SEPTEMBER 2007 VOL. 79 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION

BBentleyentley KKassalassal – BBehindehind tthehe LLensens

Judge, Attorney, Children’s Advocate Also in this Issue The Lesson of Yukos Oil by Skip Card Resolving “Liens” in Personal Injury Settlements New York’s Judicial Selection Process Successor Liability From the NYSBA Bookstore

Announcing—2007 Revision One of NYSB all-time bestsellers to the “Pedowitz book” A’s Real Estate Titles Third Edition

Editor-in-Chief: James M. Pedowitz, Esq. Of Counsel Berkman, Henoch, Peterson & Peddy Garden City, NY Nationally renowned expert on real estate law and title insurance The success of the earlier editions of Real Estate Titles testifi es to the need for a practical work encompassing the many common and complex subjects surrounding real estate titles. The breadth of the problems encountered in title examination is well beyond the appreciation of most laypersons and lawyers alike. These 2 compre- hensive volumes provide guidance for recognizing and handling problems with real estate titles. Edited by a nationally renowned expert on real estate law and title insurance, James M. Pedowitz, this revised Third Edition is a thor- Contents ough update of the original text encompassing new decisions, The Nature of Title and Bankruptcy: An Invasion of statutes and regulations. This latest edition, consisting of 27 Estates in New York Private Rights? chapters, is authored by some of the most distinguished practitio- Search and Examination Title by Eminent Domain: ners in the fi eld. Many chapters have been substantially revised, of Title Who May Condemn including the chapter on title insurance, which now includes copies Parties and Capacity to Adverse Possession of the new 2006 American Land Title Association policies and the Buy and Sell Title to Land under Water updated Title Insurance Rate Service Association (TIRSA) endorse- Federal Deposit Insurance Title to Land in Beds of ments. The index has also been substantially revised and expanded. Corporation Streets and Highways New practitioners will benefi t from the comprehensive coverage by Devolution of Title by Death Mines and Minerals leading practitioners from throughout New York State, and real Real Estate Descriptions, Title to Railroad Properties Plottings, Surveys and estate experts will be able to turn to this book whenever a novel Maps Airspace, Air Rights and question arises. Transferable Development Deeds Rights Mortgages The Torrens System Product Info and Prices Liens and Encumbrances Marketable Title Proceedings to Sell, Condominiums, Coopera- 2007 • 1,632 pp. • loose-leaf • 2 vols. • PN: 521007 Mortgage or Lease tives and Homeowners’ NYSBA Member $150 / Non-Member $180 Contracts of Sale Associations Tax Titles Leasehold Interests Actions and Involuntary Title Insurance: What Every Free shipping and handling within the continental U.S. The cost for shipping and handling Alienations New York Lawyer Should outside the continental U.S. will be added to your order. Prices do not include applicable Civil and Criminal Forfeiture Know sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0108 BESTSELLERS FROM THE NYSBA BOOKSTORE

September 2007

Attorney Escrow Accounts, Legal Manual for New York Physicians, NEW! Second Edition Second Edition Estate Planning and Will Drafting in The Second Edition offers comprehensive coverage Co-published by NYSBA and the Medical Society of the New York, 2006 Revision of the most common situations involving client funds State of New York, this comprehensive text is a must- Provides a practical overview of the complex rules and clearly discusses the legal and ethical issues have for physicians, attorneys representing physicians and considerations involved in the various aspects encountered. and those involved in the medical profession. Presented of estate planning in New York State. Includes PN: 40266 / Member $45 / List $55 / 266 pages in an easy-to-use question-and-answer format. numerous sample wills and checklists. PN: 41325 / Member $90 / List $105 / 1,032 pages PN: 4095 / Member $125 / List $160 / 822 pages Collections and the Enforcement of Money Judgments, 2006 Revision New York Lawyer’s Deskbook, NYS Physician’s HIPAA Privacy Manual This classic text provides detailed guidance in the field of Second Edition, 2006–2007 Designed to be a hands-on tool for health care pro- debt collections and enforcement of money judgments. WINNER OF THE ABA’S CONSTABAR AWARD viders and their legal counsel, this new publication Completely updated with the cumulative supplement. The Second Edition consists of 25 chapters, each provides guidance for a physician’s office to respond PN: 4030 / Member $105 / List $140 / 804 pages covering a different area of practice. Each chapter to routine, everyday inquiries about protected gives the nuts and bolts of practice in that particular health information. Construction Site Personal Injury area of law. PN: 4167 / Member $75 / List $95 / 288 pages Litigation — New York Labor Law PN: 4150 / Member $250 / List $325 / 2,068 pages §§ 200, 240(1), 241(6) Real Estate Titles, Perhaps no single scheme of statutory causes of action New York Lawyer’s Formbook, Third Edition has initiated more debate. This text provides a road Second Edition, 2006–2007 An all-time bestseller, this 2007 Edition map through this at-times confusing area of law. The Formbook is a companion volume to the N.Y. is edited by James M. Pedowitz, Esq., a nationally Includes a summary of key case developments. Lawyer’s Deskbook and includes 21 sections, each renowned expert in real estate law and title PN: 4047 / Member $80 / List $110 / 440 pages covering a different area of practice. insurance, and authored by some of the most PN: 4155 / Member $250 / List $325 / 3,202 pages distinguished practitioners in the field. This edition, Depositions — Practice and Procedure consisting of 27 chapters, is an essential guide to the many complex subjects surrounding real estate in Federal and New York State Courts N.Y. Municipal Formbook, FFormsorms Third Edition law. Includes the new ALTA policies and TIRSA This detailed text covers all aspects of depositions. oonn CCDD endorsements. Topics include pre-trial discovery schedules, appropriate A rich resource for attorneys dealing PN: 521007 / Member $150 / and inappropriate behavior at depositions, and motions with local government as it affects employees, List $180 / 1,632 pages for protective orders. citizens and businesses. Over 1,100 forms covering all PN: 4074 / Member $50 / List $65 / 478 pages aspects of municipal law. PN: 41606C / Member $150 / List $185 / 3,318 pages Coming Soon! Foundation Evidence, Questions and Practitioner’s Handbook for Appeals Courtroom Protocols Practitioner’s Handbook for Appeals to to the Court of Appeals, Third Edition This manual contains a collection of the forms and the Appellate Divisions of the State of protocols that provide the necessary predicate or New York, Second Edition This anticipated new edition will update top- ics on taking and perfecting criminal and civil foundation questions for the introduction of common Covers the aspects of handling appeals to appeals, alternative procedures for selected appeals forms of evidence and the examination of witnesses. the New York State Appellate Division, addresses and how to write and present the appeal. PN: 4107 / Member $48 / List $57 / 172 pages recent statutory changes and rule revisions, and includes commonly needed forms. A must for Insurance Law Practice, practitioners filing civil or criminal appeals. Representing People with Disabilities, Second Edition PN: 4014 / Member $48 / List $57 / 172 pages 2007 Revision Completely updated, the Second Edition provides a A comprehensive reference that covers the comprehensive approach to this complex area of the law. Free shipping and handling within the conti- myriad legal concerns of people with disabilities. Representing People with Disabilities is the ideal Includes five new chapters on disability insurance, work- nental U.S. The cost for shipping and handling reference for those who want a “one-stop” source ers’ compensation insurance, professional liability cover- outside the continental U.S. will be added to that provides a thorough overview of the legal age, insurance regulation, and agent and broker liability. your order. Prices do not include applicable framework affecting individuals with disabilities. PN: 41256 / Member $110 / List $140 / 1,382 pages sales tax.

Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0109 JournalNEW YORK STATE BAR ASSOCIATION

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

PUBLISHER Patricia K. Bucklin Executive Director

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

ADVERTISING REPRESENTATIVE Network Publications Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] CONTENTS SEPTEMBER 2007

BENTLEY KASSAL Behind the Lens BY SKIP CARD 10

DEPARTMENTS Judge Bentley Kassal and his wife, Barbara. 5 President’s Message Photo: Save the Children/Susan Warner. 8 CLE Seminar Schedule 16 Burden of Proof 22 Successor Liability in New York BY DAVID PAUL HOROWITZ BY GEORGE W. KUNEY 42 Point of View BY JAMES A. GARDNER 28 Are Medicare, Medicaid, 49 Presentation Skills for Lawyers and ERISA Liens? BY ELLIOTT WILCOX Resolving “Liens” in Personal Injury 50 Arbitration Settlements BY PAUL BENNETT MARROW BY J. MICHAEL HAYES 52 Attorney Professionalism Forum 54 Language Tips 32 Trading on the Pink Sheets BY GERTRUDE BLOCK The Lesson of Yukos Oil 56 New Members Welcomed BY ELENA A. POPOVA 60 Classified Notices 60 Index to Advertisers 38 Reporting Elder Abuse Legal Requirements for Physicians 63 2007–2008 Officers BY GAIL C. CONWAY 64 The Legal Writer BY GERALD LEBOVITS

CARTOONS © CARTOONRESOURCE.COM

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2007 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion 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 $18. 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 | September 2007 | 3 PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN

Securing Our Legacy as the Voice of the New York Lawyer

number of years ago, then or specialty bars. And no, one need not NYSBA President Joshua be a “bar junkie” to get the picture. A Pruzansky reminded us of the Fundamentally, it is about making an importance of focusing on the funda- investment in yourself, your profes- mentals of leadership, especially the sional and personal development and engine of any successful volunteer what that is worth to you. organization – the membership. In the Bar associations all bring different, real estate vernacular, it’s members, and vital, programs and services to the members, members. table. I may not be typical (I have been Our Association’s constitution does called a lot of things but not “typi- lawyers, as bar and community lead- not even mention members or serving cal”): I am a sustaining member of ers, and as human beings. If you also their needs. For most of our 131-year NYSBA, my county bar, the women’s believe in the importance of one orga- history, it’s been somewhat of a given. bar, the ABA, a member of the National nization that speaks with one voice for We didn’t need to be a mandatory Academy of Elder Law Attorneys and all the lawyers in our state, it is time bar. Everyone knew that if you were a Fellow of the American College of to pay that forward. I can think of no licensed to practice in New York, you Trust and Estate Counsel. My annual better way to “grow” our membership became a member of the State Bar. End dues, which I paid out of pocket as a than by enlisting every one of our of story. young lawyer, now exceed $2,000 each members. What better entrée into this That dynamic has evolved over year. And they are a bargain at twice great association than one who already time, as the number of bar associations the price. The value I receive in profes- understands the value? in New York increased, to more than sional and leadership development, Encourage that young lawyer, that 200 by last count. Across the country, networking with attorneys on the cut- mid-level associate, the solo on Main professional and other volunteer asso- ting edge of my practice areas, the Street, the in-house counsel or attor- ciations are in transition. Most face flat unlimited opportunities for volunteer- ney in public service to look us over or declining membership. While we ism and pro bono, legislative advocacy, for one year. And make sure they join continue to grow each year, we are not and the life-long friends I have made, one or more of our 23 Sections that keeping pace with the growth of New is, in the advertising lexicon, priceless! relate to their area of practice. If they York lawyers. If we are to secure our This is the first year of our 2010 believe that their personal financial cir- legacy as the voice of the New York Membership Challenge, which is about cumstances are such that they require lawyer, we must grow faster. If we are mobilizing our members, our leader- a dues reduction, have them contact to continue to influence public policy at ship and our staff to spread that word. our Membership Department about the highest levels, advance the rule of While your local, women’s, ethnic or our Dues Waiver Program. If, after law, do the public good and advocate specialty bars provide valuable servic- one year, they are not convinced of the for those who cannot speak for them- es tailored to their respective member- value, or the relevance, of belonging to selves, we must depend upon a stable, ship, NYSBA has and will continue to the largest voluntary state bar associa- and growing, membership base. offer statewide programs, services and tion in the country, have them call me. As a local bar leader, I had at first influence unparalleled by any other Or better yet, tell me why on my blog. viewed the State Bar as a competitor. association in New York. Just go to the link on our home page at That was before I had the prover- My challenge to you? Reach out to www.nysba.org. ■ bial “light bulb” moment, when I real- one non-member this year. Even more, ized that we could make a compelling if you are feeling ambitious. There is case for why every New York lawyer a reason we are members of NYSBA. KATHRYN GRANT MADIGAN can be should belong to the State Bar, the local Our membership provides value and reached on her blog at http://nysbar. Bar, and yes, other substantive, ethnic relevance and informs who we are as com/blogs/president.

NYSBA Journal | September 2007 | 5 There are millions of reasons to do Pro Bono. (Here are some.)

Each year in communities across New York State, indigent people face liter- ally millions of civil legal matters without assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help.

If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent.

Call the New York State Bar Association today at 518-487-5640 or go to www.nysba.org/probono to learn about pro bono opportunities.

6 | September 2007 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

Lawyer Referral and Information Service Interested in expanding your client base?

Join the Lawyer Referral & Information Service Why Join? > Expand your client base > Benefit from our marketing strategies > Increase your bottom line Overview of the Program The New York State Bar Association Lawyer Referral and Information Service (LRIS) has been in existence since 1981. Our service provides referrals to attorneys like you in 41 counties. Lawyers 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 required of all partici- pants. If you are retained by a referred client, you are required to pay LRIS a referral fee of 10% for any case fee of $500 or more. For additional information, visit www.nysba.org/joinlr. Sign me up Download the LRIS application at www.nysba.org/ joinlr or call 1.800.342.3661 or e-mail [email protected] to have an application sent to you. GGiveive uuss a ccall!all! 8800.342.366100.342.3661 NYSBACLE Tentative Schedule of Fall 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.

Henry Miller – The Trial November 15 Uniondale, LI; Tarrytown IMPORTANT NOTE: CLE Seminar Coupons and Complimentary November 16 Canton Passes CANNOT be used for this program. November 28 Poughkeepsie November 30 Loch Sheldrake; Watertown Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 ethics and professionalism; 6.5 skills Practical Skills: Basic Matrimonial Practice September 12 Westchester Fulfills NY MCLE requirement for all attorneys (7.5): 5.0 skills; 2.5 practice management and/or professional practice Trust Your Planning: A Comprehensive Review of Trust Planning and Drafting Techniques October 10 Albany; Buffalo; Melville, LI; New York City; Rochester; (Video Replay) Syracuse; Westchester +Fulfills NY MCLE requirement (7.0): 0.5 ethics and professionalism; Second Corporate Counsel Institute 6.5 skills and professional practice (two-day program) September 19 Jamestown +Fulfills NY MCLE requirement (14.5): 4.0 ethics and professionalism; Supplemental Needs Trusts 10.5 practice management and/or professional practice +Fulfills NY MCLE requirement (6.5): 0.5 ethics and professionalism; October 11–12 New York City 6.0 practice management and/or professional practice 2007 No-Fault Insurance Update September 24 Tarrytown September 25 Albany; Buffalo; Melville, LI October 11 New York City September 26 New York City October 12 Albany October 18 Syracuse Construction Site Accidents: The Law and the Trial October 19 Melville, LI Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 3.0 November 1 Buffalo practice management and/or professional practice Handling the Failure to Diagnose Breast Cancer Medical September 28 Albany Malpractice Case October 12 Uniondale, LI Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 3.0 October 19 Syracuse professional practice November 15 New York City November 16 Buffalo October 12 New York City Crisis Intervention Training Real Estate Titles October 3 New York City October 12 New York City October 26 Tarrytown The Lawyer as Employer November 1 Albany (half-day program) November 2 Melville, LI November 14 Rochester Fulfills NY MCLE requirement for all attorneys (3.5): 1.0 ethics and professionalism; 2.5 practice management and/or professional practice A Day in Discovery – Win Your Case Before Trial with Jim McElhaney October 3 Albany October 10 New York City IMPORTANT NOTE: CLE Seminar Coupons and Complimentary October 17 Uniondale, LI Passes CANNOT be used for this program. Update 2007 Fulfills NY MCLE requirement for all attorneys (7.0): .5 ethics and pro- fessionalism; 6.5 skills Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 ethics and professionalism; 6.5 practice management and/or professional practice October 16 Syracuse October 17 Buffalo Live Sessions November 7 Melville, LI October 5 Syracuse November 8 New York City October 19 New York City Risk Management for Attorneys – Don’t Make Malpractice +Video Replays (do not qualify for MCLE credits for newly Your Nightmare admitted attorneys) (half-day program) October 24 Binghamton Fulfills NY MCLE requirement for all attorneys (3.5): 2.5 ethics and October 25 Utica professionalism; 1.0 practice management and/or professional practice October 30 Albany; Buffalo November 1 Rochester October 16 Buffalo November 7 Ithaca; Plattsburgh; Saratoga November 2 New York City November 8 Jamestown; Suffern November 13 Uniondale, LI

† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. Prosecuting and Defending Medical Malpractice Claims Preparing and Drafting Organizational Documents for New York Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 3.0 prac- LLCS and Corporations tice management and/or professional practice (half-day program) October 17 Syracuse November 7 Rochester October 19 Buffalo November 16 Albany October 26 Albany December 7 Uniondale, LI November 1 Plainview, LI December 11 New York City November 2 Rochester +Fifth Annual Sophisticated Trusts and Estates Institute November 7 New York City IMPORTANT NOTE: CLE Seminar Coupons and Complimentary A Primer on Human Subject Research: Federal and State Law Passes CANNOT be used for this program. Fulfills NY MCLE requirement for all attorneys (7.5): 7.5 professional (two-day program) practice November 8–9 New York City October 19 New York City Practical Skills: Purchases and Sales of Homes Practical Skills: Introduction to Estate Planning Fulfills NY MCLE requirement for all attorneys (6.5): 1.5 ethics and Fulfills NY MCLE requirement for all attorneys (8.0): 1.0 ethics and professionalism; 2.0 skills; 3.0 practice management and/or professional professionalism; 2.0 skills; 5.0 practice management and/or professional practice practice November 13 Albany; Buffalo; Hauppauge, LI; New York October 23 Albany; Buffalo; Melville, LI; City; Rochester; Syracuse; Westchester New York City; Rochester; Syracuse; Westchester White Collar Crimes New York Appellate Practice (half-day program) October 25 Rochester November 14 New York City November 2 Tarrytown Dealing With Your Client’s Retirement Assets November 8 Hauppauge, LI (half-day program) November 28 Albany December 7 New York City November 15 Buffalo November 28 Syracuse Ninth Annual Institute on Public Utility Law December 7 Albany +Fulfills NY MCLE requirement (7.0): 2.0 ethics and professionalism; December 12 New York City 5.0 practice management and/or professional practice Ethics and Professionalism October 26 Albany (half-day program) New York’s Fault Divorce Law at Age 40: Pleading and Proving Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 ethics and Your Grounds Case professionalism (half-day program) November 16 New York City +Fulfills NY MCLE requirement (4.0): 4.0 areas of professional practice November 19 Tarrytown November 28 Melville, LI October 26 Buffalo November 30 Albany November 2 Albany November 30 Syracuse November 16 Melville, LI December 7 Rochester December 7 Syracuse December 12 Buffalo December 14 New York City Practical Skills: Basics of Civil Practice – The Trial Special Education Law Update Fulfills NY MCLE requirement for all attorneys (7.0): 0.5 ethics and October 26 Buffalo professionalism; 4.5 skills; 2.0 practice management and/or professional November 16 New York City practice November 28 Albany November 27 Albany; Buffalo; Melville, LI; New York City; At the Ramparts: Challenges in Representing and Litigating Rochester; Syracuse; Westchester With Public Companies in the Post-DURA/IPO/Sarbanes-Oxley Environment Legislative Law and Lobbying +Fulfills NY MCLE requirement (7.0): 1.0 ethics and professionalism; November 29 Albany 6.0 practice management and/or professional practice Securities Arbitration 2007: A Primer for the Practitioner October 30 New York City Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 3.0 areas of professional practice To register November 29 New York City 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/fall2007 (Note: As a NYSBA member, you’ll receive a substantial discount) Bentley Kassal Behind the Lens

Freelance writer SKIP CARD ([email protected]) is a copy editor for the New York Post and author of the hiking guidebook Take a Hike New York City. He has written for the Journal on topics ranging from baseball to environmentalism.

Photos: Save the Children/Judge Bentley Kassal. By Skip Card Elsewhere, there’s a 1962 “Kassal for Congress” bum- ou can see much of Manhattan from Bentley per sticker, framed New York Times articles heralding Kassal’s office in the Skadden Arps suite on the Kassal’s accomplishments as a politician and judge, Y48th floor of the Condé Nast Building, but the editorial cartoons bearing his likeness, keepsakes from view is the least of the attractions. Kassal’s crowded walls his year on a championship Harvard rugby team, and contain mementos ranging from his WWII Bronze Star photographs of Kassal with Eleanor Roosevelt, Jack citation to a burlap cross-stitch showing a mujahedeen Kennedy and other notables, all souvenirs collected over warrior lopping the head off a Russian soldier – a maca- a memorable and extraordinary 90-year lifetime. bre gift from an Afghan boy soldier. But it’s the faces of children that are most striking.

NYSBA Journal | September 2007 | 11 who needed assistance but was living life to the fullest under the circumstances.” Of all Kassal’s accomplishments – a long list, includ- ing six years in the New York State Legislature and more than two decades on the bench, including a stint on New York State’s highest court – he puts his charitable photog- raphy at the top. “I think I affected more people’s lives with my photog- raphy,” he says. “I was able to see the need they have, and organizations like Save the Children were able to satisfy their needs and make their lives better.” Kassal’s effect on others’ lives isn’t over. Recently, he was called to serve in New Orleans, part of a contingent of New York jurists who hope to help the Big Easy’s decimated legal system get up and running following the chaos of Hurricane Katrina. “I figure I might be able to do some good down there,” Kassal said.

War, Law and Politics Kassal grew up in New York City, a son of European immigrant parents who ran a liquor store at 46th and Lexington. An interest in photography and a career in the legal profession were on his mind from an early age. “I always wanted to be a lawyer,” he said. When he was about seven years old, his parents were involved in an auto accident. “I made notes of everything that occurred, including diagrams,” he recalled. There’s the calm South American girl draped in a “Why I was so motivated, I don’t know,” Kassal said. hand-woven poncho, the Colombian boy wearing dusty “I guess I had met some lawyers and was fascinated by cowpoke rags, two lithe Asian girls swaying through the profession.” their dance steps, the softly crying boy sitting barefoot in He attended Townsend Harris High School, earned a the muddy streets of – well, who knows? Kassal has pho- bachelor’s degree in political science from the University tographed so many children he is no longer sure where of Pennsylvania and graduated from Harvard Law School some shots were taken. in 1940. In his final year at Harvard, Kassal walked on to Most memorable – perhaps because you’re sure you’ve the Harvard Rugby Club – despite knowing little of the seen it before – is the pale-skinned Lebanese girl with game – and earned a starting spot as the team’s left wing. wild, dust-streaked blond hair and a patina of dirt coat- He played every minute of every game on an undefeated ing her round face. Her wide-set dark eyes peer back at team that won the club-team equivalent of the national you – not pleading, exactly, and certainly not defiant, but championship. slightly imploring. He entered the Army in January 1942, reporting for Kassal took all the photos during more than 35 years duty a month after the Pearl Harbor attacks. (An ear- of extensive travel to 158 countries on behalf of charitable lier application to be an agent for the Federal Bureau of organizations such as Save the Children and UNICEF. Investigation received no reply from the bureau, then run Although he has no formal training as a photographer by the notoriously anti-Semitic J. Edgar Hoover.) Serving and no offspring of his own, Kassal displayed a knack for as an air-combat intelligence officer in North Africa and capturing authentic images of children that deftly tug at the Mediterranean, Kassal earned a Bronze Star and three philanthropic impulses. Bronze Arrowheads for his intelligence planning and “I wasn’t looking for the most pitiable or difficult first-day landings during major invasions. child,” explained Kassal, seated behind his cluttered desk It was during his Army years that Kassal began to beneath the gazes of his young subjects. “I was looking develop a serious interest in photography and travel. for those who had hope and were not despairing and had Cameras could be bought in Europe, and photo process- a measure of life in their eyes. ing was provided free by the Army’s Signal Corps. Kassal “Look in their eyes. They’re not sad. These are not participated in and photographed Allied landings in depressing,” he said. “I’d always attempt to find a child Sicily, Salerno and southern France.

12 | September 2007 | NYSBA Journal November 1944, Nancy, France: Captain Bentley Kassal is awarded the Bronze Star.

“I’m a very physical type,” he explained. Photography a 1962 New York Post column, Murray Kempton hailed allowed Kassal to be outdoors, looking for subjects and Kassal’s attempt to push through a bill designed to com- manually manipulating lenses and shutters. “It was more pel powerful Con Edison to warn slum tenants five days of my nature.” before power would be cut off. “He was like Hillary on After World War II, Kassal returned to New York City Everest, like Childe Roland at the dark tower, like John and went into private practice, slowly gaining experience Uelses on his fiberglass pole,” Kempton wrote. and a solid reputation while becoming active in civic and Kassal’s legislative career ended with an unsuccessful liberal political organizations. run for Congress, when he failed to win the August 1962 He entered the political arena in 1957, winning a seat Democratic primary, despite endorsements from luminar- in the New York State Assembly’s 5th District, then in ies such as Eleanor Roosevelt and Hubert Humphrey. In Manhattan’s Upper West Side. a lifetime filled with accomplishments, the defeat marks “I enjoyed enacting legislation that I saw as progres- one of Kassal’s few disappointments. sive,” said Kassal, the first Reform Democrat elected to “Being a congressman would have been the highlight the New York Legislature. Among his notable accom- of my life,” Kassal said. “If I’d had my druthers, I’d rather plishments, Kassal was the author of the bill that created be a congressman. the New York State Council on the Arts, the first such “But I derive great pleasure and satisfaction from organization in the United States. being a proactive jurist in that I could make changes in “I enjoyed being a legislator. I enjoyed the give and the furtherance of justice.” take of legislative debate, being on my feet and argu- ing.” A Seat on the Bench Kassal became known in the Assembly as a progres- Kassal resumed his work as a lawyer, slowly rebuilding sive reformer willing to take on entrenched interests. In his neglected solo practice into a lucrative career. In 1964,

NYSBA Journal | September 2007 | 13 while representing Café Au Go Go in Greenwich Village, “Even though technically it was not improper or ille- he had the honor of springing comedian Lenny Bruce and gal, it did violate my sense of fair play and sportsman- café owner Howard Solomon out of jail after the pair was ship,” Kassal said. No catamaran has ever lost a race arrested for obscenity. to a monohull, so to him the situation was as unfair as In 1969, Kassal gave up his revived law practice and a heavyweight stepping into the ring against a feather- successfully ran for civil court judge. The new job meant weight. It simply wasn’t right. a cut in pay but a return to public service. If Kassal sounds like one of those controversial “activ- “I felt I could so something worthwhile about making ist judges,” he does not disagree. the laws and the system of justice more “I was very proactive. If the existing equitable and fair,” he said. decisions added up to being something Ultimately, Kassal would spend that I didn’t deem to be just, I would 24 years in black robes. Today, when write the decision to make it just,” Kassal speaks, his words still have a Kassal said. “Justice was more impor- judicial tone – opinions or instructions tant to me than precedent. Everything carry an air of quiet authority, while his I did was proactive.” personal views tend to be expressed in In 1985, at age 68, Kassal was brief, careful sentences devoid of emo- appointed to a vacancy on New York’s tional hyperbole. Court of Appeals and served from April He calls the Iraq war “ill-conceived to May. Close to the Court of Appeals’s and based upon deception,” and says mandatory retirement age, he left that U.S. involvement is “being continued bench when the Court’s spring term because of the president’s personal ended and returned to the Supreme pride and not in the best interests of Court’s Appellate Division, where he our country.” His views on the govern- served until retirement in 1993. His 15- ment’s treatment of terrorist suspects page curriculum vitae notes he heard held in Guantanamo Bay are similarly more than 14,000 appeals and had disdainful. 254 opinions published in official law “I see no legitimate basis in this war or any other war reports during his 24 years on the bench. for depriving prisoners of basic human rights,” he said. “All prisoners should have a right to trial with counsel Story Behind the Shot provided and basic human-rights protections afforded Kassal’s life took another proactive turn in 1971, when to them.” a friend working for Save the Children saw his vacation Such opinions are a clear sign of what Kassal admits snapshots and asked him to go on a photo assignment to is a liberal-leaning philosophy that favors fairness and the Pueblo Indian reservation in New Mexico. equity over statute or precedent. Among his noteworthy Kassal went, the Save the Children publicists were decisions as a judge was his ruling in Morgan v. Morgan, a pleased with the result, and over the next few years 1975 divorce case. Mrs. Morgan had set aside her medi- Kassal went on similar trips to Kenya, Afghanistan, cal education so she could put her husband through law Bhutan, Sri Lanka, Indonesia and Israel to get photos school. She asked the court to order her soon-to-be-ex to of children in need. On all trips, Kassal paid all his own reciprocate and pay her tuition so she could attend medi- expenses. cal school. “He was what I call a true volunteer,” said Susan “I said, ‘You’re going to have that opportunity,’” Warner, manager of photography for the Connecticut- Kassal recalled. The decision preceded by five years New based Save the Children. “The judge never asked for York’s “equitable distribution” rule, which mandates reimbursements. He funded all his own trips. He did fairness and forbids discrimination against a wife in everything for the love of sharing his photographs.” property settlements. Kassal later attended the woman’s Several years after Kassal began volunteering for Save commencement ceremony at Albert Einstein Medical the Children, the organization’s headquarters burned College in the Bronx. down, and its entire photo inventory was reduced to In a case involving the America’s Cup yachting race, ash. Kassal was the lone dissenter in a 4-1 appellate court deci- “We lost everything,” Warner said. “He was vital in sion in which the majority upheld the San Diego Yacht rebuilding that.” This year, to help mark its 75th birthday, Club’s use of a catamaran to win a rematch against New Save the Children is exhibiting a collection of Kassal’s Zealand racers in a traditional monohull sailboat. The San photos in its office lobby. Diego sailors had reclaimed the Cup but did so by finess- “His photos are very iconic,” she said. “They’re beau- ing the Cup rules’ fine print. tiful black and white. They’re timeless.”

14 | September 2007 | NYSBA Journal Kassal’s most famous shot – showing the Lebanese girl with the dust-streaked blond hair – came just before Christmas during a 1974 trip to Beirut. When Kassal arrived, the busy workers in the field office said they didn’t have the time or inclination to escort him anywhere. After Kassal emphatically informed them he’d trav- eled 6,000 miles, the office reluctantly agreed to his demand for a driver to take him to the Bekka Valley. During the roughly one hour he had to shoot photos, Kassal spotted the little girl walking through a village. As he has done so many times, Kassal found a way to put the child at ease and get the shot. His photo became a prominent image in Save the Children posters and adver- tisements for 15 years. “I can get the right expression,” Kassal said. “I’m smiling at all times – that’s critical. It shows I’m not an ordinary tourist or somebody hostile.” At times, even his scenic photography had proac- tive results. Preservationists based in Sweden are using Kassal’s photos of a giant Buddha carved into a moun- tainside in Bamiyan, Afghanistan, as they rebuild the statue destroyed in 2001 by the Taliban. Kassal had one of the few good photographs of the intact statue. Kassal’s life has taken other unusual turns. In 1986, at the age of 69, Kassal married Barbara Joan Wax, the 44-year-old sister-in-law of a close political supporter in the West Side Democratic Club. They have no children, another of his life’s few regrets, and one he acknowledges with some sadness. In 1997, Kassal became counsel in the Litigation Department of Skadden, Arps, Slate, Meagher & Flom. He accepted the position at a partner’s invitation, although he is years older than all the firm’s most senior partners. The firm makes use of Kassal’s extensive experience at all levels of the legal system, and he regularly teaches semi- nars on topics such as effective courtroom technique. “He provides great perspective to partners and, equal- ly important, the younger associates,” said John Gardiner, a partner in Skadden Arps’ Litigation Department. “He provides a judge’s eye, which is very important to litiga- tors before they appear before judges.” Just as valuable is Kassal’s sense of fair play, Gardiner said. “He’s one of the fairest guys you’d ever hope to meet,” Gardiner said. “His view of the law is that it’s supposed to do justice, and that’s a pretty good way to view the law.” Kassal seems to enjoy his status as elder statesman at the prestigious firm. He is on a first-name basis with almost everyone, including lobby guards and the cooks in the Condé Nast cafeteria. Firm members regularly stop by to seek his advice. And, of course, the walls of his 48th-floor office provide a great place to display mementos. “They call me ‘Judge’ here,” Kassal said with a grin. “I like that title, and I don’t discourage them.” ■

NYSBA Journal | September 2007 | 15 BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject. Is There a Doctor in the House? The Physician-Patient Privilege May Need One! (Part II)

Court should have denied that Introduction The defendant will argue that dur- branch of the motion which was Last month’s column posed a medical ing the time the daughter was in utero, for a protective order with respect malpractice hypothetical, followed by her medical condition and the medical to those records, and should have a laundry list of disclosure demands condition of the mother were, for prac- granted that branch of the cross by the parties in the action. You, reader, tical purposes, one and the same, and motion which was to compel the were thrown the gauntlet and chal- submits an affirmation from a medical production of authorizations for lenged to decide the correct ruling for expert detailing the relevance of the the release of those records.3 each of the disclosure demands. Well, daughter’s time in utero to its medi- you’ve had two months,1 and it’s time cal defense of the case. The plaintiff Authorization for the Infant’s to show our cards. will argue that her daughter, while in Delivery Records From Dr. A and What follows are my rulings, togeth- utero, had no separate existence, that Hospital B er with an explanation and citation, for the records are the mother’s alone, and There is no question that the infant’s the results I reached.2 You, reader, can that she, as a derivative plaintiff, has medical condition has been affirma- act as my appellate court, and I urge not waived her medical privilege. tively placed in controversy by the you to e-mail me with an explanation if I rule that the mother’s pre-natal commencement of the medical mal- you believe I should be reversed. records are subject to disclosure, based practice action brought on her behalf upon the defendant’s establishment by her mother. The waiver of the privi- The Rulings: of a proper evidentiary foundation lege is not absolute, and does not Authorization for the Mother’s through its submission of a physician’s extend to unrelated injuries, illnesses, Pre-Natal Records From Dr. A affirmation, and support my ruling and treatments.4 The limitation on the The mother is the plaintiff twice over. with a recent Second Department case: waiver applies in medical malprac- 5 First, she has sued in her representa- While the mother did not waive the tice cases. In our case, the infant’s tive capacity as the mother and natural physician-patient privilege with medical privilege will be waived for 6 guardian of her infant daughter, a legal respect to her own medical history related injuries and conditions. The requirement necessitated by the fact by commencing this action in a infant’s medical history and records that her daughter, as a minor, does not representative capacity on behalf are “inextricably intertwined” with the 7 have the legal capacity to bring suit on of the infant and derivatively on mother’s during delivery. her own behalf. Second, she has sued her own behalf, she is not entitled Since the allegations in the action individually, on her own behalf, to to assert that privilege with respect involve an injury to the infant’s shoul- recover the moneys she spent on her to medical records “pertaining to der during delivery, I rule that all of daughter’s medical care as a result of the period when the infant plaintiff the infant’s delivery records are dis- the injuries from the malpractice, and was in utero, during which time coverable. for the loss of her daughter’s services. there could be no severance of the Accordingly, the mother is consid- infant’s prenatal history from his Authorization for the Mother’s ered a derivative plaintiff; that is, her mother’s medical history.” Since Post-Delivery Records From Dr. A claims arise through and solely as a the affidavit of the defendants’ and Hospital B result of the injuries sustained by her medical expert established that the While the mother’s pre-natal and deliv- daughter. As a derivative plaintiff, the mother’s medical records relating ery records are subject to disclosure, mother has not placed her medical to the infant’s gestation and birth once the infant is delivered, the records condition in controversy or otherwise were material and necessary to the of her post-delivery medical treatment waived her medical privilege. defense of this action, the Supreme from Dr. A and Hospital B are privi-

16 | September 2007 | NYSBA Journal The entitlement to a psychiatric examination will depend upon the nature infant. Physical and mental examina- tions are addressed in CPLR 3121, of the injuries claimed in the complaint and are permitted where “the mental or physical condition or the blood and bill of particulars. relationship of a party, or of an agent, employee or person in the custody or leged and not subject to disclosure. Authorization for All Records under the legal control of a party is The “inextricably intertwined” argu- of All Treating Physicians of in controversy.”11 Here, the condition ment advanced in connection with the the Infant of the infant’s arm is in controversy. pre-natal and delivery records is inap- The plaintiff timely objects to the Hence, waiver; hence, physical exam. posite, as there is no medical nexus demand as being “overbroad, burden- between any injury claimed to the some, and seeking privileged infor- The Psychiatric Examination child and the mother’s post-delivery mation.” Here, some parsing of the The entitlement to a psychiatric exami- care. She is a derivative plaintiff, and demands is in order. While it is true that nation will depend upon the nature of has not waived her medical privilege.8 any treatment that the infant under- the injuries claimed in the complaint The fact that she may have related cer- went for injuries and conditions related and bill of particulars.12 A clear-cut tain facts of her medical history to the to those claimed in the lawsuit is sub- claim of psychiatric, psychological, or infant’s physician does not constitute a ject to disclosure, treatment for unre- emotional injury will open the door to waiver of her privilege, since they are lated illnesses, injuries or conditions a psychiatric examination,13 and any merely facts and incidents of the medi- would not be subject to disclosure. records of treatment. More problematic cal history of the mother’s family. Accordingly, I deny the request, is the boiler-plate language, inserted Accordingly, I deny the request. without prejudice to the defendants in bills of particulars with the same to serve a new demand, demonstrat- thought and reflection that a lemming Authorization for the Infant’s ing, for each medical provider, how engages in while cliff-jumping, to the Hospital Records From the records requested are related to the effect that the plaintiff was “depressed” Hospitals B and E injuries claimed in the lawsuit. or suffered “mental anguish” or “loss This one’s a gimme. Since the child is of enjoyment of life.” This is perfectly being treated in-patient at both facil- IME of the Infant by an appropriate where the plaintiff has ities, and since the in-patient stays Orthopedist, a Psychiatrist, received psychiatric or related treat- involve treatment for the injuries and an HIV Specialist ment or counseling as a result of the claimed in the lawsuit, the infant’s The Orthopedic Examination negligence of the defendant, and the medical condition has been affirma- The defendants are clearly entitled plaintiff seeks to recover for those inju- tively placed in controversy by the to an orthopedic examination of the ries. It can potentially open the door to plaintiff; thus the privilege has been waived by the allegations in the com- plaint and the bill of particulars.9 Accordingly, I grant the request.

Authorization for the Infant’s Medical Records From Drs. C, D, and F Where doctors such as Drs. C and D treat the infant in the hospital, their entries into the hospital chart will be produced as part of the hospital records from their respective institu- tions. However, physicians often main- tain separate records in their office, even if the patient is seen only at the hospital, and we know from the fact pattern that Dr. D saw the infant in his office. So their records, insofar as they relate treatment for the conditions related to the lawsuit, are subject to disclosure.10 Again, I grant the request.

NYSBA Journal | September 2007 | 17 far-reaching and otherwise unobtain- Any court considering ordering the rendered to [the child] that her psy- able disclosure where there is no spe- release of confidential HIV informa- chiatric/medical condition is in ques- cific treatment or injury claimed. tion must follow the requirements of tion and therefore, the defendants are In one case, where a personal injury the Public Health Law. Public Health entitled to full disclosure regarding plaintiff claimed “injury, pain, emo- Law § 2782(1)(k) permits disclosure of any psychiatric or psychological treat- tional upset, confinement to bed, and confidential HIV information to “any ment she may have received.”22 loss of enjoyment of life,” the Fourth person to whom disclosure is ordered Second, the court found a waiv- Department held: by a court of competent jurisdiction er. “[Mother], by previously signing authorizations for [her] psychiatric records, as well as testifying as to I rule that unless the claim is withdrawn, her diagnosis and treatment diagnosis and treatment by her psychiatrist at the defendant is entitled to any her deposition, effectively waived her psychiatric or psychological records. privilege, thus making those records discoverable.”23 The court was certainly correct in Given those broad allegations of pursuant to section twenty-seven holding that there had been a waiver as injury and disability, we conclude hundred eighty-five of this article.”18 a result of the testimony and exchange that plaintiff’s entire physical con- Public Health Law § 2785 permits dis- of an authorization. However, the dition has been placed in contro- closure where there is “a compelling court’s determination that the moth- versy, especially insofar as plain- need for disclosure of the information er’s records were subject to disclosure tiff may have experienced other for the adjudication of a criminal or due to her psychiatric condition being potentially debilitating problems civil proceeding,”19 and requires that “inextricably intertwined” with the before or since the accident . . . all proceedings following an applica- medical care of her son was only sup- [s]uch other medical conditions are tion for the release of confidential HIV ported with citation to cases discussing relevant to damages.14 information be conducted in camera.20 waiver by the plaintiff where the plain- The Second Department has held Accordingly, I deny the request. tiff affirmatively claimed, and sought that “broad allegations of physical compensation for, an injury. injury and mental anguish contained IME of the Mother by Psychiatrist Absent a waiver by the mother, I in [the] bill of particulars” entitled a We need not re-hash that the mother rule that the defendant’s request for an defendant to “full disclosure regard- has not waived her medical privilege IME of the mother is denied. ing any medical or psychological by commencing the action as both treatment that the plaintiff may have a representative and individually. All Medical Records of Dr. A received.”15 However, the defendants have assert- Relating to Any Injury to, or Of course, if a party withdraws a ed a defense that the infant’s injuries Medical Condition of, His Right claim, the waiver ceases, and disclo- were caused or exacerbated as a result Arm, for the Period Running From sure should not be ordered.16 of the mother’s medical condition of Two Years Before the Delivery Based upon the plaintiff’s claim Munchausen Syndrome by Proxy. Through One Week After the Date in the bill of particulars of “[m]ental Confronted with just such a claim by of Dr. A’s Delivery of the Infant Girl anguish and loss of enjoyment of life,” the defense, Justice Maltese in Supreme Needless to say, Dr. A has not inter- I rule, reluctantly, that unless the claim Richmond found: posed a claim in the lawsuit seeking in the bill is withdrawn, the defendant [T]he defendant has presented recovery for any injury to himself, so is entitled to any psychiatric or psycho- more than a mere probable cause he has not affirmatively placed his logical records of the infant. I further to believe that the plaintiff [moth- medical condition in controversy. A rule that the defendant’s request for a er] has Munchausen Syndrome By very similar fact pattern last year24 led mental examination is deferred pend- Proxy, that has materially affected Justice Bransten in New York County ing an in camera review of any records the cause of her son’s medical treat- to rule: responsive to the request. ment, which is relevant to this case. There is absolutely no indication This is not a fishing expedition on that [the doctor’s] defense is based 21 The HIV Examination the part of the defendant. on any arm impairment. He is not The plaintiff did not plead any HIV- The court offered two reasons for attempting “to excuse the conduct related injury or illness in the bill of ordering the disclosure. complained of by the plaintiff” on particulars, therefore that issue was First, that the mother’s “psychiatric the basis of any physical condition. not placed in controversy by the plain- profile may be so inextricably inter- Nor did he at any time voluntarily tiff, therefore there is no waiver.17 twined with the care and treatment disclose that he suffered from any

18 | September 2007 | NYSBA Journal arm condition during the relevant history” and that he in no other In the first, the plaintiff sought the time. Thus, [the doctor’s] medical way injects his physical condition release of the names of patients who records are not discoverable and into the lawsuit, there will be no were present in the cardiac rehabili- an authorization will not be com- waiver of the physician-patient tation center where the plaintiff was pelled. privilege as to his medical records receiving treatment at the time of the * * * based on his answers to plaintiff’s plaintiff’s accident. The defendant 25 To avoid a waiver of [the doctor’s] counsel’s questions. ultimately sent redacted records and privilege and ensure that plaintiff I adopt this ruling, in toto. requested an in camera review, and can obtain information to which after the review the trial court ordered she is entitled, this Court will com- The Identity of the Patients and the records exchanged. The Second pel [the doctor], at a deposition to Staff Present in the HIV Clinic Department reversed. be conducted within 30 days, to When the Television Fell answer questions related to the Had the television accident occurred While the plaintiff’s request was not a request to discover the medi- facts and incidents of his medical anywhere but in a medical facility,26 cal records of the other patients history. Specifically, [the doctor] my ruling would be an easy one. in the facility per se, exchanging must disclose whether he suffered Generally speaking, the identity of the requested information would from any arm impairment and actual or potential witnesses to an acci- reveal that they were undergo- whether he was under the treat- dent, or more broadly, a transaction or ing treatment for a cardiac relat- ment of a physician for a condi- occurrence, are discoverable. ed condition. Accordingly, the tion related to upper-extremities However, there is a privilege issue release would be barred by CPLR between November 20, 2000 – the involved for the patients in the HIV 4504(a).27 date of her facelift – and December clinic. Disclosure of their identities 31, 2000. [The doctor’s] compelled would necessarily disclose, at the least, In the second, the names and testimony cannot be deemed vol- that they were being tested and/or addresses of patients in a hospi- untary and, assuming that [the monitored for HIV. tal emergency room were subject to doctor] limits his answers to “the Two recent cases illustrate the range disclosure where the location of the facts and incidents of his medical of possibilities. patient within the emergency room did

NYSBA Journal | September 2007 | 19 not reveal information concerning the Courts often attempt to balance 9. It’s a gimme, so no citation is necessary. Not satisfied, see, Koump v. Smith, 25 N.Y.2d 287, 303 patient’s medical status. The potential the physician-patient privilege being N.Y.S.2d 858 (1969). witnesses were in the adjoining emer- asserted by a party with arguments 10. Id. gency room beds to the decedent, in by parties seeking disclosure that the 11. CPLR 3121. an area designated for “hold” patients. information sought is relevant to the 12. New York being a notice pleading jurisdiction, The defendant moved for a protective claims and defenses in the litigation. it is unlikely that the complaint will be particularly illuminating about the infant’s injuries. order, claiming the exchange would However, a balancing process when 13. See, e.g., Bobrowsky v. Toyota Motor Sales U.S.A., violate both HIPAA and the physician- a privilege is involved is inherently Inc., 261 A.D.2d 349, 689 N.Y.S.2d 183 (2d Dep’t patient privilege. flawed. If there is a valid privilege 1999). When it is claimed that information for which there has been no waiver, it 14. Geraci v. Nat’l Fuel Gas Distrib. Corp., 255 A.D.2d 945, 680 N.Y.S.2d 776 (4th Dep’t 1998). that is otherwise material and neces- matters not that the matter sought is 15. Avila v. 106 Corona Realty Corp., 300 A.D.2d 266, sary intrudes on the physician-patient “material and necessary.” A privilege, 750 N.Y.S.2d 764 (2d Dep’t 2002). privilege, the privilege, if established, is a privilege, is a privilege. 16. Strong v. Brookhaven Mem. Hosp. Med. Ctr., 240 will trump materiality. Where the phy- I will now start checking my “in- A.D.2d 726, 659 N.Y.S.2d 104 (2d Dep’t 1997). sician-patient privilege and the broad box” every day for notification that I 17. FYI. The infant tested negative for HIV six ■ months after the accident. New York courts do not scope of disclosure compete, the test have been reversed. recognize a claim for “fear of AIDS” for a period that has evolved is whether the infor- beyond six months after exposure where the patient mation sought will reveal the patient’s 1. Last “month’s” column appeared in the July/ tests negative. August edition, so you had two months to figure 18. N.Y. Public Health Law § 2782(1)(k) (PHL). medical status. If it does, the privilege this out. 19. PHL § 2785(2). applies; if it does not, the privilege 2. Only I know whether I reached the result, and 20. PHL § 2785(3). does not apply. Applying that test, the then sought authority, or was guided to the result by the authority I located. 21. Heines v. Minkowitz, 14 Misc. 3d 1210(A), 836 trial court held: N.Y.S.2d 485 (Sup. Ct., Richmond Co. 2006). 3. Lamy v. Pierre, 31 A.D.3d 613, 614, 818 N.Y.S.2d In this instance, it does not appear 22. Id. 610 (2d Dep’t 2006) (citations omitted); See CPLR that disclosure of the identity of 3101(a); Scipio v. Upsell, 1 A.D.3d 500, 767 N.Y.S.2d 23. Id. the patients in the defendant’s 254 (2d Dep’t 2003). Lamy has been followed by a 24. See David Horowitz, Dillenbeck’s Back, N.Y. St. emergency room who were room- trial court in the First Department, NCP v. City of B.J., Sept. 2006, p. 14. N.Y., 16 Misc. 3d 1102(A), 2007 WL 1775503 (Sup. mates of plaintiff’s decedent on the 25. Brower v. Beraka, 12 Misc. 3d 408, 821 N.Y.S.2d Ct., N.Y. Co. June 20, 2007). 369 (Sup. Ct., N.Y. Co. 2006) (Bransten, J.) (citations evening in question would reveal 4. Kohn v. Fisch, 262 A.D.2d 535, 692 N.Y.S.2d 429 omitted). their medical status. The Court (2d Dep’t 1999). 26. Or where the CIA or Department of Homeland therefore discerns no impediment 5. See, e.g., Gill v. Mancino, 8 A.D.3d 340, 777 Security was involved. to the requested disclosure under N.Y.S.2d 712 (2d Dep’t 2004). 27. Gunn v. Sound Shore Med. Ctr. of Westchester, 5 A.D.3d 435, 772 N.Y.S.2d 714 (2d Dep’t 2004). State law.28 6. See, e.g., Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858 (1969). 28. Foley v. Good Samaritan Hosp. 11 Misc. 3d Without even considering the 1055(A), 815 N.Y.S.2d 494 (Sup. Ct., Rensselaer Co. 7. Remember that the infant’s delivery records impact of Public Health Law § 2780, 2006) (Ceresia, J.) will be in a chart under the mother’s name. I deny the request for the identity 29. Joyner v. Oakfield Ala. Cent. Sch. Dist., 284 8. Roman v. Turner Colours, Inc., 255 A.D.2d 571, A.D.2d 936, 726 N.Y.S.2d 312 (4th Dep’t 2001). of patients, since their identification 681 N.Y.S.2d 69 (2d Dep’t 1998). would necessarily entail disclosure of, 30. See, e.g., Roman v. Turner Colours, Inc., 255 A.D.2d 571, 681 N.Y.S.2d 69 (2d Dep’t 1998). at the very least, the fact that they were being tested and monitored for HIV treatment, but grant the disclosure of the identity of employees of the HIV facility.

Conclusion There are two tactical points to keep in mind when issues involving medi- cal privilege arise. First, the burden is always on the party seeking disclosure to demonstrate that the individual’s physical or mental condition is in con- troversy.29 Second, the party success- fully asserting a privilege will be pre- cluded at trial from introducing any evidence withheld as a result of the privilege.30

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Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0110 GEORGE W. KUNEY ([email protected]) is Associate Professor of Law and Director of the Clayton Center for Entrepreneurial Law at the University of Tennessee College of Law. He is the author of The Elements of Contract Drafting (West 2003); Contracts: Transactions and Litigation (co-author Prof. Robert Lloyd, West 2006); and California Law of Contracts (CEB 2006), as well as law review and other articles dealing with business, contracts, Chapter 11, and insolvency issues. He earned his undergradu- ate degree from the University of California, Santa Cruz, his law degree from the University of California’s Hastings College of the Law, and an M.B.A. from the University of San Diego.

Successor Liability in New York By George W. Kuney

uccessor liability is an exception to the general rule a part of that body of law, much like the “alter ego” or that, when one corporate or other juridical person “piercing the corporate veil” doctrines,3 rather than as a Ssells assets to another entity, the assets are trans- creature of tort law, although it is used as a tool by plain- ferred free and clear of all but valid liens and security tiffs who are involuntary tort claimants. interests. When successor liability is imposed, a creditor Many sources and authorities list four, five, or six or plaintiff with a claim against the seller may assert that basic types of situations in which judge-made successor claim against and collect payment from the purchaser. liability has sometimes been recognized: for example, Historically, successor liability was a flexible doctrine, (1) express or implied assumption, (2) fraud, (3) de facto designed to eliminate the harsh results that could attend merger, (4) mere continuation, (5) continuity of enter- strict application of corporate law. Over time, however, prise, and (6) product line.4 In fact, the matter is more as successor liability doctrines evolved, they became, in complicated than that. Each of these species of successor many jurisdictions, ossified and lacking in flexibility. As liability has, within it, different subspecies with different this occurred, corporate lawyers and those who structure standards and variations in the jurisdictions that recog- transactions learned how to avoid application of succes- nize them. Some use a list of mandatory elements while sor liability doctrines.1 others are based on a non-exclusive list of factors and There are two broad groups of successor liability considerations to be weighed and balanced in a “total- doctrines: those that are judge-made (the “common law” ity of the circumstances” fashion. Some approaches that exceptions) and those that are creatures of statute. Both relied on a flexible list of factors have evolved into one represent a distinct public policy that, in certain instances consisting of one or more mandatory elements. In any and for certain liabilities, the general rule of nonliability event, to state that there are only four, five, or six catego- of a successor for a predecessor’s debts, following an ries is to oversimplify the matter.5 asset sale, should not apply. This article addresses the sta- tus of the first group, judge-made successor liability.2 The State of Successor Liability in New York The current judge-made successor liability law appears When examined in detail, the types of successor liabil- to have developed because of and in reaction to the rise of ity can be classified into five general species, each of corporate law in the last half of the 19th century and early which is specifically defined on a jurisdiction-by-juris- part of the 20th century. It may be better characterized as diction basis. These are: (1) Intentional Assumptions of

22 | September 2007 | NYSBA Journal One of the traditional exceptions Liabilities, (2) Fraudulent Schemes to Escape Liability, (3) De Facto Mergers, (4) The Continuity Exceptions: Mere exists where there has been a Continuation and Continuity of Enterprise, and (5) The “consolidation or merger of seller Product Line Exception. and purchaser.” When examining successor liability, especially when moving from one jurisdiction to another, one should keep in mind that there is variance and overlap between the species of successor liability creates the same result in species and their formulation in particular jurisdictions. the asset sale context to avoid allowing form to overcome The label a court uses for its test is not necessarily one substance. A de facto merger, then, allows liability to with a standardized meaning applicable across jurisdic- attach when an asset sale has mimicked the results of a tions. Accordingly, it is dangerous to place too much reli- statutory merger except for the continuity of liability. The ance on a name; the underlying substance should always main difference between the subspecies of de facto merger be examined. among the various jurisdictions appears in how rigid or flexible the test is. In other words, how many required Intentional (Express or Implied) elements must be shown to establish applicability of Assumption of Liabilities the doctrine? On one end of the spectrum is the lengthy, Intentional assumption is probably the simplest of the mandatory checklist of criteria. On the other end is the successor liability species. Imposing liability on a succes- non-exclusive list of factors to be weighed in a totality-of- sor that by its actions is shown to have assumed liabilities the-circumstances fashion. is essentially an exercise in the realm of contract law, One of the traditional exceptions to the general rule drawing on doctrines of construction and the objective of nonliability exists where there has been a “consolida- theory of contract.6 tion or merger of seller and purchaser.”11 A transaction New York courts recognize the express or implied structured as a purchase of assets may be deemed to fall assumption exception to the general rule of nonliability. within this exception as a “de facto merger, even if the In the few cases which have addressed this exception, parties chose not to effect a formal merger.”12 In analyz- courts have looked at the language of the purchase agree- ing whether a de facto merger has occurred, the following ment to determine whether the successor has expressly points are considered: assumed any liabilities of the predecessor.7 (1) continuity of ownership; (2) cessation of ordinary business operations and the dissolution of the selling Fraudulent Schemes to Escape Liability corporation as soon as possible after the transaction; Fraudulent schemes to escape liability by using corpo- (3) the buyer’s assumption of the liabilities ordinarily rate law limitation-of-liability principles to defeat the necessary for the uninterrupted continuation of the seller’s business; and (4) continuity of management, legitimate interests of creditors illustrate the need for personnel, physical location, assets and general busi- successor liability to prevent injustice. If a corporation’s ness operation.13 equity holders, for example, arrange for the company’s assets to be sold to a new company in which they also hold an equity or other stake, for less value than would be produced if the assets were deployed by the original company in the ordinary course of business, then the legitimate interests and expectations of the company’s creditors have been frustrated.8 By allowing liability to attach to the successor corporation in such instances, the creditors’ interests and expectations are respected. The challenge, of course, is defining the standard that sepa- rates the fraudulent scheme from the legitimate one. While New York courts recognize the exception to the general rule of nonliability for asset purchasers where “the transaction is entered into fraudulently to escape [tort] obligations,”9 no published New York decision appears to have analyzed the contours of the fraud excep- tion.

De Facto Merger In a statutory merger, the successor corporation becomes liable for the predecessor’s debts.10 The de facto merger

NYSBA Journal | September 2007 | 23 Not all of these factors necessarily need be present for a 1. There is a continuation of the enterprise of the seller finding of de facto merger.14 corporation, so that there is a continuity of manage- ment, personnel, physical location, assets, and gen- Continuation of the Business: eral business operations; The Continuity Exceptions 2. the seller corporation ceases its ordinary business An exception with two distinct subcategories permits operations, liquidates, and dissolves as soon as successor liability when the successor continues the busi- legally and practically possible; and ness of the seller: mere continuation and continuity of 3. the purchasing corporation assumes those liabilities enterprise. The two share roughly the same indications and obligations of the seller ordinarily necessary for but continuity of enterprise does not require continuity the uninterrupted continuation of normal business of shareholders or directors or officers between the pre- operations of the seller corporation.21 decessor and the successor, a requirement said to be one The Michigan Supreme Court did not address the of mere continuation’s dispositive elements or factors.15 limits of the continuity of enterprise exception again until Courts are not altogether careful or uniform in labeling 1999, in Foster v. Cone-Blanchard Machine Co.22 In Foster, a which exception they are applying. There appear to be plaintiff, injured while operating a feed screw machine, four general subspecies of mere continuation and three of sued the corporate successor after receiving a $500,000 continuity of enterprise. The similarity of these doctrines settlement from the predecessor corporation.23 The court to those of de facto merger is striking.16 held that “because [the] predecessor was available for

The continuity of enterprise theory does not require strict continuity between the predecessor and the successor.

Mere Continuation recourse as witnessed by plaintiff’s negotiated settlement As New York appears to have adopted the more expan- with the predecessor for $500,000, the continuity of enter- sive continuity of enterprise doctrine, discussion of mere prise theory of successor liability is inapplicable.”24 continual liability as an independent theory of recovery The Foster court thus resolved two issues left open in seems to be unnecessary, although the state of the law in Turner. First, the Michigan appellate decisions prior to this area of New York law is far from clear. Foster cited Turner for the proposition that the continuity of enterprise test comprised four elements or factors, fol- Continuity of Enterprise lowing the four items enumerated in the Turner court’s As previously indicated, unlike the more traditional holding and not the three listed in its announcement of and long-standing mere continuation exception, the the rule.25 The Foster court clarified that, in fact, only continuity of enterprise theory does not require strict three items are involved in the Turner rule, and they are continuity between the predecessor and the successor required elements.26 – although the degree or extent of continuity of owners, Second, the Foster court held that the “‘continuity of directors and officers is a factor.17 Further, continuity of enterprise’ doctrine applies only when the transferor is enterprise generally does not require dissolution of the no longer viable and capable of being sued.”27 The under- predecessor upon or soon after the sale, which is often lying rationale of Turner, said the court, was “to provide a factor – and sometimes a requirement – in jurisdic- a source of recovery for injured plaintiffs.”28 According tions applying the mere continuation doctrine.18 All to Justice Brickley, Turner expanded liability based on the the variations of the continuity of enterprise exception successor’s continued enjoyment of “certain continuing derive from Turner v. Bituminous Casualty Co.19 V aria- benefits”: “[T]he test in Turner is designed to determine tions in the application of the Turner factors create the whether the company (or enterprise) involved in the law- three subspecies. suit is essentially the same company that was allegedly In Turner, the Michigan Supreme Court expanded the negligent in designing or manufacturing the offending four traditional categories of successor liability and, in so product.”29 doing, developed the continuity of enterprise theory.20 The Foster decision thus appears to return Michigan The court adopted the rule that, in the sale of corporate law to its state immediately after Turner was decided: assets for cash, three criteria would be the threshold continuity of enterprise is a recognized doctrine of succes- guidelines to establish whether there is continuity of sor liability and the doctrine has three required elements. enterprise between the transferee and the transferor cor- To the extent that intervening decisions had narrowed porations. Turner with the addition of a fourth factor – whether

24 | September 2007 | NYSBA Journal the purchasing corporation holds itself out to the world Not all New York courts have adopted continuity as the effective continuation of the seller corporation of enterprise. Most important, the New York Court of – that particular revision appears to have been reversed. Appeals has not addressed this exception since it express- Further, to the extent that Turner’s “guidelines” had been ly decided not to adopt it in Schumacher v. Richards Shear considered factors by other courts adopting the continu- Co. Additionally, in 1984, the Supreme Court of Monroe ity of enterprise, Foster made it clear that it interpreted the County noted that Schumacher refused to adopt the conti- rule as one comprising three elements. nuity of enterprise exception.34 At least one New York Supreme Court has adopted the three-criteria test of Turner.30 “[1] whether there was The Product Line Exception of Ray v. Alad Corp.35 a continuation of the enterprise of the original entity; In Ray, the California Supreme Court recognized the [2] whether the original entity ceased its ordinary busi- product line exception to the general rule of successor ness operations and dissolved promptly after the trans- nonliability. This is a species of liability that is very simi- action; [3] and whether the purchasing entity assumed lar to continuity of enterprise, and the court articulated those liabilities and obligations of the seller normally the following “justifications” for imposing liability on a required for an uninterrupted continuation of the seller’s successor corporation: operation.”31 Interestingly, the court did not seem to (1) the virtual destruction of the plaintiff’s remedies require a destruction of the plaintiff’s remedies in order against the original manufacturer caused by the suc- to satisfy the second prong of the continuity of enterprise cessor’s acquisition of the business, (2) the successor’s test.32 The court stated, “In the first sale, of course, [the ability to assume the original manufacturer’s risk predecessor] did not dissolve promptly, but continued spreading role, and (3) the fairness of requiring the on, in some form, for several years. What seems to be of successor to assume a responsibility for defective greatest importance, however, is that it was completely products that was a burden necessarily attached to the original manufacturer’s goodwill being enjoyed out of the coffee granulizer business.”33 This application by the successor in the continued operation of the of Turner (without the destruction of remedy require- business.36 ment) begins to look more like a hybrid of Turner and Ray v. Alad Corp., discussed below.

NYSBA Journal | September 2007 | 25 The term “justifications” is somewhat ambiguous 1. See George W. Kuney, A Taxonomy and Evaluation of Successor Liability, 3 Fla. St. U. Bus. Rev. 1 (2006). Note: list other of author’s articles, if desired, rather as to whether it connotes required elements or non- than mentioning them in the text at the conclusion. exclusive factors to be balanced, much like the Turner 2. A detailed jurisdiction-by-jurisdiction analysis and explanation of the guidelines. state of judge-made successor liability law may be found at . The author intends to update this revisited Turner well after the original opinion was analysis at least twice a year so that it remains current. issued, the California Supreme Court returned to Ray 3. See generally Steven L. Schwarcz, Collapsing Corporate Structures: Resolving the Tension Between Form and Substance, 60 Bus. Law. 109 (2004). some years later to “clarify” things. In Henkel Corp. 4. See Savage Arms, Inc. v. W. Auto Supply Co., 18 P.3d 49 (Alaska 2001) (dis- 37 v. Hartford Accident & Indemnity Co., the California cussing varied approaches to determination of whether successor liability was Supreme Court referred to these three justifications as a creature of contract and corporate law or tort law as part of its choice of law “conditions,” thus suggesting that they were essential analysis and concluding that successor liability is a tort doctrine designed to expand products liability law; collecting cases and other authorities on both elements under the product line exception. Despite sides of the issue). its name, the product line theory of successor liability 5. The variance in states’ approaches to successor liability and to the related appears only rarely, if at all, to have been applied in a doctrines of alter ego or piercing the corporate veil are one of the reasons that reported decision to a successor that had acquired mere- the federal courts have adopted a uniform federal common law of these sub- jects under the Comprehensive Environmental Response, Compensation and ly one of many product lines from the predecessor; in Liability Act of 1980 (CERCLA). See United States v. Gen. Battery Corp., 423 F.3d nearly all reported cases, it appears to have been applied 294, 298–301 (3d Cir. 2005) (collecting authorities). to sales of substantially all of a predecessor’s assets.38 In 6. Michael J. Zaino, Bielagus v. EMRE: New Hampshire Rejects Traditional fact, one court has emphasized that the “policy justifica- Test for Corporate Successor Liability Following an Asset Purchase, 45 N.H. B.J 26 tions for our adopting the product line rule require the (2004). transfer of substantially all of the predecessor’s assets to 7. See, e.g., Hartford Acc. & Indem. Co. v. Canron, Inc., 43 N.Y.2d 823, 402 N.Y.S.2d 565 (1977) (finding no express or implied assumption by a successor 39 the successor corporation.” in a purchase agreement); Valenta Enters., Inc. v. Columbia Gas of N.Y., Inc., 116 The product line doctrine, where accepted, breaks into Misc. 2d 536, 539, 455 N.Y.S.2d 996 (Sup. Ct., Broome Co. 1982) (finding neither two distinct subspecies, which differ only as to whether express assumption of liability nor anything “presented to the court which would warrant a finding of implied commitment to assume such responsibili- Ray’s “virtual destruction of the plaintiff’s [other] rem- ties.”); Emrich v. Kroner, 79 A.D.2d 854, 854, 434 N.Y.S.2d 491 (4th Dep’t 1980) edies” condition is strictly required in order to permit (finding that, “from the terms of the purchase agreement . . . [the successor] recovery. agreed to assume the tort liability of [the predecessor] arising out of incidents occurring after the closing date”). The N.Y. Court of Appeals analyzed both the product 8. Causation is a required element of all species of the fraud exception. See, line and continuity of enterprise exceptions in Schumacher, e.g., Milliken & Co. v. Duro Textiles, LLC, 2005 WL 1791562 (Mass. Super. Ct. June ultimately stating, “[w]e do not adopt the rule of either 14, 2005) (discussing need for causation, but also that judgment creditors could case [Turner or Ray], but note that both are factually dis- look to company’s long term prospects, not just immediate insolvency). tinguishable in any event.”40 This language has “resulted 9. See Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 245, 464 N.Y.S.2d 437 (1983). in a debate and some disagreement as to whether or not 10. G. William Joyner, III, Beyond Budd Tire: Examining Successor Liability in the Court of Appeals has rejected the two additional North Carolina, 30 Wake Forest L. Rev. 889, 894 (1995). exceptions, or simply found the two exceptions inap- 11. See Schumacher, 59 N.Y.2d 239. plicable to the facts in that case.”41 The Supreme Court, 12. In re N.Y. City Asbestos Litig., 15 A.D.3d 254, 256, 789 N.Y.S.2d 484 (1st Appellate Division, Third Department has adopted the Dep’t 2005). 42 product line exception, while the First Department has 13. Id.; see Sweatland v. Park Corp., 181 A.D.2d 243, 245, 587 N.Y.S.2d 54 (4th not.43 No N.Y. Court of Appeals decision has resolved this Dep’t 1992). split in the lower courts. 14. In re N.Y. City Asbestos Litig., 15 A.D.3d at 256 (citing Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573, 730 N.Y.S.2d 70 (1st Dep’t 2001)). Conclusion 15. Rest. 3d Torts § 12, cmt. g.; Am. L. Prod. Liab. 3d § 7:20 (2004). See, e.g., Holloway v. John C. Smith’s Sons Co., 432 F. Supp. 454, 456 (D.S.C. 1977) (deny- The purpose of the successor liability doctrines was to ing summary judgment to the defendant successor in a products liability suit provide contract and tort creditors with an avenue of because (1) the business continued at its same address with virtually all of the recovery against a successor entity in appropriate cases previous employees; (2) the successor was responsible for maintenance and repairs on the products sold by the predecessor prior to its sale of assets; (3) when the predecessor that contracted with them or com- the successor continued manufacturing the same or similar products as the mitted the tort or the action that later gave rise to the tort predecessor; and (4) the successor held itself out to the public as a business had sold substantially all of its assets and was no longer entity under a virtually identical name as its predecessor; not requiring con- tinuity of ownership and control but calling the doctrine applied “mere con- a viable source of recovery. Its various species acted as a tinuation” anyway.); see also Mozingo v. Correct Mfg., 752 F.2d 168, 175 (5th Cir. pressure relief valve on the strict limitation of liability cre- 1985) (applying Mississippi law and citing Holloway & Cyr v. B. Offen & Co., 501 ated by corporate law. The doctrine is in the nature of an F.2d 1145 (1st Cir. 1974) (upon which Holloway relied) as cases following the continuity of enterprise theory); Am. L. Prod. Liab. 3d § 7:22 (noting that the “equitable” doctrine insofar as it is invoked when strict court in Holloway denied summary judgment to a successor despite a lack of application of corporate law would offend the conscience continuity of ownership even though the court treated its ruling as an applica- of the court. In large part, the doctrine remains intact and tion of the mere continuation theory); 2 Madden & Owen on Prod. Liab. § 19:6, n. 25 (3d. ed. 2003) (noting an increasing number of courts have adopted the still serves that purpose. ■

26 | September 2007 | NYSBA Journal continuity of enterprise exception including the Holloway court and the Ohio 26. Foster, 597 N.W.2d at 510. Supreme Court in Flaugher v. Cone Automatic Mach. Co., 30 Ohio St. 3d 60 (1987)) 27. Id. at 511. (this treatise is authored by David Owen, the Carolina Distinguished Professor of Law at the University of South Carolina); Richard L. Cupp, Jr., Redesigning 28. Id. Justice Brickley, in dissent, disagreed with the majority as to the under- Successor Liability, 1999 U. Ill. L. Rev. 845, 854 n.44 (1999) (noting that states lying rationale of Turner. following the continuity of enterprise approach include South Carolina (citing 29. Id. at 513. Holloway); Ohio (citing Flaugher), Alabama, Michigan, Mississippi, and New Hampshire (citing Cyr); Philip I. Blumberg, The Continuity of the Enterprise 30. Salvati v. Blaw-Knox Food & Chem. Equip., Inc., 130 Misc. 2d 626, 633, 497 Doctrine: Corporate Successorship in United States Law, 10 Fla. J. Int’l L. 365, 375 N.Y.S.2d 242 (Sup. Ct., Queens Co. 1985). (1996) (collecting cases applying the continuity of enterprise theory, including 31. Id. at 628 (citing Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 879 (Mich. Holloway and Flaugher); 30 S.C. Jur. Products Liability § 12 (stating the court 1976)). in Holloway denied the successor’s motion for summary judgment “where the evidence indicated that the [successor] was a mere continuation of the prede- 32. Id. at 626. cessor corporation”); Rest. 3d Torts § 12, cmt. c (citing only Alabama, Michigan, 33. Id. at 633. and New Hampshire as jurisdictions that have adopted the continuity of enter- prise theory). 34. Radziul v. Hooper, Inc., 125 Misc. 2d 362, 365, 479 N.Y.S.2d 324 (N.Y. Gen. Term 1984). 16. Gladstone v. Stuart Cinemas, Inc., 878 A.2d 214, 221 (Vt. 2005). Cases from the beginning of the last century in Idaho preserve another term that seems to 35. 560 P.2d 3 (Cal. 1977). capture all or part of the de facto merger, mere continuation, and continuity of 36. Id. at 9. enterprise exceptions: “reorganization.” 37. 62 P.3d 69, 73 (Cal. 2003). 17. Mozingo, 752 F.2d at 174 (noting that the traditional mere continuation 38. George W. Kuney & Donna C. Looper, Successor Liability in California, 20 exception requires identity of stockholders, directors and officers); see also CEB Cal. Bus. L. Pract. 50 (2005). Savage Arms Inc. v. W. Auto Supply, 18 P.3d 49, 55 (Alaska 2001) (mere continu- ation theory requires “the existence of identical shareholders”). 39. Hall v. Armstrong Cork, Inc., 692 P.2d 787 (Wash. 1984) (refusing to apply product line test to successor that purchased but one of many asbestos product 18. See, e.g., Turner v. Bituminous Cas. Co., 244 N.W.2d 873, 882 (Mich. 1976) lines). (dissolution of the seller soon after the sale one of four enumerated factors indicating continuity of enterprise). 40. Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 245, 464 N.Y.S.2d 437 (1983). 19. Id. 41. In re Seventh Judicial Dist. Asbestos Litig., 6 Misc. 3d 749, 752, 788 N.Y.S.2d 20. Id. 484, 486 (Sup. Ct., Ontario Co. 2005).

21. Id. at 879 (citing McKee v. Harris-Seybold Co., Div. of Harris-Intertype Corp., 42. See Hart v. Bruno Mach. Co., 250 A.D.2d 58, 679 N.Y.S.2d 740 (3d Dep’t 264 A.2d 98, 103, 105 (1970)). These are three of the four factors from McKee 1998). used to determine whether liability will arise under the de facto merger form of 43. City of N.Y. v. Charles Pfizer & Co., Inc., 260 A.D.2d 174, 176, 688 N.Y.S.2d successor liability. 579 (1st Dep’t 1999) (“We decline to follow the Third Department in adopting 22. 597 N.W.2d 506 (Mich. 1999). In the interim, the court cited Turner in the ‘product line’ theory of successor’s liability as adopted in certain other three decisions, none of which clarified the key Turner holding. Jeffery v. Rapid jurisdictions. . . . We understand the Court of Appeals to have rejected this Am. Corp., 529 N.W.2d 644, 656 (Mich. 1995) (citing Turner for the proposi- theory in Schumacher v. Richards Shear Co.”). tion that corporate law principles should not be rigidly applied in products liability cases); Stevens v. McLouth Steel Prods. Corp., 446 N.W.2d 95, 99 (Mich. 1989) (citing Turner as a case where the Michigan Supreme Court discussed the doctrine of successor liability in the context of a products liability suit); Langley v. Harris Corp., 321 N.W.2d 662, 664 (Mich. 1982) (citing Turner for the proposition that an acquiring corporation maybe held liable for products liability claims arising from activities of its predeces- sor corporation under a continuity of enterprise theory but then holding that the Turner rationale will not allow a corporation to seek indemnity from the plaintiff’s employer in a products liabil- ity suit). One appellate court decision between Turner and Foster concluded that satisfying the fourth consideration in Turner (the purchasing corporation’s holding itself out as a continuation of the selling corporation) was not sufficient for a finding of succes- sor liability where the first three considerations were not met. Pelc v. Bendix Mach. Tool Corp., 314 N.W.2d 614, 620 (Mich. Ct. App. 982) (Where a successor bought only 8% of the assets of another corporation in a bankruptcy sale and did not meet the first three criteria of Turner but held itself out as a continuation of the liqui- dating corporation, the mere continuation test was not satisfied. The court noted that to impose successor liability in such circum- stances would effectively be an adoption of the broader “product line exception”). 23. Foster, 597 N.W.2d at 508. 24. Id. 25. Fenton Area Pub. Sch. v. Sorensen-Gross Constr. Co., 335 N.W.2d 221, 225 (Mich. Ct. App. 1983); Lemire v. Garrard Drugs, 291 N.W.2d 103, 105 (Mich. Ct. App. 1980); Powers v. Baker-Perkins, Inc., 285 N.W.2d 402, 406 (Mich. Ct. App. 1979); Pelc, 314 N.W.2d at 618; State Farm Fire & Cas. Ins. Co. v. Pitney-Bowes, 1999 WL 33451719, at *1 (Mich. Ct. App. Apr. 2, 1999).

NYSBA Journal | September 2007 | 27 Are Medicare, Medicaid, and ERISA Liens? Resolving “Liens” in Personal Injury Settlements By J. Michael Hayes

Medicaid fact in that case that the compromise settlement for the he definitive pronouncement regarding Medicaid injuries, medical expenses and other losses was only one- as a “recovery right” is in Arkansas Department sixth the total value of the case. Tof Health and Human Services (ADHS) v. Ahlborn.1 In contrast with the Arkansas legislation, the federal Federal Medicaid laws provide for joint federal and state Medicaid enabling statute prohibits states from placing funding of medical care for individuals who are not able liens against personal injury settlements.5 The United to pay for their own health care.2 A requirement of that States Supreme Court held that the Arkansas lien provi- statute is that states take reasonable measures to recover sion “violates Federal Law” and affirmatively prohibited payments made for a client’s benefit that were necessitat- Arkansas from asserting a lien on the recovery. The Court ed by third parties.3 To the extent of payments made, the state acquires the right of the individual as subrogor, and J. MICHAEL HAYES ([email protected]) is a principal attorney in the the state of Arkansas had enacted legislation that gave Law Offices of J. Michael Hayes, a plaintiff’s personal injury firm located ADHS a “statutory lien on any settlement, judgment or in Buffalo. He earned his undergraduate degree from SUNY Brockport, award.”4 ADHS’s position was it was entitled to recover and his law degree from SUNY Buffalo School of Law. the full amount of its expenditures, despite the stipulated

28 | September 2007 | NYSBA Journal did recognize, however, that “there is no question that ute of limitations within which the United States must the State can acquire an assignment of the right or chose file a claim as three years from the “period beginning on in action [subrogation], to receive payments for medical the date on which the item or service was furnished.”10 care.”6 Under the enforcement section,11 double damages may be New York State has long taken the same position as sought where there was a payment for the services and Arkansas, that it has a “lien” on any third-party recover- the United States did not receive that reimbursement. ies where medical expenses have been paid by Medicaid.7 Section 1395y(b)(2)(B)(iv), “Subrogation rights,” may That New York believed it had a lien as opposed to a sub- be of most significance to practitioners. This section pro- rogation right, one only has to look to the title of Social vides that the “United States may bring an action against Services Law § 104-b: “Liens for public assistance and any or all entities that are or were required or responsible care on claims and suits for personal injuries.” It would . . . to make payment with respect to the same item or appear that the federal Medicaid Act’s “anti-lien” provi- service (or any portion thereof) under a primary plan.”12 sion had escaped practitioners and legislative attention Second, “[t]he United States shall be subrogated (to the in New York and elsewhere, from its inception to the extent of payment made under this subchapter for such present. The reality, as articulated by the Supreme Court, is that at best, states have a right of subrogation and they What result is reached if the may proceed directly against the responsible third party, personal injury settlement the tortfeasor. Alternatively, a state may intervene in the plaintiff’s personal injury action. Finally, the state may specifi cally excludes recover its proportionate share of the settlement or recov- ery from the claimant directly, provided it represents medical expenses? compensation for medically related expenses. an item or service) to any right under this subsection of Medicare an individual or any other entity to payment with respect In this confusing world of liens versus subrogation rights to such item or service under a primary plan.”13 As has and equitable allocation, Medicare is among the most been observed, the right of subrogation differs signifi- amorphous. Medicare, 42 U.S.C. § 1395, and Medicaid, cantly, having different powers and authority from that 42 U.S.C. § 1396, have much in common, including their of a “statutory lien.” Obviously, under either analysis, enabling legislation. The accepted wisdom seems to be if an individual recovers moneys from a third party for that Medicare has a right to seek recovery against any health care benefits that were actually paid by an insurer entity that has received any portion of a third-party or Medicare, the payor is entitled to recoupment. payment if those third-party funds would have cov- All these statutes and rights assume and have as ered injury-related medical expenses that were paid by a predicate that the injury settlement, in one form or Medicare.8 Some authors and the federal government feel another, includes both reimbursement for past medical that even where the settlement does not expressly include expenses and consideration for future expenses. There damages for medical expenses, a “lien” nonetheless vests. is no disagreement that Medicare is entitled to recoup Medicare does recognize and honor judicial decisions for expenditures where the claimant’s settlement included specific funds, such as lost wages, in a settlement that are consideration for those items. Certainly, the injured obviously not related to medical services. Medicare does claimant should not be permitted to collect and retain not claim a lien on those designated funds. moneys paid by an independent provider. The litera- With the expansion of Medicare in 2006 to include ture suggests that if the settlement does not specifically medicines and drugs, there are now two separate govern- account for future medically related expenses, Medicare mental claimants on the recovery of expenses: Medicare will pay no further medical expenses until the settlement claims reimbursement, as well as future credit, for injury- proceeds have been exhausted. related care in the form of physician and hospital treat- As an alternative, one might consider, What result is ments; and, with Part D drug prescription expansion in reached if the personal injury settlement or verdict spe- 2006, Medicare Prescription Drug Plans (PDP) also expect cifically excludes medical expenses? What if the release reimbursement from recoveries from liable third parties provides that the provider, Medicare, retains the right for those expenses. to bring an action independently? The articulated posi- Before one can determine the actual rights of the gov- tion of the government is that if a liability insurer pays ernment and obligations of the claimant, one must exam- for medical care in satisfying a judgment or settlement ine the enabling legislation; 42 U.S.C. § 1395y(b)(2)(B) against its insured, the United States has the right to has been commonly recognized as such. That section recover Medicare payments for that care from the judg- requires repayment of “recouped funds.”9 It sets the stat- ment or settlement. In negotiations, however, the govern-

NYSBA Journal | September 2007 | 29 ment takes the position that it is entitled to recover from & Annuity Insurance Co. v. Knudson.18 These court rulings the plaintiff, the Medicare recipient, regardless of the recognize that a plan or fiduciary does have a claim (equi- scope of recovery or the form of the release. The govern- table lien) on funds that can clearly be traced to money ment aggressively attempts to ignore the very language being held by the injured party. of the statute that it quotes to support its position. Sereboff v. Mid Atlantic Medical Services, Inc.19 deals with Certainly, if Medicare has paid for medical services for a more broadly written provision. The agreement in that which a qualifying primary plan (e.g., an insurance policy case was that the plan was entitled to full reimbursement or self-insured entity) is primarily responsible, the United from all recoveries from a third-party liability recovery. States may bring a claim against that primary plan for The U.S. Supreme Court held that the ERISA plan was reimbursement.14 Moreover, Medicare secondary payer entitled to full recovery of its expenditures after reduction suits may be filed against primary insurance providers as for the costs of litigation, including attorney fees.20 While well as “any entity, including a beneficiary, provider, sup- the Court repeatedly used the term “equitable lien,” it plier, physician, attorney, State agency or private insurer meant “subrogation lien” and further observed that “[a] that has received a primary payment.”15 subrogation lien . . . is an equitable lien impressed on Interestingly, the government claims to be restricted moneys on the ground that they ought to go to the insur- in that it asserts that state courts have no jurisdiction to er.”21 Translated, it appears to say that where a plaintiff adjudicate the existence or enforceability of a potential has recovered medical expenses that were funded by the Medicare claim, citing Estate of Barbeaux v. Lewis.16 The ERISA provider, those recovered funds actually belong to government accedes to no waiver of sovereign immu- the provider, hence the use of “lien.”

A signifi cant further consideration is that it is an ethical violation to represent two clients who are fi ghting over the same pool of money. nity which would provide a state court with jurisdic- The majority of the ERISA health insurance plans tion to adjudicate the existence or amount of a potential have, in varying forms, a subrogation/equitable lien pro- Medicare claim. vision.22 Without addressing each individual plan nation- Can, then, Medicare compel the claimant’s attorney to wide, certain principles would seem to stand out. First, also represent Medicare in state court? Can Medicare com- all the cases are premised on the assumption that the pel the claimant’s attorney to represent its subrogation injured party recovered compensation from a third party interests in a court in which there is no jurisdiction over in a liability situation. Also, this compensation, the recov- the claim, while simultaneously refusing to participate ery, is not only for injuries, pain and suffering, but also in the litigation and share the costs thereof? A significant for past and future medical expenses paid, and to be paid, further consideration is that it is an ethical violation to by the ERISA provider. Upon any recovery, therefore, represent two different clients who are fighting over the the insurer rightfully seeks reimbursement of moneys it same pool of money. The Attorney General represents the has paid or will pay. Medical expenses proven and/or government and is qualified to obtain the government’s claimed by the injured party, should be remitted back to money from the tortfeasor. It is recommended that the the payor under the constraints of equitable subrogation. claimant’s attorney, as an alternative to explaining this “CPLR 4545(c ) . . . was enacted in 1986 in order to pre- conflict of interests to the Grievance Committee, lets the vent duplicate recoveries for, among other things, costs government represent its own interests. The government of medical care. This statute does not alter [a provider’s] has an independent right to do so; let it negotiate its own traditional remedy because ‘a defendant still may be held settlement or resolution. Restrict the claimant’s claims to responsible in subrogation.’”23 Rather, those identifiable personal injury, pain and suffering. funds should go to the payor. The above analysis applies in instances where the claimant receives a general recov- ERISA ery for injuries and past and/or future expenses. The controlling statutory language is found in ERISA, 29 What result is reached, however, where the injured U.S.C. § 1132(a)(3)(B), which authorizes the “plan fidu- claimant only advocates and promotes claims for bodily ciary to obtain other appropriate equitable relief.” The injury, pain and suffering? What result is reached where U.S. Supreme Court has interpreted the meaning of this the injured party specifically does not make any claims phrase in Mertens v. Hewitt Associates17 and Great-West Life for medial expenses? Where the recovery provision is for

30 | September 2007 | NYSBA Journal medical expenses recovered, ERISA providers would/ 5. 42 U.S.C. § 1396p. should be free to intervene and assert their own claims 6. AHDS, 126 S. Ct. at 1763. and causes of action. The salient result in that situation 7. Social Services Law § 104-b. would be that a plaintiff is free to consume the funds 8. 42 U.S.C. § 1395y(b)(2)(B)(ii). recovered for his or her clearly defined claim, the injuries. 9. Id. The issue may still be muddy where the ERISA contract 10. 42 U.S.C. § 1395y(b)(2)(B)(vi). lays claim to any third-party recovery, regardless whether 11. 42 U.S.C. § 1395y(b)(3)(A). medical expenses are included. 12. 42 U.S.C. § 1395y(b)(2)(B)(iii). 13. 42 U.S.C. § 1395y(b)(2)(B)(iv). Recommendations 14. See 42 U.S.C. § 1395y(b)(2)(B)(ii). So how does the practicing attorney reconcile all these 15. 42 C.F.R. § 411.24(g); see also 42 U.S.C. § 1395y(b)(2)(B)(iii). apparently conflicting and overlapping rights and claims? 16. 196 F. Supp. 2d 519, 522 (W.D. Mich. 2001); Mitchell v. Health Care Serv. The solution may be as simple as advising the medical Corp., 633 F. Supp. 948, 949 (N.D. Ill. 1986). provider of the pending claim. Almost all insurance poli- 17. 508 U.S. 248 (1993). cies have notification requirements. Perhaps it would be 18. 534 U.S. 204 (2002). prudent to provide the carrier, Medicaid, Medicare or 19. 126 S. Ct. 1869 (2006). ERISA, with a copy of the complaint when the action is 20. Id. at 1873. started. Maybe the provider should be put on written 21. Id. at 1877. notice that it is free to retain its own counsel and either 22. See J. Michael Hayes, So What’s ERISA All About?, N.Y. St. B.J., Oct. 2005, start a separate lawsuit or intervene in yours. Then, the p. 22. lawsuit itself must be carefully articulated throughout 23. Blue Cross & Blue Shield of N.J. Inc., v. Philip Morris USA Inc., 3 N.Y.3d 200, the litigation to make it clear and precise that the claims 785 N.Y.S.2d 399 (2004) (citing Fisher v. Qualico Constr. Corp., 98 N.Y.2d 534, being made do not include any for medical treatment 538–39, 749 N.Y.S.2d 467 (2002)). or drug expenses. Any action for recovery of medical 24. Disciplinary Rule 5-105(A). expenses must be at the health insurer’s initiative. Finally, 25. See J. Michael Hayes, Subrogation Rights of Health Care Providers, N.Y. St. upon settlement, the release must be for the bodily inju- B.J., Nov./Dec. 2006, p. 32. ries, pain and suffering only and specifically preserve those potential medical expense claims. As a practical matter, it is recommended that the plaintiff’s attorney decline to pursue the medical expens- es on behalf of Medicaid, Medicare or ERISA. To do so could create a potential conflict: if your personal injury client is inclined to accept a proffered settlement and the state or other provider objects to the amount of the settle- ment or to its proportionate share, a conflict is created. It is an obvious conflict of interest for the attorney to attempt to represent two parties with competing claims.24 The plaintiff should be clear in his or her allegations that recovery is being sought for “bodily injury, pain and suf- fering only” and that medical expenses are never pled or alleged. If counsel receives a “Notice of Lien” from the local state authority, counsel should advise the authority in writing that he or she will not, and is ethically prohib- ited from, representing the government’s or provider’s interests relative to medical expenses. It would appear to be that, as with subrogation claims for medical expenses generally,25 plaintiffs should con- tinue to provide only the restricted release to liability car- riers that protects the subrogation rights of other carriers or entities. ■

1. 547 U.S. 268, 126 S. Ct. 1752 (2006). 2. 42 U.S.C. §§ 1396–1396v. 3. 42 U.S.C. § 1396a(a)(25)(A). 4. Ark. Code Ann §§ 20-77-307(c), 20-77-307(a).

NYSBA Journal | September 2007 | 31 Trading on the Pink Sheets The Lesson of Yukos Oil By Elena A. Popova

Introduction era of privatization and began trading its securities in he disclosure requirements of Rule 12g3-2(b)1 and the United States in 2001.2 Its stock price had an impres- Form F-6 do not seem to offer sufficient protec- sive run as it increased six-fold in just over two years.3 Ttion to investors in American Depository Receipts However, in 2004, the stock price rapidly deflated and (ADRs) bought in over-the-counter (OTC) markets. The stopped at around $2.00, the price at which it remains Securities and Exchange Commission (SEC) disclosure today.4 The reason for this deflation was the Russian gov- exemptions do not take into account the naiveté of United ernment’s attack on the company’s assets for practices States investors as to foreign business practices that are that were – and still, in many respects, are – the norm for against legal, moral and ethical standards adhered to the Russian businesses. The practices that came under by all U.S. companies. The fact that these securities are scrutiny included money-laundering schemes, bribery traded on pink sheets does not provide a sufficient warn- of government officials, contract murders and corporate ing, since investors’ rationality is manipulated through fraud. a deliberate shift of focus from these companies’ often In a volatile political environment, money and assets outrageously illegal and risky business practices and previously owned by the government can flow in unpre- business environment, to companies’ marketing schemes dictable ways and often find their way into the pockets which rely on controlled media reports, and emphasize of people hiding behind corporate structures. To operate their institutional investors and their large capitalization. and succeed in an environment where law enforcement The increasing popularity of ADRs among U.S. inves- is selective, requires embracing certain practices and tors and the incompatible accounting and regulatory procedures that would raise eyebrows in the developed standards abroad make this problem more acute than capital world. Nevertheless, these adaptations are essen- ever, and it calls for a legislative response. This article tial in order for an individual or a company to survive discusses the prominent Russian company Yukos Oil, and in the face of the competition. By many accounts, Yukos highlights some issues that could easily arise with other was an active participant in deeds that were unaccept- companies operating in emerging economies in the near able or even illegal in the United States or Europe. For future. ELENA A. POPOVA ([email protected]) is a solo practitioner in Manhattan. The Foreign Business Reality She earned her undergraduate degree from New York University and her Yukos Oil attracted attention worldwide when it inher- law degree from Brooklyn Law School. ited prized Russian oil-producing concerns during an

32 | September 2007 | NYSBA Journal example, forcible exclusion of bidders from the auction pay back taxes owed to the region, and of the former where Yukos was sold to its former owners, resulted in senior manager of Yukos’s parent Bank Menatep and his a bargain price of $350 million.5 And, the money with wife, after the manager threatened to publicly disclose which it was purchased at the auction came from the off-the-books transactions.17 Pichugin was sentenced to profits of Yukos’ parent company, Bank Menatep, which 20 years in prison.18 is rumored to have embezzled funds from the entrusted accounts of the Chernobyl Nuclear Tragedy Fund and the Applying the Law to Foreign and Domestic Issuers Communist Party of the Soviet Union Organization.6 The U.S. securities laws do not differentiate between foreign Bank was also investigated for money laundering and its and domestic securities issuers, requiring that they all mafia connections.7 comply with the Securities Act of 1933 (the “Securities Standards of shareholder protection vary among coun- Act”) and the Securities and Exchange Act of 1934 (the tries – not always in shareholders’ best interests. Yukos’s “Exchange Act”). The former requires company disclo- majority shareholders disregarded minority interests sure with respect to newly issued and offered securi- and siphoned large sums of money from the company. ties, such as the type of stock issued, insider interests, They did so by forcing certain subsidiaries to sell oil to contracts out of the ordinary course of business, and the their corporate parents at below-market prices; the oil issuer’s financial data. The Exchange Act demands the was then resold to third parties at the standard prices continuous and regular flow of information after the of $18 per barrel (international) and $10.50 per barrel Initial Public Offering occurs. (domestic).8 According to Yukos’s 1996 financial data, the Aside from line-item disclosure requirements, courts company’s revenue was $8.60 per barrel of oil, which the have also held that issuers must disclose any other infor-

Risk calculation in foreign investment is also affected by a particular country’s corporate and securities laws, as well as the stability and impartiality of its judiciary. government concluded to be an understatement of earn- mation that is likely to influence investors’ decisions to ings by at least 30 cents per dollar.9 Not only did this hurt buy, sell or hold the company’s securities. Such infor- the interests of minority shareholders, it attracted govern- mation should allow investors to evaluate management ment investigations as the subsidiaries began to default capabilities and the integrity of, complexities of cash flow, on their government loans.10 These investigations were or the company’s business operations. The SEC, Attorney reopened several years after the incident, and resulted in General’s Office, and other government regulators have criminal convictions and the forced sale of the company’s created civil and criminal penalties for companies and main production unit.11 their insiders who provide misleading or false informa- Risk calculation in foreign investment is also affected tion. by a particular country’s corporate and securities laws, Additionally, companies with either $5 million or as well as the stability and impartiality of its judiciary. more in assets, 500 or more shareholders as of the last For instance, after Yukos borrowed from foreign inves- day of the fiscal year, or 300 or more U.S. shareholders tors during the late 1990s, it secured its debt on Yukos are required to disclose: (1) organizational and financial shares and on guarantees from the Yukos subsidiaries.12 structure of business; (2) compensation of directors, After the ruble crashed, Yukos defaulted on its loans and officers, and underwriters; (3) compensation of other shielded its collateral from foreclosure through fraudu- individuals with over $20,000 in annual payments; lent conveyances.13 Subsidiary control was transferred (4) balance sheets for the past three years, certified by a to offshore companies, and no state action was ever filed registered accounting firm; (5) any other financial state- against them.14 Furthermore, Yukos’s minority share- ments which the Commission may deem necessary or holders were disqualified from voting on the transfers appropriate for the protection of investors; and (6) cop- because that would have been considered an antitrust ies of material contracts, which the Commission may violation under the Russian law.15 deem necessary or appropriate for the proper protection Finally, Russian business is plagued by illegal rem- of investors and to insure fair dealing in the security. edies including contracted killings.16 In 2005, Yukos’s Notwithstanding these requirements, some foreign com- former security chief Alexei Pichugin was convicted for panies do not have to comply because the application ordering the murders of Vladimir Petukhov, the mayor of of these laws to foreign companies has raised difficult Nefteyugansk in 1998 after his public demand that Yukos issues.

NYSBA Journal | September 2007 | 33 First, the growing popularity of foreign securities its jurisdiction for determining the truthfulness and ade- among investors means that the United States has a quacy of the information provided pursuant to the Rule financial interest in the presence of foreign issuers in 12g3-2(b). Finally, the disclosures are unlikely to be seen the United States. The flow of foreign issuers into the by the investors; they are not easily accessible since they United States facilitates the influx of foreign capital to the are not listed on the SEC Web site and are only available U.S. economy and prevents the outflow of U.S. investor for viewing in the Washington DC library during its nine- money abroad. Furthermore, greater disclosure obliga- to-five weekday hours of operation. tions of foreign issuers in the United States often clash The SEC estimates that an issuer will have to spend with more lenient foreign laws, which these companies about one hour filling out the short disclosure Form F-6. have followed for years prior to having access to U.S. This is far cry from the 425 hours that U.S. public compa- markets. Also, the heavy financial burden associated with nies are expected to spend on their 1933 Act registration disclosure demands provides the United States a com- statements. Form F-6 focuses on the administration of the petitive disadvantage when compared to more lenient ADRs and requires a company to describe them as well foreign regulatory forums. Moreover, when the SEC was as the fees that would be imposed on their holders, the adopting the predecessor of exemption Rule 12g3-2(b), deposit agreement (if any), other agreements relating to it had visualized a trend of unifying accounting and the custody of the deposited securities or the issuance of the ADRs, material contracts between the deposi- tory and the issuer of the deposited securities relating to such securities, and the opinion of counsel regarding the The information requested on ADR’s legality. The information requested on Form F-6 has no distinct Form F-6 has no distinct relevance relevance to an investor’s decision to buy or sell ADRs. to an investor’s decision to It does not aid in the calculation of risk because a com- pany’s methods of business operations, and policies and buy or sell ADRs. procedures are not disclosed. Moreover, the Sarbanes- Oxley requirements do not apply to foreign issuers that claim Rule 12g3-2(b) exemption, leaving investors in the disclosure principles, and has become satisfied with the dark. amount of information provided by foreign companies in their home markets. Regulatory Exemptions for Pink Sheet Traded Accordingly, the SEC decided to withdraw the disclo- Foreign Companies sure requirement of § 12(g) of the Exchange Act and § 5 of The supply and demand for foreign stocks has dramati- the Securities Act. Instead, the SEC introduced an exemp- cally risen, a fact that can no longer be ignored. When the tion section, Rule 12g3-2(b), and a short form registration Rule 12g3-2(b) exceptions were adopted, the SEC did not statement F-6 that became available to companies whose expect that the securities of foreign issuers would be in shares were floating involuntarily on the U.S. market. high demand.19 This is no longer true, as shifting mac- A foreign company that would go public at home, and roeconomics as well as the creation of electronic bulletin then introduce its foreign securities through ADRs in the boards, on-line discount brokerage houses, and ADRs United States is not acting voluntarily and is eligible to attract U.S. investors to foreign stocks. take advantage of these exemptions. According to the Bank of New York, following a rela- There are numerous advantages for foreign companies tive cool down, an interest in ADRs is on the rise again. claiming exemptions under Rule 12g3-2(b) and Form F-6. In 2004, companies from 29 countries established 126 First, Rule 12g3-2(b) only asks for the filing of documents new ADR programs, a 54% jump from 2003’s 82 pro- that are required to be filed in a company’s home country. grams from 25 countries.20 The year was also marked by Therefore, if the issuer’s native country has no disclosure a record $11.3 billion of raised capital, with the help of rules or lacks effective law enforcement, a company is 1,858 sponsored Depository Receipt programs from 73 free to refrain from disclosure. Second, a company only countries.21 The 2004 list was topped by Russian Mobile needs to disclose “material” information. Since mate- Telesystems, which raised $1,729,600,000.22 Emerging riality is a word of a general import, it is likely to have market issuers, led by companies from India and China, different interpretations based on cultural customs and made up 62% of all new ADR programs in 2004.23 norms; accordingly, it may have a limiting effect on the Also, the SEC allows foreign companies to claim information disclosed. In a case where disclosures are disclosure exemptions if their securities involuntarily in a foreign language, the SEC has determined that a floated into U.S. markets.24 The reality is that these com- translated summary is sufficient, a ruling that opened the panies are able to engage in substantial activities in the door to disclosure vagaries. The SEC has also removed United States to solicit investors in many ways and still

34 | September 2007 | NYSBA Journal U.S. investors have fewer claim regulatory disclosure exemptions.25 These compa- nies speak openly about their marketing efforts in the resources against foreign United States, as Yukos did in its pleadings to the U.S. Bankruptcy Court in 2004, after it claimed disclosure companies than are available exemptions of Rule 12g3-2(b) and short Form F-6.26 against domestic companies. The trend of aligning accounting and regulatory prin- ciples around the world that was claimed by the SEC in the 1980s remains just that – a trend. Since the Sarbanes- United States Bankruptcy judge, that they have registered Oxley Act in 2002, the regulatory gap has actually widened. with the SEC.28 The U.S. securities laws protect the unsophisticated inves- The fact that the SEC has no jurisdiction to prosecute tor, instead of placing the burden of investor education on foreign companies that provide it with information cre- the companies that sell securities. No reassessment has ates an incentive for untruthful disclosure documents been made regarding the level of protection that foreign and fraudulent press releases. In Russia and other foreign laws offer investors since 1967.27 Furthermore, outside of countries, selected individuals are often in control of the United States, the burden of education generally rests both national businesses and media companies, creating on investors rather than on companies. conflicts of interest.29 For the few remaining independent The fact that these companies are trading on pink media outlets in Russia, a recent concern has been con- sheets, which are the leading providers of pricing and tract killings of journalists. Since Vladimir Putin became financial information for the OTC securities markets, does President of Russia, 13 leading journalists have been not give the type of warning that it should. These compa- murdered and no one has been brought to justice in any nies have strong international reputations as well as large of the slayings.30 capitalization (Yukos’s market capitalization prior to 2003 If fraud stemming from inadequacies in the disclosure was over $40 billion), and investors are likely to perceive regulations indeed takes place, U.S. investors have fewer them as part of a separate prestigious class among the resources against foreign companies trading their ADRs crowd of thinly capitalized pink sheet companies. Seen in in the United States than are available against domestic this light, many unsophisticated investors believed that companies. U.S. courts are unlikely to intervene if a for- the only reason why Yukos’s shares were trading on pink eign government’s interest is at stake. For instance, a U.S. sheets was an internal business decision rather then an court will not have jurisdiction over a matter in which investment warning. This perception can be based on a a foreign government has claimed a significant interest. general familiarity with the company’s brand, its market Alternatively, a private litigation, even if initially suc- share, capitalization, and other qualifications. cessful, may turn sour if investors are unable to reach the The public opinion is further influenced by the popu- assets of the company in order to satisfy a judgment. larity of foreign companies among institutional investors, who buy shares at a discount. Investors generally believe Conclusion that institutional buying warrants stability and lessens While our country is interested in attracting foreign the chance for stock manipulation. Further, institutional issuers to our capital markets, this should not be accom- investment in a company’s stock adds value in the eyes plished in a manner that could potentially increase of unsophisticated investors, as these institutions usu- securities fraud. It is my belief that U.S. investors should ally have the necessary resources and can determine the be provided more information and greater protection value of their investment. Because these companies are against the greater and unfamiliar risks brought by for- able to sell to sophisticated investors without having to eign issuers entering from emerging markets, even if they register securities offerings with the SEC through the trade in OTC markets, rather than those posed by local rule of private placement, unsophisticated investors are public companies. not provided with any more information regarding a The SEC has to create special rules for the securities company’s risks. of foreign companies that trade on U.S. capital markets, Foreign issuers should not be allowed to benefit at whether they are listed or trading OTC. Each foreign the expense of investors’ ignorance. If these companies country’s companies stand in a class of their own, bring- flock to U.S. markets in order to achieve higher valua- ing the mentality and business practices native to their tion of their securities, they should be willing to subject origin and not necessarily appreciated by the average themselves to the jurisdiction of U.S. courts, follow U.S. investor. higher disclosure standards, and accept the greater risk of The SEC should consider adopting a new approach enforcement. Foreign companies should not be allowed that will take into account the political intricacies of dif- to claim regulatory exemptions in the United States and ferent geographical regions. Additionally, the SEC should then advertise such around the world or even in the attempt to obtain enforcement powers over foreign com- United States, such as Yukos stated in its pleadings to the panies and require truthful and complete filings from

NYSBA Journal | September 2007 | 35 foreign companies. U.S. investors should have the tools 21. Id. that will allow them to make sense of the foreign business 22. Id. practices and the risks accompanying their investments, 23. Id. which will allow them to make more conscious and edu- 24. Integrated Disclosure System for Foreign Private Issuers, Securities Act cated decisions regarding investing in foreign companies Release No. 6360, [1981-1982 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 83,054, ■ at 84,646 (Nov. 20, 1981) (“The format of Form 20-F is proposed to be substan- that go public in the United States. tially revised to facilitate its use in the integrated system and to conform some of the language with corresponding provisions of the proposed Regulation S-K 1. “Exemptions for American Depositary Receipts and Certain Foreign or to clarify the existing requirements.”). Securities,” U.S. Securities and Exchange Commission. 25. Specifically, in 2002, Yukos’s then CEO, Mikhail Khodorkovsky, was a 2. Yukos initiated its ADR Level 1 program in March 2001. Each ADR rep- keynote speaker at the Baker Institute in Houston, talking about the need for resents 4 Yukos shares. Yukos: Investor Relations, available at (last visited April 4, 2007). been a regular keynote speaker at the Cambridge Energy Research Associates 3. Stock appreciated from approximately $11 to high $60s in 2003. Pink (CERA) conference in Houston, the largest oil and gas conference in the world, Sheets—Electronic Quotation and Trading System for OTC Securities, available which is held annually. Mr. Misamore, Yukos’s CFO, and Mr. Gladyshev, at (last visited April 4, 2007). States with the investment management arms of major U.S. investment bank- ing firms, large asset management firms, and major institutional investors, 4. Id. selling approximately 15% to 19% of its common stock to large institutional 5. Mikhail Khodorkovsky, Wikipedia, The Free Encyclopedia, available at investors in the United States. Yukos Oil Company’s Opposition to Appeal (last visited April 8, of the Bankruptcy Court’s December 16, 2004 Temporary Restraining Order, 2007); Bernard Black et al., Russian Privatization And Corporate Governance: What 2004 WL 3114334 (S.D. Tex. 2004). Since CERA makes speech transcripts only Went Wrong?, 52 Stan. L. Rev. 1731, 1743 (July, 2000); Konstantin Korotov et al., available to its members their content could not be quoted for purposes of this Mikhail Khodorkovsky and Yukos, INSEAD, Fontainebleau, France and Singapore article. For a similar argument see also Greene, et al., supra note 19. (2003) available at (last 26. Id. visited April 3, 2007); Khodorkovsky Michail Borisovich: Information Database – Free Lance Bureau of Federal Investigations, available at ; (last visited April 3, 2007); “David Hoffman, The Restraining Order and Preliminary Injunction, Case No. 04-47742-H3-11, U.S. Oligarchs: Wealth and Power in the New Russia (2002); Vladimir Ladni, Blood Bankruptcy Court, Southern District of Texas, Houston Division (Dec. 14, and Oil, Komsomolskaya Pravda (July 8, 1998) (speculating that Khodorkovski 2004). and Yukos were likely to be behind the attack). 29. For instance, Izvestia and Komsomolskaya Pravda are owned by Vladimir 6. Id. Potanin, Russia’s Metals magnate. Boris Berezovsky, a self-exiled oil and auto 7. Id. magnate owns Kommersant, a well-known Russian business journal, as well as 8. Id. Nezavisimaya Gazeta (translated as “Independent Newspaper”) and Noviye Izvestia (translated as “New News”). Khodorkovsky acquired Moskovskiye 9. Id. Novosti or in translation Moscow News, a newspaper that was used as a pro- 10. Id. paganda tool for foreigners by Joseph Stalin. Peter Baker, Moscow Paper Opens 11. Id. New Era; Revitalized Weekly Is Voice of Skepticism Under Putin, Washington Post (January 4, 2004); Profile: Mikhail Khodorkovsky, BBC News, UK Version, 12. Id. Business (16 June, 2004) at (last visited April 4, 2007). 14. Id. 30. The list provided by Committee to Protect Journalists (CPJ) is as follows: 15. Id. Igor Domnikov, Novaya Gazeta July 16, 2000, Moscow (may have been mistak- 16. University of Pittsburgh School of Law, Jurist Legal News and Research, en for another investigative reporter who focused on oil industry corruption); (last visited April 4, 2007); World Briefing, Europe: Russia: radio station that often criticized the provincial government; three days before Ex-Security Chief For Yukos Sentenced to Twenty Years for Murder, N.Y. Times the killing, Novikov participated in a television panel on alleged corruption (Mar. 31, 2005); available at (last visited April 4, 2007). Liberty, September 21, 2000, Moscow (had been working on stories about human rights abuses in Chechnia); Sergey Ivanov, Lada-TV, October 3, 2000, 17. Id. Togliatti (reported on corruption of local politicians); Adam Tepsurgayev, 18. Id. Reuters, November 21, 2000, Alkhan-Kala (reported about Chechen war); 19. Adoption of Rules Relating to Foreign Securities, Exchange Act Release Eduard Markevich, Novy Reft, September 18, 2001, Reftinsky (often criticized No. 8066, [1966-1967 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 77,443, at local officials); Natalia Skryl, Nashe Vremya, March 9, 2002, Taganrog (busi- 82,863 (Apr. 28, 1967). The adopting release noted: “The Commission has deter- ness reporter who was investigating the struggle for control of a metallurgical mined that the continuing improvement in the quality of the information now plant); Valery Ivanov, Tolyattinskoye Obozreniye, April 29, 2002, Togliatti being made public by foreign issuers, together with the improvement which (investigative reporter on crime and government corruption); Aleksei Sidorov, may reasonably be expected to result from recent changes and current propos- Tolyattinskoye Obozreniye, October 9, 2003, Togliatti; Dmitry Shvets, TV-21, als for change in relevant requirements, warrants the provision of an exemp- Northwestern Broadcasting, April 18, 2003, Murmansk (reported on several tion from Section 12(g) for those foreign companies which have not sought a influential politicians); Paul Klebnikov, Forbes Russia, July 9, 2004, Moscow public market for their securities in the United States through public offering or (exposed Russia’s billionaires); Magomedzagid Varisov, Novoye Delo weekly, stock exchange listing, and which furnish the Commission certain information June 28, 2005, Makhachkala (political analyst who often criticized Dagestan which they publish abroad pursuant to law or stock exchange requirement or political opposition); Anna Politkovskaya, Novaya Gazeta, October 7, 2006, which they send to their security holders.” See also Edward F. Greene, et al., Moscow (investigative reporting on human rights abuses by the Russian mili- Hegemony or Deference: U.S. Disclosure Requirements in the International Capital tary in Chechnia). Thirteen Murders, No Justice, CPJ, available at (last visited April 4, 2007). 20. Bank of New York 2004 Review of the Depository Receipt Market, available at (last visited April 4, 2007).

36 | September 2007 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

Practical Solutions to… Advocating on your behalf

When it comes to legislative affairs, there are many ways in which the New York State Bar Association’s experienced leadership advocates on your behalf. The Association comments on scores of bills annually. We work actively to influence government policy for the advancement of the profession – and your practice. The Association is and will continue to be a vigorous advocate for: • Re-organization of New York’s court system • Merit selection of judges • Access to civil justice system for both low and • Equal legal rights for same-sex couples middle-income consumers • The Compact for Long Term Care • Judicial salary reform • No-fault divorce

And, the Association’s advocacy efforts reach far and wide – well beyond the walls of the New York State Legislature. Several of our other efforts include: • Opposing mandatory retirement – the Association’s House of Delegates unanimously approved a report calling on firms to end the practice of mandatory retirement • Honoring attorneys who change the lives of poor New Yorkers – the Association created the Empire State Counsel credential program to give special recognition to members who provide 50 hours of free legal services to the poor

We champion your interests. We protect your profession and move it forward.

As a member, you deserve nothing less. For more information on these great benefits, go to www.nysba.org. GAIL C. CONWAY ([email protected]) is former Director and currently Consultant to Pace Women’s Justice Center Elder Abuse Programs. She received her undergraduate degree from the University of Buffalo, and her law degree from Pace University School of Law.

Reporting Elder Abuse Legal Requirements for Physicians By Gail C. Conway

eatings, sexual abuse, humiliation, wrongful loss suspected elder abuse and exploitation. Most of these of property, even homicide – these alarming terms laws require certain persons who are engaged in health Bdescribe incidents of elder abuse and financial care, social work, law enforcement and various other exploitation. The victimization of older persons is an occupations to inform designated authorities. Currently emergent problem involving at least hundreds of thou- the laws of 37 states and the District of Columbia spe- sands of Americans, and one that threatens to grow larger cifically require physicians to report suspected cases of as our population ages.1 elder abuse and/or financial exploitation which they For a variety of reasons, these crimes are characterized may encounter in their practice of medicine.3 In addition, by being, in large part, hidden.2 Some older persons who seven states mandate that “any person” must report such have impaired mental capacity, may be unable to fully suspicions.4 In most cases, failure to comply with these comprehend what has befallen them or to seek assistance laws may lead to a criminal conviction, with financial to remedy the situation. Competent persons may not penalties and even jail time. In addition to those states wish or may not be able to report their predicament; the where reporting is required, almost every other state has perpetrators of these events are often family members statutes that encourage voluntary reporting of suspected to whom the victim has an emotional attachment. Some cases of adult abuse.5 sufferers are isolated (often by intentional acts of their Every state’s law is unique; therefore, it would behoove abusers or exploiters), or may not know how to seek out each physician to become familiar with the requirements the necessary help, or because of their dependency on of the state in which he or she practices, and to become the abuser may opt to remain in the situation and accept conversant with the specific provisions in that jurisdic- the consequences. Victims may be embarrassed by hav- tion. ing fallen prey to schemes that have resulted in a loss of First, what is necessary to report, and about whom? assets. Finally, victims of sexual abuse are loath to discuss Typically, these statutes have language requiring physi- these crimes with anyone. cians and other designated reporters who have reason- Paralleling legislation to bring child abuse to the atten- able cause to suspect or believe, or who know, have tion of appropriate authorities, the majority of states have observed or have received information, that there has enacted into law some form of mandatory reporting of been some abuse or exploitation of an individual. Some

38 | September 2007 | NYSBA Journal State Statutes Mandating Reporting laws are fairly detailed as to the kind of by Physicians of Suspected Adult abuse that might be present; for exam- ple, the Alabama statute calls for “abuse, Abuse and/or Exploitation neglect, exploitation, sexual abuse, or Ala. Code § 38-9-8(a) (1992 & Supp. 2005). (Alabama) emotional abuse” to be reported,6 while Alaska Stat. § 47.24.010(a) (2004). (Alaska) California law includes incidents of Ariz. Rev. Stat. Ann. § 46-454A,B (2005). (Arizona) abandonment and isolation as triggers Ark. Code Ann. § 12-12-1708 (Supp. 2005). (Arkansas) for reporting.7 Cal. Welf. & Inst. Code § 15630 (West 2001 & Supp. 2006). Recently, there has been a spate of (California) interest in the relationship of abuse of Conn. Gen. Stat. § 17b-451(a) (2003 & Supp. 2006). (Connecticut) older victims and mortality. One study D.C. Code Ann. § 7-1903(a)(1) (2004 & Supp. 2006). (District of concluded that persons who have Columbia) suffered abuse die sooner than they Fla. Stat. Ann. § 415.1034(1)(a) (West 2005 & Supp. 2006). (Florida) might have otherwise,8 and others have Ga. Code Ann. § 30-5-4(a)(1)(A) (West 2003). (Georgia) expressed the fear that some deaths Haw. Rev. Stat. § 346-224(a)(1) (1995). (Hawaii) might even have been intentionally Idaho Code Ann. § 39-5303(1) (2002). (Idaho) inflicted.9 In response to these suspi- 320 Ill. Comp. Stat. Ann. 20/4(a-5), 20/2(f-5) (West 1999 & Supp. cions, state statutes may require man- 2006). (Illinois) dated reporters such as physicians to Iowa Code Ann. § 235B.3(2) (West 2000 & Supp. 2006). (Iowa) inform authorities where there is cause Kan. Stat. Ann. § 39-1431(a) (2000 & Supp. 2005). (Kansas) to believe that a person has died as a Ky. Rev. Stat. Ann. § 209.030(2) (LexisNexis 1999 & Supp. 2005). result of abuse or neglect,10 and even (Kentucky) may explicitly state that the death of the La. Rev. Stat. Ann. § 14-403.2C (2004 & Supp. 2006). (Louisiana) victim does not relieve the physician of Me. Rev. Stat. Ann. tit. 22, § 3477-1-A (2004 & Supp. 2005). the responsibility to report abuse.11 (Maine) In many jurisdictions, physicians are Md. Code Ann., Fam. Law § 14-302(a) (West 2006). (Maryland) not required to report suspected adult Mass. Gen. Laws Ann. ch. 19A § 15(a) (2002 & Supp. 2006). abuse concerning every victim. The (Massachusetts) statutory language often specifies that Mich. Comp. Laws Ann. § 400.11a (West 1997 & Supp. 2006). the sufferer be “vulnerable” or “endan- (Michigan) gered” or “incapacitated,” as defined Minn. Stat. Ann. § 626.557, Subd. 3 & § 626.5572, Subd. 16 (West in the pertinent section of the statute. 2003 & Supp. 2006). (Minnesota) Other state codes, however, mandate Miss. Code Ann. § 43-47-7(1)(a) (2004 & Supp. 2006). (Mississippi) reporting based simply on the age of Mo. Ann. Stat. § 660.300(1) (2006). (Missouri) the victim. For example, Connecticut Mont. Code Ann. § 52-3-811(1), (3) (2005). (Montana) law requires reporting where there is Neb. Rev. Stat. § 28-372(1) (1995 & Supp. 2004). (Nebraska) reasonable cause to suspect or believe Nev. Rev. Stat. § 200.50935 (2005). (Nevada) that any elderly person, defined as any N.H. Rev. Stat. Ann. § 161-F:46 (2002 & Supp. 2005). (New resident of the state who is 60 years of Hampshire) age or older, has been abused, neglected, N.J. Stat. Ann. § 52:27G-7.1(a) (West 2001 & Supp.2006). (New exploited or abandoned.12 Jersey) Although the relevant statutes of Ohio Rev. Code Ann. § 5101.61(A) (West 2004). (Ohio) most states are silent as to where the Okla. Stat. Ann. tit. 43A § 10-104 (West 2001 & Supp. 2006). alleged victim is residing, there are (Oklahoma) some exceptions to this. New Jersey’s Or. Rev. Stat. § 124.060 (2005). (Oregon) reporting requirements are applicable S.C. Code Ann. § 43-35-25 (Supp. 2005). (South Carolina) to those situations where the victim is Tenn. Code Ann. § 71-6-103(b)(1) (2004 & Supp. 2005). (Tennessee) living in an institution,13 while the law Tex. Hum. Res. Ann. § 48.051(a)(c) (Vernon 2001). (Texas) of Missouri limits the physician’s report- Vt. Stat. Ann. tit. 33, § 6903(a)(1) (2001 & Supp. 2005). (Vermont) ing obligation to those circumstances Va. Code Ann. § 63.2-1606 (2002 & Supp. 2006). (Virginia) where the adult is an “in-home services Wash. Rev. Code Ann. § 74.34.035(1), (2), (3) (West 2001 & Supp. client.”14 2006). (Washington) The laws of most states, such as W. Va. Code § 9-6-9(a) (2003 & Supp. 2006). (West Virginia) Maine and Rhode Island,15 call for immediate reporting upon suspicion of

NYSBA Journal | September 2007 | 39 abuse. Some statutes specify other time frames: for prescribes a fine of up to $5,000, or six months in jail, or example, Vermont allows the reporter 48 hours.16 In both.18 In addition, if the convicted person is a member of many jurisdictions reports may be by telephone, but often a profession licensed or regulated by that state, the court a follow-up written report will be necessary. Typically, must notify the appropriate state licensing or regulating reports must be made to the appropriate social service agencies. California law imposes a basic penalty of a fine agency, and/or to local law enforcement. For example, of not more than $1,000 or imprisonment for up to six the Idaho statute requires that in cases where abuse or months; where there has been willful failure to report a

About one-third of the states currently have specifi c laws that abrogate any testimonial privilege at court or administrative proceedings. sexual assault has resulted in death or serious injury, the death or great bodily injury associated with abuse, the reporter must not only immediately communicate this to prescribed punishment may be increased to up to one the designated agency but also, within four hours, to law year in prison or a $5,000 fine, or both.19 enforcement.17 In addition to criminal consequences, a physician These are some of the requirements of the laws, but may be civilly liable for failure to report. For example, what if the physician fails to comply with these provi- Minnesota law provides that a mandated reporter who sions? What potential penalties might he or she face as negligently or intentionally fails to report is liable for a result of this omission? First, most of these statutes damages caused by this failure.20 provide that a criminal charge, classified as a misde- Where a physician does comply with the statutory meanor, may be brought for failure to report as required. requirements, the question arises as to what protec- Characteristically, the statutes specify that to convict, this tions are available. First, virtually all of these statutes failure must be “knowing” or “willful.” Upon convic- include provisions that grant immunity from civil and tion for these misdemeanors, the sentence may be a fine, criminal liability for reporters who act in good faith.21 jail time or both. For example, the Mississippi statute Further, the laws of several states mandate confidenti- ality as regards the reporting process.22 Last, there are safeguards against reprisals in employment situations; for example, Wisconsin law forbids discharge, retali- State Statutes That ation, or discrimination against a person reporting in Mandate Reporting by Any good faith.23 Another concern that may arise in regard to the Individual of Suspected physician’s role in reporting as required is the question of Adult Abuse and/or privilege, i.e., doctor-patient confidentiality. Most states, following the lead of New York in 1828, have adopted Financial Exploitation statutes that establish physician-patient privilege.24 Provisions in various state codes have addressed this Del. Code Ann. tit. 31 § 3910(a) (1997). potential ethical conflict in two ways. First, the laws of (Delaware) several jurisdictions explicitly abrogate privilege in phy- Ind. Code Ann. § 12-10-3-2, 9(a) (West 2001). sician-patient communications regarding the doctor’s (Indiana) obligation to report abuse or exploitation. For example, N.M. Stat. Ann. § 27-7-30A (LexisNexis 2003). the Maryland statute states that “[n]otwithstanding any (New Mexico) law on privileged communications, each health prac- N.C. Gen. Stat. § 108A-102 (2005). (North titioner . . . who contacts, examines, attends, or treats Carolina) an alleged vulnerable adult, and has reason to believe R.I. Gen. Laws § 42-66-8 (1998 & Supp. 2005). that the . . . adult has been subjected to abuse, neglect, (Rhode Island) self-neglect, or exploitation” must report such informa- Utah Code Ann. § 62A-3-305 (Supp. 2006). (Utah) tion.25 Wyo. Stat. Ann. § 35-20-103(a) (2005). The second issue with regard to the question of doc- (Wyoming) tor-patient confidentiality is that of testimonial privilege. About one-third of the states currently have specific

40 | September 2007 | NYSBA Journal State Statutes That laws that abrogate any testimonial privilege at court or administrative proceedings.26 A physician practicing in Encourage Voluntary these jurisdictions, who has knowledge regarding alleged Reporting of Suspected abuse or exploitation of a patient he or she has attended, may not exclude such evidence when called upon to be Adult Abuse and/or a witness in certain cases. Interestingly, the code of the Financial Exploitation state of Indiana includes a contrary provision, providing that an individual may not be excused from testifying Colo. Rev. Stat. Ann. § 26-3.1-102(1)(b) (West on the basis of privilege, “unless the individual is . . . a 2002 & Supp. 2005). (Colorado) physician.”27 N.D. Cent. Code § 50-25.2-03 (1999). (North The two applications of the annulment of privilege Dakota) may appear combined in one statute in some states. For 35 Pa. Cons. Stat. Ann. § 10225.302(a) (West example, South Carolina’s law states: “The privileged 2003 & Supp. 2006). (Pennsylvania) quality of communication between . . . a professional S.D. Codified Laws § 34-12-51 (1998). (South person and that person’s patient . . . are abrogated and Dakota) do not constitute grounds for failing to report or for the Wis. Stat. Ann. § 46.90(4)(a) (West 2003 & Supp. exclusion of evidence in any civil or criminal proceed- 2005). (Wisconsin) ing resulting from a report made pursuant to this chap- ter.”28 What about those jurisdictions where physician- patient privilege is established in the law as well as 4. See sidebar: State Statutes That Mandate Reporting by Any Individual of Suspected Adult Abuse and/or Financial Exploitation. the requirement for reporting, but there is no provision 5. See sidebar: State Statutes That Encourage Voluntary Reporting of Suspected for abrogation of the privilege? Although an in-depth Adult Abuse and/or Financial Exploitation. New York is the only state that cur- analysis of such ethical dilemmas is beyond the scope of rently has no general adult abuse reporting statutes. this article, it should be noted that the American Medical 6. Ala. Code § 38-9-8(a). Association’s (AMA) Code of Ethics provides some 7. Cal. Welf. & Inst. Code § 15630(b). guidance. These rules forbid breaches of confidentiality, 8. M. Lachs, C. Williams, S. O’Brien, K. Pillemer & M. Charlson, The Mortality unless “provided for by law or by the need to protect the of Elder Mistreatment, 280 JAMA 428–32 (1998). 29 welfare of the individual or the public interest.” 9. J. Cheshes, Gray Murder, Modern Maturity 56 (Mar./Apr. 2002). Further, the AMA’s publication Diagnostic and 10. See, e.g., S.C. Code Ann. § 43-35-35. Treatment Guidelines on Elder Abuse and Neglect states: 11. See, e.g., Ky. Rev. Stat. Ann. § 209.030(2). “While there is little case law on this area [reporting requirements and ethical dilemmas], most experts would 12. Conn. Gen. Stat. § 17b-451(a). agree that a physician’s legal duty to report cases of 13. N.J. Stat. Ann. § 52:27G-7.1(a). suspected abuse would supersede doctor-patient confi- 14. Mo. Ann Stat. § 660.300(1). dentiality issues.”30 15. Me. Rev. Stat. Ann. tit. 22 § 3477(1); R.I. Gen. Laws § 42-66-8. Finally, as leaders of a health care “team,” doctors 16. Vt. Stat. Ann. tit. 33 § 6903(a). should be aware that in virtually all states where they are 17. Idaho Code Ann. § 39-5303(1). required to report elder abuse, other health care workers 18. Miss. Code Ann. § 43-47-7(1)(c). are also mandated to report such suspicions. This group 19. Cal. Welf. & Inst. Code § 15630(h). typically includes nursing personnel, therapists, mental 20. Minn. Stat. Ann. § 626.557 (subd. 7). health personnel and others associated with the care of the patient. 21. See, e.g., Nev. Rev. Stat. § 200.5096. Elder abuse and exploitation is a growing and tragic 22. See, e.g., Colo. Rev. Stat. Ann. § 26-3.1-102(7)(a). societal problem. The eradication of this threat to older 23. Wis. Stat. Ann. § 46.90(4)(b). citizens depends on the efforts of many segments of the 24. See J. Clark, Confidential Communications in a Professional Context: Attorney, community. It is to be hoped that physicians will continue Physician, and Social Worker, 24 J. Legal Prof. 79, 83 (Spring 2000), for a discus- sion of the history of physician-patient privilege. to be aware of this menace and to assume their crucial 25. Md. Code Ann. Fam. Law § 14-302(a). role in combating it. ■ 26. See, e.g., Ariz. Rev. Stat. Ann. § 46-453A. 1. See Nat’l Ctr. on Elder Abuse, Admin. on Aging, The National Elder Abuse 27. Ind. Code Ann. § 12-10-3-11(b). Incidence study: Final Report (1998). 28. S.C. Code Ann. § 43-35-50. 2. See, e.g., Molly Dickinson Velick, Mandatory Reporting Statutes: A Necessary Yet Underutilized Response to Elder Abuse, 3 Elder L.J. 165 (1995). 29. AMA Policy E-10.01(4). 3. See sidebar: State Statutes Mandating Reporting by Physicians of Suspected 30. AMA: Diagnostic and Treatment Guidelines on Elder Abuse and Neglect, Adult Abuse and/or Exploitation. at 21 (1992).

NYSBA Journal | September 2007 | 41 POINT OF VIEW BY JAMES A. GARDNER

JAMES A. GARDNER ([email protected]) is the Joseph W. Belluck and Laura L. Aswad Professor of Civil Justice, State University of New York, University at Buffalo Law School. He earned his undergraduate degree from Yale, and a law degree from the University of Chicago.

New York’s Judicial Selection Process Is Fine – It’s the Party System That Needs Fixing

fter a long period of mount- The Real Problem altered the landscape with its deci- ing public dissatisfaction New Yorkers have long been dissatisfied sion in López Torres v. New York State Awith New York’s distinctively with their system for electing judges, Board of Elections,3 which invalidated undemocratic system of judicial elec- which has existed in its current form on federal constitutional grounds New tions, the federal courts have finally since 1921. In 1977, this dissatisfaction York’s method of electing trial judges. forced the issue onto the state legis- resulted in a constitutional amendment In affirming the District Court’s deci- lative agenda by striking down the that removed the Court of Appeals from sion, the Second Circuit ruled that the current system on federal constitu- the electoral system and substituted a structure of the state’s system of judicial tional grounds. Reform proposals system of gubernatorial appointment.1 nominating conventions violates asso- abound, most of which would make Lower court judgeships, however, ciational rights of party members that the system either more democratic, remain elective offices. Although pub- are protected by the First Amendment.4 by opening up candidate access to lic dissatisfaction with judicial elections Specifically, the court held that “the the primary ballot, or less democratic, has not routinely prompted widespread First Amendment affords candidates by substituting a system of executive movements for reform, it has manifested and voters a realistic opportunity to appointment. None of these proposals, itself in more subtle ways, such as ballot participate in the nominating process,”5 however, is likely to produce much rolloff and a general loss of confidence an opportunity that the current system of an improvement because none of in the quality of state trial judges and the of judicial selection unconstitutionally them addresses the real problem. New quality of justice. By 2003, Chief Judge fails to provide. In view of these rul- York’s method for choosing judges Judith Kaye thought the problem seri- ings, the state now faces an urgent is basically sensible and structurally ous enough to appoint a Commission to need to replace the invalidated system. sound. The dysfunction lies, rather, Promote Public Confidence in Judicial If it does not, the District Court has said in New York’s party system, which Elections (the “Feerick Commission”), that it will impose a system of open pri- is utterly moribund. Until the state which studied the problem and pro- maries for elective judicial offices. develops a well-functioning system of duced a set of recommendations for While this outpouring of concern competitive and publicly accountable reform.2 over New York’s dysfunctional judicial political parties, no reform to the judi- While the Feerick Commission’s selection process is understandable, I cial selection process can be expected proposals were circulating, the federal shall argue here that it is misplaced. to produce meaningful change. District Court in Brooklyn dramatically Although the judicial selection system

42 | September 2007 | NYSBA Journal POINT OF VIEW is broken, to be sure, its malfunction The two principal methods for select- dence of officials on public approval is only a symptom of a much more ing judges – appointment and election is normally thought to be desirable, deeply rooted problem: the dysfunc- – sit at opposite ends of a spectrum but when the officials in question are tion of New York’s political parties ranging from the least to the most judges, the practice raises at least three and, in consequence, the state’s system democratic. Yet too much democracy well-known potential problems. First, of party democracy itself. Until these can be as disruptive to the success of a it is possible, and perhaps likely, that problems are addressed, no reform to judicial selection system as too little. the public will be unable meaningfully the judicial selection process is likely When approached in the right spir- to evaluate the qualifications of judi- to produce a significant improvement. it, a system of judicial appointment, cial candidates and the performance In fact, there is nothing wrong with in which the governor or other chief of sitting incumbents. Second, an elec- the structure of New York’s judicial executive does the appointing, can tive judiciary raises the possibility that selection institutions, which, at least on without a doubt produce outstanding judges will pander to public opinion paper, are capable of working perfectly judges. The main potential problem in their decisions rather than impar- well; indeed, the underlying design with appointment, however, is its sus- tially applying the law. This is espe- premises of the present system are ceptibility to abuse by the appoint- cially a concern after the U.S. Supreme sound and sensible. ing official. Abuse of the appointing Court’s highly unfortunate decision in The problem, rather, is with the power most commonly takes the form Republican Party of Minnesota v. White,7 behavior of actors within the institu- of patronage appointments, in which which held that many commonplace tion. Evidently the party officials who judges are elevated to office on the state ethics rules restricting the scope in practice run the judicial selection basis of their personal loyalty to the of judicial campaigning violate the process have entirely the wrong incen- governor, or as a reward for having First Amendment. Third, requiring tives; they, and the parties for whom performed some kind of service to the judges to run for election requires they act, lack the slightest degree of governor or the governor’s party – a them to raise the necessary funds, and accountability for undesirable behav- condition of appointment. the need to raise money opens judi- ior. A well-functioning party system Until 1845, New York, like all cial candidates to a different kind of can serve as a powerful tool of demo- states admitted in the nation’s first 40 corruption: the excessive influence of cratic accountability. In New York, this years, utilized a system of gubernato- monied special interests. system has failed miserably. What we rial appointment of judges. In 1846, ought to have is a system in which however, the state switched to elect- parties compete to satisfy an obvious ing its judges, for two reasons. First, public demand for meaningful choice a Jacksonian impulse toward greater Most states among the best possible candidates for democracy swept the nation during judicial office. What we have instead is this period, a trend from which New select their judges a system in which the parties collude York was not immune. This impulse for their private advantage, and in was driven by an assumption – not using some kind which they treat judgeships as a species always well explored – that all or near- of hybrid system. of patronage that is theirs to dispense, ly all public officials, including judges, on terms satisfactory to them alone. should be popularly elected. In New Instead of being the beneficiary of York, however, the switch to an elec- party competition, the people of New tive judiciary also responded to a wide- Because both appointment and York have been shut out of the deal. spread belief that the state’s governors election raise such potentially serious had been distributing judgeships as a problems, most states select their judg- A Fair System, at Least on Paper kind of patronage.6 In New York, then, es using some kind of hybrid system In its fundamental structure, New the election of judges rests historically that is deliberately structured to avoid York’s system for electing supreme on the belief that elected judges will each of the extremes. The most com- court justices can be best understood be more independent, fairer, and more mon method by far is the so-called as an entirely reasonable response to impartial than appointed judges. “Missouri Plan,” in which judges are the very real difficulties that inhere The election of judges is by no appointed initially by the governor, in any attempt to design a method means, however, a panacea. Electing often from a list of candidates recom- for selecting judges in a democracy. judges, to be sure, addresses the prob- mended by a bipartisan or nonpartisan Because of the peculiar combination of lem of gubernatorial patronage to screening commission, and then stand independence and accountability that some degree, but does so by switch- periodically for democratic review in judges in a democracy must possess, ing the object of judges’ dependence uncontested, nonpartisan retention there is no way to select judges that from the governor to the public. In elections.8 New York’s present sys- does not face potentially serious flaws. a democracy, of course, the depen- tem, adopted in 1921, was designed

NYSBA Journal | September 2007 | 43 POINT OF VIEW in the same spirit. It offers, on paper, The New York system, however, perverted the operation of the system a perfectly sensible and plausible way is more democratic than the Electoral to the extent that it is barely recogniz- to combine the advantages of appoint- College in that it provides for a third able as democratic. Although official ment and election, while avoiding the and final stage in which the selec- patronage has successfully been mar- worst of their respective risks. tion of judges is referred back to the ginalized, the public in fact plays no New York’s system of electing people for a final decision. Delegates meaningful role. Contrary to its design supreme court judges proceeds in to the judicial nominating conven- assumptions, New York’s system has three stages. The first consists of a tions do not select judges, but instead been deformed into one that dispenses primary election, not of judicial can- merely designate nominees to run as patronage, but the patronage is hand- didates, but of delegates.9 These del- candidates of their respective parties. ed out by the political parties rather egates are selected by each party’s The ultimate choice among what the than by the governor. The result is a rank-and-file membership for the sole system contemplates will be highly judicial selection process dominated purpose of attending a judicial nomi- qualified, competing candidates for by party officials that is every bit as nating convention. Because delegates judicial office is reserved for the people corrupt as the pathologies of appoint- exercise no function other than the through direct popular election.11 ment and election that it was so care- selection of the party’s judicial candi- As a matter of design, this system fully designed to avoid. dates, the system clearly contemplates provides an admirably balanced mix of How exactly is this happening? What are the parties doing to thwart the proper operation of the system? Here are just four of the most egre- On paper, New York’s method for gious offenses:12 selecting supreme court judges ought 1. The parties are extorting benefits, such as donations of money and to work as well as any other. services, from judicial candidates, including from sitting judges who seek reelection or election to a that delegates will be elected by party popular participation and professional higher court. members on the basis of their ability expertise. By including the people at 2. The parties are attempting to to evaluate the qualifications of poten- both the beginning and the end of influence the behavior of sitting tial judicial candidates. In the second the process, it seems well calculated to judges by creating an informal, stage, the elected delegates convene secure all the benefits of popular par- and extralegal, form of judicial at their respective judicial nomina- ticipation in judicial elections as a guard promotion in which candidates tion conventions to select their party’s against official patronage. At the same must pay their dues in lower judicial candidates.10 Under the cir- time, by leaving the actual identifica- or specialized courts before the cumstances, it seems clear that the sys- tion of judicial candidates to individu- party will consider nominating tem contemplates that the delegates, als who are selected precisely for that them for supreme court. selected for their expertise in things purpose, the system secures the benefits 3. The parties are not seeking out, judicial, will nominate only the very of quality and competence associated and indeed are driving away, best candidates that their parties are with appointment by informed and many highly qualified candidates, capable of inducing to run. Up to this well-qualified experts, while avoiding who are unwilling either to be point, incidentally, the system bears the pitfalls of public incompetence in extorted or to put in long service a distinct resemblance to the federal the identification and evaluation of the in a specialized lower court in Electoral College, which was designed qualifications of good potential judges. which they have no interest, and to deal with what was thought at the On paper, then, New York’s method for then to have that service subject- time to be an analogous problem: the selecting supreme court judges ought to ed to review not by voters, but by incompetence of the people to select work as well as any other. party officials. a president. The Framers’ solution, 4. Worst of all, the parties are col- echoed in the 1921 New York judi- A Failed Party System luding to thwart the possibility of cial convention plan, was that where The problem today, of course, is that the meaningful popular choice, and the people are deemed incompetent state’s judicial selection system simply to maintain their own power over to perform some necessary function of isn’t working as intended. The public judicial selection, by cutting deals democratic oversight, their role should continues to do what is asked of it. The about whom to run, when, and be limited to the election of compe- parties, however, are not by any means where, including cross-endorse- tent intermediaries who will make the performing the role assigned to them ment deals within judicial dis- actual decisions. under the law. Indeed, the parties have tricts and even non-opposition

44 | September 2007 | NYSBA Journal POINT OF VIEW

and cross-endorsement deals that tion then takes over the entire power of thoroughly thwarts the ability of the cross district boundaries. the government and the entire respon- electorate to hold any party account- In short, the parties are not compet- sibility for what the government does, able for the actions of the government. ing, as they should, for the approval and uses its power to put its program Because of the gerrymander, not only and votes of the electorate. Given the into effect. If it does a good job, the can neither party be voted out of the crucial role assigned to the parties voters will keep it in power. If it does chamber it controls, but no single party by the state judicial selection system, not, the voters will turn it out and des- can ever control the entire government. the system cannot possibly function ignate a competing party to run things Since neither party can be disciplined properly if the parties fail to play more to their liking. by the voters, neither party has any their assigned role. Why don’t they In New York, any possibility of incentive to be responsive to the voters’ do so? The short answer is that New meaningful party democracy has been wishes – exactly the kind of incentive York’s party system has become so utterly thwarted by the parties’ col- that a well-functioning party system is completely dysfunctional that it no lusive legislative gerrymander, an supposed to provide. Under these cir- longer serves any positive role in the arrangement that has for 30 years allo- cumstances, the parties are entirely free democratic process.13 cated firm control of the state Assembly to run the judicial selection process (as to Democrats and of the state Senate to well as any other aspect of state gover- No Meaningful Party Democracy Republicans15 – an impressive achieve- nance) however they want without fear Although the reasons behind the col- ment in a state in which registered of retribution from the voters. If they lapse of New York’s system of politi- Democrats outnumber registered choose to run the system collusively cal parties are complex, I believe it is Republicans by approximately five rather than competitively, the voters possible nonetheless to trace much to three.16 This gerrymander fatally are virtually powerless to stop them. of the present dysfunction to one, undermines the operation of the state’s In New York, the problems flowing and possibly two, underlying issues: system of party democracy because it from the collusive gerrymander of the (1) the bipartisan gerrymander of the state Legislature, and (2) the three- men-in-a-room problem. Political scientists have long argued that political parties are essential to any kind of meaningful popular control over government. The theory of party democracy, often called the respon- sible party model, goes something like this:14 In a mass democracy, the people cannot and do not participate actively in the formulation of policy, and thus do not exercise any form of direct con- trol over government policy. Instead, the people exercise a form of indirect control in that, if a majority of the pop- ulace feels that its wants are not being satisfied, it can replace the set of rulers in power with an alternate set; it can, that is, “vote the bums out.” According to political scientists, this form of indi- rect popular control requires political parties because only parties can pro- vide the coherent, unified sets of rulers who will assume collective responsi- bility to the people for the manner in which government power is used. For this system to work, each party must promote a coherent program of poli- cies designed to satisfy the people’s wishes. The party that wins a majority of the offices of government in the elec-

NYSBA Journal | September 2007 | 45 POINT OF VIEW

process for their own benefit, until the defects in the party system outlined above have been addressed. Let’s start with appointment. Virtually all proposals to replace the current elective system with an appoint- ive one attempt to avoid the problem of gubernatorial patronage by making use of a bipartisan screening commission.17 Under such proposals, the governor may appoint only candidates who have been cleared by the commission, which will in theory forward to the governor the names only of the most qualified candidates to be found in the state. Until the party system is fixed, how- ever, this is a false hope. The theory of bipartisan candidate screening proceeds on the premise that political parties with opposing interests will be able to find common ground only by settling on candidates who are uncontroversially of the high- est quality. However, as their current behavior indicates, if the parties are not publicly accountable, they are both willing and able to reach agreement on other grounds besides candidate qual- ity, and one such ground has been, and is likely to continue to be, the parties’ state Legislature are compounded by any incentive at all to be responsive to mutual, private advantage. another charming local custom: gov- the wishes of the vast majority of New In assessing the likelihood that an ernment by three men in a room. In York voters, and the only voters they independent judicial screening com- this system, the messy complexity of need to worry about are voters in their mission will produce better-quality an actual representative legislature is own safely gerrymandered districts, so judges than the highly politicized sys- stripped down to a simple system in they need not really worry about their tem now in place, it is also instructive which essentially all significant legisla- own constituents either. Such a system to look at a similar area, facing similar tive power is delegated by the Assembly has more in common with a hereditary problems: redistricting. Numerous of to the speaker and by the Senate to the aristocracy than a democracy. the reform proposals are based on majority leader. These two legislators the proposition that gerrymandering then negotiate the legislative agenda of Break Up the Bipartisan will stop, and genuinely competitive the state directly and personally with Gerrymander elections will be possible, only if the the governor, behind closed doors. This Proposals for reforming New York’s redistricting function is taken from the practice further destroys the account- judicial selection process fall gener- Legislature and given to an indepen- ability of the political parties not only ally into one of two opposing camps: dent redistricting commission, usually because of its opacity, but because it those that would make the process of bipartisan composition.18 Yet recent delegates and concentrates legislative less democratic by creating a system studies of the work of independent power in the hands of individuals who of gubernatorial and mayoral appoint- redistricting commissions already in are beyond the reach of public retribu- ment; and those that would make the operation have consistently found no tion. In this system, all significant legis- process more democratic by instituting good evidence that these commissions lative policy decisions are made by the a more open form of primary elec- produce districting plans that are more two legislative leaders, yet only a tiny tions. Neither type of proposal is likely competitive, or state legislatures that fraction of the electorate has any power to make much of a difference in the are more responsive, than when redis- to hold the leaders electorally account- operation of the selection process, or in tricting is performed by the legislature able. The leaders consequently lack the ability of the parties to subvert that itself.19 There is no reason to suppose a

46 | September 2007 | NYSBA Journal POINT OF VIEW different result for independent, bipar- tisan judicial screening commissions. Then there is the elephant in the NYSBA on Selecting Judges room that nobody really wants to The New York State Bar Association has supported a merit system acknowledge: For 30 years New York of judicial selection since 1973. In 1993 the Association’s House of has used just such a judicial nominat- Delegates approved “A Model Plan for Implementing the New York ing commission to screen candidates State Bar Association’s Principles for Selecting Judges” (the “Model for gubernatorial appointment to the Plan”) that would amend the New York State Constitution to replace Court of Appeals. Has this system pro- the current selection process with a merit selection system. Key compo- duced the best possible high court? Has nents of the Model Plan include the following: the commission successfully purged • The proposal would cover the Supreme Court, including the partisanship and patronage entire- Appellate Division; County, Family and Surrogate’s Courts; the Court of ly from the appointment equation? Claims; the Civil and Criminal Court of the City of New York; full-time Seemingly not. Although the nominat- city courts outside New York City; and the District Courts. ing commission method seemed to • Nonpartisan nominating commissions would propose three “high- work relatively well for a while, it ly qualified” candidates for each judicial vacancy. has not lived up to its potential in • A statewide nominating commission would propose candidates some time. I don’t mean to suggest by for appointment by the Governor to the Court of Claims. any means that recent appointments • Four department-wide nominating commissions would pro- to the Court of Appeals have been of pose candidates for appointment by the Governor to the Appellate poor quality, but in a state with what Division. is surely the greatest accumulation of • A New York City nominating commission would propose candi- legal talent in the nation, perhaps in dates for appointment by the Mayor to trial courts in New York City. the world, the appointment process • Judicial district nominating commissions would propose candi- cannot honestly be said to have ele- dates for appointment to Supreme, County, Surrogate’s, Family and vated, or even to have considered, the District Courts outside New York City, with appointment being made very best of the best. There is no reason by the Governor in the case of Supreme Court and the chief elected to suppose a screening commission official of the county in the case of the other courts. would produce any better results if its The Model Plan has served as a key resource in the development of charge were extended to lower court current legislation to implement a merit-selection system and efforts judges; indeed, the federal experience by the Association to reform the current process for selection of New suggests that considerations other than York’s judges. quality tend to become much more important as one descends the judicial hierarchy, and that is true even in the such a reform seems to be to break the disproportionately to be party activists presence of a reasonably well-function- leadership’s stranglehold over nomina- and loyalists,21 who would likely sup- ing and accountable party system on tions and allow independent, insurgent port the inside party candidate in any the national level. candidates to crack open the system. case. As a result, the parties are likely The other family of reform proposals Until New York acquires a meaning- to be just as dominant under an open making the rounds – and the one that ful system of party competition, how- primary system as under the current will be imposed by the U.S. District ever, this too is unlikely to produce any system. Court should the Legislature fail to act great improvement. As an initial mat- Furthermore, even in a more open – would move in the opposite direction ter, the open primary proposals have system of primary selection, candidates by further democratizing the judicial all the flaws associated with excessive supported by the formal party organi- selection process through a system of popular involvement in judicial selec- zation will still have a huge advantage open primaries. Such primaries would tion. First, the public has little basis over independent party candidates create alternative routes to nomination on which to evaluate the candidates. because they and only they will have for elective judgeships by permitting Second, judicial campaigns tend to be access to party campaign resources voters to consider not only the “offi- of low salience for the majority of vot- and expertise. At most, all an open cial” candidates backed by state and ers and turnout is far lower in judicial primary is likely to do is to allow party local party leaders, but also “unof- races than in races further up the bal- outsiders who are rich enough to self- ficial” candidates who, though not lot.20 Low turnout is even more of a finance their own campaigns to bring supported by party leaders, command problem in primaries, the only phase themselves to the attention of the party significant support among the party of the process that these reforms would leadership. Interparty cross-nomina- rank and file. The motivation behind affect, and those who do turn out tend tion and noncompete deals will still

NYSBA Journal | September 2007 | 47 POINT OF VIEW

allow parties to marshal the resources political system,22 and I would much 17. This is the method currently employed to select to crush outsider campaigns, and as a rather see this matter handled by state candidates for the Court of Appeals. N.Y. Const. art. VI, § 2(d)(1). Most proposals for judicial appoint- result the parties will still have ample courts as a matter of state constitution- ment typically would merely extend this system, means to co-opt serious independents. al law, which furnishes many poten- or something very like it, to lower court elections. See, e.g., New York State Bar Association, Report of What is needed is a system that gives tially promising grounds on which Action Unit #4 of the New York State Bar Association: parties an incentive to choose the very to restrain abuse of the redistricting A Model Plan for Implementing the New York State Bar best candidates, and to offer them com- process. If federal courts are going to Association’s Principles for Selecting Judges (May 14, 1993), at 7–9. Even the Feerick Commission, whose petitively to the public. An open pri- intervene, however, I would rather see charge did not include consideration of switching mary system does not do that, and the such intervention where it would do to an appointive system, recommended that the parties will lack such an incentive until some good – to break up the state’s judicial nominating system be modified to include bipartisan screening commissions in each judicial the public is able to hold them account- collusive, bipartisan legislative gerry- district. Feerick Comm’n Report at 19. able for their behavior. mander – than to invalidate a specific 18. Bipartisan composition is the most common format for existing independent redistricting com- Such accountability will not be and perfectly reasonable choice made missions. See, e.g., Ariz. Const. art. 4, § 1(3); N.J. possible until, at a minimum, the by New Yorkers about how to set up Const. art. II, § II(1)(b); Wash. Const. art. II, § 43(2). bipartisan gerrymander of the state a particular aspect of their democratic 19. See, e.g., Alan I. Abramowitz, Brad Alexander ■ & Matthew Gunning, Incumbency, Redistricting, and Legislature is broken up. Only when self-governance. the Decline of Competition in U.S. House Elections, political parties are forced actually to 68 J. Politics 75, 79 (2006); John G. Matsusaka, 1. N.Y. Const. art. VI, § 2(c), (e). Institutions and Popular Control of Public Policy, compete with one another for control 2. Commission to Promote Public Confidence in USC Center in Law, Economics and Organization, of the Legislature can voters influence Judicial Elections, Report to the Chief Judge of the Research Paper No. C06-14, at 24 (Nov. 2006), avail- the content of governmental policy. State of New York (June 29, 2004) (“Feerick Comm’n able at ; Seth Report”). Masket, Jonathan Winburn & Gerald C. Wright, The Only when the voters have the ability 3. 411 F. Supp. 2d 212 (E.D.N.Y. 2006). Limits of the Gerrymander: Examining the Impact of to dislodge one party from legislative 4. López Torres v. N.Y. State Bd. of Elections, 462 F.3d Redistricting on Electoral Competition and Legislative power and install its competitor will 161 (2d Cir. 2006). Polarization (paper presented at annual meeting 5. Id. at 187. of American Political Science Association, Aug. they have the ability to hold par- 6. Peter J. Galie, The New York State Constitution: 31–Sept. 3, 2006). ties accountable for their behavior, A Reference Guide 128–29 (1991); Peter J. Galie, 20. For example, in 2006, more than a quarter of Ordered Liberty: A Constitutional History of New voters in the First Judicial District did not record thereby providing the parties with York 82–83, 105–06 (1996). a vote for Supreme Court justice. In the Second meaningful incentives to alter their 7. 536 U.S. 765 (2002). Judicial District, more than a third did not cast behavior to conform to public wish- 8. Steven P. Croley, The Majoritarian Difficulty: a vote for Supreme Court. In the Eleventh and Elective Judiciaries and the Rule of Law, 62 U. Chi. L. Twelfth, nearly one-third did not cast such a vote. es. Obviously, the Legislature will Rev. 689, 714–26 (1995). See N.Y. State Board of Elections Home Page, not undertake this task by itself. The 9. N.Y. Election Law §§ 6-106–6-124 (“Elec. Law”). . electorate could do it, of course, but 10. Elec. Law §§ 6-124, 6-126, 6-158(5). 21. See, e.g., Elisabeth R. Gerber & Rebecca B. 11. N.Y. Const. art. VI, § 6(c). Morton, Primary Election Systems and Representation, the parties seem to have a knack 12. These and similar practices are common knowl- 14 J. L. Econ. & Org. 304, 321–22 (1998). for mutual self-preservation that edge among the bench and bar. The specific items 22. See James A. Gardner, Forcing States to Be Free: leads them to mollify the public – or listed in the text are culled from a Buffalo News The Emerging Constitutional Guarantee of Radical investigative series by Michael Beebe and Robert Democracy, 35 Conn. L. Rev. 1467 (2003). enough of the public to avert a threat J. McCarthy, “Courting Big Money” (July 14, 2002), – just before the point that it gets “Putting Politics First: Democratic Boss Wields Big Power in Choice of Judges” (July 15, 2002) and angry enough to do something. That “Appeal for Reform” (July 16, 2002); the Feerick leaves the courts in the best position Comm’n Report; and the opinions of the District Your CLE to address the problems posed by the and Circuit courts in López Torres. 13. The one exception may be at the level of state- offending gerrymander. wide office, especially governor. Here, the system Classroom The Second Circuit’s decision in functions to some degree as it ought, though not nearly as well as it might. López Torres is troubling in many 14. This account relies mainly on Austin Ranney, respects, but its most troubling feature The Doctrine of Responsible Party Government 10–14 by far is that the court simply misana- (1954). See also American Political Science Ass’n’s Committee on Political Parties, Toward a More lyzed the problem. The reason New Responsible Two-Party System, 44 Am. Pol. Sci. Rev. York’s system of judicial selection is Supp. 15–24 (1950). 15. Gerald Benjamin, Reform in New York: The Budget, dysfunctional has little to do with the Legislature, and the Governance Process, 67 Alb. L. its underlying legal structure, which Rev. 1021, 1052–53 (2004). For earlier accounts, see the court precipitously invalidated. Richard Lehne, Legislating Reapportionment in New York (1971); Calvin B.T. Lee, One Man, One Vote: It has instead everything to do with WMCA and the Struggle for Equal Representation Come click for CLE credit at: the dysfunction of New York’s party (1967). www.nysbaCLEonline.com system. As a rule, I am disturbed when 16. N.Y. State Board of Elections, County Enrollment Totals (Nov. 1, 2005), available at .

48 | September 2007 | NYSBA Journal PRESENTATION SKILLS FOR LAWYERS BY ELLIOTT WILCOX

ELLIOTT WILCOX is a professional speaker and a member of the National Speakers Association. He has served as the lead trial attorney in over 140 jury trials, and teaches trial advocacy skills to hundreds of trial lawyers each year. He also publishes Trial Tips, the weekly trial advocacy tips newsletter .

The Rule of Three

Bill sat down at his desk and rhythm of three will help them remem- • “I promise to be different . . . began writing. Friends, Romans ber elements of your speech. Adding • “I promise to be unique . . . • “I promise not to repeat things . . . Lend me your ears. “Wait, that alliteration makes the phrasing even more memorable. Consider the dif- other people say.” ain’t right,” he said, “let’s try it ference between “He spoke power- To get a bigger laugh with this pat- again.” Friends, Romans, coun- fully” and “He spoke with power, tern, pause after the second item. Give trymen, noblemen . . . Lend me poise, and panache.” Starting all three your audience a moment to process the your ears. “Nope, still not right.” phrases with a similar sound helps the pattern before you derail the train. Friends, Romans, countrymen . . . audience “sing along” to the rhythm of your presentation, and etches the The Memorable Power of Three. Lend me your ears! “Aha! Music phrase into their heads. Your audience will remember your to my ears!” points more easily if you use three undreds of years later, The Humor of Three. examples, three illustrations, or three “Friends, Romans, country- Comedians employ the Rule of Three stories to highlight each point. Read Hmen” is still music to our ears. to great comic effect. Doug Stevenson, through your speech and look for Why? Because Shakespeare followed creator of the Story Theater program, opportunities to take advantage of the a principle called the Rule of Three. uses a simple phrase to demonstrate Rule of Three. Start with the main point Rather than using a single example how comedians establish (and then of your speech. If the audience doesn’t or phrase, he grouped three samples break) a pattern to create humor with remember anything else about your together. the Rule of Three. To get the full presentation, what one point do you effect, repeat the phrase aloud, paus- want them to take home with them? Why Three? Why Not Two? ing after each word for maximum What single idea do you want them to Or Four? impact: “Apples . . . Oranges . . . remember? What image do you want There is a certain musical quality to Plywood.” to brand into their memories? (Did you words or phrases when the Rule of It’s not the world’s funniest example, notice how the Rule of Three helped Three is followed: but it shows how the pattern works. to highlight the issue?) Review your • I came, I saw, I conquered The first two words establish the pat- presentation. How many examples, • Life, liberty, and the pursuit of tern, sending the train down the tracks. illustrations, or stories do you use to happiness Your brain starts looking for compari- demonstrate the main point? If you • Snap, Crackle, Pop sons between the two items (“Let’s see, have only one or two examples, create If you add or subtract a word from they’re both round, they’re both fruits, some more examples and bring the each grouping, it doesn’t appeal as they’re both edible…”) “Plywood” gets total to three. Do you have more than strongly to the ear. But when you com- a laugh because it breaks the pattern. three examples? Eliminate the weakest bine them in groups of three, the words The third item derails the train. When examples and keep only your three flow from the tip of your tongue. the third item doesn’t fit into the pat- strongest. When you use three sup- As you prepare your presentation, tern, your brain reacts with surprise. porting examples, your audience will consider opportunities to expand (or Even famous comedians employ this remember the point. contract) the number of phrases you pattern. In A Wild and Crazy Guy . . . , You can also highlight phrases by will use to demonstrate your point. Steve Martin uses the Rule of Three repeating them three times. Don’t Your audience probably won’t remem- when leading the audience in “The merely parrot the phrase over and ber every point of your speech, but the Non-Conformist’s Oath”: CONTINUED ON PAGE 61

NYSBA Journal | September 2007 | 49 ARBITRATION BY PAUL BENNETT MARROW

PAUL BENNETT MARROW ([email protected]) is an attorney and arbitrator. He practices in Chappaqua, N.Y. He is a member of panels for the AAA, ADR Systems, NAF, NAM, NSE and NASD. He is a Fellow (FCIArb) of the Charter Institute of Arbitrators, London, England.

Motion Practice and Arbitration Proceedings From the Perspective of the Arbitrator

rbitration is supposed to be any need for motion practice. But often relief, usually in the form of an injunc- a relatively quick, less for- things just don’t turn out like they tion or a restraining order. In addition, Amal and more efficient way are supposed to and one or more par- motions are sometimes made seeking to resolve a dispute, leading many to ties may feel that an intervention by to either sever or consolidate claims conclude that in this forum motion the arbitrator is needed or try to use or parties. practice is out of place. motion practice as a way to manipulate Motions made during the pre- That supposition is a mistake. That’s the process. hearing conference typically involve what this article is about. Motions are nothing more than a requests for an order directing some The conclusion assumes that all request that an arbitrator do some- form or another of discovery, con- arbitration proceedings are the same, thing to assist one of the parties and if firmation of deadlines and direc- when clearly they are not. And it also a pending matter is complex and the tions concerning the filing of briefs assumes that the law and the governing parties are having difficulties, such a and other administrative matters. The rules of the various arbitration provid- request may be appropriate. Indeed, arbitrator’s decisions in this area are ers are designed to discourage motion in many situations the goals of arbi- final and are for the most part beyond practice when without a doubt this is tration may be undermined or even review by a court. not the case. This said, the practitioner defeated if the arbitrator isn’t brought The rules of all the major facilita- should keep in mind that most arbitra- in to assist. However, what many fail tors, the AAA, International Institute tors discourage motion practice for a to understand is that, by design, arbi- for Conflict Prevention and Resolution host of important reasons. Improperly trators aren’t judges or referees. Their (CPR), JAMS and National Arbitration used, motion practice can frustrate authority is very limited when it comes Forum (NAF) give the arbitrator broad the process, create unwarranted delay to non-cooperation. The challenge for discretion and authority to issue orders and impose unnecessary expense. the arbitrator is to balance the obliga- and directives concerning such appli- Indeed, with these concerns in mind, tion to assist with the temptation to cations. The arbitrator has the author- the American Arbitration Association take on the role of referee. ity to control the extent and timing (AAA) offers its arbitrators a course of the discovery process. The rules of of instruction entitled “Dealing with Types of Motions JAMS are the broadest, with Rule 17 Delay Tactics in Arbitration,” designed Motion practice tracks the phases of the giving indepth details about the man- to sensitize the neutral about the pos- arbitration process and can be divided ner and scope of discovery as of right sibilities for the misuse of motion prac- as follows: pre-conference motions, under the rules as well as the scope of tice. pre-hearing motions and post-hearing the authority the arbitrator has. Rule The time line for most arbitration motions. Motions made during any of 21 of the Commercial Rules of the proceedings is pretty short-lived. these phases involve either housekeep- AAA doesn’t speak to broad discovery, Usually it’s only weeks from the com- ing matters or substantive issues. but instead mentions only the produc- mencement of a proceeding to the Pre-conference motions are rare tion of documents and other informa- exchange of pleadings and the pre- because of the short time line between tion. However, the rules governing hearing conference (sometimes called the commencement of the proceed- large and complex commercial matters a preliminary hearing). Discovery is ings and the pre-hearing conference. (Rule L-3(c)–(f)) do speak to discovery more times than not very limited and it Arbitrators use the pre-hearing confer- beyond that provided for in the stan- isn’t unusual for an arbitrator to insist ence to determine what the discov- dard commercial rules. on beginning the hearings within a few ery needs of the parties will be and Motions made in the time span months at the most. In theory, the pre- to confirm the ground rules for the between the pre-hearing conference hearing phase should be so condensed hearing itself. The most common pre- and the hearing itself are most often and efficient that there shouldn’t be conference motion is one for interim about non-compliance. Most common

50 | September 2007 | NYSBA Journal are demands for enforcement of com- ity. If the proceeding is governed by rule on applications to correct errors, mitments and obligations involving the FAA, there is no prohibition against with the proviso that the resulting discovery. In addition, it is common- an arbitrator awarding attorney fees modification doesn’t affect the mer- place for motions to be made seeking and/or punitive damages. Such is not its of the decision upon the issues amendment of pleadings, issuance of the case if the CPLR governs, unless submitted. This authority isn’t found subpoenas and postponements of the the parties agree otherwise. Here there in the FAA. The rules of the various actual hearing. is authority for the arbitrator to appor- facilitators generally allow for post- While motions involving substan- tion fees and expenses subject only to award applications to an arbitrator tive issues – usually seeking dismissal the terms of the arbitration agreement for the reasons specified in the CPLR. as a matter of law or summary judg- and judicial review pursuant to CPLR However, the CPR Rule 14.5 allows a ment – can be made at any time, such 7513.1 Moreover, arbitrators have the motion addressed to an arbitrator for motions are most often made during authority to make negative inferences clarification of the provisions of an the first two phases. These motions are from the failure of a party to comply award. Rules 42 and 43 of NAF pro- rarely granted and are usually held in with an order or commitment to pro- vide the broadest authority to apply to abeyance pending the completion of duce documents or other evidence,2 an arbitrator. Rule 42 allows the arbi- the hearing. Most arbitrators fear that without running the risk of exceeding trator to correct clerical and adminis- an award based on such a motion will his or her powers.3 trative errors and Rule 43 goes so far be challenged on grounds that the los- The rules of the AAA are silent as as to permit the arbitrator to re-open ing party wasn’t given a fair opportu- to the authority of an arbitrator to the hearing and reconsider an award, nity to prove a case. impose sanctions for non-cooperation. most notably on the grounds that an Post-hearing motions are technical CPR Rule 15 authorizes the arbitra- issue submitted was not decided and in nature as they usually are directed tor to impose a “remedy it deems provided for in the award. at the terms of the final award and just including an award on default.” therefore limited in content to mat- JAMS Rule 29 permits the arbitrator Conclusion ters provided for by either the appli- to impose an “appropriate” sanction. There is a place in an arbitration pro- cable arbitration law or the rules of the NAF Rule 31(c) gives the arbitrator ceeding for motion practice. But the forum directing the proceedings. the power to exclude witnesses, tes- scope of the practice is very limited. timony or documents if a party fails Arbitration is a function of an agree- From the Perspective to exchange information as required ment by the parties to take any dis- of the Arbitrator by Rule 31(a) and (b). However, these pute out of the court system and, in Discovery motions can serve to under- rules notwithstanding, the practitioner the process, to strip from any dispute score the tensions between the needs needs to be mindful that they are sub- strategic manipulations designed to of the parties and the powers of the ordinate to applicable statutes and are delay and frustrate. Arbitrators are not arbitrator. These motions typically always reviewable by courts. judges. An arbitrator’s role is to facili- involve complaints about non-compli- Dispositive motions present a unique tate the parties in accordance with the ance. While the authority of the arbi- challenge for the arbitrator. Many arbi- terms of their contractual obligations. trator to order discovery and to place trators refuse to consider, much less Arbitrators are not referees. Motions, limitations on the scope of discovery rule on, these motions because of the when made, should be structured to is broad, the ability of the arbitrator to possibility that a resulting award will insure that the arbitrator isn’t called enforce his or her orders and directives be vacated on the grounds that the arbi- upon to do something that is beyond is quite limited. The arbitrator’s great- trator refused “to hear evidence perti- his or her scope of authority. ■ est power is the authority to exclude nent and material to the controversy.”4 or preclude. Once made, such an order The rules of the AAA, CPR and NAF 1. See Schwab, Katz & Dwyer v. Yukevich, 167 Misc. 2d 1004, 641 N.Y.S.2d 505 (Sup. Ct., N.Y. Co. 1996). self-executes, requiring nothing further are silent as to the authority of an arbi- 2. Schwartz v. N.Y. City Dep’t of Educ., 22 A.D.3d from the arbitrator. trator to entertain dispositive motions; 672, 802 N.Y.S.2d 726 (2d Dep’t 2005); Better Health But what about the power to punish only JAMS has a rule that specifically Med. PLLC v. Empire/Allcity Ins. Co., 11 Misc. 3d for non-compliance? Unless the parties addresses the issue.5 Moreover, if the 1075(A), 816 N.Y.S.2d 693 (Civ. Ct., N.Y. Co. 2006). agree otherwise, governing statutes contract and/or arbitration clause fail 3. CPLR 7511(b)(1)(iii). deny arbitrators any authority to pun- to require interpretation by applica- 4. 9 U.S.C. § 10(a)(3); or failed “to follow the pro- cedure of” CPLR art. 75 (CPLR 7511(b)(1)(iv)). ish. Neither the Federal Arbitration tion of law, under the rules at least of 5. See Rule 18, “Summary Disposition of a Claim Act (FAA) nor CPLR Article 75 grant the AAA, there is no obligation for the or Issue.” authority to an arbitrator to impose a arbitrator to do so. fine or penalty or to hold a party in Finally, post-award motions are lim- contempt. However, the arbitrator is ited in scope. CPLR 7509 and 7511 give not totally without disciplinary author- the arbitrator authority to consider and

NYSBA Journal | September 2007 | 51 ATTORNEY PROFESSIONALISM FORUM

To the Forum: able and unconscionable compensation, with the client. A single document I am a real property lawyer who has in violation of the Code of Professional can serve as both the letter of engage- never handled a negligence case. Responsibility. 22 N.Y.C.R.R. §§ 603.7(e) ment and the statement confirming the A close friend of mine, Buddy, was (1st Dep’t), 691.20(e) (2d Dep’t), 806.13 contingent fee arrangement. Although recently injured in a slip and fall while (3d Dep’t), and 1022.31(b) (4th Dep’t). there are some exceptions to the § he was shopping in a local retail store. Therefore, your 50% fee would be 1215 engagement letter requirement The store owner’s insurance compa- unreasonable and unconscionable provided for in § 1215.2 (for example, ny has offered a nominal amount to under the applicable Appellate Division where the fee to be charged is expected Buddy for his injuries. rules, assuming the sum recovered will to be less than $3,000), it is still the bet- I have agreed to represent Buddy be above $1,000. ter practice to prepare the letter. on his claim against the store owner. Effective August 16, 2006, N.Y. In addition, the rules of the First Buddy has limited funds. He and I Judiciary Law § 488(2) was amended and the Second Departments require have agreed that I would take care of to allow a lawyer to pay, on the law- that in any action for personal injuries, all the expenses connected to the repre- yer’s own account, court costs and the lawyer sign and file a retainer sentation, and that we would split the expenses of litigation. In such circum- statement with the Office of Court recovery equally. Since our friendship stances, the total paid to the lawyer Administration (OCA) within 30 days goes back many years, I have not put from the proceeds of the legal action of entering into the retainer agree- our agreement in writing. may include a separate amount equal ment with the client. 22 N.Y.C.R.R. §§ Is there anything I have over- to such costs and expenses. Such costs 603.7 (1st Dep’t); 691.20 (2d Dep’t). At looked? and expenses need not be repaid by the present, there is no such filing require- Sincerely, client if the matter proves unsuccess- ment under the Third or the Fourth Buddy’s Friend ful. 2006 N.Y. Laws Ch. 635, Legislative Department rules. Memorandum A11763A. In sum, you need to modify your Dear Buddy’s Friend: Consistent with the changes to the contingency fee arrangement to con- Your friendship with Buddy must not Judiciary Law, DR 5-103(B)(2) now form to the Appellate Division’s limi- blind you to your ethical and legal provides that a lawyer may advance tations, and must enter into a written obligations as a lawyer. You are now court costs and expenses of litigation, retainer agreement/letter of engage- handling a plaintiff’s personal inju- the repayment of which may be con- ry action on a contingency fee basis, tingent on the outcome of the matter. and must abide by the rules. There DR 5-103(B)(3) states that in an action The Attorney Professionalism Committee are limitations on your legal fee, and in which an attorney’s fee is payable invites our readers to send in comments you should confirm any fee agreement in whole or in part as a percentage of or alternate views to the responses with Buddy, in writing. the recovery in the action, a lawyer printed below, as well as additional Appellate Division rules limit con- may pay, on the lawyer’s own account, hypothetical fact patterns or scenarios to tingent fees in personal injury cases. court costs and expenses of litigation. be considered for future columns. Send An attorney representing a plaintiff in In such cases, the total paid to the your comments or questions to: NYSBA, such an action may charge fees on a lawyer from the proceeds of the action One Elk Street, Albany, NY 12207, Attn: sliding scale, or elect to take one-third may include an amount equal to the Attorney Professionalism Forum, or by of the sum recovered. The sliding scale costs and expenses incurred. Therefore, e-mail to [email protected]. is as follows: 50% of the first $1,000 your agreement to pay the expenses of This column is made possible through of the sum recovered; 40% of the next Buddy’s action is now permitted under the efforts of the NYSBA’s Committee on $2,000 of the sum recovered; 35% of Judiciary Law § 488(2) and the Code of Attorney Professionalism. Fact patterns, the next $22,000 of the sum recovered; Professional Responsibility. names, characters and locations presented and 25% of any amount recovered over Whether your contingent fee is to in this column are fictitious, and any resem- $25,000. be based on the sliding scale or on a blance to actual events or to actual persons, The “sum recovered” for purposes simple one-third of the net recovery, living or dead, is entirely coincidental. These of either type of fee arrangement is your agreement with Buddy needs to columns are intended to stimulate thought calculated by adding costs as taxed, be in writing. DR 2-106(D) requires and discussion on the subject of attorney with interest on any judgment, and then that promptly after a lawyer has been professionalism. The views expressed are subtracting expenses, such as disburse- employed in a contingent fee matter, those of the authors, and not those of the ments for expert testimony and inves- the lawyer shall provide the client Attorney Professionalism Committee or tigative or other services that would with a writing stating the method by the NYSBA. They are not official opinions properly be charged to the prosecution which the fee is to be determined. on ethical or professional matters, nor of the claim. Fees in excess of the sched- Furthermore, 22 N.Y.C.R.R. § 1215.1 should they be cited as such. uled percentages constitute unreason- requires a written letter of engagement

52 | September 2007 | NYSBA Journal Seeking Reader Response

In a first for the Attorney Professionalism Forum, the ment with Buddy. If the legal action Committee on Attorney Professionalism would like to will be brought in the First or the solicit readers’ views about the increase in the salaries for Second Department, you also need to first-year associates at large Manhattan law firms, currently file a retainer statement with OCA. The Forum, by $160,000, and higher. David M. Hayes What does this increase mean for the legal profession in Bond, Schoeneck & King, PLLC Syracuse New York? What sense, if any, does such an increase make for the law firms initiating such increase? What sense, if QUESTION FOR THE any, does such an increase make for the law firms matching NEXT ATTORNEY such increase? What effect does this have on the lives of PROFESSIONALISM FORUM: lawyers – partners as well as associates – working at those I am the managing partner of a firms? What effect does this have on the clients of such fairly large firm in New York City. As if firms and what, if any, responses are such clients likely to meeting associates’ sharply rising sala- make? What effect does this have on the other lawyers in ry expectations is not enough, we have New York State, who do not work at such large law firms? a challenging new issue facing us. What cumulative effect does this have on the overall legal Increasingly, we are being pres- sured by important and longstand- culture in New York? And, if you view this with concern and ing clients to meet certain “diversity worry, and believe the overall effects of such an increase targets” as a condition for continuing are negative, what antidotes would you suggest? to represent them. Clients are demand- ing that the racial, gender and ethnic Send your comments by September 30, 2007, to: composition of our firm’s associates NYSBA, One Elk Street, Albany, NY 12207, Attn: Attorney and partners more closely mirror the Professionalism Forum, or by e-mail to journal@nysba. profession’s diversity. Others require that our engagement teams on their org. Please put “Attorney Professionalism Forum” in matters reflect diversity in a meaning- the subject line. Comments and views will be included ful way, with minority and women in the Attorney Professionalism Forum published in the lawyers having important roles to play November/December 2007 issue of the Journal. at all levels. We are required to fill out detailed questionnaires and disclose information that, frankly, is of a pro- prietary nature: where we recruit, how many white and minority candidates we interview and hire, etc. At the same time, we are facing cli- WishWish youyou couldcould taketake aa recess?recess? If you are doubting your decision ent pressures from another direction. to join the legal profession, the At least one government official has New York State Bar Association’s Lawyer Assistance Program can suggested that clients exert their eco- help. We understand the compe- tition, constant stress, and high nomic influence by pulling back their expectations you face as a lawyer. work from law firms doing pro bono Dealing with these demands and other issues can be overwhelm- work for the Guantanamo detainees. ing, which can lead to substance abuse and depression. NYSBA’s These actual and suggested Lawyer Assistance Program offers demands by our clients – to whom we free and confidential support because sometimes the most dif- owe a duty of loyalty and whose busi- ficult trials happen outside the ness we both want and need – about court. All LAP services are confidential who we are and what we do apart and protected under Section 499 from our representation of them, raise of the Judiciary Law. troubling issues that challenge our independence as professionals. What NEW YORK STATE BAR ASSOCIATION Lawyer Assistance Program advice do you have for us? 1.800.255.0569 [email protected] Sincerely, A Besieged Firm Leader

NYSBA Journal | September 2007 | 53 LANGUAGE TIPS BY GERTRUDE BLOCK uestion: This may seem like The two-letter word up can change lawyers can be either men or women, a trivial question, but why the meaning of the word it accompa- both should be entitled to use the Qdo people add up to verbs nies; for example, in “work up an appe- honorific. like hurry when up is not needed for tite,” we really don’t have to “work.” The question then became whether clarity and just plain hurry means the To “think up excuses,” we do have to lawyers should use the title Esquire same thing? Shouldn’t we be avoiding think, but not in the usual sense. “To (Esq.) to refer to themselves or whether wordiness? dress” means something quite differ- it should only be used by others when Answer: That’s a good question ent from “to dress up,” and while “to addressing or referring to lawyers. And because it calls attention not only to the give” is positive, “to give up” is nega- that’s where the disagreement occurs. redundance of words like up and to, tive. In the statement, “A contract is Many lawyers argue vigorously that but points out the myriad meanings of up for renewal,” up can mean “due” or lawyers should never refer to them- small words, particularly up, which not “under consideration.” selves as “Esq.” For example, one law- only possesses a meaning of its own, There are many more contexts in yer wrote that the term “exacerbated the but also often changes the meaning of which up is used, and if your native impression that lawyers are a postur- the word it modifies. language is English you probably ing, self-serving group.” Another wrote The adverb up was spelled uppe know them all. But pity the poor for- that when two applicants for a position and meant “on high” in Old English; eigner who is trying to learn all of the with his law firm added “Esq.” to their it came into Middle English with its idioms that contain up. signatures, they thereby disqualified modern spelling and literal meaning of Question: I once worked with a themselves from consideration. “upward” or “to a more upright posi- female partner who preferred not to Should lawyers include “Esq.” tion.” It still has that literary meaning in have “Esq.” attached to her name. on the letterhead of their stationery? “He looked up,” or “She sat up.” But it Her reason was that it was a “male- Although some correspondents con- has also developed numerous figurative oriented” designation. I now see that sidered that practice as acceptable as meanings in modern English. It means many women do add “Esq.” Is that the initials “J.D.,” most disapproved. “dependent on” in the statement, “It’s considered appropriate? Almost all opposed adding “Esq.” to up to us.” In “He’s up to no good,” up Answer: When it was previously their signatures at the end of the let- means “scheming or planning.” Added asked, that question generated more ters. One correspondent wrote that to stir, it means “cause” in the context, mail than any other, and no consensus she had “nothing but contempt for “Stir up trouble,” but “thoroughly” in was reached. Perhaps the subject is less this offensive practice.” Another wrote the context “stir up the sauce.” controversial now. that the attempt to “legitimize aggran- In phrases like hurry up, hurry by itself As far as the honorific itself is con- dizement” by calling herself “Esq.” would be enough. That is true also for call cerned, women have as much right as was “absolute nonsense.” Still another up (our friends), open up (the door), polish men to use it. Etymologically, Esquire or wrote: “Anyone who calls himself a up (the silver), lock up (the house), warm Esq. had nothing to do with lawyers of gentleman probably isn’t.” up (the leftovers), clean up (the kitchen), either sex. It derived from the Latin word But a few lawyers considered it and fix up (the old bicycle). In each of scutarius (“shield bearer”), and when it appropriate to add the title after their these contexts you could omit the word entered Middle English it referred to a signatures. One lawyer wrote that his up without impairing clarity or meaning. squire, usually an English “gentleman,” law school had awarded him an L.L.B., But in each phrase, it does have purpose: who aspired to knighthood and who so he substitutes “Esq.” instead of those it can be argued that up adds urgency to could achieve that rank by apprenticing initials (which, he said, nobody recogniz- the verb that precedes it. himself to a knight. Somewhat later, it es). Another wrote that it is as correct to Words that enhance the word they became a title of respect that the English add “Esq.” as to add “Ph.D.” or “M.D.” accompany are called intensifiers. So used to refer to a commoner who had Though correspondents disapproved hurry up seems more urgent than hurry. attained the rank of gentleman. of lawyers’ referring to themselves as And although “Fill the gas tank” is But when it crossed the ocean, the “Esq.,” almost all agreed that the hon- enough, “Fill up the gas tank” indicates title encountered an American culture orific “Esq.” should be added to refer to that the tank is to be filled to the brim. that disdained social rank, so the title lawyers regardless of their sex. ■ In “tear it up,” up means “completely.” came to indicate occupation, not social The word up tells you to do two dif- GERTRUDE BLOCK is lecturer emerita at the ferent things to a door, both indicat- status. By the 19th century, in this country, the title indicated that the University of Florida College of Law. She is the ing completion in the sentence, “We author of Effective Legal Writing (Foundation individual was a justice of the peace or open up the store in the morning, and Press) and co-author of Judicial Opinion an associate judge. Then the honorific close it up at night.” And when we tell Writing (American Bar Association). Her most our child to “drink up” her milk, she expanded to include lawyers. It carried recent book is Legal Writing Advice: Questions understands that you mean she should a masculine connotation only because and Answers (W. S. Hein & Co., 2004). empty the cup. no women were lawyers. Now that

54 | September 2007 | NYSBA Journal The latest NYSBA Monograph Series © 2006

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FIRST DISTRICT Lynn Elliot Joana M. Lucashuk Apin Jonathan Silber Israel D. Elbogen Ricardo Abraham Haley Jo Eppler Jamie R. Lynn Tara Singh Elodie Gal Erin Hillary Abrams Jeffery Fang Timothy E. Magee Peter Brian Siroka Naomi C. Gardner Adam Ross Adler Michael Philip Favretto Mojdeh Malekan Janaki Sivanesan Akiva M. Goldfarb Zvi E. Adler Moira Fitzgerald Deborah M. Marshall Catherine Ann Skulan Shawn Clark Graham Paola Agrati David I. Flamholz John Charles Matthews Andrew Sloss Mariya Gurevich Guillermo Aguilar- Benjamin Folkinshteyn Isaac Messulan Lauren Nicole Slusser Excylyn Hardin-Smith Alvarez Ricky Yukho Fong Christina Farida Migally Jessica Lynn Slutsky Osarhiemen Iyinbo Luz Camelia Alava Robert Foote Philip A. Mirrer-Singer Deven A. Smith Mark H. Jaffe Justin Anthony Alfano Brian P. Fredericks Jennifer A. Morgan Krista Ann Smokowski Rachel Deborah Jaffe Melissa Andrews Amanda Leigh Gabai Lucy Emmalyn Muzzy Peter Andrew Solimine David Jonathan Jensen Michele Lauren Angell Melissa Joy Gambol Tibor Nagy Mark Srulowitz Michael Kauffman Krista L. Ashbery Vance Gathing Peter Gregory Naismith Megan A. Stombock Julien David Laor Jorge Avitia Jared Gianatasio Dorollo Nixon Whitney Erin Street Jillian M.C. Modzeleski Marion Bachrach Amanda Burrell Gilman Johanna Eileen O’Rourke Rachel Fan Stern Strom Deana Nassar Julene Elizabeth Beckford Anouck Cicely Giovanola Minna Oh Nicole Marie Stryker Ivan Pantoja Yelena Bekker Peter Matthew Grabiel Orieroghene Okumakpeyi Danielle Claire Sullivan Theresa Anne Robitaille Jefferson Eliot Bell Alexander Lloyd Tristan Ostrowski Melissa Beth Sussman Danielle Mary Rodriguez Brianne Biggiani Greenberg Daniel Paretsky Thomas Karl Sylvester Natan T. Shmueli Catherine Elizabeth Tangela Nicole Griffin Khari Nkrumah Parson Tyler Winscomb Thorn Kenneth F. Smith Bissell Sonal Gupta Krista Lynne Patterson John C. Timmermann Caryn Stucchio Eric Alwin Boden Hae Won Han William Barton Patterson Gino Tonetti Latrice Monique Walker Ross I. Bogatch Robert B. Hander Joseph John Perkovich Gino Gabriel Tonetti- THIRD DISTRICT Candida Bologna William Thomas Elizabeth Ann Perlak Tieppo Anat A. Alon-Beck Robert Cameron Bonelli Hennessy Efstratios Philippis Christine Tramontano Joseph Battaglia Pamela Bookman Susan Amelia Hensler Brett M. Pinkus Michael Joseph Troha Sherri J. Brooks Scott Bowman Joshua Mac Herman Samantha Lauren Plitnick Sarah Kao-yen Tsou Benjamin T. Decker Beatrice Clay Branch Gregory S. Hoffnagle Ralia E. Polechronis Debra S. Turetsky Richard Michael Victoria Braun Curtis Walton Hogan Rebecca Porath Shweta R. Udeshi Goldman Benjamin Henry Brodsky Cecilie Howard Christina Lee Porter Scott Michael Univer Onchan Inkhamfong Kyle David Bryant Kelvin Hsu David D. Postolski Shilpi Vinod Upadhyaya Sharif Kabir Celine Aude Burgaud Jenny Ann Hughes Evelyn Rose Marie Christopher John Updike Jasper L. Mills Scott Ethan Burk Joshua David Hurwit Protano Armando Valdes Joseph J. O’Hara Brian Byun Benita Del Hussain Nicolas Thomas Olivier Timothy Filmore Carlotta Palmer Katherine L. Caldwell Ugochukwu Puygrenier Van Voris Ariel Elaine Solomon Jonathan David Canfield Arinzechukwu Ike Howard Raber Julie Ann Velasquez Gerasimos Stamoulis Lauren Pamela Caruso Shigeyuki Ito Erin B. Ratner Victoria Vinarsky Melissa Beth Wartel Luisa H. Cetina Aparajitha Janardhanan Maximiliaan Endymion Denise Wahba Hsiu-Yuan M. Yang Kay Z.J. Ch’ien Brian Michael Janson Rijkenberg Dennis Michael Wallace Christina Zola Elisa Eunha Chae Juan Luis Jaramillo Roland Gustaf Riopelle Andrea Wang Jay W. Cho Audrey Anne Jeung Jonathan Robbin Sanjay Vilas Wavde FOURTH DISTRICT John O’Meara Christie Glenn M. Johnston Evelyn Roberts Angela Ann Weir Wendy DeForge Michelle Chui Ariel Joseph Mark W. Robertson Robert Bendner Weiss Matthew J. Werblin Mark T. Ciani Srikanth Katragadda Kenneth Rosenfeld Miriam Young Werner FIFTH DISTRICT Nicole Sara Rose Clayton Joanna Milkova Olga Rozdolska Patricia Ann Wheeler Dmitrii Andreev Stephen Jadie Coates Kazakova Neill Russell Susan C. White Nestor Berge Elizabeth S. Cohen Patrick S. Kennedy Eric Rutkow Wendy Marche Williams Gigi Elizabeth Meyers Lee Anne Colamarino Amy Beth Kletnick Mary Lynn Santanello Wenwen Xia Michael Ranieri Donald David Conklin Jennifer L. Kostyu Jessica Sloane Saunders Sean Young Amy Marie Smith Carolyn Cope Valeria Kozhich Barry Schachter Tracy Ann Zanco Georgina Ann Costello Leah E. Laben David Albert Schnurman Michael Zargari SIXTH DISTRICT Mandy Deroche Anne Lai Brian Walter Schreyer Brenda Lynn Zelin William J. Greener Michael DeRose Rachel Alden Lavery Joseph Arthur Schwartz SECOND DISTRICT SEVENTH DISTRICT Daniel Christian Joseph John Lavin Jessica Waggoner Segall Michael B. Abel Leslie A. Affronti Doeschner Karine Law Grissel Seijo Travis J. Arrindell Paul Guerrieri Anthony Alexander Donn Crystal Lee Joseph Sensenbrenner Anthony Louis Burns Rachel Munsaf Deborah Swindells Grace Lee Heather Lynne Shaffer Josephine Castro Julie Wescott Donovan John King Lee Kaveh Shahrooz Margie Ponciano EIGHTH DISTRICT Michelle Echeverria Andrew Levine Joseph Aaron Sherinsky Colinayo Leslie P. Cohan Tor Bernhard Ekeland Matthew Levitan Katherine Jane Sherinsky Cynthia Helen V. Christopher Eaggleston Marwa Elborai Alyssa Litman Jonathan Leighton Shih Conti-Cook Ja Harr Pennington Avi Yakir Eldor Dan Litvin Victoria Shusterman

56 | September 2007 | NYSBA Journal NINTH DISTRICT Geoffrey Christopher Elif Eroglu Jay Liotta Richard Rubin Leslie Baum Martin Grace Afolake Ewegbeje Sam Lipstein Soraya Rudofsky Katherine Dandy Kyung-sun Na Cristian A. Smart Benjamin Stephen Litman Kathy Rudzik Christina Maria Feo Gregory Scott Newman Eyzaguirre Zhen Liu Kelly Kilduff Ruggiero Kevin Peter Fitzpatrick Emily Sharpe Justin Fappiano Juan Pablo Llambias Jason Rutz Juan C. Gonzalez Susan Soojin Shin Julie Filimonov Hsui-Pei Lo Tomoyuki Saito Evelyn L. Guevara Robert J. Strohl Alison FitzGerald Ann Hyatt Logan Michael C. Salerno Heather Marie Noreen C. Will Virginia C. Foreman Ying Lu Malini Sangha Haralambides Jane J. Yoon Florence Fricaudet Gina Marisa Lupino Ivette Santos Floripe B. Garcia Dan Malasky Kumi Sato Mary Veronica Hunt TWELFTH DISTRICT Aram Gavoor Steven Jay Mandelbaum Jean Scally Michael Alan Jakowsky Bahar Ansari Richard Arthur Gelski Enrica Manduco Patricia Ann Scearce Seth Daniel Lasko Adrian Carlos Anthony Daniel Thomas Gluck James R.F. Marlow Christina Marie Schmid Bruce Raymond Lozito Rekha Trivikram Stacey Michelle Rancourt Marla Goodman Mark Marsella J. Jordan Scott Henry Rouda OUT OF STATE Suganda Gopal Daniel McLoughlin Kyoung Seok Seo Megan Kristine Smith William D. Alexander Szymon Gostynski Declan McUeever Sarah Skelcher Peter Altenbach Thomas Marshall Chi Metu Stanley Smotritsky TENTH DISTRICT Jing An Greenwood Justin A. Meyers Benjamin B. Speciale Deborah Ariel Chika Araki Samantha Groffman Peter Mitchell Nina J. Spiegel Kotick Michele N. Beier Carol Ann Helen Armenti Tia Gubler Nicole Mondschein Daniel Spurlock Russell B. Blaymore Marcela Maria Arrocha- Jiwon Ha Rochelle Musgrove Ashima Srivastava Jason Ray Breit Peralta Jason Hadid Jeffrey Nass Tamas Sziraczki Jonathan Mark Cader Jose E. Arvelo Todd A. Hamblet Laura Notley Chun Hua Tan Jessica Cepriano Elizabeth P. Askey Alex Hassid Eamonn Martin Shiva Eliza Tayebi Dina Marie Colon Benilda Bacorro Joshua N. Hergan O’Hanrahan Victoria Taylor Karman Shinho Bae Megan HeuSerges Yasuhide Ono Nycole Alicia Thompson Jennifer Rachelle Cook Jesse Baer-Kahn Kelly Hilgers Masahiro Otsuki Joseph Luther Tucker Erin Leigh Deacy Peter Baker Futapa Hirano Sabrina Oumellal Anna Tymofyeyeva Tara Ann DiGregorio Joseph F. Barletta Eric George Houston Fumiyuki Oya Luke Martin Pio Tynan Theresa Ehle Ciatta Z. Baysah Brian S. Hsu Anna Agnieszko Kohsei Ugumori Dorothy Eisenberg Jill Berry Adam Hubertz Pankiwicz Meena G. Untawale James Raymond Finn Michael R. Bielski Jane E. Hunt Sang Park Christina J. Valentine Patrick James Garvey Heather C. Bishop Motohiro Ikehara Joseph Michael Patricola Polibio M. Valenzuela Jeremy Steven Glicksman Corwin Albert Bliss Harukuni Ito Susanne Y. Peticolas Danae Larissa Van Der Elefteria Maria Gomes Sorel Bosan Karim Kahatt Mark Piech Straten Ponthoz Aimee Lynn Kaplan Sean M. Brett Zachary S. Kahn Ignacio Pinto-Leon Maria V. Vilela Charles Watt Kaser Allison M. Britt Melanie Karkos Katja Plaustajner Edwin Pandes Villarico Elinor J. Kim Sarah Bromberg Saeko Kawashima Bonnie Puckett Chumpicha Vivitasevi Rebecca Lynn Klide Alexandra Buechner Adebayo Keleko Justine R. Quinn Wichard S. Von Hoff David J. Kozlowski Ping Cai Nihan Keser Christopher Radcliffe Matthew Walsh Jeffrey Lubin Dominick C. Capozzola Dongjun Kim Ensanur Rahman Yin-Chin Wang Brian W. Masie Lindsey Ann Carr Hyungsig Kim Karabeth Ann Randolph Yujia Wang Cara Marie Molloy Yu-Ling Chang John O’Hyun Kim Lenka Richards Kingsley C. Wara Lauren Mickay Nickerson Bih-Lih Chen Eiji Kobayashi Robert Riether David A. Weintraub Monika Raince Wen Chen Shuta Kobayashi Julie Catherine Rinne Amy E. White Bryon J. Rose Stuart L. Chinn Shiho Koizumi Krista N. Robertson Jennifer Wu Hyejung Shin Elizabeth Christian Anika Kotecha Anna M. Robinson Yuping Xiong Jamila Shukry Welson Chu Megan Kriegstein Priscilla A. Rodriguez Seung Jong Yang Matthew Lee Spindler Kent William Collier Christie Krol Suzette Toneke Rodriguez Chenbo Zhang Lauren Brooke Sutton Rachel Cook Scott M. Krompinger Geoffrey E. Rosenblat Xiaomeng Zhang Lesley Anne Tse Annamaria Csenterics Martin Arthur Kuppers Richard Earl Rowe ELEVENTH DISTRICT Carys Damon Masashi Kusaka Jane Clare Abrahim Maxime Damphousse Julie B. Kushner Margot Danya Albert Jerima Dampier Gabriela Lanza Roman Mikhail Elizabeth F. Defeis Desiree LeClercq Bernd Paul Delahaye In Memoriam Avshalumov Tae Hwi Lee Josephine Swigert Benton Nicholas John Diceglie Joan Lelma Marybeth Campfield Leslie Ann Dougiello Aikaterini Leris Joseph M. Costello Peter A. Silverstein Soledad V. Diaz Nuala Doyle Dru Levasseur Plandome, NY Great Neck, NY Ilona Dzhamgarova Sunday Obinali Duru Arthur Levi Kenneth T. Gibbons Franchesca Fernandez Monika J. Ellacott Joshua S. Levy Scotia, NY Heather Martin Madey Jody Chaya Erdfarb Andrew Lillis

NYSBA Journal | September 2007 | 57 THE LEGAL WRITER CONTINUED FROM PAGE 64 “call girl,” “escort,” “working girl,” “truly,” “undeniably,” “undoubtedly,” and “sex workers” are all euphemisms “utterly,” “various,” and “virtually.” and Euphemisms. Jargon is terminol- for “prostitute.” Replacing one euphe- The exception is if you’re confessing ogy that relates to a specific profession mism for another won’t eliminate neg- an error: “I’m clearly wrong” is clearly or group. Don’t use words or phrases ativity or discomfort. Replacing one O.K. only you or another lawyer might euphemism for another perpetuates 21. Hate Cowardly Qualifiers. know. Examples: “In the instant case” negativity and discomfort. Leave no room to equivocate. Be brave or “in the case at bar” becomes “here” or If you’re quoting from a witness’s and decisive. It’s better to be wrong “in this case.” Or, better, discuss your testimony and the slang, colloquialism, than cowardly. Eliminate doubtful, case without resorting to “here” or “in or euphemism is material to your case, hedged, timid, and weaselly equivoca- this case.” then quote it. tions, phrases, and words: “apparent- Eliminate slang from formal legal 19. Hate Typos. Typos tell readers ly,” “at least as far as I’m concerned,” writing. Slang is made up of informal you don’t care. No one will take your “basically,” “conceivably,” “evidently,” words or expressions not standard in writing seriously if you make obvious “if practicable,” “practically,” “per- the speaker’s dialect or language and errors in grammar, punctuation, spell- haps,” “probably,” “purportedly,” “in which are used for humorous effect. ing, or syntax. Typos distract readers effect,” “it may well be,” “it might be Use “absent minded” instead of “out from the substance of your writing said,” “it is respectfully suggested,” to lunch,” “drag” or “take” instead and make you appear unprofessional. “it seems,” “more or less,” “nearly,” of “schlep,” “jewelry” or “money” No typo is subtle. Readers give typos “rather,” “seemingly,” “somewhat,” instead of “bling,” “marijuana” instead greater weight than they deserve. “sort of,” “virtually,” and “would con- of “weed,” “police” instead of “Five- Readers who see small typos assume tend.” Don’t cowardly combine let- O,” “stolen goods” instead of “loot” that the writer didn’t get the big things ters and numbers. Incorrect: “two (2).” or “stash,” and “respect” instead of right. The solution is to proofread. Use Legal writing isn’t a check that can “props.” someone you trust to proofread. Use be forged. Also, eliminate cowardly Don’t use colloquialisms. your word-processing program’s spell expressions. Not only are “at or near,” Colloquialisms are expressions that and grammar checkers. Edit on a hard “on or about,” and “on or before” aren’t used in formal speech or writing. copy. Read your hard copy backward. equivocal, these expressions, which Examples: “gonna” and “ain’t nothin.” Read it out loud if the document is signal approximations, may not pre- cede exact places or times. Use “at or near,” “on or about,” or “on or before” only when you’re writing a complaint Readers who see small typos and you don’t know exact places or assume that the writer didn’t get the big times. Use “generally,” “typically,” and “usually” if you need to discuss an things right. exception to a rule, rather than the rule. Example: “Generally, a municipal- ity is not liable for its failure to provide Do away with trendy phrases. They’re important. Go from big edits to small police protection. An exception arises here today, gone tomorrow. Examples: ones: Verify that your arguments make when a municipality and an injured “bottom line,” “cutting edge,” “inter- sense, that each sentence segues into party have a special relationship. A face,” “maxxed out,” “need-to-know the next, that your style is consistent, special relationship arose here.” basis,” and “user-friendly.” Eliminate and that each sentence is grammatical- 22. Hate Foreign, Latin, and Archaic the trendy “-ize” suffixes: “concretize,” ly correct and free of spelling errors. (Old English) Words. Lawyers love “finalize,” “maximize,” “optimize,” 20. Hate Adverbial Excesses. romance languages: French, Italian, “prioritize,” and “strategize.” Adverbial excesses weaken and and Spanish. Don’t use foreign words. A euphemism is a word or phrase obscure. They suggest that those who They won’t help you sound more edu- that replaces a negative, offensive, or disagree with you are stupid. They cated or sophisticated. And don’t mix uncomfortable word or phrase. Some also make a good, skeptical reader foreign languages with English unless euphemisms for dying: “passed away,” question whether you’re right. Is it you’re quoting or repeating dialect. Use “passed on,” “checked out,” “kicked really obvious? Eliminate “absolute- Latin, a dead language, only when the the bucket,” “bit the dust,” “bought ly,” “actually,” “almost,” “apparent- word or expression is deeply ingrained the farm,” “cashed in their chips,” ly,” “basically,” “certainly,” “clearly,” in legal usage (“mens rea,” “supra”) and “croaked.” “Sanitation engineer” “completely,” “extremely,” “incontest- and when no concise English word and “sanitation worker” are euphe- ably,” “nearly,” “obviously,” “plainly,” or phrase can substitute. Use “agen- misms for “garbage man.” “Hooker,” “quite,” “really,” “seemingly,” “surely,” das” not “agendums”; “appendixes”

58 | September 2007 | NYSBA Journal It’s better to be not “appendices”; “curriculums” not 24. Hate Elegant Variation. Elegant “curricula”; “dogmas” not “dogmata”; variation is the technique by which wrong than “formulas” not “formulae”; “forums” a writer uses different terms to iden- not “fora”; “indexes” not “indices”; tify one idea, person, place, or thing. cowardly. “memorandums” not “memoranda” Use different words to mean different or “memorandas”; and “syllabuses” things. Don’t use synonyms to say the not “syllabi.” Replace Latin terms with same thing. It’s wrong to reach for a you moved in did the pipes burst.” The their well-known English equivalents. thesaurus in this way. Incorrect: “The fallacy is that if the tenant had never “Ab initio” becomes “from the start.” prosecutor wanted to indict the defen- moved in, the pipes would be intact. “Arguendo” becomes “assuming” or dant. That’s why the Assistant District Dicto simpliciter: Applying the general “for the sake of argument.” “Ergo” Attorney [the prosecutor] secured a rule to the exception. Example: “Judge X becomes “therefore.” “Ex contractu” grand jury true bill [indictment] never learned grammar, but she writes becomes “in contract” or “contractu- against the suspect who was arraigned well.” The fallacy is that because Judge al.” “Inter alia” becomes “among oth- [the defendant].” To be understood, be X never studied grammar, no one need ers.” “In toto” becomes “on the whole.” repetitious. study grammar. Hasty generalizations: “Ipso facto” becomes “by itself” or Repeating articles, nouns, preposi- Jumping to conclusions without ade- “necessarily.” “Pro se” becomes “self- tions, and verbs adds power and helps quate sampling. Example: “Lawyer Z represented” or “unrepresented.” comprehension. Repetition makes never edits his briefs. All lawyers from “Sui generis” becomes “one of a kind” writing powerful and clear. Repetition Lawyer Z’s firm are lazy.” The fallacy or “unique.” “Via” becomes “by” or cures inelegant variation. Examples: is that Lawyer Z, who doesn’t edit, is “because of.” Eliminate archaic words “In Selma, as elsewhere, we seek and lazy or that because Lawyer Z is lazy, like “behooves,” “betwixt,” “eschew,” pray for peace. We seek order. We all attorneys from the firm must be and “hither.” Example: “It behooves seek unity.”1 (Repetition of “seek.”) lazy. Circular reasoning: An argument you to eschew archaic words.” “But this time, the world was not that begs the question of the truth of 23. Hate Vague Referents. Readers silent. This time, we do respond. This its conclusion by assuming its truth. hate writing that’s unclear about what time, we intervene.”2 (Repetition of Example: “A good brief begins with a or to whom writers are referring. Be the words “this time.”) In lengthy lists strong opening because a strong open- careful with “it,” “that,” “this,” “such,” or for poetic value, repeat “because,” ing makes a brief good.” The fallacy is “which,” “he,” “his,” “him,” “she,” “that,” and similar words. Then make that a good brief is a good brief because “her,” “they,” and “them.” Writers use your lists parallel. Examples: “The court a strong opening is a strong opening. these referents for concision. But it’s found that the attorney lied and that his Resuming in the November/ better to be clear than concise. Use behavior is sanctionable.” “Lawyers December Journal, the Legal Writer these referents if they refer to one thing advocate because they have something will address the do’s, don’ts, and only. Otherwise, use as many words to say and because they’re paid to advo- maybes relating to grammar errors, as you need to make your writing cate.” punctuation issues, and legal-writing clear. Example: “They won’t under- 25. Hate Personal Opinion or controversies. ■ stand you as such.” Here, the writer Emotion. Don’t interject personal opin- doesn’t clarify who won’t understand ion or emotion. Eliminate “I (or we) 1. Excerpt from President Lyndon B. Johnson’s “We Shall Overcome” speech on Mar. 15, 1965, you. Also unclear is what “as such” think,” “I (or we) feel,” and “I (or we) available at http://www.americanrhetoric.com/ refers to. Example: “He told Judge John believe.” Don’t vouch for your client. speeches/lbjweshallovercome.htm (last visited Feb. Doe that he should do some research.” 26. Hate Logical Fallacies. A fal- 22, 2007). In this example, it’s unclear to whom lacy is an invalid way of reasoning. 2. Excerpt from Elie Wiesel’s “The Perils of Indifference” speech on Apr. 12, 1999, available the second “he” refers: Judge John Doe Excessive reliance on logic is prob- at http://www.americanrhetoric.com/speeches/ or the person who spoke to Judge Doe. lematic. Accepting a fallacy is worse: ewieselperilsofindifference.html (last visited Feb. Example: “Plaintiff failed to deliver the Fallacies lead to incorrect conclusions. 22, 2007). widgets after defendant failed to pay Here are some logical pitfalls.3 Post 3. For an excellent discussion of logical fallacies, see Gertrude Block, Effective Legal Writing 254–56 for them. That started the lawsuit.” hoc fallacy: Assuming that because one (5th ed. 1999). It’s unclear what started the lawsuit thing happens after something else,

— plaintiff’s failure to deliver or defen- the first caused the second. Examples: GERALD LEBOVITS is a judge of the New York City dant’s failure to pay. Or both. Clarify “Every time I brag about how well I Civil Court, Housing Part, in Manhattan and an vague referents by using different write, I submit something with lots of adjunct professor at St. John’s University School nouns; by repeating the same nouns; typos.” The fallacy is that if you don’t of Law. He thanks court attorney Alexandra by making one antecedent singular brag about your writing, you’ll submit Standish for assisting in researching this column. and another plural; or by rewriting the a typo-free document. “I never had any His e-mail address is [email protected]. sentence to sharpen the antecedent. problems with the pipes. Only after

NYSBA Journal | September 2007 | 59 CLASSIFIED NOTICES

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60 | September 2007 | NYSBA Journal PRESENTATION SKILLS FOR LAWYERS 2006–2007 Downloadable Forms Online CONTINUED FROM PAGE 49 These general practice forms, used by experienced attorneys in over again. Instead, work the phrase their daily practice, are now available for purchase online and are into the presentation at three differ- downloadable for instant use. ent times. For example, to show your Non-Member Member audience the importance of speaking Category Price Price with a lawyer before making a major Arbitration (13 forms) ...... $50.00 ...... $40.00 decision, you could emphasize a single Buying and Selling a Small Business (16 forms) ...... $80.00 ...... $60.00 phrase: Commercial Real Estate (32 forms) ...... $80.00 ...... $60.00 • Before you speak with the insur- Corporate and Partnership (86 forms) ...... $80.00 ...... $60.00 ance company, talk to a lawyer Criminal Law (7 forms) ...... $30.00 ...... $20.00 first. Debt Collection (17 forms) ...... $50.00 ...... $40.00 • Before speaking with the police, Elder Law (14 forms) ...... $60.00 ...... $50.00 talk to a lawyer first. Enforcement of Money Judgments (6 forms) ...... $30.00 ...... $20.00 • Before you sign that contract, talk Environmental Law (4 forms) ...... $30.00 ...... $20.00 to a lawyer first. Guardianship (41 forms) ...... $60.00 ...... $50.00 By the time you reach the third repeti- Limited Liability Companies (43 forms) ...... $60.00 ...... $50.00 tion of the phrase, your audience will Matrimonial Law (57 forms) ...... $80.00 ...... $60.00 not only remember the phrase, they Mechanic’s Liens (40 forms) ...... $80.00 ...... $60.00 will plug it into the statement for you. Mortgage Foreclosures (19 forms) ...... $60.00 ...... $50.00 Mortgages (15 forms) ...... $60.00 ...... $50.00 The memorable power of three also Probate and Administration of Decedents’ Estates applies to your speech organization. (47 forms) ...... $60.00 ...... $50.00 In a speech with a single point, you Real Estate Transactions— can use the Army’s method of speech Residential Property (68 forms) ...... $80.00 ...... $60.00 organization: “Tell ’em what you’re Representing the Personal Injury Plaintiff (38 forms) .....$80.00 ...... $60.00 gonna tell ’em, tell ’em, then tell ’em Social Security (27 forms) ...... $60.00 ...... $50.00 what you told ’em.” In a presentation Tax Implications of Forming a Corporation (46 forms) ...$60.00 ...... $50.00 with multiple points, organize your Will Drafting (6 forms) ...... $50.00 ...... $40.00 speech around three major points. Workers’ Compensation Law (111 forms) ...... $60.00 ...... $40.00 Four will be too many, two will be too Orders for downloadable forms are made online only at few. Limit (or expand) your presenta- http://www.nysba.org/downloadableforms. tion to those three significant points. Your audience can’t memorize your They can also be purchased in their entirety on CD (General Practice Forms). entire speech, but if you organize your presentation according to the Rule of General Practice Forms New Three, your presentation will be a suc- Available on CD for your convenience— ■ cess. nearly 800 forms included in the New York Lawyer’s Deskbook (Deskbook) and New York Lawyer’s Formbook (Formbook).* This new edition features forms in .pdf format that can be filled online. MEMBERSHIP TOTALS FFormsorms CD Prices oonn CCDD 2006–2007 • PN: 61507 NEW REGULAR MEMBERS NYSBA Members $280 • Non-Members $315 1/1/07 - 7/17/07 ______5,176 Forms are available in Microsoft Word and WordPerfect NEW LAW STUDENT MEMBERS formats and most of the forms provided in Adobe Acrobat 1/1/07 - 7/17/07 ______338 .pdf are fi llable online. TOTAL REGULAR MEMBERS * Commercially produced forms not included on CD or online. AS OF 7/17/07 ______65,576 TOTAL LAW STUDENT MEMBERS Get the Information Edge AS OF 7/17/07 ______1,983

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NYSBA Journal | September 2007 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

EXECUTIVE FINANCE AND HUMAN RESOURCES 2007-2008 OFFICERS Patricia K. Bucklin Paula M. Doyle, Senior Director John R. Horan, President Executive Director [email protected] 825 Third Avenue, New York, NY 10022 [email protected] FINANCE M. Catherine Richardson John A. Williamson, Jr. Kristin M. O’Brien, Director Vice President and Chair of The Fellows Associate Executive Director [email protected] One Lincoln Center, Syracuse, NY 13202 [email protected] Cynthia Gaynor, Controller Patricia K. Bucklin, Secretary ADMINISTRATIVE SERVICES, MEETINGS [email protected] One Elk Street, Albany, NY 12207 AND EDIA ELATIONS Lorraine Power Tharp, Treasurer M R LEGAL AND GOVERNMENTAL AFFAIRS One Commerce Plaza, Albany, NY 12260 ADMINISTRATIVE SERVICES Kathleen R. Mulligan-Baxter, Senior Director Sebrina Barrett, Director [email protected] [email protected] DIRECTORS COUNSEL’S OFFICE James B. Ayers, Albany The New York Bar Foundation GOVERNMENTAL RELATIONS Jonathan G. Blattmachr, New York Rosanne M. Van Heertum Ronald F. Kennedy, Director Cristine Cioffi, Niskayuna Director of Development [email protected] Charles E. Dorkey, III, New York [email protected] Emily F. Franchina, Garden City LAWYER ASSISTANCE PROGRAM Law, Youth and Citizenship Program John H. Gross, Hauppauge Eileen Gerrish, Director Patricia F. Spataro, Director [email protected] Robert L. Haig, New York [email protected] Paul Michael Hassett, Buffalo Rebecca Varno, Program Manager LAWYER REFERRAL AND Frank M. Headley, Jr., Scarsdale [email protected] INFORMATION SERVICE Barry M. Kamins, Brooklyn MEDIA SERVICES AND PUBLIC AFFAIRS Eva Valentin-Espinal, Coordinator John J. Kenney, New York Andrew Rush, Director [email protected] Henry L. King, New York [email protected] PRO BONO AFFAIRS Steven C. Krane, New York Jon Sullivan, Manager of Media Services Glenn Lau-Kee, New York ARKETING AND [email protected] M Bernice K. Leber, New York INFORMATION SERVICES Patricia Sears Doherty, Editor, State Bar News A. Thomas Levin, Garden City Richard J. Martin, Senior Director [email protected] Kay Crawford Murray, New York [email protected] Carla M. Palumbo, Rochester BAR SERVICES ESKTOP UBLISHING Buffalo Frank J. Ciervo, Director D P Sharon M. Porcellio, [email protected] MARKETING Richard Raysman, New York Thomas O. Rice, Garden City MEETINGS MIS Sanford J. Schlesinger, New York Kathleen M. Heider, Director John M. Nicoletta, Director Justin L. Vigdor, Rochester [email protected] [email protected] Lucia B. Whisenand, Syracuse Jeffrey Ordon, Network Support Specialist CONTINUING LEGAL EDUCATION [email protected] Terry J. Brooks, Senior Director EX OFFICIO Susan B. Lindenauer, New York [email protected] Sonja Tompkins, Records Supervisor [email protected] Vice Chair of The Fellows Debra York, Registrar [email protected] Gregory A. Vincent, Database Administrator [email protected] CLE PROGRAMS JOURNAL BOARD Jean E. Nelson II, Associate Director Paul Wos, Data Systems and MEMBERS EMERITI [email protected] Telecommunications Manager [email protected] As a tribute to their outstanding service to Kimberly Hojohn, CLE Program Coordinator [email protected] WEB SITE our Journal, we list here the names of each Barbara Beauchamp, Editor living editor emeritus of our Journal’s Board. Katherine Suchocki, Staff Attorney [email protected] [email protected] HOWARD ANGIONE Cheryl L. Wallingford, Program Manager MEMBERSHIP SERVICES Immediate Past Editor-in-Chief [email protected] Patricia K. Wood, Senior Director ROSE MARY BAILLY CLE PUBLICATIONS [email protected] RICHARD J. BARTLETT COLEMAN BURKE Daniel J. McMahon, Director Megan O’Toole, Membership Services Manager JOHN C. CLARK, III [email protected] [email protected] ANGELO T. COMETA Marsha Hordines, Research Attorney CHIEF SECTION LIAISON ROGER C. CRAMTON [email protected] Lisa J. Bataille LOUIS P. D ILORENZO Patricia B. Stockli, Research Attorney [email protected] MARYANN SACCOMANDO FREEDMAN [email protected] EMLYN I. GRIFFITH PRINT AND FACILITIES OPERATIONS H. GLEN HALL Mark Wilson, Publication Manager Roger E. Buchanan, Senior Director PAUL S. HOFFMAN [email protected] [email protected] CHARLES F. KRAUSE LAW PRACTICE MANAGEMENT BUILDING MAINTENANCE PHILIP H. MAGNER, JR. Pamela McDevitt, Director WALLACE J. MCDONALD RAPHICS [email protected] G J. EDWARD MEYER, III PRINT SHOP KENNETH P. N OLAN Matthew Burkhard, Production Manager EUGENE PECKHAM [email protected] ALBERT M. ROSENBLATT SANFORD J. SCHLESINGER ROBERT J. SMITH LAWRENCE E. WALSH RICHARD N. WINFIELD

62 | September 2007 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

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

NYSBA Journal | September 2007 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

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

n the last column, the Legal creating possessives or by inverting the grounds of” becomes “because.” Writer discussed the 13 things you or rearranging the sentence. Possessive “Regardless of whether or not” becomes Ishouldn’t do in legal writing. We example: “The foregoing constitutes “regardless whether.” “With the excep- continue with 13 more don’ts — the the decision and order of the court.” tion of” becomes “except.” Also, elimi- things writers should hate. Becomes: “This opinion is the court’s nate “type of,” “kind of,” “matter of,” 14. Hate Incorrect Tenses. Mis- decision and order.” Rearranging and “state of,” “factor of,” “system of,” matched tenses confuse readers. State inverting examples: “I am a fan of the “sort of,” and “nature of.” current rules in the present tense, past Doors.” Becomes: “I am a Doors fan.” 17. Hate Redundancies. Redun- rules in the past tense, and past facts “Because of Judge Doe’s status as a dancy is the unnecessary repetition in the past tense. Past fact but current judge . . . .” Becomes: “Because Judge of words or ideas. “Advance plan- rule: “The court held in Alpha v. Zeta Doe is a judge . . . .” “He’s a justice of ning” becomes “planning.” “Adequate that statutory rape is illegal even if the the Supreme Court of the State of New enough” becomes “adequate.” “Any victim consents.” Past fact and past York.” Becomes: “He’s a New York State and all” becomes “any.” “As of this rule: “Until the court reversed Zeta v. Supreme Court justice.” “You’re not date” becomes “today.” “At about” Alpha, the rule was that . . . .” Past fact: the boss of me.” Becomes: “You’re not becomes “about.” “At the present time” “The defendant ran the red light.” (Not my boss.” becomes “now.” “At the time when” “runs.”) Past but still-valid rule: “This court has held that . . . .” Past fact, permanent truth in dependent clause: Get to the point without a running start that “Albert Einstein proved that E equals mc².” occupies space but adds nothing. 15. Hate Metadiscourse. Metadis- course is discourse about discourse. It’s throat clearing. Get to the point If the possessive looks awkward, becomes “when.” “By the time” becomes without a running start that occupies keep the “of.” “Subdivision B’s rem- “when.” “Complete stop” becomes space but adds nothing. Delete the edies.” Becomes “The remedies of “stop.” “During the time that” becomes following: “After due consideration,” Subdivision B.” “The Fire Department “during.” “Each and every” becomes “as a matter of fact,” “bear in mind of the City of New York’s (FDNY) poli- “each” or “every,” but not both. “Few that,” “for all intents and purposes,” cies.” Becomes: “The policies of the Fire in number” becomes “few.” “For the rea- “it appears to be the case that,” “it can Department of the City of New York son that” becomes “because.” “If that is be said with certainty that,” “it goes (FDNY).” the case” becomes “if so.” “In the event without saying that,” “it is clear that,” Delete “as of.” “The attorney that” becomes “if.” “Necessary essen- “it is important (or helpful or interest- has not filed the motions as of yet.” tials” becomes “essentials.” “Necessary ing) to remember (or note) that,” “it Becomes: “The attorney has not filed requirements” becomes “requirements.” is significant that,” “it is submitted the motions yet.” Don’t use “of” prepo- “On the condition that” becomes “if.” that,” “it should be emphasized that,” sitional phrases: “Along the line of” “Several in number” becomes “sever- “it should not be forgotten that,” “the becomes “like.” “As a result of” becomes al.” “Sworn affidavit” becomes “affi- fact of the matter is,” and “the point “because.” “Concerning the matter of” davit.” “True facts” becomes “facts.” I am trying to make is that.” Example: becomes “about.” “During the course “Until such time as” becomes “until.” “Please be advised that your hair is on of” becomes “during.” “In advance of” “Whether or not becomes “whether.” fire.” Becomes: “Your hair is on fire.” becomes “before.” “In case of” becomes 18. Hate Jargon, Slang, 16. Hate “Of.” Readers who see “of” “if.” “In lieu of” becomes “instead of.” Colloquialisms, Trendy Locutions, know you’re wordy. Eliminate “of” by “In the event of” becomes “if.” “On CONTINUED ON PAGE 58

64 | September 2007 | NYSBA Journal