, supra note 7, § 405, at 710. 93. Id. v. Am. Int’l Specialty Lines Ins. Co., 68 A.D.3d 792, 794, 891 N.Y.S.2d 127, 129 (2d Dep’t 2009)). 40. Id. 94. Id. 8. Birnbaum et al., supra note 1, § 37:60, at 37-18 41. Id. 95. Id. (quoting CPLR 3025(c)). 42. Id. 96. Id. 9. Siegel, supra note 7, § 404, at 707. 43. Id. 97. Id. 10. Birnbaum et al., supra note 1, § 37:62, at 37-18. 44. Id. 98. Oakes v. Patel, 20 N.Y.3d 633, 643, 965 N.Y.S.2d 11. Siegel, supra note 7, § 404, at 707. 45. Id. 752, 756, 988 N.E.2d 488, 492 (2013).

60 | June 2015 | NYSBA Journal CLASSIFIED NOTICES

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NYSBA Journal | June 2015 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION Executive Print Shop 2015-2016 OFFICERS David R. Watson Donald Gardinier, Print Production Manager John H. Gross, President Executive Director [email protected] Hauppauge [email protected] Member Resource Center Lesley Rosenthal, Vice President New York Elizabeth Derrico Sonja Tompkins, Service Center Manager [email protected] David R. Watson, Secretary Associate Executive Director of Strategic Member Albany Services Governmental Relations Lucia B. Whisenand, Assistant Secretary [email protected] Syracuse Richard Rifkin, Senior Director Richard Raysman, Treasurer [email protected] Executive Services New York Kevin Getnick, Executive Services Counsel Ronald F. Kennedy, Director Cristine Cioffi, Immediate Past President [email protected] [email protected] Niskayuna Kevin M. Kerwin, Associate Director Robyn Ryan, Executive Services Counsel DIRECTORS [email protected] [email protected] James R. Barnes, Albany Patricia K. Wood, Senior Director, Membership Continuing Legal Education Hon. Ralph A. Boniello, III, Niagara Falls [email protected] H. Douglas Guevara, Senior Director Earamichia Brown, New York Megan O’Toole, Membership Services Manager [email protected] Honorable Cheryl E. Chambers, New York [email protected] Ilene S. Cooper, Uniondale Mark Wilson, Manager, Bar Services CLE Programs Marion Hancock Fish, Syracuse [email protected] Jean E. Nelson II, Associate Director Sheila A. Gaddis, Rochester [email protected] Sharon Stern Gerstman, Buffalo Michael E. Getnick, Utica Media Services and CLE Program Attorney Alexandra Glick-Kutscha, Stephen D. Hoffman, New York Public Affairs [email protected] Lise Bang-Jensen, Director John R. Horan, New York Mark Belkin, CLE Program Attorney [email protected] William J. Keniry, Albany [email protected] Susan B. Lindenauer, New York Andrea Gage-Michaels, Media Relations Manager Cindy O’Brien, Program Manager Roger Juan Maldonado, New York [email protected] [email protected] Edwina Frances Martin, New York Patricia Sears Doherty, Editor, State Bar News Joseph V. McCarthy, Buffalo [email protected] Law Practice Management Elizabeth J. McDonald, Pittsford Christina Couto, Senior Media Writer Katherine Suchocki, Director Martin Minkowitz, New York Carla M. Palumbo, Rochester [email protected] [email protected] Lauren J. Wachtler, New York Meetings Finance Kathleen M. Heider, Director Kristin M. O’Brien, Senior Director EX OFFICIO [email protected] [email protected] Emily F. Franchina, Garden City Chair of The Fellows Section Services Cynthia Gaynor, Associate Director of Finance [email protected] James B. Ayers, Albany Patricia B. Stockli, Director Vice Chair of The Fellows [email protected] General Counsel Services Lisa J. Bataille, Chief Section Liaison Kathleen R. Mulligan-Baxter, General Counsel [email protected] [email protected] MIS & Content Management Law, Youth and Citizenship Program David Adkins, Chief Technology Officer & Martha Noordsy, Director Director of Content Management [email protected] JOURNAL BOARD [email protected] Kimberly Francis, LYC Program Manager MEMBERS EMERITI Jeffrey Ordon, IT Operations Manager [email protected] Howard Angione [email protected] Immediate Past Editor-in-Chief Lucian Uveges, Applications Development Manager Lawyer Assistance Program Patricia F. Spataro, Director [email protected] Rose Mary Bailly [email protected] Richard J. Bartlett Web Site Coleman Burke Brandon Vogel, Social Media and Web Lawyer Referral and John C. Clark, III Content Manager Information Service Angelo T. Cometa Eva Valentin-Espinal, LRS Manager [email protected] Roger C. Cramton [email protected] Willard DaSilva CLE Publications Louis P. DiLorenzo Pro Bono Affairs Philip H. Dixon Daniel J. McMahon, Director Gloria Herron Arthur, Director Maryann Saccomando Freedman [email protected] [email protected] Emlyn I. Griffith Kathryn Calista, Senior Publications Attorney H. Glen Hall [email protected] Human Resources Paul S. Hoffman Kirsten Downer, Research Attorney Paula M. Doyle, Senior Director Judith S. Kaye [email protected] [email protected] Charles F. Krause Philip H. Magner, Jr. Joan Fucillo, Publication Manager Marketing Wallace J. McDonald [email protected] Grazia Yaeger, Director of Marketing J. Edward Meyer, III Print and Facilities Operations [email protected] Gary A. Munneke John B. Nesbitt Gordon H. Ryan, Senior Director Kenneth P. Nolan [email protected] The New York Bar Foundation Eugene E. Peckham Building Maintenance Deborah Auspelmyer, Foundation Executive Albert M. Rosenblatt Design Services [email protected] Lesley Friedman Rosenthal Sanford J. Schlesinger Graphics Robert J. Smith Lawrence E. Walsh Richard N. Winfield

62 | June 2015 | NYSBA Journal 2015-2016 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

First District Silkenat, James R. Gensini, Gioia A. Owens, Jill C. David P. Miranda Alcott, Mark H. Silverman, Paul H. Gerace, Donald Richard Protter, Howard President Alden, Steven M. Smith, Asha Saran + * Getnick, Michael E. Ranni, Joseph J. Albany Arenson, Gregory K. Sonberg, Hon. Michael R. Hage, J. K., III Riley, James K. Brown, Terryl Spirer, Laren E. LaRose, Stuart J. Starkman, Mark T. Claire P. Gutekunst Carbajal, Natacha Spiro, Edward M. Perez, Jose E. Thaler, Jessica D. President-Elect Chakansky, Michael I. * Standard, Kenneth G. Radick, Courtney S. Wallach, Sherry Levin Yonkers Chambers, Hon. Stenson Desamours, * Richardson, M. Catherine Weathers, Wendy M. Cheryl E. Lisa M. Stanislaus, Karen Weis, Robert A. Sharon Stern Gerstman Chang, Vincent Ted Tesser, Lewis F. Westlake, Jean Marie Welch, Kelly M. Treasurer Cilenti, Maria Udell, Jeffrey A. Williams, James M. Buffalo Davino, Margaret J. Ugurlayan, Anahid M. Tenth District Dean, Robert S. Valet, Thomas P. Sixth District Barcham, Deborah Seldes Ellen G. Makofsky Finerty, Margaret J. + * Younger, Stephen P. Barreiro, Alyssa M. Block, Justin M. Secretary First, Marie-Eleana Zuchlewski, Pearl Denton, Christopher * Bracken, John P. Flynn, Erin Kathleen Grossman, Peter G. Garden City Second District Burns, Carole A. * Forger, Alexander D. Lanouette, Ronald Aidala, Arthur L. Joseph, Jr. Calcagni, John R. Glenn Lau-Kee Fox, Glenn G. Ajaiyeoba, Abayomi O. Lewis, Richard C. Christopher, John P. Immediate Past President Freedman, Hon. Helen E. Bonina, Andrea E. + * Madigan, Kathryn Grant Clarke, Christopher New York Justin Friedman, Richard B. Chandrasekhar, Jai K. McKeegan, Bruce J. Cooper, Ilene S. Gallagher, Pamela Lee Fallek, Andrew M. Saleeby, Lauren Ann England, Donna VICE-PRESIDENTS Galligan, Michael W. Kamins, Hon. Barry Shafer, Robert M. Fishberg, Gerard Glass, David L. Klass, Richard A. First District Seventh District Franchina, Emily F. Goldberg, Evan M. Lonuzzi, John A. Baker, Bruce J. Gann, Marc Taa R. Grays, New York Goldfarb, David McKay, Hon. Joseph Kevin Bleakley, Paul Wendell Gross, John H. Michael Miller, New York Goodman, Hon. Emily J. Napoletano, Domenick Brown, T. Andrew Harper, Robert Matthew Grays, Taa R. Second District Seddio, Hon. Frank R. Buholtz, Eileen E. Hillman, Jennifer F. + Gutekunst, Claire P. + Shautsova, Alena + * Buzard, A. Vincent Karson, Scott M. Dominick Napoletano, Brooklyn Himes, Jay L. Simmons, Karen P. Hetherington, Bryan D. Kase, Hon. John L. Hoffman, Stephen D. Third District Spodek, Hon. Ellen M. Lawrence, C. Bruce Lapp, Charles E., III Hollyer, A. Rene Sunshine, Hon. Jeffrey S. McCafferty, Keith + * Levin, A. Thomas Hermes Fernandez, Albany Honig, Jonathan Yeung-Ha, Pauline Modica, Steven V. Makofsky, Ellen G. Fourth District Hoskins, Sharon T. * Moore, James C. Mancuso, Peter J. Hyland, Nicole Isobel Third District Matthew R. Coseo, Ballston Spa Moretti, Mark J. McCarthy, Robert F. Jaglom, Andre R. Barnes, James R. * Palermo, Anthony Robert Meisenheimer, ifth istrict Kenney, John J. F D Bauman, Hon. Harold J. Rowe, Neil J. Patricia M. Kiesel, Michael T. Stuart J. Larose, Syracuse Behe, Jana Springer + * Schraver, David M. * Pruzansky, Joshua M. * King, Henry L. Calareso, JulieAnn Shaw, Mrs. Linda R. * Rice, Thomas O. Sixth District Kobak, James B., Jr. Coffey, Daniel W. Tilton, Samuel O. Stines, Sandra Koch, Adrienne Beth Alyssa M. Barreiro, Binghamton Collura, Thomas J. * Vigdor, Justin L. Strenger, Sanford + * Lau-Kee, Glenn Crummey, Hon. Peter G. * Witmer, G. Robert, Jr. Tarver, Terrence Lee Seventh District Lawton-Thames, Fernandez, Hermes Tully, Rosemarie Lynnore Sharise Eighth District T. Andrew Brown, Rochester Fox, William L. Weinblatt, Richard A. + * Leber, Bernice K. Gerbini, Jean F. Bloom, Laurie Styka ighth istrict Wicks, James M. E D Lessard, Stephen Charles Greenberg, Henry M. Brown, Joseph Scott Cheryl Smith Fisher, Buffalo Lindenauer, Susan B. Grogan, Elizabeth Janas * Doyle, Vincent E., III Eleventh District Ling-Cohan, Hon. Doris Higgins, John Eric Edmunds, David L., Jr. Alomar, Karina E. Ninth District Maroney, Thomas J. Hines, Erica M. Effman, Norman P. Bruno, Frank, Jr. Sherry Levin Wallach, Mount Kisco Martin, Deborah L. Kean, Elena DeFio Fisher, Cheryl Smith Carola, Joseph, III Miller, Michael Mandell, Adam Trent * Freedman, Maryann Cohen, David Louis Tenth District Saccomando Minkowitz, Martin Meacham, Norma G. Gutierrez, Richard M. Gerstman, Sharon Stern Scott M. Karson, Melville Morales, Rosevelie Meyers, David W. + * James, Seymour W., Jr. Halpern, Ralph L. Marquez + Miranda, David P. Lee, Chanwoo Eleventh District * Hassett, Paul Michael Moses, Prof. Barbara Prudente, Stephen C. Samuels, Violet E. Carol Hills, Bethany Richard M. Gutierrez, Forest Hills Rivera, Sandra Terranova, Arthur N. Moskowitz, Hon. Karla O’Donnell, Hon. John F. Rosiny, Frank R. Wimpfheimer, Steven Twelfth District Nathanson, Malvina O’Donnell, Thomas M. Sciocchetti, Nancy Bronx Needham, Andrew W. Ogden, Hon. E. Jeannette Twelfth District Steven E. Millon, Silver, Janet Otis, Andrew D. Pajak, David J. Calderón, Carlos M. Thirteenth District * Yanas, John J. Prager, Bruce J. Ryan, Michael J. Marinaccio, Michael A. Michael J. Gaffney, Staten Island Radding, Rory J. Fourth District Smith, Sheldon Keith Millon, Steven E. Raskin, Debra L. Coseo, Matthew R. Spitler, Kevin W. * Pfeifer, Maxwell S. MEMBERS-AT-LARGE OF THE Reitzfeld, Alan D. Cox, James S. Sullivan, Kevin J. Weinberger, Richard Richter, Hon. Rosalyn Hanson, Kristie Halloran Ninth District Thirteenth District EXECUTIVE COMMITTEE Robb, Kathy Ellen Bouton Jones, Barry J. Barrett, Maura A. Gaffney, Michael J. Robertson, Edwin David King, Barbara J. James R. Barnes Burns, Stephanie L. Hall, Thomas J. Rodner, Stephen B. Kyriakopoulos, Fox, Michael L. Marangos, Denise David Louis Cohen Rothenberg, David S. Efstathia G. Goldenberg, Ira S. Marangos, John Z. Michael L. Fox Rothstein, Alan Nowotny, Maria G. Goldschmidt, Sylvia Martin, Edwina Frances Safer, Jay G. Onderdonk, Marne L. Michael W. Galligan Hyer, James L. McGinn, Sheila T. Samuels, William Robert Rodriguez, Patricia L. R. Keiser, Laurence Mulhall, Robert A. Evan M. Goldberg Sarkozi, Paul D. Wildgrube, Michelle H. Klein, David M. Ira S. Goldenberg Scanlon, Kathleen Marie Wood, Jeremiah Out-of-State Marwell, John S. Schnabel, David H. Jochmans, Hilary Bryan D. Hetherington Fifth District McCarron, John R., Jr. Sen, Diana S Francoise Connor, Mairead E. * Miller, Henry G. Elena DeFio Kean * Seymour, Whitney Sheehan, John B. DeMartino, Nicholas J. North, Jr. Morrissey, Mary Beth Edwina Frances Martin Dotzler, Anne Burak Quaranta Shamoon, Rona G. Fennell, Timothy J. * Ostertag, Robert L. John S. Marwell Sigmond, Carol Ann Bruce J. Prager Sheldon Keith Smith † Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | June 2015 | 63 THE LEGAL WRITER BY GERALD LEBOVITS Drafting New York Civil- Litigation Documents: Part XLII — In Limine, Trial, and Post-Trial Motions Continued

he Legal Writer continues its form [the pleadings] to the evidence, pleadings to the proof. But you may series on civil-litigation docu- on such terms as may be just including also move by filing a motion with the ments. In the last issue of the the granting of costs and continuanc- court. Make your motion to conform T 8 Journal, we discussed trial motions, es.” The purpose “is to have the final the pleadings to the proof before the including motions for a mistrial, for a judgment dictated as much as is rea- trial judge.16 directed verdict (also called motions sonable by what the evidence actually A court that grants your motion to for a judgment as a matter of law), for reveals at the trial rather than by what amend may state on the record that a continuance, to strike, and to reopen the pleadings and bill of particulars the case. In this issue, we’ll continue alleged it would be.”9 with trial motions. We’ll also discuss A trial court will allow you to A trial court will post-trial motions. amend pleadings to conform to the allow you to amend proof if your adversary isn’t preju- Trial Motions Continued diced.10 Your adversary’s “legitimate your pleadings to Motion to Amend Pleadings claim of surprise is the key” to whether conform to the proof Under CPLR 3025(b), a party may your adversary has been prejudiced.11 amend or supplement its pleading at A court will amend the pleadings if if your adversary any time with leave of the court.1 A you’ve advised your adversary “suf- isn’t prejudiced. trial court has the discretion to amend ficiently of the transaction, occurrence, the parties’ pleadings.2 Courts permit or event out of which the claim or parties to amend pleadings.3 You must defense arises . . . that a diligent law- the pleadings are deemed amended attach to your motion your proposed yer could be deemed to have been on to conform to the evidence; the court amended pleading. In your proposed notice that the matter now sought to need not issue a written decision and pleading, clearly show the changes be changed or added by amendment order if it deems the pleadings amend- you’ve made or the things you’re hop- could reasonably have been expected ed.17 You may appeal the court’s deci- ing to add to the pleading.4 The pro- to arise at the trial.”12 sion to amend the pleadings as part of posed amendment must be sufficient You may amend your pleadings an appeal from the final judgment.18 on its face.5 to assert a new theory, as explained If you seek to appeal the court’s deci- Move to amend as soon as you below. But you may not amend your sion to amend the pleadings before the become aware of the facts that form the pleadings by asserting a different cause court issues a final judgment, “secure basis of your motion.6 of action,13 such as “add[ing] a new the entry of a formal order on the If you move to amend the pleadings substantive claim, otherwise barred by court’s ruling [to amend the pleadings] on the eve of trial, a court will consider the statute of limitations and clearly and appeal that.”19 how long you’ve been aware of the beyond what the other side could have Trial and appellate courts may con- facts that form the basis of your motion, expected.”14 form the pleadings to the proof sua whether you’ve offered a reasonable If evidence in an examination before sponte.20 excuse for the delay, and whether your trial (EBT) or in another pretrial dis- A court may place conditions on adversary will be prejudiced.7 closure device puts your adversary the amendment. The conditions may “on notice of what later emerges at the include the court’s granting of costs Motion to Conform Pleadings to trial, the claim of prejudice dissolves and continuances.21 If your adversary the Proof and the [court will likely grant the] opposes your motion to conform the Under CPLR 3025(c), a court may per- amendment.”15 pleadings on the ground of surprise mit the parties to amend their plead- Practitioners usually move orally, ings “before or after judgment to con- before or after judgment, to conform Continued on Page 58

64 | June 2015 | NYSBA Journal NYSBABOOKS

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