Vol. 8 Issue 19 | March 2014 | www.nycla.org New York COUNTY LAWYER The Beat of New York Law First Amendment Protection for Employees’ Social Media Activity

recent case in the Fourth Circuit Court of By Jamie Sinclair, Esq., 8 Appeals. In Bland v. Roberts, the plaintiffs, Meredith Singer, Esq., and former employees of the Hampton Sher- Jacob Tebele, Esq. iff’s office, brought suit alleging that the Edited by Stephen McQuade, Esq. Sheriff of the City of Hampton, Virginia retaliated against them in violation of their The media storm surrounding Phil First Amendment rights by choosing not Robertson’s remarks on homosexuality to reappoint them because of their online and Justine Sacco’s tweet regarding AIDS support of the Sheriff’s electoral opponent. in Africa gathered much of the country’s The facts of the case are dramatic: the attention in December. These examples Sheriff was up for re-election in November serve as a reminder of the enormous 2009, having served as sheriff for the prior power of speech, specifically speech shared 17 years. His opponent, Jim Adams, had through social media. The statistics on previously been employed at the Sheriff’s social media use are staggering. There office for 16 years. During the campaign are over 1.19 billion Facebook users, 728 made via social media? In other words, and Connick v. Myers,5 there are two season, some of the plaintiffs engaged in million of whom log on daily.1 Every 60 does the First Amendment protect an major elements to a public employee’s activities such as “liking” the opponent’s seconds on Facebook, 510 comments are employee’s social media activities? The First Amendment claim. First, a public campaign Facebook page, posting words posted, 293,000 statuses are updated, and answer, as with everything else in the law, employee’s speech must address a mat- of encouragement on the page, and attend- 136,000 photos are uploaded.2 Similarly, is that it depends. ter of public concern. Speech becomes a ing a barbeque in support of his election, has more than 554 million regis- The law differentiates between private matter of public concern when it relates photos of which were posted on Facebook. tered users, and 175 million tweets were sector employees (i.e. those who work to a political or social matter or any other When the Sheriff won the reelection, he sent from Twitter each day in 2012.3 primarily for businesses) and public sec- matter that concerns the community as a failed to reappoint the plaintiffs to their This leads to an important question: can tor employees (those who perform offi- whole. Second, the employee must show positions. In their complaint, the plaintiffs an employee be terminated for “speech” cial functions and/or public service for a that the interest in his or her free speech alleged they were not reappointed based on municipality, governmental entity and/or outweighs the employer’s interest in an their lack of political allegiance to him in agency, such as law enforcement, public efficient workplace. In certain circuits, the the 2009 election. They then brought suit education, and public safety). As a general First Amendment also protects “the right alleging violation of their First Amend- INSIDE NY COUNTY LAWYER rule, the First Amendment applies only to to be free from retaliation by a public offi- ment rights of association and free speech. public sector employers. In most states, cial for the exercise of [First Amendment] The district court granted summary First Amendment Protection for private employers generally have pre-estab- right[s].”6 In a retaliation claim, a termi- judgment in favor of the Sheriff. In ana- Employees’ Social Media Activity . . . 1 lished social media policies in place, and in nated public employee must also show that lyzing the plaintiffs’ free speech claims, the district court noted that “merely ‘lik- Legal Risks in Cloud Computing: any event, they employ their employees at his or her speech was a substantial factor in will, and a termination decision cannot be the employer’s termination.7 ing’ a Facebook page [was] insufficient Keys to Navigating the Storm . . . . . 1 challenged unless it falls under a prohibited Although the courts have been success- speech to merit constitutional protection” Before You Use Social Media, form of discrimination. ful in providing the public with certain and that the record did not sufficiently Do You Know the Ethics Rules? . . . . 2 Based upon the Supreme Court’s deci- basic guidelines or factors, the outcome describe what statement [plaintiff] made.” sions in Pickering v. Board of Education,4 is ultimately fact-specific, as revealed by a { See Protection on page 3} Custodial Self-Collection During Discovery—Defensible Process or Spoliation Guaranteed? ...... 2 Message from the President . . . . . 3 Message from the Legal Risks in Cloud Computing: NYCLA Foundation ...... 3 Speak Successfully, Even When Keys to Navigating the Storm You Don’t Feel Like Speaking! . . . . 6

NYCLA Recent Events ...... 8 By Joseph J. Bambara, Esq. NYCLA Upcoming Events ...... 9 Cloud computing is a paradigm of com- NYCLA Library Notes ...... 10 puting in which dynamically scalable and Electronic Research Center often virtualized resources are provided as CLE Programs ...... 10 a service over the Internet. Users need not have knowledge of, expertise in, or con- NYCLA In The News ...... 11 trol over the technology infrastructure in the “cloud” that supports them. The term “cloud” is used as a metaphor for the Inter- net, based on how the Internet is depicted in computer network diagrams and is an Index to Advertisers abstraction for the complex infrastructure JAMS ...... 4, 11 it conceals. Cloud computing is an evolution from Collard & Roe ...... 9, 11 these previous efforts at shared comput- common and widely known type of cloud Platform as a Service (PaaS) cloud Complete Discovery Source . . . . . 6 ing. As prices for processing power and computing. SaaS applications provide the computing provides a place for developers storage have fallen and high-speed Inter- function of software that would normally to develop and publish new web applica- Law Office of Randy C . Botwinick . . .10, 11 net connections have become ubiquitous, have been installed and run on the user’s tions stored on the servers of the PaaS NAM ...... 11,. Back Cover cloud computing has become an increas- desktop. With SaaS, however, the applica- provider. Customers use the Internet to ingly attractive option for many individu- tion is stored on the cloud computing access the platform and create applications als and businesses. service provider’s servers and run through using the PaaS provider’s API, web portal, the user’s web browser over the Internet. or gateway software. Examples of PaaS Types of Cloud Computing Services Examples of SaaS include: Gmail, Google include: Saleforce’s Force.com, Google Software as a Service (SaaS) is the most Apps, and Salesforce. { See Risks on page 5 } 2 • March 2014 The New York County Lawyer

Before You Use Social Media, Do You Know the Ethics Rules Involved?

and ethics, I have started the class by repeat- cialties section of your profile. According to enough real estate to disclose what you need By Natalie Sulimani, Esq. ing the same line: Technology changes but the Rules, you cannot call yourself an expert to disclose such as: the ethics rules do not change as quickly, unless you have specific credentials, e.g., • Attorney advertising which is promi- Social media is a cost effective way to pro- and the rules are applied the same online passed the Patent Bar. So, I would suggest nently displayed on your website; and mote your firm, and it helps you connect and offline. skipping this section altogether and instead • Prior Results Do Not Guarantee Out- with potential clients. Before you embark First, make sure you reacquaint yourself fill out the “Skills and Expertise” section. come especially if you are talking about on a social media campaign, let’s explore with Rule 7 of the Rules of the Professional When utilizing peer or client recom- a recent win. the ethical considerations. Conduct. Given the fast pace of the Inter- mendations post a disclaimer such as Prior Finally, let’s talk about Groupon. Now I In the case where an attorney or law firm net, it may seem burdensome or difficult to Results Do Not Guarantee Outcome in a know what you’re thinking, but it is prob- uses social networking as a way to market abide by these guidelines. My suggestion is prominent position. Also, get your client’s ably the same thing attorneys thought the practice, the traditional attorney adver- to use your firm’s website, which is probably consent in writing that they should never when TV advertising began. Indeed, it has tising rules still apply. If anyone has ever already compliant, as the underlying plat- mention an ongoing matter. Lastly, review worked for a handful of brave attorneys attended my CLEs regarding social media form for any advertising you may do online. all recommendations and make sure they who were willing to try. When setting up your social media for accurately portray what you did for the testi- In an opinion from December 13, online advertising, first you must decide monial parties. 2011, the New York State Bar Association on your “handle” (in the case of Twitter) or Now you are ready to begin the task of (NYSBA) weighed in on marketing legal username. It is not advisable to use a name marketing yourself through social media services through a daily deal site. Essen- that may be misleading or promise a par- or to a lesser extent just interacting with tially, an attorney may offer his or her ticular outcome. So, when choosing your the social stratosphere at large. However, services through such a site provided the handle or username, while your firm name it is vital that you keep in mind and guard advertising is not misleading or deceptive. Published for or personal name may be appropriate, be against not making representations that will The attorney also must make clear that New York County Lawyers’ Association careful if you choose to use a name like “face- cause unrealistic expectations or provide a there is no relationship formed until the 14 Vesey Street book.com/alwaysgofree” as this might create false impression. Usually, this takes the form proper checks are performed. If the lawyer New York, NY 10007 an expectation in a potential client. of excited utterances after a great win. Or, is unable to provide services, a full refund (212) 267-6646 Once you have chosen your name and perhaps more you had a bad day at court must be made. If the client terminates www.nycla.org signed up for the account, your next step is and feel the need to tweet to the world what representation, the refund is subject to usually a description of who you are, what a <&*%*^*$> the judge was. DANGER! the quantum meruit claim. The opinion Barbara Moses your firm does, etc. You want your message Attorneys cannot speak ill of a judge in goes into greater detail of non-lawyers President to be unified and cohesive. To comply with public. Cooler heads should always prevail, receiving referral fees. In this case, NYSBA the Rules, it should neither contain state- especially in social networking. opines that the website is taking a fee for Sophia J Gianacoplos ments that are deceptive or false nor should Given the brevity of tweets and the lack advertising, and the website, therefore, Executive Director it reference yourself as an “expert” unless you of real estate on social media sites, it is dif- has no individual contact with the client. Toni Valenti do, in fact, fall into that narrow category, e.g., ficult to include the necessary disclaimers. To You must also consider the possibility that Director of Marketing & passed the patent bar. On that note, a poten- avoid problems is to route your tweets, status your advertising campaign on a daily deal Membership Development tial pitfall in LinkedIn is filling out the Spe- updates, etc. to your site where you have { See SOCIAL MEDIA on page 6 } Ariella Greenbaum Editor Senior Communications & Social Media Manager Custodial Self-Collection During Discovery— Published by Apogee Publications 6528 Greenleaf Avenue, Ste. 219 Defensible Process or Spoliation Guaranteed? Whittier, CA 90601 (562) 698-3424 client assist with the identification and/or har- self-collections being conducted improperly? An interview with Mark Sidoti, Esq., and Publisher vesting of potentially relevant information is SIDOTI: The primary concern of the courts Mel Sturr Kevin Treuberg, Esq., moderated by often referred to as self-collection. On its face, appears to be lack of attorney oversight of the Matthew F. Knouff, Esq. CIPP/US, CEDS the notion that a client would be responsible process. This goes for both in-house and out- Accounts Director for rooting out his or her own documents for side counsel. Mistakes will always be made, Kathleen Pishotta It is without debate that electronic infor- his or her case brings to mind an impressive particularly where custodians are asked to Art & Design Adjudicator mation is the evidentiary currency in which array of latent pitfalls. Does self-collection independently undertake a process with Aude Cabaldon lawyers now trade. E-mail is the predominant present too much temptation for custodians which they are not familiar, involving legal Editor form of communication in the business to delete unfavorable evidence? Even if acting issues the significance of which they do not Nicole Millman-Falk world. Individuals across a broad range of in good faith, doesn’t counsel run the risk understand (or that may not be important demographics are using social media, web- that custodians may overlook, alter, or delete to them), and in some cases, they may have For advertising information, mail accounts, mobile instant messaging, text relevant documents? How can you balance a personal interest or stake in the outcome of call (888) 371-4933. messaging, and other forms of digital com- the importance of maintaining the integrity the case. However, the courts are particularly munication with increasing frequency. Sales of your discovery efforts against the need for intolerant of such mistakes when custodians of mobile devices are skyrocketing, and the controlling the costs associated with over- are “left to their own devices,” and the facts ®2014 New York County Lawyers’ Associa- tion. All rights reserved. New York County use of cloud storage for information contin- collection? support a conclusion that counsel—who Lawyers’ Association grants permission ues to proliferate. What does this electronic We will address these should understand these issues and risks— for articles and other material herein or explosion mean for you as counsel? Well, for questions with the help of failed to monitor and assist in the process portions thereof to be reproduced and one thing, gone are the days of simply telling two well-known experts: closely enough. distributed for educational or professional your client to go through her filing cabinet Mark Sidoti, Director of KNOUFF: The term “self-collection” gets use through direct contact with clients, and pull all the documents related to “Matter Gibbons P.C.’s Products thrown around a lot and has many meanings. prospective clients, professional colleagues X.” The digital footprint of even a single cus- Liability and Business & What does self-collection mean to you? and students provided that such shall not todian could encompass hundreds of thou- Commercial Litigation Mark Sidoti SIDOTI: The meaning of self-collection involve any matter for which payment sands of e-mails and other documents spread Departments and Chair of varies with the circumstances and the clients (other than legal fees or tuition) is made out across numerous devices, storage media, the firm’s E-Discovery Task from whom we work. From a corporate client and provided further that all reproductions and online repositories. Unfortunately, with Force, and Kevin Treuberg, standpoint, self-collection most often refers include the name of the author of the article, the copyright notice(s) included in increased data come increased costs. How can former Counterintelligence to the company’s undertaking to locate and the original publication, and a notice indi- you ensure that you find all of the documents Special Agent and current collect its electronically stored information cating the name and date of the Association you need for your case without bankrupting Director of Forensic Ser- without any (or any significant) assistance publication from which the reprint is made. your client in the process? vices at Complete Discovery Kevin Treuberg from counsel or a third-party service provider. Though practically it’s not always the case, Source (CDS) with more than 20 years of On an individual level, self-collection con- common sense tells us that those who created forensics experience. notes an individual custodian’s undertaking Subscription • New York County Lawyer and/or maintain documents that may be rel- KNOUFF: There have been several opin- to locate and collect ESI from sources within is published monthly (except January and evant to a particular case are likely to be in ions in recent years where judges have taken that custodian’s control, again absent signifi- August) for $10 per year by New York the best position to locate those documents. a hardline against custodial self-collection, but cant assistance from third parties, including County Lawyers’ Association, 14 Vesey Absent very unique circumstances, your cli- yet we’re talking about the notion that self-col- others at the company for which they work. Street, New York, NY 10007. ent is always going to play some role in the lection can be performed in a defensible man- Under either of these primary definitions, collection process during discovery. However, ner. Is there some type of common behavior the term self-collection connotes a process what is the full scope of that role? Having the that you see across these cases that highlights { See E-DISCOVERY on page 7 } The New York County Lawyer March 2014 • 3

Message from Barbara Moses Message from the NYCLA Foundation President of NYCLA Fostering A Better Community

Dear Readers: instruction, online classes, and recorded Dear Member: attorneys provide unrepresented litigants It’s not always programs. Our extensive selection of live Many New York- with information and resources to help easy to choose an programs—everything from Basic Legal ers are in need of them represent themselves effectively. accredited Continu- Research to Insurance Implications of more than just You can help support NYCLA’s pro bono ing Legal Education Hydrofracking—are presented at the food, shelter, and projects such as this one by: provider. Of course Home of Law in Lower . You clothing. The dif- Serving as a volunteer attorney in the you want to satisfy can also participate in programs online ficulty of making Manhattan CLARO Project. NYCLA your CLE require- from the comfort of your home or office, ends meet extends Members in good standing and admitted ments efficientlyor earn credit via the CLE Institute’s DVD/ to legal services, to the New York bar for at least one year and economically. CD Audio Reference Library. with the cost of can attend our upcoming spring training But, when faced with a vast sea of offerings, Don’t worry about snoozing through legal representation and advice out of to get started. Visit nycla.org for training you also want to learn something useful, another CLE course! The programs offered reach for those needing it. The resources session details and to register. from the best thought leadership available. by NYCLA feature interactive components available in the legal services community Making a contribution to the NYCLA It’s important to find quality programs on to enhance skill building. At How to Con- alone are often inadequate. And here at Foundation to help support NYCLA’s pro relevant topics, presented by experts who duct a Deposition, for example, our panel NYCLA we’re ready to lend a helping hand bono projects and in turn, help those in fit into your budget and calendar. And that of experts didn’t just dispense advice, to address the gap between the growing need. The NYCLA Foundation depends means you have to know where to turn. they also conducted an interactive mock number of persons who need assistance, on your contributions to support the work As a NYCLA Member, you can tap into deposition that highlighted how those but cannot afford or obtain services, and that we do to benefit both the profession the Association’s efficient, economical concepts are put into practice. Our 6th the limited resources through NYCLA’s and the public. Consider making a gift thought leadership. An accredited pro- Annual Art Litigation and Dispute Resolu- pro bono programs. Our Members seek to help NYCLA continue to provide such vider of CLE in New York and , tion Institute, which addressed many of the to improve the lives of and empower low- meaningful services. Please go to www. NYCLA educates and trains attorneys in hot-button issues affecting the art world income New Yorkers by providing high- nycla.org and choose “Giving to NYCLA.” all aspects of professional practice, law today, included a live demonstration of quality pro bono assistance. It doesn’t matter how much you give. office management, skills, ethics, and pro- a 3D printer to highlight the intellectual One way in which pro bono assistance is Because the NYCLA Foundation is recog- fessionalism, with cutting-edge programs property issues associated with the new offered is through the Manhattan CLARO nized by the IRS as a 501 (c) (3) organiza- that keep pace with the changing needs technology. Project (Civil Legal Advice and Resource tion, gifts are deductible to the extent pro- of the legal profession. An unparalleled NYCLA programs also feature notable Office). This free, weekly walk-in clinic vided by law. roster of experts from the bench, bar, gov- speakers and well-known authors who provides limited legal advice to pro se Together we can foster a better ernment, academia, and related disciplines make learning come to life, like Jeffrey litigants with consumer debt matters in community. teach NYCLA’s programs and offer their Toobin—New Yorker staff writer, attorney, the New York Civil Courts. Created in insights, knowledge, tactics, and guidance and CNN analyst —who discussed his response to the growing number of low- to attendees. book The Oath, and answered questions income individuals being sued in Civil Lewis F. Tesser, President The NYCLA CLE Institute offers live { See MESSAGE on page 10 } Court by collection agencies, volunteer NYCLA Foundation

ciation (NLRA), inter alia, prohibits private social media policies were lawful.15 The Jacob Tebele, Esq., a PROTECTION employers from interfering with employees’ NLRB’s primary concern was that com- Member of the NYCLA Continued from page 1 rights to engage in concerted activity, which munications involving working conditions, Labor & Employment Law may include “discussions among coworkers hours, and wages under § 7 of the NLRA not Committee, is an Associate On appeal, the Fourth Circuit affirmed in regarding the terms and conditions of their be violated. The NRLB highlighted the need at the Law Office of Michael part, reversed in part, and remanded for a employment.”9 In August 201110 and Janu- for social media policies to not be overly Botton, LLC. trial. In determining whether the plaintiffs’ ary 2012,11 the Acting General Counsel of broad or ambiguous, and stressed that all conduct amounted to speech, the Fourth the NLRB released two operations manage- policies should provide clear examples Stephen Mc Quade, Esq., Circuit analyzed the significance of “liking” ment memoranda summarizing recent cases of potential violations. For example, if a Chair of NYCLA’s Labor a Facebook page.” The court noted that each in order to clarify when employees’ speech social media policy specifies that no confi- & Employment Law day more than 500 million Facebook mem- on Facebook and Twitter should be consid- dential information be shared outside the Committee, is an Associate bers use the site and more than three billion ered protected speech. Some trends evolved. workplace, then the policy should include at Certilman Balin Adler & “likes” and comments are posted. The court In cases where the NLRB concluded that examples for employees of what constitutes Hyman, LLP. also found that “[l]iking” on Facebook is a employees’ Internet postings constituted “confidential information” such as trade 1 way for Facebook users to share information concerted activity, the posts were made dur- secrets or internal reports.16 Additionally, the Dan Noyes, The Top 20 Valuable Face- with each other,” that “[l]iking something ing non-work hours and did not disrupt memorandum references the problems with book Statistics, Zephoria (Nov. 20, on Facebook ‘is an easy way to let someone daily operations; the employee had usually one company’s blogging and Internet post- 2013), http://zephoria.com/social-media/ know that you enjoy it,” and that “[l]iking a complained to management prior to the ing policies prohibiting posts by employees top-15-valuable-facebook-statistics/. 2 Id Facebook Page ‘means you are connecting to tweet or Facebook post; the employee had in any media that would depict the company . 3 100 Fascinating Social that page.’” In addition, the court noted that previously spoken to co-workers about the by company logos or trademarks.17 In that Brian Honigman, Media Statistics and Figures From 2012, such a connection appears in one’s timeline specific work issue discussed online; and the case, the NLRB held that this blanket pro- The Huffington Post (Nov. 29, 2012, and one will appear on the page as a person speech involved the employees’ terms and hibition violated § 7 of the NLRA because 7:32pm), http://www.huffingtonpost.com/ who likes that page. conditions of employment under § 7 of the it prohibited employees from engaging in brian-honigman/100-fascinating-social- The court understood the role of social National Labor Relations Act. protected activity like posting a picture of an me_b_2185281.html. media in modern day culture, stating: For example, the NLRB held that the ter- employee carrying a picket sign.18 Lastly, the 4 Pickering v. Board of Education, 391 U.S. Once one understands the nature of what mination of an employee for Facebook posts NLRB also ruled that placing a general sav- 563 (1968). [plaintiffs] did by liking the campaign page, to co-workers relating to employee staffing ings clause into a social media policy is gen- 5  Connick v. Myers, 461 U.S. 138, 146 (1983). it becomes apparent that [their] conduct levels and job performances was illegal. The erally not permitted and does not prevent a 6 Suarez Corp. Indus. v. McGraw, 19  202 F.3d qualifies as speech. On the most basic level, NLRB ruled that the speech was protected policy from being deemed over-broad. 676, 685 (4th Cir. 2000). clicking the “like” button literally causes to because the posts were in preparation for an Indeed, this First Amendment topic is 7 McVey v. Stacy, 157 F.3d. 271, 277-78 (4th be published the statement that the User expected meeting with staff and were not sure to enjoy continued attention on all sides Cir. 1998). “likes” something, which is itself a substan- written solely to benefit one employee, but in the coming years. As courts, agencies, and 8 Bland v. Roberts, No. 12-1671 (4th Cir. tive statement. In the context of a political rather “with or on the authority of other companies continue to struggle to balance Sept. 18, 2013). 12 campaign’s Facebook page, the meaning that employees.” Furthermore, the posts were free speech with workplace efficiency, the 9 Douglas E. Lee, NLRB Bolsters Private- the user approves of the candidacy whose considered to be a “textbook example of laws and principles applicable to any claim Employee Speech, First Amendment page is being liked is unmistakable. That a concerted activity, even though it transpired will continue to evolve. Center (September 14, 2011), http:// 13 user may use a single mouse click to produce on a social network platform.” Another www.firstamendmentcenter.org/nlrb- that message that he likes the page instead case involved the termination of a sales- bolsters-private-employee-speech. of typing the same message with several man at a luxury car dealership for posting Jamie Sinclair, Esq., a 10 NLRB, Operations Memorandum 11-74 individual keystrokes is of no constitutional pictures and writing negative commentary Member NYCLA’s Labor (August 18, 2011) (“OM 11-74”). significance. on his Facebook account related to the & Employment Law 11 NLRB, Operations Memorandum 12-31 Thus, the court reasoned, a “like” is the purchase of cheap food from a warehouse Committee, is an Associate (January 24, 2012) (“OM 12-31”). Internet equivalent of “displaying a political club, which the employee believed would at Goldstein, Rikon, Rikon 12 Id. at 3-4. sign in one’s front yard.” negatively influence clients, sales, and com- & Houghton, P.C. 13 Id. at 4. The National Labor Relations Board missions. 14 The NLRB held that the posts 14 Id. at 7-8. (NLRB) has also spent considerable time constituted “concerted activity” because Meredith L. Singer, Esq., 15 NLRB, Operations Memorandum 12-59 exploring the importance of social media they reiterated concerns that the employee a Member of NYCLA’s (May 30, 2012) (“OM 12-59”). in the workplace, and in doing so has lim- previously raised at a staff meeting. Labor & Employment 16 Id. at 20. ited the discretion private employers have In May 2012, the NLRB issued another Committee, is an Associate 17 Id. at 6. to terminate employees for their online memorandum on social media, this time at Sherri Donovan & 18 Id. at 7. speech. The National Labor Relations Asso- examining whether specific employers’ Associates, P.C. 19 Id. at 9.

The New York County Lawyer March 2014 • 5

the earlier law. force.com. users to ensure that the substantive require- RISKS In May 2010, to move the law into the Some of the issues to consider in cloud ments of HIPAA are not contradicted by the Continued from page 1 modern era, a coalition was formed, includ- computing contracts are as follows: cloud provider’s terms of service. ing: EFF, the ACLU, Microsoft, Google, • Data integrity: customers will undoubt- claims it can handle HIPAA. App Engine, and Zoho Creator. AT&T, the Progress & Freedom Foundation, edly want warranties and indemnities to Infrastructure as a Service (IaaS) seeks the Center for Democracy and Technology, protect the data that they transfer, but The PATRIOT Act to obviate the need for customers to have and others. They kicked off a new campaign given the cost of the service and the gen- The USA PATRIOT Act (Public Law their own data centers. IaaS providers sell called Digital Due Process, which asks for eral hands-off approach once the account Pub.L. 107-56) provides authority for law customers access to web storage space, several major changes to existing law. is set up, will cloud providers be happy enforcement agencies to compel disclosure servers, and Internet connections. The IaaS For instance, all “private content” held to give them? Confidentiality, intellectual of virtually any document, including elec- provider owns and maintains the hardware by a service provider should be protected property and data protection will also tronic documents held by cloud providers. and customers rent space according to by the same standard as material on your need to be considered. Section 215 of the Act permits the issuance their current needs. An example of Iaas is laptop: a warrant must be obtained. Cur- • Continuity: What if the cloud provider of ex parte Magistrate Judge court orders: Amazon Web Services. IaaS is also known as rently, the rules are murky and confusing; goes bust? What are the disaster recovery “The Director of the Federal Bureau of utility computing. the government can go after server e-mail plans? How easy is it to change suppliers? Investigation or a designee of the Director older than 180 days, for instance, with only • Monitoring activity: Can the customer (whose rank shall be no lower than Assis- Privacy and Cloud Computing Services a subpoena (no judge needed), while more monitor activity and access to the applica- tant Special Agent in Charge) may make Legal rights and regulatory authority recent e-mail needs a warrant. Warrants tions and data the way it would if every- an application for an order requiring the for the protection of the privacy of cloud must be sought to access location informa- thing was run from its own network? production of any tangible things (includ- computing users are not well defined. Data tion. Currently, says the CDT, GPS data is ing books, records, papers, documents, and stored in the cloud may be subject to less protected by warrant, but other data (such Legislation and Cloud Computing other items) for an investigation to protect stringent legal protection than data stored as that from cell phones) is not. Courts Relatively new legislation in certain sec- against international terrorism or clandes- on a local computer. For example, under have been “all over the ballpark” on this tors (financial, health) and with respect to tine intelligence activities, provided that the Electronic Communications Privacy issue. For “transactional” data (i.e., data certain types of sensitive information (e.g., such investigation of a United States person Act, data stored in the cloud may be subject that might include e-mail headers but not children’s data) has begun to address data in is not conducted solely upon the basis of to a lesser standard for law enforcement message content), the coalition says that a the cloud. There are federal laws: activities protected by the first amendment to gain access to it than if the data were judge should be involved, though a warrant • Gramm-Leach-Bliley is applicable to to the Constitution.” stored on a personal computer. Health may not be needed. Subpoenas should only financial institutions; Further, those who receive a Section 215 information services that store user medical be used where government has a particular • HIPAA is applicable to health care provid- court order are severely restricted in their information may not be subject to the person whose data they seek; they shouldn’t ers and others dealing with health infor- ability to reveal to others that they received privacy protections of the Health Insurance be used for bulk requests on many subscrib- mation and related entities; such an order, or to alert the subject of the Portability Protection Act (HIPPA). Even ers at once without a court order. • COPPA is applicable to data of children order that the order was received. So, those where it is clear that user data is protected, The civil liberties groups want the rules under 13 collected online; and who use cloud providers to store or process cloud computer service providers often clarified and tightened, of course, but so do • USA Patriot Act may be applicable their data may not even know that the gov- limit their liability to the user as a condition the businesses; cloud computing providers to foreign companies that work with cloud ernment obtained their records. of providing the service, leaving users like Google and ISPs like AT&T each want providers that allow data to reside in or Pursuant to Section 505 of the Act, with limited recourse should their data be a predictable, unambiguous set of rules flow through the US. the FBI may demand, through the use of exposed or lost. to govern these issues. The cloud provid- Also state laws requiring notification in National Security Letters (NSLs), personal Storing data in the cloud means that ers also know that their own business is at the event of a breach of sensitive information customer records (including e-mails, finan- access to that data is subject to the cloud stake here if people come to feel like they exist and require the implementation of cial records, and consumer reports) from computing service provider’s terms. Often can’t trust the protections offered to online safeguards to protect sensitive information financial institutions and wire or electronic the terms of service allow the cloud comput- content. and/or secure disposal of such information. communication service providers without ing service provider to terminate the service As for when the changes might get made, any prior court approval. Because any elec- at any time. Imagine a data hostage scenario that’s hard to say. These questions have been HIPAA tronic data stored in the United States is where a user needs to gain access to online percolating for more than a decade without The federal Health Insurance Portability potentially subject to ex parte governmen- information, but the data holder refuses that action, and Digital Due Process isn’t expect- and Accountability Act (HIPAA) P.L.104- tal disclosure, a few foreign governments access without first receiving a payment or ing any legislative action this year, however, 191, establishes a comprehensive regula- (most notably the Canadian provinces of other compensation. Google via its Google+ is promoting a tory framework controlling the use and British Columbia and Nova Scotia) have White House petition calling for reform disclosure of individually identifiable health enacted various restrictions and/or prohibi- Issues Involving Your Data on to the Electronic Communications Privacy information by “covered entities,” princi- tions regarding the cross-border transfer of Cloud Computing Services Act (ECPA), amending it to require a war- pally health care providers and health plans. information with U.S.-based cloud provid- Cloud computing means relying on a third rant for the government to read the email Under HIPAA’s Privacy Rule, a covered ers. Section 215 of the Patriot Act was set party to maintain and control your data. It of its citizens. entity may not use or disclose protected to expire on February 28, 2012. Congress is critical to understand the implications health information (PHI) unless as permit- extended it at the last minute and Obama of moving your data to the cloud. Who has Procuring a Contract for Cloud Services ted or required by the Rule, or as authorized signed the four year extension into law in access to it and under what circumstances? The transition to a cloud computing solu- in writing by the individual affected. Simi- May 2011. Governments, organizations Who can alter it? How will system outages tion (IaaS, PaaS, SaaS) and combinations larly, HIPAA’s Security Rule is designed to and businesses may continue to elect not and service disruptions be rectified? What thereof represents a paradigm shift from an safeguard the confidentiality, integrity, and to store or process data with cloud pro- if the provider fails or departs the business? in-house solution (build, assemble, main- availability of electronic protected health viders located in the United States for fear Handing over important and potentially tain yourself) to a contractually managed information (EPHI). The Security Rule sets that such information may be potentially sensitive or proprietary data to another outsourced solution (specify, contract, man- forth detailed administrative, physical, and exposed. company is worrisome. Clients should age, audit someone else). technical standards to ensure that, among ensure that cloud service providers have So how do you ensure the cloud other matters, only those who are autho- Summary adequate encryption and other security provider(s) are doing what they’re supposed rized to have access to EPHI will have access. This article is just an overview and enu- controls in place that are regularly audited. to do? With respect to disclosure to cloud service meration of the issues the cloud will foster. If someone can log in from anywhere to First perform the “due diligence” you providers, covered entities may not store The emergence and growing use of cloud access data and applications, it is possible need to discover best fit provider(s). Then PHI with a provider absent an agreement (a computing call for forward-looking and that your privacy could be compromised. develop the requirements and send these “business associate contract”) wherein the flexible federal and state legislation. Law- Regulatory compliance may be impossible if requirements to service agencies SAAS provider agrees to be bound by the same makers, perhaps through a subcommittee, your data is subject to any geographical stor- which already deal with the cloud. Let them HIPAA privacy and security requirements should be tasked with evaluating which age restrictions, such as the European Union bid the deal. Interrogate and find out how as the covered entity itself. The business types of data are the most sensitive and thus Data Protection Directive. they plan to “make it happen.” associate contract must further specify that most entitled to protection, which technolo- The government needs a search warrant After that stage is complete, you begin if the cloud service provider receives a sub- gies are sufficient to protect the data, and to bust into your house, search your files, contract negotiation to establish terms of poena for a patient record that it is storing what degree of liability is appropriate for the and pull out any incriminating documents. the agreement with provider(s). Consider all on behalf of a covered entity, special report- harm visited upon the user through cloud It needs the same warrant for files stored the terms, i.e., what do we get? How do we ing obligations are triggered. Under HIPAA, failures and inadequate protections. on your computer. So why doesn’t the same manage multiple contracts with providers? covered entities must notify the patient standard apply when the same information Do we need to develop special language to of, and give the patient an opportunity to Joseph J. Bambara, Esq., is stored in online servers operated by third protect software and data assets? Other non- object to any subpoena requiring disclosure Co-Chair of NYCLA’s parties like Google or Microsoft? exhaustive considerations include: mainte- of a patient’s PHI. In certain circumstances, Cyberspace Law Committee, The answer is 1986’s Electronic Com- nance; performance; security; compliance; HIPAA’s substantive requirements could is currently In House munications Privacy Act, 18 U.S.C. § 2510 and backup. After the contract is signed conflict with the cloud provider’s terms of Counsel and a VP of drafted in a different era. The government and executed, consider that iterative “due service, and a covered entity may potentially technology architecture at has found numerous ways to access mate- diligence” to audit the provider(s) to ensure violate HIPAA by using such a provider. For UCNY, Inc., where he serves as Counsel rial stored in remote servers—notably agreement is being fulfilled. instance, a hospital cannot store patients’ for media and technology firms working e-mail—without the traditional warrant Examples of standard contracts for prom- medical records with a cloud provider if the on cloud computing, outsourcing contracts, and judicial oversight required in the past. inent cloud computing vendors include terms of service allow the provider to pub- intellectual property, and eMail /SMS And new sources of data, such as cell phone Amazon Web Services, Google Apps Pre- lish any information it stores, as this would mobile marketing issues. He can be reached location records, weren’t even envisioned by mier, Microsoft Windows Azure, and Sales- violate HIPAA. Proper care must be taken by at [email protected]. 6 • March 2014 The New York County Lawyer

Speak Successfully, Even When You Don’t Feel Like Speaking!

will prepare you to deliver your message temperature of the environment, what iors more and more quickly. By Maria Guida with optimum success. you were wearing, what you saw, heard, Right before an important business con- When you use this technique, your body smelled; all the physical sensations you versation, pitch, or appearance in court, Do you sometimes have to speak in the will not know the difference between what experienced at that time. you will be able to use this technique to office, boardroom, or courtroom when is real and what has been re-created by 3. Bring as many sensory details of the re-create emotions/behaviors of your own you are not motivated or just not feeling you, so you will be able to feel and project past event as possible to your mind. choosing that will enhance your credibility your best? qualities that will help you achieve your Allow your memory to transport you and help you project the image you desire. To get motivated, deliver your message speaking goals. to the sensations of the event as if you well, and project the desired qualities, Rehearse the following three steps, and were there once again. Don’t rush this Maria Guida is a speaking attorneys should borrow a technique that do this process right before your impor- process! You will begin to experience strategist/coach at actors use for rehearsal and before going tant speaking moment: the same emotions you had at that time major law firms and law on stage: “sense memory” or “affective 1. Think of a situation in your past that in the past. Now rehearse your content associations, as well as a memory,” as is it sometimes called. made you feel any emotion/quality that aloud; the sensory work will immedi- corporate and television To put yourself into the right frame of you would like to project when you are ately impact your energy level, tone of spokesperson. As an actor mind (and body!), you can learn to “trig- speaking for business. voice, and demeanor. on Broadway, TV, and film, she has worked ger” whatever emotion or quality you 2. Be very specific, and take time to Practice this technique for a few min- with Paul Newman, James Earl Jones, desire that will help you speak with poise remember the physical and sensory utes every day. Over time, you will become and Kevin Kline. Maria can be reached and power. As actors do, you can recreate environment of that past event. Recall adept at “sense memory” and be able to at 718-884-2282 or via email at maria@ sensations you experienced in the past that the surroundings in great detail: the access the target feelings/ speaking behav- successfulspeakerinc.com.

NYCLA MEMBER BENEFIT PROVIDER SOCIAL MEDIA Continued from page 2 site is successful. I have seen businesses turn to Groupon as the answer to their cash flow Special Access—Dedicated Team only to accelerate their failure when they couldn’t satisfy the demand generated by the eDiscovery Program for NYCLA Members ad campaign. What are the implications of referring out those potential clients? When Did you know that Complete Discovery Source, the leader in legal ★★★★★ would that disclosure need to be made? Also, Complete Discovery Source consider Rule 7.1, which provides specific technology services, is also a NYCLA eDiscovery benefits provider? “Best End-to-End guidance regarding disclosures of fees and eDiscovery Solution” The same technologies and support leveraged by some of the most how the attorney may be bound by these National Law Journal — 2013 high-profile firms and corporations on the most sensitive cases are New York Law Journal — 2013 rates for no less than 30 days after broadcast. New York Law Journal — 2012 A great way to market yourself and be available to all NYCLA members—with added benefits! Many CDS recognized as a leader in your legal field is team members are NYCLA members as well. We understand the by blogging or answering legal questions on issues you face on a daily basis. social media sites, but how do you do that without worrying about creating an attor- CDS offers a wide range of eDiscovery tools including our proprietary ney client relationship or possibly violating solicitation rules? eDiscovery platform, Nytrix CIY. With Nytrix, firms of any size can The question posed to the NYSBA is take unprecedented control of the processing, hosting, review, and whether a lawyer could answer legal questions management of eDiscovery in the cloud. Zero infrastructure. Readily online and whilst doing so, could they offer their services. Would this constitute solicita- scalable to your needs. Lower costs. And award-winning support tion? The NYSBA opined that an attorney when you need it. could provide general answers to online ques- tions for the purpose of education. If the per- son asking the question does ask the lawyer about his or her services, the lawyer should respond privately regarding his or her services so it would not be publicly seen. The opinion goes on to further state that answering a ques- tion individually could create an attorney-cli- ent relationship. So, the best rule of thumb is to answer generally with the intent on educat- ing the general public. Anything further, take the conversation offline. This is just the beginning of many opin- ions regarding attorney ethics and social media and the tips above are by no means exhaustive. So, when in doubt, check your local rules and utilize the Ethics Hotlines provided by bar associations such as the one available through NYCLA.

Natalie Sulimani, Esq., is the founder and partner of CDS is Ranked Number One in eDiscovery by the Sulimani & Nahoum, PC National Law Journal and the New York Law Journal. and the past Co-Chair of the NYCLA’s Cyberspace Law Committee. She is engaged To learn more about what CDS has to offer NYCLA members call in a wide variety of intellectual property, (212) 813-7006 or email [email protected]. technology, and general corporate matters with a strong focus on startup, entrepreneurs, and small- to medium-sized businesses. She has represented both domestic and international www.cdslegal.com clients in an array of industries, including Internet and new media, entertainment, jewelry, consulting, and the arts.

NYCLA_7.5x10.125_P5.indd 1 1/30/14 1:04 PM The New York County Lawyer March 2014 • 7

president and CFO was found to have inten- most IT professionals know, the simple pro- proper tools and “know-how” to collect this E-DISCOVERY tionally deleted various documents that were cess of accessing ESI on a hard drive alters type of data (e.g., the collection of data from Continued from page 2 relevant to the proceeding. This behavior was the document metadata, which can lead to mobile devices)? Will my efforts cause the attributed to Mesa and an adverse inference issues in some cases. Moreover, improper alteration of the data, thereby opening the that is generally autonomous, unsupervised, sanction was issued. As a practical matter, is collection techniques can result in the failure door to accusations of spoliation? and unregulated. This connotation may be it really possible for counsel to prevent individ- to retrieve relevant ESI. KNOUFF: Everyone seems to be buzzing altered by a demonstration of appropriate ual bad actors when a collection is underway? KNOUFF: I am a custodian and my law- about DropBox, SkyDrive, GoogleDrive, and safeguards (such as auditing procedures car- SIDOTI: It may not be possible to avert all yer has asked me to identify some documents other document sharing applications in the ried out by counsel) and collection methods instances of bad conduct when custodians and e-mail them to her as attachments. cloud. Some are even promoted as viable tools (such as reliable and forensically-sound, play a role in the collection process, but I What real damage can I possibly do to my for practice management. However, are these remote collection tools). do not think the case law requires perfec- documents in this case? viable tools for self-collection? TREUBERG: To me as a forensics practi- tion (here, or anywhere else in the world of TREUBERG: When this occurs, the meta- TREUBERG: It is always best to collect the tioner, self-collection means using the proper e-discovery). Litigants find themselves in data of the files can be altered (e.g., author data from its original location. Most of the tools and techniques to collect relevant data a sanctionable situations when they fail to field, date created, date accessed, etc.). In cloud solutions replicate from a certain loca- in a manner that changes the least amount take fundamental steps which could have addition, if it isn’t documented, information tion on a Mac or PC, but some are the actual of metadata (if any). As the sophistication of prevented the data loss, such as interviewing indicating the original source location of the “source” of the data. I see using cloud based clients and case teams becomes more promi- custodians (particularly those assisting with data may be lost. Original source location solutions as more of a way to deliver data nent, it becomes easier to advise and coach or engaging in self-collection) regarding their can be extremely relevant and assists in the than a tool to support self-collection. self-collection methods. personal preservation and deletion practices, verification of data integrity which supports Knouff will continue this conversation KNOUFF: So each of you believe that self- and recent deletion activity and the like, or in admissibility. via a webinar with Mark Sidoti and Kevin collection, if performed with the proper safe- failing to pursue the existence of documents KNOUFF: Facebook has a feature where Treuberg on Tuesday, April 8th at 11 am guards and techniques, can be an appropriate which should, under company or individual a user can “Download a copy of your Face- EST. Discussion will include actual tactics means of collecting electronic evidence. If this protocols, exist within the custodians’ docu- book data.” Can this feature work as a self- and strategies for self-collection, sanctions is the case, why is self-collection such a contro- ment repositories. Too often, an individual’s collection tool? cases such as Green v. Blitz U.S.A., and how versial topic? problematic practices, or even overt bad acts, TREUBERG: As of this discussion, this to avoid specific mistakes, the proper docu- SIDOTI: I think because it highlights are not discovered or probed by counsel until specific feature on Facebook has many limi- mentation to create and maintain during a one of the key conflicts in the e-discovery a witness is under oath describing activity tations. Such limitations include the inabil- self-collection process, how to verify that landscape—the tension between cost sav- that cannot then be undone. This situation ity to capture video data and a user’s posts on tasks were properly completed, degrees ings (even if only perceived) and conducting needs to be avoided at all costs, and some- other user accounts “walls,” or “‘timelines.” of culpability, future developments, and e-discovery activities in the most thorough times it is as simple as asking your collecting KNOUFF: How does self-collection apply more. E-mail [email protected] to and appropriate manner. Many companies witnesses some simple questions about their to mobile devices and webmail? Is there any receive credentials for the teleconference. believe that costs can be minimized when data management practices. type of data source that should never be they undertake collections on their own, TREUBERG: Bad actors are, unfortu- included in a self-collection protocol, or is Matthew F. Knouff, Esq., without the assistance of outside service pro- nately, a fact of life. Short of seizing and everything fair game? is General Counsel and viders. While this may be true in the short imaging all of the computers and servers, a TREUBERG: Each data point that is to E-Discovery Counsel with term, when mistakes occur, the cost tables certain level of trust is necessary between the be considered for self-collection should be CDS, an award-winning, may be turned. This is why regulated and case teams and clients. evaluated individually and the following global provider of defensible careful self-collection is essential. KNOUFF: When a legal hold notice is sent questions should be asked: Is this data point e-discovery services and TREUBERG: I agree with Mark. It’s a out, counsel relies on individual custodians to relevant to the ongoing matter? Is the data I technologies headquartered in New York controversial topic because there will always properly preserve documents. This is a com- am looking to collect replicated to another City. CDS is a benefit partner of NYCLA and be the argument of cost versus risk. For mon and relatively uncontroversial practice. system (e.g., a corporate e-mail account that provides a vast array of forensics, e-discovery example, a client may decide not to engage Isn’t empowering an individual to comply is present on a smartphone and replicated to and other legal technology benefits to NYCLA in self-collection when the matter is a high- with a legal hold equivalent to expecting them the corporate mail server.)? Do I have the members. stakes government investigation, whereas to adequately self-collect? self-collection may be used when that same SIDOTI: No. Legal hold notices generate client is conducting an internal investigation. less controversy because fundamentally, they However, in both examples, it is certainly are simply advising a custodian to not allow recommended that advice is sought prior to the deletion or alteration of usually a wide collection. range of targeted documents. On a custo- KNOUFF: Sedona Conference Principle 6 dian level at least, this is not a particularly states: “Responding parties are best situated difficult or confusing directive: “Just don’t to evaluate the procedures, methodologies, discard anything.” Collection, on the other and technologies appropriate for preserving hand, involves far more judgment and dis- and producing their own electronically stored cernment regarding the types of documents information.” By corollary, would it be fair to to be collected and how to go about that pro- say that individual data custodians are in the cess. Thus, it entails expectations that exceed best position to know where their documents those embodied in the legal hold process and reside. Does this notion favor self-collection? should not be equated with it. SPECIAL EVENT TREUBERG: I agree with the notion that KNOUFF: The importance of cooperation CLE, A Knicks Game, Dinner and individual custodians are in the best position cannot be overstated, but should a party dis- to assist in identifying where relevant data close to opposing counsel that it intends to use LOUNGE SUITE SEATING may reside. However, the actual act of col- self-collection techniques? All in one Night!! lecting identified data still needs to be done SIDOTI: While this is a controversial issue, in a manner that ensures the preservation of unless there is a specific cost or other con- Attend a Special Event designed just relevant metadata and gives counsel the abil- cern, especially if the concern is mutual, that for NYCLA CLE Institute Attendees ity to indicate the original source location of should be discussed with opposing counsel, the data. I do not believe there is an obligation to dis- Friday, April 4, 2014 SIDOTI: It can be argued that to some close to an adversary that self-collection has extent this principle applies to custodian- been or will be undertaken. This is consistent • Start the evening at 6:30 p.m. for a CLE program on NYCLA’s Top 10 Financial level collection activities, although I believe with Principle 6 of the Sedona Guidelines Concepts Attorneys Need to Know (1.5 NY/NJ CLE Credits; 1.5 CPE Credits for the principle was directed at litigants gener- and supporting case law. Of course, when Accountants), presented by Joseph Novello, The Financial Training Organization, ally (“parties”) and was meant to be con- there is a good faith reason to believe that conducted in a Suite at Madison Square Garden strued as applying to the collective efforts of a evidence has been (or will be) spoliated, it • Enjoy an all-inclusive gourmet buffet dinner (including Jean-Georges Wedge party in making preservation, collection and may be necessary to disclose the specifics of Salad, Nachos, Sushi, Filet Mignon, Jean George Pasta and Shrimp, Spring production decisions. In fact, the Comment the intended or undertaken collection pro- Rolls, Hot Dogs, Chicken Fingers And MORE) and assorted non-alcoholic to this principle specifically references the cess to one’s adversary. beverages “typical” production process and notes that, KNOUFF: Is it important to make a dis- • Enjoy the Knicks – Washington Wizards game from a Private Lounge Level Suite typically, “lawyers supervise the collection of tinction between a custodian self-identifying • Visit with a former Knick player (Alumni) in the Lounge Suite relevant information from custodians and potentially relevant documents and a custo- • Popcorn, cookies, Ben and Jerry Ice Cream Bars, Brownies and Blondies and other sources.” Comments 6.e and 6.f also dian performing the actual physical collection more during the game provide a detailed discussion of the need of documents herself? to carefully select, manage and document SIDOTI: Yes. Self-identification is quite NYCLA Members and Guests: $250 the collection process, and the obligation of common and can be very helpful, particu- Non-members: $299 counsel to supervise the collection process. lar in today’s world where custodians often REGISTER EARLY - SPACE IS EXTREMELY LIMITED! So again, while custodian self-collection may possess multiple sources of data. Knowing be permissible under Principle 6, it must be whether relevant information is stored on a conducted in a defensible manner and gener- single hard drive, as opposed to several other For more info or to register go to ally under counsel supervision and guidance. sources such as an iPhone, iPad, thumb www.nycla.org KNOUFF: In In re Hawaiian Airlines, Inc. drive, or cloud-based repository, obviously v. Mesa Air Group, Inc., Mesa’s executive vice guides the collection process. However, as 8 • March 2014 The New York County Lawyer Recent Events

Young Lawyers’ Section Hosts Speed Networking Event

NYCLA’s Young Lawyers’ Section hosted a Speed Networking event on January 30 to help lawyers make the connections needed to propel their careers. 9 • March 2014 The New York County Lawyer Upcoming Events

March April Portrait Unveiling of a Former President, Stewart D. Aaron NYCLA Foundation First Annual Spring Fundraiser: A Musical Tribute to the Hon. Betty Wednesday, March 5 – 6 p.m. Weinberg Ellerin in Honor of her Exemplary Contributions to NYCLA Join as we unveil a portrait of immediate past NYCLA President Stewart D. Aaron, Thursday, April 24 partner and head of New York office at Arnold & Porter LLP, by artist Rachel Sard. Reception – 6 p.m.; Performance – 7 p.m. Reception to follow ceremony. Regular Ticket: $75; Premium Ticket: $150, includes special seating and listing in the program. Send checks payable to the NYCLA Foundation indicating Spring Fundraiser to Lawyers Helping Animals Forum NYCLA Foundation, 14 Vesey Street, New York, NY 10007 and register at nycla.org. Thursday, March 20 – 6 p.m. Hosted by NYCLA’s Animal Law Committee Do you love animals? Would you like to learn how to use your legal skills to help All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. animals in need? Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.

Statement of Ownership, Management and Circulation (required by 39 U.S.C. 3526)

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NYCLA Foundation’s FIRST ANNUAL SPRING FUNDRAISER A Musical Tribute to the Hon. Betty Weinberg Ellerin

In Honor of her Exemplary Contributions to NYCLA April 24, 2014 6 p.m. Reception; 7 p.m. Performance Regular Ticket: $75 | Premium Ticket: $150, includes special seating and listing in the program Register at nycla.org and Send check payable to the NYCLA Foundation, indicating Spring Fundraiser, to NYCLA, Attn: Anne Wells, 14 Vesey Street, New York, New York 10007 10 • March 2014 The New York County Lawyer Library Notes

develop a practice in a desired direction. (GMT) and is available as shortly available British and Irish public legal For a number of attorneys, their desire thereafter. I have listened to the program information. British and Irish case law and may be to work in some aspect of sports several times. While it is for a different legislation, European Union case law, Law law. One of our fellow NYCLA members, common law jurisdiction, there are many Commission reports, and other related Stephen Kunen, has chosen to write a areas of commonality, which make for British and Irish materials. blog entitled The Combat Sports Law Blog, interesting listening. The podcasts are Most NYCLA members qualify for wherein he covers cases and legislation available at no charge at: http://nearfm.ie/ the New York State Library-Attorney dealing with Mixed Martial Arts (MMA), the-brief/. Borrower’s Card. Have you applied? It regulation within the industry, and is available to New York state residents more. His blog recently touched upon Legal Resources in the UK and Ireland admitted to practice law in New York. Assumption of Risk in MMA Training This site is maintained by Delia Venables For information about this free Internet- and Understanding Mixed Martial Arts and contains a list of Irish legal blogs based access to legal information, contact By Dan Jordan Contract. Another blog, Fight Lawyer by toward the bottom of the page at: www. Dan Jordan at [email protected] for an Justin Klein, touches upon the same subject venables.co.uk/blogs.htm. application for the NYSL-ABC. matter. From my Boomer perspective, Golf Do you have a BLOG in you? Dispute Resolution by Rob Harris, which Irish Law Links — The most important 1 Joshua Loveall, Ethical Considerations of A recent Georgetown Journal of Legal tracks the intersection of golf and the Irish Law Portal Court-Ordered Disclosures of Litigant- Ethics article1 cited the ABA as saying that resolution of legal disputes, may be more This site is maintained by Darius Sponsored Law Bloggers, 26 Geo J. Legal 22 percent of all lawyers are engaged in the my speed. Whelan of University College Cork and Ethics 879 (2013). process of writing blogs. Might there be a includes the Guide to Irish Law 2d Revised subject area that you could write about and In Recognition of St. Patrick’s Day edition; access points on the website to garner a readership? Blogs have been cited The Brief: The Legal Affairs Show legislation and cases; and a bibliography of To make suggestions about book, by law reviews over 5,880 times and by the The Brief is a radio show dedicated to secondary sources by subject in print and ebook, or database purchases for courts in at least 88 instances. As in other recent Irish legal issues. The presenters are electronic form. the NYCLA Library, please contact areas of legal marketing, the writer must Andrew Robinson BL and Peter Leonard Dan Jordan, Director of Library be aware of legal or ethical restrictions BL. The show is broadcast by a community British and Irish Legal Information Service, at [email protected] or at on such writing. That said, writing on radio station in Dublin, near 90.3 FM. Institute 212-267-6646, x201. a chosen subject may help an attorney The show airs every Thursday at 7-8 p.m. This site provides access to freely

an interactive dialog about Holmes’s role in the Necessary Skills to Get The Job, allowed the wide array of upcoming courses at MESSAGE the free speech movement. attendees to expand their rolodexes while nycla.org and enroll in the programs that Continued from page 3 Special events featuring notable attor- completing coursework. On April 5, in a best fit your practice and your schedule. neys, judges, and public figures can also special event for CLE attendees, NYCLA Feel free to tweet me at @nyclapres, or concerning the Obama White House and give you networking opportunities. After will offer the Top 10 Financial Concepts email at [email protected], with feed- the Roberts Court before a sold-out audi- interacting with our distinguished faculty, Attorneys Need to Know, followed by a buf- back on our existing courses our sugges- ence. NYCLA also welcomed new author as well as the many seasoned practitioners fet dinner and a Knicks game viewed from a tions for new ones. Thomas Healy, Professor of Law at Seton in attendance, you can make valuable con- private Lounge Level Suite—all at Madison Hall Law School, to speak about his book, tacts while earning CLE credit and brushing Square Garden. The Great Dissent—How Oliver Wendell up on your skills. Our January event, So You As always, NYCLA members are entitled Holmes Changed His Mind and Changed the Want to be an In-House Counsel: Searching, to preferred pricing on CLE courses. Don’t Barbara Moses, President History of Free Speech in America, and lead Evaluating, Transitioning and Developing put off your CLE obligations! Check out New York County Lawyers’ Association

LEGAL PROFESIONAL CORNER Electronic Research

To advertise in the Legal Professional Corner, Center CLE Programs contact Kathleen Pishotta at 888-371-4933 or by email at [email protected]. March April Westlaw: Introduction to Westlaw Next Westlaw: Introduction to Westlaw Next March 11 – 10-11 a.m. April 8 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional Westlaw: Form Finder / Form Builder Westlaw: Business Law Research on Westlaw Next on Westlaw Next April 8 – 11:30 a.m.-12:30 p.m. March 11 – 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional Lexis: Basic Legal Research April 10 – 10:30-11:30 a.m. Lexis: Basic Legal Research 1 MCLE Credit: 1 Skills; Transitional March 13 – 10:30-11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Legal Research Update April 10 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Advanced Legal Research March 13 – 12-1 p.m. Lexis: Company & News Research 1 MCLE Credit: 1 Skills; Transitional April 10 – 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Shepard’s Citation Service U.S. Bankruptcy Court Electronic March 13 – 1:30-2:30 p.m. Case Filing System 1 MCLE Credit: 1 Skills; Transitional April 23 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional Westlaw: Advanced Research (Also NJ) on Westlaw Next Member: $65; Non-member: $85; Non- March 28 – 1:30-2:30 p.m. legal Staff: $35 1 MCLE Credit: 1 Skills; Transitional Westlaw: Advanced Research on Westlaw Next Westlaw: Real Property Law April 24 – 1:30-2:30 p.m. on Westlaw Next 1 MCLE Credit: 1 Skills; Transitional March 28 – 3-4 p.m. Westlaw: Public Records Research 1 MCLE Credit: 1 Skills; Transitional on Westlaw Next April 24 – 3-4 p.m. 1 MCLE Credit: 1 Skills; Transitional Unless otherwise noted, courses are free and open to the public. Register at nycla.org Questions? Contact Irina Chopinova at [email protected] or 212-267-6646 Ext. 203. The New York County Lawyer March 2014 • 11 In The News

A roundup of recent national and local news stories featuring NYCLA and its members

New York Law Journal proposed budget—especially the effort ing people next year,” Lynch told a panel at New York Times NYCLA Puts on the Ritz to create more Family Court judgeships. the New York County Lawyers’ Association Prosecutor Sees Danger in Budget Cuts dedicated to keeping up the pressure on both December 2, 2013 December 19, 2013 The Jewish Voice The New York County Lawyers’ Association state and federal lawmakers to find money Mr. Bharara appeared with other leading court Budget Cuts May Leave NYC Office of US held its 99th Annual Dinner on Tuesday at the for the Empire State courts, prosecutors and bar figures at a public hearing organized Attorney in Peril Waldorf-Astoria Hotel. and related agencies like federal defenders. by the New York County Lawyers’ Association December 4, 2013 on the continuing impact of budget cuts on the New York Law Journal Bharara and other court and bar figures justice system. December 17, 2013 appeared at a public hearing on Monday. December 2, 2013 The hearing was organized by the New York Ethics Rules Put the Brakes on U.S. Attorney warns budget cuts could turn County Lawyers’ Association to focus on the New York into crime hub Attorney Whistleblowers Preet: Sequestration cutting into impact budget cuts have on the justice system. “While we continue to have a gang problem, we Two recent decisions—one by the U.S. Court of asset seizures do not have the level of murder and mayhem Appeals for the Second Circuit and one by the Courthouse News Service December 2, 2013 that so plagues Chicago that its mayor is prac- New York County Lawyers’ Association (NYCLA) Prosecutor Laments Sequestration ‘Lunacy’ “Should we downsize the most success- tically begging for federal funds and federal Committee on Professional Ethics—addressing December 3, 2013 ful criminal program in help,” Preet Bharara said in testimony prepared the interplay between attorney ethical obligations U.S. Attorney Preet Bharara let loose his frustra- for the New York County Lawyers’ Association’s the country, that added over $3 billion to and statutory regimes that provide bounty awards tion about sequestration “lunacy” that prevents Task Force on Judicial Budget Cuts. the country’s coffers in 2012?” US Attor- for whistleblowers reached the same conclusion: him from replacing prosecutors who leave their ney Preet Bharara said in a speech to the Professional ethical obligations preclude attor- jobs or retire. The typically even-keel chief New York County Lawyers’ Association. neys from being bounty-seeking whistleblowers Manhattan prosecutor made the comment after WSJ.com against current or former clients. his prepared remarks before the Task Force on U.S. Attorney, Chief Judge Judicial Budget Cuts, which convened on Mon- Decry Budget Cuts Eagle New York Law Journal day at the New York County Lawyers’ Asso- December 2, 2013 Hearing on judicial budget cuts has focus Judiciary’s Request for Increase in Funds ciation’s (NYCLA) headquarters in Tribeca. Chief Judge Loretta Preska and U.S. Attorney on Brooklyn’s courts Receives Early Support Preet Bharara are speaking out as Congress November 27, 2013 December 4, 2013 Law360.com wrangles over a budget deal that could extend The New York County Lawyers’ Association At a New York County Lawyers’ Association Prosecutors Say Budget Woes Imperil NY the cuts another year. They talked with Law Blog Task Force on Judicial Budget Cuts will hold a hearing on Monday discussing how budget Criminal Recoveries last week, ahead of a New York County Lawyers’ day-long public hearing to receive testimony cuts have harmed state and federal courts, December 2, 2013 Association hearing they are scheduled to appear about the continuing impact of judicial bud- participants applauded the court system’s “Under sequestration, we will be furlough- at Monday on sequestration’s impact. get cuts on the administration of justice.

NYCLA Criminal Justice Section Issues Report on New York State Bail Reform Recommendations

Evidence shows that far too many people are incarcerated pre-trial for low-level offenses because they cannot pay small amounts of bail, yet state legislation (A. 6799/S. 4483) introduced in spring 2013 would increase the number of people detained pre- trial, according to a recently published report on bail reform in New York State by the NYCLA Criminal Justice Section. Visit nycla.org to access the report.

Ethics Hotline The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below.

Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplin- ary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article “Guidelines on NYCLA’s Ethics Hotline,” pub- lished in the September 2006 issue of New York County Lawyer.

March 1-15 March 16-31 April 1-15 April 16-31 Greg LeDonne Bruce Kelly Mark Bower Don Savatta 212-335-9152 212-715-1080 212-240-0700 212-983-6000

Please Note: Assignments are subject to change.

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