SEPTEMBER 2005 VOL. 77 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION
Scenic Standing The 40th Anniversary of Scenic Hudson and the Birth of Also in this Issue Environmental Litigation Funding Terrorism Yellowstone Injunctions by Skip Card Changes Affecting Trust and Estate Law NEW Columns: Mediating Domestic Violence Tax Alert “How Do I Dismiss Thee . . .?” Metes and Bounds Part II BESTSELLERS FROM THE NYSBA BOOKSTORE
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Visit the newly redesigned www.nysba.org. CONTENTS SEPTEMBER 2005
SCENIC STANDING The 40th Anniversary of Scenic Hudson and the Birth of Environmental Litigation BY SKIP CARD 10
Storm King Mountain rises over the Hudson River south of Cornwall-on-Hudson. In 1962, Consolidated Edison announced plans to build a pumped-storage hydroelectric plant (inset) at DEPARTMENTS the base of the mountain. Cover and inside photograph of Storm King Mountain: Skip Card. 5 President’s Message Artist's rendering: Courtesy of Consolidated Edison. 8 CLE Seminar Schedule 23 Funding Terrorism 18 Burden of Proof How and Why to Set Up a Program to “How Do I Dismiss Thee…?” – Part II Identify Potential Insurer Links to Terrorist BY DAVID PAUL HOROWITZ Organizations 32 Tax Alert Major Changes in Rules Governing NQDCAs BY DOUGLAS HAYDEN AND HOWARD FELDMAN BY BARRETT D. MACK 46 Metes and Bounds 28 Changes Affecting Trust & Estate Law Predatory Lending for All 2004 New York State Legislative Session BY BRUCE J. BERGMAN BY JOSHUA S. RUBENSTEIN 48 Attorney Professionalism Forum 50 Language Tips 36 Yellowstone Injunctions in Federal Court BY GERTRUDE BLOCK Maintaining the Status Quo While Litigating a 52 New Members Welcomed Commercial Lease Dispute 59 Index to Advertisers BY EDWARD P. YANKELUNAS 60 Classified Notices 42 Mediating Domestic Violence 63 2005-2006 Officers A Potentially Dangerous Tool 64 The Legal Writer BY SUSAN L. POLLET 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 © 2005 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $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.
Journal | September 2005 | 3 PRESIDENT’S MESSAGE A. VINCENT BUZARD
The Power of E-Practice
n the practice of law, some things Therefore, I have created a Task Force then, the FBEM Project has been never change. We are part of a pro- on E-filing and appointed two able expanded, and it is now available in Ifession that has a long, proud tradi- people to lead the group, Sharon Stern many counties. tion of playing a profoundly impor- Gerstman and Wallace Leinheardt. Participating attorneys can file and tant role in shaping the law, zealously Sharon, a principal law clerk for serve papers, any time, any place, representing clients, and improving State Supreme Court in the Eighth using a credit card to pay fees online. society. Some things do change, Judicial District and a recent chair of Time and money expended transport- though. In the last decade, technology our Committee on Civil Practice Law ing materials to the courthouse and has had an extraordinary impact on and Rules, is knowledgeable about the waiting on line can be eliminated, and how we do our work; and personal court system and the CPLR. Since 2003, parties can have greater access to court computers and the Internet have come she has served as an Association Vice materials stored in electronic format. to play an integral role in our profes- President. My old friend Wally was on Our Task Force will consult clerks and sional lives. Word processing, docu- the Executive Committee when I start- solo and small-firm practitioners who ment management, legal research, and ed there; he is a partner in the Trusts have participated in the FBEM Project, e-mail are just a few of the many uses and Estates Practice Group at Jaspan so we can learn from their experience of computers that enhance our pro- Schlesinger Hoffman LLP in Garden and assist in the development of the ductivity. City. most user-friendly and effective sys- The Association is committed to I have charged the Task Force with tem possible. We recognize that, even helping to lead the way in further the mission of studying the progress though electronic filing has advan- developing and harnessing technology that has been made in electronic filing tages, it can be burdensome, and we to better serve the needs of our profes- in the courts; identifying and examin- want to avoid that. sion. In this column, I would like to tell ing potential systems and procedures On another technology front, you about three distinct Association of electronic filing; evaluating through attending focus groups, I initiatives, all focusing on the use of strengths and weaknesses of each know that members need and want technology: electronic filing, legal option; considering the needs of solo instant access to legal updates. I have updates by e-mail, and law practice practitioners and small firms; and asked if we could e-mail the New York management. making recommendations to the Office Law Digest directly to members, and The electronic transfer of legal doc- of Court Administration. Editor David Siegel has accepted that uments and information between par- As many of you know, in 2000, OCA proposal. So, soon we will e-mail the ties and courts is growing through pro- initiated a pilot program, called the Digest to all members for whom we grams in state and federal courts across Filing By Electronic Means Project the country. As electronic filing is (FBEM), for electronically filing papers developed in our state, the Association with the courts and county clerks in A. VINCENT BUZARD can be reached at would like to be in the forefront. certain types of civil actions. Since [email protected].
Journal | September 2005 | 5 PRESIDENT’S MESSAGE have e-mail addresses. You will contin- to be a place New York lawyers can This fall, we intend to conduct a ue to receive a printed copy of the turn to for innovative, pragmatic infor- survey of lawyers to determine their Digest in the mail, and it is also avail- mation on technology, marketing, needs in managing their practice, and able online. management, and finance. Toward that at the Annual Meeting, we expect to In addition, I will be e-mailing peri- end, I am thrilled to announce that offer a half-day program on law prac- odic updates to you during my presi- Francis Musselman is leading the tice management. Other plans include dency and will be asking you for your new Committee on Law Practice revamping the law practice manage- opinions on various issues. We are also Management. ment page of our Web site to provide exploring ways to e-mail to members Fran has played a pioneering role in extensive resources and publishing summaries of cases in specific areas of this field, helping to advance the use of articles on this topic in the Associa- interest to them. computers in the legal profession and tion’s Journal. My sincere thanks go to You can see that e-mail is an impor- serving as one of the first Chairs of Terry Brooks, CLE Senior Director, for tant way for the Association to reach the ABA Law Practice Management his invaluable assistance in assembling out to people, but we do not have Section. Before his retirement, for the committee and helping to imple- e-mail addresses for all members. So many years he was the managing part- ment its agenda. we are making a concerted effort to get ner at Milbank, Tweed, Hadley & I welcome your ideas about how the everyone’s e-mail address. If we do not McCloy LLP. Thanks to Fran’s stature Association can better serve our mem- have yours, soon you will be receiving in the law practice management field, bers’ needs through the use of technol- a postcard asking you to provide it, we have been able to assemble an ogy. To share your comments, just use and I encourage you to do so. extraordinary committee of experts on technology – e-mail me! You can reach We are also rejuvenating our law the subject. At the group’s first meet- me at [email protected]. ■ practice management program, anoth- ing, which I was pleased to attend, we er critical area in which technology discussed many exciting initiatives. plays a vital role. I want our program
You’re a New York State Bar Association member. You recognize the relevance of NYSBA membership. For that we say, thank you.
The NYSBA leadership and staff extend thanks to our more than 71,000 members — attor- neys, judges and law students alike — for their membership support in 2005.
Your commitment as members has made NYSBA the largest voluntary state bar association in the country. You keep us vibrant and help make us a strong, effective voice for the pro- fession. A. Vincent Buzard Patricia K. Bucklin President Executive Director
6 | Journal | September 2005 NYSBACLE Partial 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 Federal Sentencing Advocacy After Booker, Fanfan and Note: CLE seminar coupons and complimentary passes Their Progeny: Update and Strategic Advice from CANNOT be used for this program Experts and Key Figures Fulfills NY MCLE requirement for all attorneys (7.5): 1.0 in (half-day program) ethics and professionalism; 6.5 in skills Fulfills NY MCLE requirement for all attorneys (4.0): 1.5 in September 9 New York City skills; 2.5 in practice management and/or professional practice September 23 Melville, LI September 23 New York City September 30 Tarrytown October 12 Albany October 14 Buffalo +Three Hot Topics in Criminal Law (video replay) (half-day program) Practical Skills – Introduction to Estate Planning Fulfills NY MCLE requirement (4.0): 2.0 in ethics and profes- Fulfills NY MCLE requirement for all attorneys (8.0): 1.0 in sionalism; 2.0 in skills, practice management and/or areas of ethics and professionalism; 2.0 in skills; 5.0 in practice manage- professional practice ment and/or professional practice September 16 Canton October 6 Albany; Buffalo; Melville, LI; Mt. Kisco; New York City; Rochester; Syracuse +Benefits, Health Care and the Workplace Fulfills NY MCLE requirement (7.5): 7.5 in skills, practice +Tenth Annual New York State and City Tax Institute management and/or areas of professional practice Note: CLE seminar coupons and complimentary passes September 19 Albany CANNOT be used for this program September 21 New York City October 6 New York City September 29 Rochester The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 +First Corporate Counsel Institute (program 8:30 – 5:30) (two-day program) Fulfills NY MCLE requirement for all attorneys (9.0): 1.0 in Note: CLE seminar coupons and complimentary passes ethics and professionalism; 2.5 in skills; 5.5 in practice manage- CANNOT be used for this program ment and/or areas of professional practice Fulfills NY MCLE requirement (14.5): 4.0 in ethics and profes- October 6 Buffalo sionalism; 10.5 in skills, practice management and/or areas of professional practice October 7 Albany September 22-23 New York City October 11 Melville, LI October 14 Syracuse When Your Client’s Health Law Problems Become October 17 New York City; Tarrytown Your Own and Meet the AUSAs (half-day program; includes luncheon) Risk Management for Attorneys: How to Stay Out of Fulfills NY MCLE requirement for all attorneys (5.0): .5 in Your Lawyer’s Office ethics and professionalism; 1.5 in skills; 3.0 in practice manage- (half-day program) ment and/or areas of professional practice Fulfills NY MCLE requirement for all attorneys (3.5): 2.5 in September 23 New York City ethics and professionalism; 1.0 in practice management and/or areas of professional practice Ethics for Real Estate Attorneys October 7 Albany (half-day program) October 21 Rochester Fulfills NY MCLE requirement for all attorneys (4.0): 4.0 in October 27 New York City ethics and professionalism October 28 Melville, LI September 23 Albany December 2 Tarrytown September 28 Rochester; Tarrytown December 6 New York City
† Does not qualify as a basic level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit. Update 2005 Practical Skills – Basic Matrimonial Practice (Live Sessions) Fulfills NY MCLE requirement for all attorneys (7.0): 1.0 in Fulfills NY MCLE requirement for all attorneys (8.0): 1.0 in ethics and professionalism; 3.5 in skills; 2.5 in practice manage- ethics and professionalism; 7.0 in practice management and/or ment and/or professional practice areas of professional practice October 18 Albany; Buffalo; New York City; October 7 Syracuse Rochester; Smithtown, LI; Syracuse; November 4 New York City Tarrytown +(Video Replays) Fulfills NY MCLE requirement (8.0): 1.0 in ethics and profes- New York Appellate Practice sionalism; 7.0 in practice management and/or areas of profession- October 21 Albany al practice October 28 Tarrytown October 25 Albany November 9 Buffalo October 26 Utica November 10 Uniondale, LI November 4 Jamestown December 1 New York City November 9 Plattsburgh; Saratoga November 10 Ithaca Divorce Law Birthdays 2005: Part B and Maintenance November 18 Buffalo; Canton at 25, the CSSA at Sweet 16 December 1 Binghamton; Poughkeepsie; Fulfills NY MCLE requirement for all attorneys (7.0): 7.0 in White Plains practice management and/or areas of professional practice December 2 Loch Sheldrake; Melville, LI; October 21 Buffalo Suffern; Watertown October 28 New York City December 7 Rochester November 18 Melville, LI December 2 Syracuse +Ethics and Professionalism (video replay) December 9 Albany Fulfills NY MCLE requirement (3.5): 3.5 in ethics and profes- sionalism Discovery Proceedings for Trusts and Estates Practitioners October 14 Canton (half-day program) Fulfills NY MCLE requirement for all attorneys (3.0): 0.5 in Medical Malpractice Litigation ethics and professionalism; 1.0 in skills; 1.5 in practice manage- Fulfills NY MCLE requirement for all attorneys (7.0): 1.0 in ment and/or areas of professional practice ethics and professionalism; 2.0 in skills; 4.0 practice management October 27 Mt. Kisco and/or areas of professional practice November 4 New York City October 14 Buffalo; New York City November 18 Smithtown, LI October 21 Albany; Melville, LI +Seventh Annual Institute on Public Utility Law 2005 Update and Overview on Premises Liability Fulfills NY MCLE requirement (6.0): 1.0 in ethics and profes- October 14 Uniondale, LI sionalism; 5.0 in skills, practice management and/or areas of October 21 Syracuse professional practice October 28 Buffalo; New York City October 28 Albany
Bridging-the-Gap: Intellectual Property Mental Health Courts: Better Outcomes from the October 20 Binghamton Legal and Mental Health Systems October 27 Uniondale, LI (half-day program) November 3 Albany; New York City Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 in ethics and professionalism; 1.0 in skills; 1.5 in practice manage- November 4 Tarrytown ment and/or areas of professional practice November 17 Rochester November 4 New York City To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 http://www.nysba.org/CLE/fall2005 (Note: As a NYSBA member, you’ll receive a substantial discount) Scenic Standing
Manhattan freelance The 40th Anniversary of writer SKIP CARD
Journal | September 2005 | 11 didn’t study environmental law at Yale, he said, because known as Niagara Falls State Park. It is considered the “there was no environmental law to study.” nation’s oldest state park. The 1965 Scenic Hudson case “was the case that opened By the dawn of the 20th century, U.S. citizens could the door to the federal courts for environmental claims,” lobby lawmakers for scenic preservation but had few Ayres said. “Prior to that, there was no litigation in the legal remedies if their lobbying was ignored. In 1903, federal courts that could be described as environmental, plans were announced for a highway to be cut across the and the courts were basically hostile to it.” round profile of Storm King Mountain, creating a highly The Storm King controversy began in September 1962, visible scar on the mountain’s east flank 200 feet above when Consolidated Edison announced plans to build a the Hudson. A 1907 taxpayer lawsuit temporarily halted hydroelectric plant at the base of the mountain along the condemnation proceedings, but the suit focused on Hudson River south of Cornwall. The plant was to be the improprieties in public spending. Plaintiffs also world’s largest “pumped-storage” generating plant, a expressed fears the highway would mar the mountain’s facility capable of producing 2,000 megawatts of electric- majesty, but such complaints found no legal foothold. The ity for New York City and Westchester County, equiva- highway opened in 1922. lent to about 18% of Con Ed’s present-day needs. New York preservationists did win one early legal vic- tory. When promoters of the 1932 Winter Olympics at Lake Placid announced plans for a bobsled run in the Scenic Hudson opened the Sentinel Range on New York’s Forest Preserve land, opponents sued, claiming the plans violated the “forever door to the federal courts for wild” provisions of the New York State Constitution. environmental claims. Association for the Protection of the Adirondacks v. MacDonald3 reached the New York Court of Appeals in 1930, and the state high court sided with the plaintiffs. During the day, water from a high reservoir to be built “The Adirondack Park was to be preserved, not behind Whitehorse Mountain in the Harvard-owned destroyed,” wrote Justice Frederick C. Crane. The bobsled Black Rock Forest would flow two miles through a 40- run was moved to Mount Van Hoevenberg, where it foot-diameter tunnel to hydroelectric turbines at the foot exists today, and “forever wild” had legal meaning. of Storm King Mountain. At night, Con Ed would reverse By the early 1960s, Americans’ attitudes about envi- the flow, pumping river water back up the tunnel to refill ronmental damage had evolved dramatically. Con Ed’s the reservoir. This system wasn’t particularly efficient – plan for a massive plant at scenic and historic Storm King for every three kilowatts of electricity used to fill the Mountain immediately raised concerns. reservoir, roughly two kilowatts would be generated Some problems were quickly solved. The plant’s orig- when the water flowed back out – but with this method inal location was to be on land owned by the Palisades Con Ed could generate electricity to meet peak daytime Interstate Park Commission at the narrow notch on the demand, and then top off its reservoir at night when sur- Hudson sometimes known as the Northern Gate, a fact plus power was available. that irked park commissioners. West Point Superinten- Con Ed chairman Harland Forbes told the New York dent William Westmoreland also feared overhead power Times in 1963 that “no difficulties are anticipated” in the lines would interfere with Army helicopter traffic. Con plant’s construction. Forbes might have been overly opti- Ed agreed to shift the plant off park land and bury trans- mistic, but he had history on his side. mission lines underground, and the plant won endorse- The idea of the government preserving or protecting ments from park officials and Army brass. Later, untouched land simply because it was pretty to look at Governor Nelson Rockefeller also backed the idea. didn’t take hold in the United States until the mid-19th Con Ed officials saw little scenic value in the Storm century. California’s Yosemite Valley first won scenic pro- King site. In his 1990 memoir Some Lessons Learned: tection in 1864, when President Abraham Lincoln ceded Recollections of 15 Years as Chairman of Consolidated Edison, the land to California to shield it from developers and 1967-1982, Charles F. Luce describes taking a boat tour land speculators. Similar protection was granted in 1872 past the proposed location. “It lay on a steep bluff below to Yellowstone, which because it was located in the the Storm King Highway and above the New York Wyoming Territory (not yet a state) became the nation’s Central Railroad tracks, and was strewn with debris from first national park, in fact if not yet in name. construction of the highway many years before,” Luce More protection followed. In 1885, after a 29-year cam- wrote. “It had no hiking paths or other recreational use.” paign begun by landscape artist Frederic Church and Others saw beauty in the site, and opposition grew joined by Central Park mastermind Frederick Law rapidly after a Con Ed annual report issued in April 1963 Olmstead, New York State purchased 412 acres adjacent featured an artist’s sketch of the proposed facility. The to Niagara Falls to create Reservation State Park, now image showed the plant’s reversible turbines and switch-
12 | Journal | September 2005 Hiking Storm King Mountain What to expect: Several hiking trails run up and the Bear Mountain Bridge traffic circle. Circle north over Storm King Mountain past some of the most sce- onto Route 9W and drive past the West Point nic viewpoints in the Hudson Valley. The trails are rel- turnoffs. Park in the scenic Butter Hill-Storm King atively short, but the steep, rocky scramble from the parking lot (access via northbound lanes only) at the parking lot off Route 9W to Storm King’s summit sharp bend in Route 9W some 3.2 miles north of the ridge will require hikers to use both hands and feet. junction with Routes 293 and 218. Recommended path: Storm King’s highlights can From the north: Drive south on I-87 (New York be seen best by combining several trails to form a P- State Thruway) to Exit 16, Harriman. Travel east on shaped loop. Trails on Storm King are not labeled with Route 6 to the Bear Mountain Bridge traffic circle and signs, but most paths are follow as above. marked by color-coded blazes From the west: Take any nailed to trees or painted on major eastbound highway to rocks. From the parking lot, I-87. Head south to Exit 16, walk west (to your left, as you Harriman. Travel east on face the mountain) and pick Route 6 to the Bear Moun- up the path marked by tain Bridge traffic circle and orange squares. Follow the follow as above. trail steeply uphill over bedrock to a T-junction with From the east: Travel west the Stillman Trail (yellow to Bear Mountain Bridge, blazes). Turn right onto where Route 6 crosses the Stillman and follow the yel- Hudson River near the border low blazes uphill to Storm of Westchester and Putnam King’s undulating summit counties. Follow Route 6 ridge, on the way passing across the bridge to the traf- junctions with the Bluebird fic circle and follow as above. Trail (red and blue blazes) Rules, maps and con- Copyright 2000, New York-New Jersey Trail and Howell Trail (blue tact information: No fees Conference. Used by permission. blazes). The best views lie a are charged for hiking or short distance beyond Storm King’s 1,342-foot summit, parking. Dogs must be leashed. Trails are shown on where hikers can gaze out across the Hudson River Map 7 of the West Hudson Trails hiking maps avail- past Poughkeepsie and Newburgh to the Catskills. able from the New York-New Jersey Trail Conference Follow Stillman down to the By-Pass Trail (white
Journal | September 2005 | 13 Conference, a coalition that included groups such as The scenery was a component of recreation, laying the first Nature Conservancy and the New York-New Jersey Trail brick of legal precedent. Their strategy was to show the Conference, which maintained 17 miles of trails around Federal Power Commission that Con Ed had simply not Storm King and Black Rock Forest. Carmer was elected done all that was required to merit a license. chairman. Garrison and Rifkind assembled a legal team that The group’s best hope lay in opposing the plant’s included several new staff members, Al Butzel among license during hearings before the Federal Power them. Butzel said he was “naturally pessimistic” about Commission. Scenic Hudson hired attorney Dale Doty, a overturning federal approval of the license but was former FPC commissioner, to handle its arguments. impressed by the strategy Garrison and Rifkind had cho- At a May 1964 licensing hearing, Con Ed lead attorney sen. Randall Le Boeuf praised the plant’s technical merits, “We thought our chances were pretty small, but we stressed the need for additional power and touted the also thought we had a strong case,” he said. “uniquely advantageous” qualities of the Storm King site. The Second Circuit Court of Appeals heard oral argu- Attorney Doty challenged some of Con Ed’s technical ments on October 8, 1965. The Federal Power claims but primarily called witnesses who said the plant Commission, called to defend its approval of the Con Ed would forever damage a beautiful and historically signif- plant, claimed Scenic Hudson had no standing to sue icant location. In his testimony, historian Carmer said it because the members “make no claim of any personal was proper to ask whether beauty should be sacrificed for economic injury resulting from the Commission’s commerce. action.” People might love Storm King’s scenery, but love
The court said future proceedings must include a basic concern for the preservation of natural beauty.
“The Hudson answers a spiritual need more necessary did not confer a legal right to challenge construction of to the nation’s health than all the commercial products it the plant. can provide, than all the money it can earn,” Carmer said. “The basic rule was thought to be that you had to have “We believe that ugliness begets ugliness and that some sort of economic interest,” Butzel said. Con Ed had nature’s beauty, once destroyed, may never be restored made the same claim during the May licensing hearings by artifice of man.” when it tried to block Scenic Hudson’s testimony, but the After the hearings, while the Federal Power Federal Power Commission had rejected that request, a Commission huddled, new opposition to the plant decision that now undermined the FPC’s own argument. appeared, with citizens, lawmakers and the media put- Garrison argued before the court that the commission, ting new emphasis on Hudson Valley preservation. by refusing to reopen its licensing hearings to new evi- Studies were found that challenged the Con Ed plant’s dence on fisheries impacts and alternative sources of efficiency. Another study warned the plant’s intake tur- power, had not done a thorough job. Feasible alternatives bines could harm a crucial spawning area for Hudson with far fewer impacts had been presented but casually River striped bass. A petition to reopen the licensing hear- dismissed, he said. ings was submitted but later denied. To the surprise of most participants, the court on On March 9, 1965, the Federal Power Commission December 29, 1965, handed preservationists a victory and granted a license for the plant, agreeing that the “mini- agreed the Federal Power Commission had not consid- mal” impact to the site’s natural beauty was no reason to ered a sufficient number of alternatives. It said future pro- halt construction of a needed power source. ceedings must include a basic concern for the preserva- Scenic Hudson appealed the ruling to the U.S. Court tion of natural beauty, “keeping in mind that, in our afflu- of Appeals for the Second Circuit. The Taconic ent society, the cost of a project is only one of several fac- Foundation agreed to finance the appeal if the group used tors to be considered.” the legal services of corporate attorney Lloyd Garrison, In effect, the court said the commission “had enough one of its board members. information to know they should get more information,” Garrison and Simon Rifkind, partners in the law firm Butzel said. “They hadn’t done their job.” of Paul, Weiss, Rifkind, Wharton & Garrison, crafted a Equally as important, the federal court ruled Scenic risky legal tactic to exploit the requirement that federally Hudson had a right to fight the project in court. The licensed power plants must take into account impacts on recreation. Another federal court had already ruled CONTINUED ON PAGE 16
14 | Journal | September 2005 CONTINUED FROM PAGE 14 cials who worried underground blasting could cripple the nearby aqueduct that carried 40% of the city’s water judges ruled that people who by their conduct and activ- supply. ities exhibit a special interest in a site’s aesthetic or recre- Butzel kept on the case, even taking it with him when ational qualities “must be held to be included in the class he and fellow associate Peter Berle left Paul, Weiss, of ‘aggrieved’ parties.” Con Ed appealed the decision, but Rifkind, Wharton & Garrison and formed the firm Berle the U.S. Supreme Court refused to hear the case, and the & Butzel, later Berle, Butzel, Kass & Case. By that time, precedent stood. Paul, Weiss was glad to be rid of the Storm King case, The 1965 ruling became an important milestone in the which had become a pro bono case that Butzel estimates changing attitudes toward the environment. Soon after- had racked up at least $300,000 in unpaid fees. ward, in 1967, a group of four Long Island scientists suc- cessfully went to court to halt the use of the pesticide dichlorodiphenyl trichloroethane, better known as DDT. In just a few years, recognizing the Their victory led to the creation of the Environmental environment’s aesthetic value had Defense Fund. Richard Ayres and other Yale students also grasped jumped from breakthrough legal the ruling’s implications and correctly sensed the change in environmental attitudes. They watched in 1969 as strategy to national policy. Congress passed the National Environmental Policy Act, the stated purpose of which was to “encourage produc- Litigation dragged on until 1980, by which time ineffi- tive and enjoyable harmony between man and his envi- cient pumped-storage technology was no longer cutting- ronment” and to “assure for all Americans safe, healthful, edge and the original cost of the facility had increased productive, and aesthetically and culturally pleasing sur- tenfold to $1.6 billion. Con Ed was also tired of fighting roundings.” Inspired by such developments, Ayres and a battle that had become powerfully symbolic within the others formed the Natural Resources Defense Council, environmental movement. A 1980 settlement scrapping where Ayres worked as a staff attorney until 1991. Since the Storm King plant was hailed by the New York Times as 1992, he has served on the NRDC’s board of directors. a “peace treaty on the Hudson.” NEPA also gave environmental groups standing in Butzel left his law practice in 1985. Today, he is presi- court, as did the 1970 Clean Air Act amendments and the dent of Friends of Hudson River Park, an organization 1972 Federal Water Pollution Control Act, thus codifying working to support development of waterfront park Scenic Hudson’s precedent in federal law. In just a few lands on Manhattan’s west side from 59th Street to the years, recognizing the environment’s aesthetic value had Battery. jumped from breakthrough legal strategy to national pol- He doesn’t get out in the woods much anymore, he icy. explains as we move away from the Storm King view- Butzel’s job, however, was just beginning. The Second point, walking swiftly along rocky trails to beat the Circuit ruling didn’t kill Con Ed’s plant, it just sent plans approaching rain. He talks in detail about the tenacity of back for a more thorough hearing. By 1970, by the end the Storm King supporters during the long fight, about of a second licensing request, the Federal Power the case’s odd twists, about chance and timing. He is Commission had an 18,000-page record, and no one could understandably proud of what was accomplished here, again argue it hadn’t looked closely enough at the issue. but he is quick to say good fortune played a role. The FPC granted Con Ed a license for the plant. “We were lucky,” Butzel says, more than once. In par- Opponents kept fighting and often got lucky, Butzel ticular, he admits he and others might have spotted the said. Appeals stalled plant construction at crucial erroneous claims about the Hudson River’s flow. But had moments. At other times, Con Ed’s financial troubles kept they done so, he said, their reason for the crucial 1974 construction from proceeding. Water quality permits appeal would have been lost, and the Con Ed plant might were challenged successfully. Sportsmen and aquatic have been built after all. biologists, alarmed at the dangers to striped bass nesting We reach the car just as thunder claps above us. sites, joined the fight. In 1974, errors were found in a fish- Seconds after we slam the car doors, a torrent of heavy eries study funded by Con Ed that vastly overstated rain washes over the parking lot. Al Butzel smiles inside downstream flow for the tidal Hudson River, thereby the dry car. His luck on Storm King has held once understating the effect on striped bass. It gave opponents again. ■ another basis for appeal. Con Ed tried compromise, even offering to put the tur- 1. 354 F.2d 608 (2d Cir. 1965). bines and powerhouse underground. The move mollified 2. 42 U.S.C. §§ 4321–4347. few and angered others, including New York City offi- 3. 253 N.Y. 234, 170 N.E. 902 (1930).
16 | Journal | September 2005 BURDEN OF PROOF BY DAVID PAUL HOROWITZ
DAVID PAUL HOROWITZ
Introduction when some courts began to use 90-day the result of neglect on the part of his is the second of a three-part notices as a calendar control tool by the [plaintiff’s] previous attorneys article addressing post-com- routinely incorporating a CPLR 3216 (citation omitted) and that – upon mencement, non-summary judg- demand into compliance conference transfer to the present attorney – T pre-trial matters have proceeded ment dismissals of civil cases. The first orders. with the knowledge and participa- part attempted to give a brief histori- tion of defense counsel. Plaintiff cal and philosophical background on Obtaining a CPLR 3216 Dismissal likewise demonstrated the exis- the development of these dismissal Getting a case dismissed under CPLR tence of a meritorious claim by issues, suggested why courts are more 3216 is a two-step process when a submitting an affidavit from a empowered and may be more willing party serves the notice. First, a party medical expert.4 to use the dismissal weapons at their serves a 90-day notice in accordance A Second Department decision, disposal, and addressed one particular with the statute (by registered or certi- quoting the Court of Appeals’s type of dismissal: failing to appear in fied mail); and, if the note of issue is “extremely forgiving” language, court. In this issue we address dis- not timely filed, the party serving the emphasized that CPLR 3216 “never missals for failure to prosecute and for notice thereafter makes a motion to requires, but merely authorizes, the failure to restore cases after dismissal dismiss.1 With court-served 90-day Supreme Court to dismiss a plaintiff’s from the trial calendar for more than notices, no motion is necessary. A party action based on that plaintiff’s unrea- one year. The last part of this series that blows a 90-day notice and is con- sonable neglect to proceed.”5 The will address dismissals arising in the fronted with a motion to dismiss may Second Department went on to hold disclosure world as a penalty for a avoid dismissal by demonstrating to that the dual showing of a justifiable party’s, or an attorney’s, failure to the court a “good and meritorious” excuse and the existence of a good and comply with disclosure orders. cause of action and a reasonable excuse meritorious cause of action “is not for the delay.2 strictly necessary in order for the plain- 90-Day Notices: CPLR 3216 Although the receipt of a 90-day tiff to escape such a dismissal.” A vari- CPLR 3216 provides a mechanism notice from a party typically causes ety of circumstances justified excusing whereby a case may be dismissed for rapid, shallow breathing and markedly the plaintiff’s failure to comply with a failure to prosecute the action where a increased perspiration in the recipient, 90-day notice, “including where a party is unable, or unwilling, to pro- courts have traditionally been relative- defendant, after having served the 90- ceed. The recalcitrant party is served ly lenient in permitting a party to day notice, demands additional pretrial with a demand, commonly called a 90- escape dismissal. In fact, the Court of discovery from the plaintiff, or where a day notice. The notice demands that Appeals recently reiterated its long- defendant, prior to having served such prosecution of the action be resumed standing characterization of CPLR a notice, has obstructed the plaintiff’s and that a note of issue be filed within 3216 as being “extremely forgiving of own efforts to obtain legitimate pretrial 90 days of the service of the notice. The litigation delay,” holding, as a matter disclosure from the defendant.”6 The notice informs the recipient that failure of law, that the Appellate Division had Second Department concluded that to file a note of issue within 90 days of abused its discretion in dismissing a “[t]here is no parallel between the cir- receipt shall serve as the basis for the complaint where the plaintiff demon- cumstances of the instant case and sender of the notice to move for dis- strated both a meritorious cause of those where CPLR 3216 dismissals missal. Although the rule permits a action and a justifiable excuse for the have been justified based on patterns of party or the court to serve the demand, delay.3 The Court found that the plain- persistent neglect, a history of exten- 90-day notices were, historically, tiff had demonstrated a justifiable sive delay, evidence of an intent to served almost exclusively by parties. excuse for the delay, and that the delay abandon prosecution, and lack of any This changed with the advent of Dif- was not willful or with intent to tenable excuse for such delay.”7 ferentiated Case Management (DCM), abandon the action, but rather was
18 | Journal | September 2005 The Court of Appeals This is a crucial distinction for any plaintiff to file a note of issue by a certain date and further provides recently reiterated its recipient of a 90-day notice to bear in that “in the absence of notification, characterization of mind, but particularly so where the 90- this matter will be deemed aban- day notice was served by the court as a doned and dismissed” is insuffi- CPLR 3216 as being routine calendar control device. Delays cient to constitute such notice.13 “extremely forgiving in completing disclosure may well be However, one area in which courts the result of one or more defendants’ do not strictly construe the statute is in of litigation delay.” conduct, rather than as a result of a the manner of service called for by plaintiff’s failure to proceed, or both CPLR 3216, which requires service by sides may bear responsibility. How- registered or certified mail.14 In a case where both sides at a compliance con- ever, the penalty for failing to timely where the 90-day notice was served by ference had signed a compliance con- file a note of issue when served with a a party, the court held that service by ference order containing a 90-day 90-day notice – dismissal – falls solely Federal Express accomplished the notice. The court ruled that the statuto- on the plaintiff. functional equivalent of certified or ry requirement that the notice be registered mail in providing documen- served by certified or registered mail Strict Construction (Sort Of) for tary evidence of receipt, and 90-day did not invalidate the notice when the CPLR 3216 Service Requirements notice served in this manner complied parties were hand-served with it at the There is long-standing authority that with service requirements.15 When the conference.17 Denying receipt will be the requirements of CPLR 3216 will be court serves parties at a conference to no avail. In a First Department case, strictly construed, and dismissal will with 90-day notice, in hand, that serv- plaintiff’s counsel denied having a not be warranted where there has not ice will be upheld.16 The Second copy of the court’s order despite the been strict compliance with the predi- Department has affirmed a trial court fact that the copy of the order in the cate requirements for dismissal.8 As dismissal of a plaintiff’s complaint court’s file bore plaintiff’s counsel’s explained by the Court of Appeals, a dismissal of an action for failure to prosecute is not part of the court’s inherent power but is, instead, a leg- islative creation.9 Accordingly, the Court of Appeals reversed the courts below for having “erred in granting the ex parte motions to dismiss on the grounds of ‘gross laches’ or failure to prosecute . . . the conceded failure of respondent or the court to afford peti- tioners adequate written notice consti- tutes a failure of a condition precedent to the dismissal (CPLR 3216 [b]).”10 Proper notice and service is required whether a private litigant or the court has served the 90-day notice. Where the order below does not con- tain the notice required by CPLR 3216, there is a failure of a condition prece- dent, and a dismissal may not be grant- ed.11 “Here, because a certification order did not provide the 90-day notice required by CPLR 3216, there was a failure of a condition precedent, and the court was not authorized to dis- miss the action on its own motion.”12 The First Department is in accord, holding [i]n this matter, no 90-day demand was served and the Preliminary Conference Order which directed
Journal | September 2005 | 19 signature acknowledging receipt of the a litigant could be forgiven for deter- to permit disclosure to be conducted order, which the court held obviated mining that the safest course is to file post-note. If the court does not extend the need for service by registered or the note of issue, and then complete the time, file the note of issue, careful- certified mail.18 disclosure during the pendency of the ly detailing the disclosure remaining So far, so good. However, alongside defendant’s motion to vacate the note on the certificate of readiness. the cases cited above, there is a long of issue, right? Wrong. The Second line of cases, particularly out of the Department held that where the plain- Dismissals Pursuant to CPLR 3404 Second Department, holding that the tiff timely filed a note of issue and cer- and the Failure to Restore failure to file timely a note of issue in tificate of readiness in response to a 90- Marked-Off Actions response to a proper, court-served, 90- day notice, but discovery was not com- CPLR 3216 has no application once a day notice warrants dismissal. plete, the “false statement of material case has been successfully placed on fact” rendered the note of issue and the trial calendar. However, this is not certificate of readiness a nullity; hence, the time to relax one’s vigil. In addition Treat the receipt of a no filing was made in response to the to dismissals as a result of the failure to 90-day notice, and the appellate court appear at a scheduled conference, dis- CPLR 3216 demand held that the trial court erred in failing cussed in the first article in this series, with the utmost caution. to dismiss the action pursuant to CPLR the CPLR provides yet another mecha- 3216. Case dismissed. nism for dismissing your case: CPLR There are cases where the appellate 3404. Not surprisingly, delay on the part court will reinstate a dismissal arising According to CPLR 3404, a case that of a party faced with a CPLR 3216 dis- from failure to file a note of issue in is marked off, struck from the calendar missal can be fatal. Where a trial response to a court-served 90-day or unanswered at a clerk’s calendar court’s certification order contained a notice, but they are quite fact specific. call that is not restored within one year 90-day notice, the plaintiff failed to The Second Department reversed a shall be deemed abandoned and dis- move before the expiration of the 90 trial court’s dismissal of a plaintiff’s missed, without the necessity of an days to vacate the notice or extend its complaint for failure to file a note of order.22 In other words, once a case on time, and failed to file a note of issue issue. A sufficient affidavit of merit the trial calendar is off-calendar, for within the 90 days. More than two was submitted in opposition to the whatever reason, for more than one years after the default date, the plain- motion to dismiss, and the plaintiff year, it is to be dismissed, and the dis- tiff moved to have a note of issue filed alleged law office failure, resulting missal may be entered by the clerk of more than one year after the expiration from a decline in productivity arising the court. of the 90-day period deemed timely from the September 11, 2001, World For a number of years there was a filed. Having failed to offer a justifiable Trade Center attack, as the excuse for split in appellate cases over whether a excuse for the failure or a meritorious failing to comply. Accepting law office court could order a dismissal pursuant cause of action, the Second Depart- failure as a reasonable excuse for the to CPLR 3404 prior to a case being ment affirmed the trial court’s denial of failure to timely file, the court conclud- placed on the trial calendar. This was the motion.19 ed: “To the extent that the completion resolved in the Lopez decision where Knowing enough to move quickly of discovery was delayed by the plain- the Second Department held “that to extend the time to file the note of tiff’s lack of diligence, it did not rise to CPLR 3404 should not be applied to issue is not always sufficient. A plain- the level of failure to prosecute the cases in which a note of issue has not tiff, confronted with a court-served 90- action. . . . In light of the strong public been filed.”23 day notice, moved to extend the time policy in favor of resolving cases on the What happens when a note of issue within which to file a note of issue. In merits, the complaint should be rein- is vacated and a case is stricken from affirming the trial court’s dismissal stated.”21 However, these are facts the trial calendar? In dicta, the First of the plaintiff’s case, the Second unlikely (hopefully) to be repeated. Department has opined that where a Department recited a brief, blunt, Treat the receipt of a CPLR 3216 plaintiff had filed a note of issue, and chronology of the plaintiff’s failure, demand with the utmost caution, com- the case had thereafter been stricken over a four-year period, to pursue dis- ply with all disclosure owed, and care- from the trial calendar for the plaintiff’s closure coupled with a lack of a reason- fully document the failure of any other failure to provide discovery, and the able excuse and prejudice established party to comply with disclosure or to defendant thereafter moved pursuant by the defendant.20 otherwise delay the filing of the note of to CPLR 3404 to dismiss after more Faced with a 90-day notice, aware issue. Move, preferably by order to than one year had elapsed, the case did that a motion to extend the time to file show cause, to be relieved of the terms not revert to a pre-note of issue status, the note of issue may be denied, and of the notice, to have the time to file the so that CPLR 3404 would apply and the with necessary disclosure outstanding, note of issue extended by the court, or action could be dismissed.24
20 | Journal | September 2005 A case dismissed pursuant to CPLR To “restore a case that has been 9. Airmont Homes, Inc. v. Town of Ramapo,69 N.Y.2d 901, 516 N.Y.S.2d 193 (1987). 3404 may be revived upon establishing marked off the calendar pursuant to 10. Id. at 903. the existence of each component of a CPLR 3404, a plaintiff need only 11. Schwartz v. Nathanson, 261 A.D.2d 527, 690 four-part test: first, a meritorious case; request restoration within one year fol- N.Y.S.2d 635 (2d Dep’t 1999). 27 second, a reasonable excuse for the lowing the mark-off date.” 12. Id. delay; third, an intent not to abandon 13. Revell, 307 A.D.2d 214; but see, Heredia v. Two the action; and, fourth, a lack of preju- Conclusion Kings, Inc., 4 A.D.3d 153, 772 N.Y.S.2d 44 (1st Dep’t dice to the defendant.25 The First Preliminary and compliance confer- 2004) (although plaintiff’s counsel denied having a copy of the court’s order, the copy of the order in the Department held that the plaintiff had ence orders must be scrutinized for court’s file bore plaintiff’s counsel’s signature satisfied each of the four criteria: A deadlines, and these deadlines must acknowledging receipt of the order, thus obviating meritorious case was established be carefully entered in a diary with the the need for service by registered or certified mail. The court concluded: “The wording of the order because the defendant did not contest same care and concern once reserved gave sufficient notice to plaintiffs that failure to the affirmation of merit submitted by for tracking statutes of limitations. You comply with the demand would result in dis- the plaintiff’s physician, as was a rea- will sleep better knowing you have a missal.”). Id. sonable excuse (a prolonged wait for system of alerts in place to allow you 14. CPLR 3216(b)(3). trial in Bronx County was not unusual, sufficient time to meet, or move to 15. Secreto v. Int’l Bus. Mach. Corp., 194 Misc. 2d 512, and “[w]hile counsel may be faulted extend the time to meet, these dead- 755 N.Y.S.2d 566 (Sup. Ct., Dutchess Co. 2003). for failing to keep track of the status of lines. ■ 16. Lu v. Scaduto, 303 A.D.2d 750, 757 N.Y.S.2d 461 (2d Dep’t 2003). the case, such an oversight amounts to 17. Id. law office failure, which may be 1. It is important to remember that filed means filed, so a trip to the appropriate clerk’s window is 18. But see Heredia, 4 A.D.3d 153. accepted as an excuse for delay”). in order when the 90 days is about to run, since the Furthermore, there was no intent to note of issue merely landing in the clerk’s in-basket 19. Fraga v. Smithaven Open MRI, 6 A.D.3d 494, 774 N.Y.S.2d 415 (2d Dep’t 2004). abandon the action (plaintiff’s counsel is not a filing. More than one practitioner has had a case dismissed where service dropped off the note 20. Dhaliwahl v. Long Boat Taxi, Inc., 305 A.D.2d 449, alleged that he did not receive notice of of issue, but the clerk did not log in and stamp it 758 N.Y.S.2d 819 (2d Dep’t 2003). the May 2000 conference, and due to until the 91st day. 21. Storchevoy v. Blinderman, 303 A.D.2d 672, 757 the defendant’s “no pay” position, the 2. Di Simone v. Good Samaritan Hosp., 100 N.Y.2d N.Y.S.2d 82 (2d Dep’t 2003). 632, 768 N.Y.S.2d 735 (2003). plaintiff was simply waiting for a trial 22. CPLR 3404. date), and there was a lack of prejudice 3. Id. 23. Lopez v. Imperial Delivery Serv., 282 A.D.2d 190, to the defendant (mere passage of time 4. Id. 725 N.Y.S.2d 57 (2d Dep’t), appeal denied, 96 N.Y.2d 937, 733 N.Y.S.2d 376 (2001). does not establish prejudice, and since 5. Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d the plaintiff had been deposed, records 568 (2d Dep’t 2004). 24. Nieman v. Sears, Roebuck & Co., 4 A.D.3d 255, 772 N.Y.S.2d 662 (1st Dep’t 2004). exchanged, and the defendant did not 6. Id. depose a witness or produce its doctor 25. Muriel v. St. Barnabas Hosp., 3 A.D.3d 419, 771 7. Id. for deposition, the plaintiff demon- N.Y.S.2d 107 (1st Dep’t 2004). strated that the defendant was not 8. Revell v. New York Cares Org., Inc., 307 A.D.2d 26. Id. 214, 763 N.Y.S.2d 259 (1st Dep’t 2003); accord, prejudiced by the “faded memories of Ameropan Realty Corp. v. Rangeley Lakes Corp., 222 27. Smith v. Avis Rent A Car Sys., Inc., 308 A.D.2d potential witnesses”).26 A.D.2d 631, 635 N.Y.S.2d 691 (2d Dep’t 1995). 573, 764 N.Y.S.2d 728 (2d Dep’t 2003). A Pro Bono Opportunities Guide For Lawyers in New York State Now Online!
Looking to volunteer? This easy-to-use guide will help you find the right opportunity. You can search by county, by subject area, and by population served. A collaborative project of the Association of the Bar of the City of New York Fund, New York State Bar Association, Pro Bono Net, and Volunteers of Legal Service.
You can find the Opportunities Guide on the Pro Bono Net Web site at www.probono.net/NY/volunteer, through the New York State Bar Association Web site at www.nysba.org/volunteer, through the Association of the Bar of the City of New York Web site at www.abcny.org/volunteer, and through the Volunteers of Legal NEW YORK STATE Service Web site at www.volsprobono.org/volunteer. BAR ASSOCIATION
22 | Journal | September 2005 Funding Terrorism
How and Why to Set Up a Program to Identify Potential Insurer Links to Terrorist Organizations
By Douglas Hayden and Howard Feldman
errorism is about secretly hostile operatives strik- representing large sums of money, in swift, solitary trans- ing against innocent civilians to wreak fear and actions. Thavoc unjustified by the terrorists’ true political Lawyers practicing in the post-9/11 period who have and military strength. Operationally, terrorism is about not already been called upon to advise their clients about moving money and obtaining and placing strategic OFAC compliance should advise their clients to pay assets. Without large amounts of untraceable money and attention every time they enter into a contract or pull out local sources of equipment, terrorism could not exist. In their checkbook. Their failure to counsel observance of that sense, terrorism has an eerie similarity to internation- the new regulations may expose their clients to excruciat- al drug dealing and other aspects of organized crime. ing audits, enforcement actions, and, in egregious cases, In the immediate aftermath of the terrorist attacks of to the most heinous forms of adverse publicity. September 11, 2001, on the World Trade Center and the OFAC has termed it “critical” that the insurance Pentagon, President George W. Bush issued an Executive industry gain a better understanding of the economic Order1 prohibiting transactions with persons who com- sanctions and embargo programs. “The programs are a mit or threaten to commit acts of terrorism, or who sup- front line defense against foreign threats to our national port terrorism.2 safety, economy and security.”4 The New York State Insurance Fund (NYSIF) has These state funds have embarked upon an ambitious joined several state funds in establishing procedures to project to cross-check their databases with the United observe protocols established by the Office of Foreign States Treasury Department’s list of known terrorists and Assets Control (OFAC) division of the United States those who lend support to them. They recognize that an Treasury, which, by federal mandate, stem the flow of insurance company is a financial institution capable of money that feeds and sustains international terrorist being co-opted by international terrorism and organized operations. crime. Lawyers representing banks and clients engaged in international commerce have for years been familiar with DOUGLAS HAYDEN is Acting Co-Executive Director/Chief Legal Officer and the due diligence and compliance aspects of OFAC poli- HOWARD FELDMAN is Principal Attorney with the New York State Insurance cy. In recent years, OFAC compliance obligations have Fund. been broadened to include domestic insurance compa- nies, domestic real estate companies3 and other tradition- ally less federally regulated areas of commerce. Roughly This article is adapted from an article first printed in AASCIF News, classified as non-traditional financial institutions, these April–May–June 2004 (The Newsletter of the American Association industries share in common the ability to transfer assets of State Compensation Insurance Funds,
Journal | September 2005 | 23 As an aspect of war, federal economic sanctions actu- • Integration – The now difficult-to-trace money is ally go back to the War of 1812.5 Modern sanction policy placed in the legitimate financial system of the began in World War I and has generally been instituted locale where the terrorist organization is operating. under the authority of the Trading with the Enemy Act of 1917 (TWEA).6 The Terrorist Next Door and NYSIF’s Close Call OFAC itself was formally created in December 1950, At this point, you might wonder how this relates to the following the entry of China into the Korean War, when casualty insurance industry as a whole, or the workers’ President Truman declared a national emergency under compensation insurance industry in particular. At NYSIF, the TWEA and froze all Chinese and North Korean assets it quickly hit home when a former long-term insured, subject to U.S. jurisdiction. Carnival French Ice Cream, suddenly appeared in the What we now know as peacetime economic sanctions news. began with the International Emergency Economic In November of 2003, acting on a tip, federal agents Powers Act of 1977 (IEEPA),7 the first U.S. law involving raided a tiny ice cream shop in the Park Slope section of peacetime sanctions. Brooklyn. Agents who reviewed seized accounts were Modern sanction legislation weaves the provisions of astonished to learn that Abad Elfgeeh’s Carnival French TWEA, IEEPA and several additional federal laws,8 some Ice Cream shop had deposited $20 million in just the past of which originally targeted international narcotics traf- five years. Upwards of $5 million had been deposited into ficking, money laundering, and organized crime. The leg- the Carnival account in a one-year period alone. Tax islation was also used as a tool in foreign policy to isolate records indicated an annual gross in ice cream sales of rogue nations such as Cuba and North Korea. These are just $185,000. all tied together by a series of Executive Orders and Elfgeeh, a Yemeni immigrant who lived upstairs from Presidential Declarations of Emergency under IEEPA. the shop, was soon accused of making illegal money
Anybody who comes into possession of money or property belonging to an OFAC-listed SDN or Blocked Person must freeze those assets.
Many in the insurance industry incorrectly inter- transfers to fellow Yemeni Sheik Hasa al-Moayad, who change OFAC with the USA Patriot Act.9 As property and resided in Germany. Al-Moayad was extradited to the casualty insurance companies were temporarily exempt- United States after being accused of funneling $20 mil- ed from the Patriot Act, those who confuse the two acts lion, recruits and weapons to al-Quaeda. He was convict- believe that the insurance industry is exempt from OFAC ed in March in Federal District Court in Brooklyn of con- requirements. As you have seen, OFAC compliance is spiracy for providing material support to Hamas and for governed by a group of separate federal laws that, in attempting to provide material support to al-Quaeda. In a most cases, predated the USA Patriot Act. taped conversation with FBI informants, al-Moayad promised to funnel more than $2 million to Hamas and Money Laundering laughed about a Hamas attack in Israel in which civilians Money laundering through the use of legitimate business had been killed.11 Elfgeeh is facing a possible 10-year is the lifeblood of terrorism. Money laundering is the prison sentence. process by which one conceals the existence, illegal Osama bin Laden has boasted that hawalas, informal source or illegal application of income, and disguises that money transfer networks, have created cracks in the income to make it appear legitimate. While banks were Western financial system that “were as familiar to him the traditional money-laundering vehicles, enforcement and his al-Quaida colleagues as the lines of their own of banking rules have led money launderers to seek other hands.”12 financial institutions.10 One substitute may be domestic On May 11, 2004, Federal Eastern District Judge insurance companies. These are the steps commonly fol- Charles P. Sifton allowed Mr. Elfgeeh to withdraw his lowed by money launderers: guilty plea. The decision stated that the plea that had been entered before a federal magistrate was flawed • Placement – Money is deposited in the financial sys- because Mr. Elfgeeh did not understand some of its terms tem without drawing notice. and never acknowledged taking part in any conspiracy. • Layering – Money is moved through multiple insti- As a result, Judge Sifton vacated the plea.13 tutions and property ownership, often international- While NYSIF has no indication that Elfgeeh misused ly, to make it difficult to trace the origins of the his NYSIF policy, long-term business relationships are money. one of the cornerstones of financial trust. Fraud detection
24 | Journal | September 2005 Company Penalty Offense systems used by many insurers may not be capable of L.A. Dodgers $75,000 Signing Two Cuban Nationals detecting a sophisticated assault perpetrated by hostile CNA Insurance $2,300,000 Selling Reinsurance to Cuban foreign governments or internationally based money Companies launderers. These would be uncharted areas of fraud to Ikea $8,000 Importing Rugs from Taliban- most insurers. Controlled Afghanistan Domestic insurance companies can catch the average Tyson Foods $150,000 Chicken Sent to Pre-War Iraq claimant committing fraud. Whether one could deal with Goodyear Tire $195,000 Shipping Tires to Cuba Through professional agents of a foreign government who target Venezuela and Colombia casualty insurance companies is another matter. Could a Johnson & Johnson $110,000 Medical Supplies to Pre-War Iraq scam that involved a long-term insured colluding with a GRE Insurance $250,000 Insurance Coverage Group for claimant and provider be discovered? Shipments to Pre-War Iraq and Domestic casualty insurers are not used to viewing to Libya themselves as financial institutions. They may not realize that a terrorist or money launderer may be willing to Problems with OFAC accept a huge discount on money to legitimize it. OFAC has its share of detractors who believe that OFAC is not rigorous enough. The Senate Finance Committee How OFAC Works recently sent OFAC a letter setting forth its perceived Here’s how an OFAC compliance program works. A U.S. deficiencies. Senator Charles Grassley, the Committee’s insurance company is prohibited, under any circum- Republican chairman, and Senator Max Baucus, its senior stance, from paying a claim or entering into a contract, Democrat, cited numerous concerns about OFAC’s per- including issuing a policy, with anyone on the OFAC list. formance, including evidence of sloppy record keeping, The OFAC list contains the names of some 50,000 failure to provide required information to Congress and Specially Designated Nationals (SDN) and Blocked reliance on voluntary compliance by banks to impose Persons, including numerous foreign agents and front sanctions against suspected terrorists. “This leaves OFAC organizations for terrorists and narcotics traffickers. The in a position of not knowing what it does not know,” the list is available at the OFAC Web site,
Journal | September 2005 | 25 domestic insurer will come upon an SDN or Blocked 5. Maintain records. Since you may need to demon- Person less frequently than will an international insurer. strate your commitment to OFAC compliance someday, it Although a domestic insurer is looking for a needle in a is advisable to maintain a record of your internal OFAC haystack, it is an important needle. guidelines, internal controls and searches conducted, Here are some practical pointers for setting up a pro- including how “hits” were investigated. This will also gram: help when repeat hits are obtained in the case of continu- 1. Appoint an OFAC compliance officer or better yet, ing transactions with the same source. a multi-disciplinary compliance committee. The major departments involved in policies, benefits and procure- Matches, Similar Names and False Positives ment should be represented, as well as the legal, finance Once you begin mechanized matching, you will come up and internal audit departments. with a steady stream of hits. The list contains names from 2. Identify all payment centers, policy issuance and a large number of foreign countries, including many sim- contract sources. Here are some places that a state fund ilar names. These can render most name-matching algo- might look: rithms useless. • Claims – benefit payments, legal counsel, investiga- There is no one solution, but here are some ideas on tors and providers. how to proceed: • Policyholders – existing and new policies are writ- 1. Check the score of your software program rating ten; canceled policies where refunds are possible. and try and figure out why it is not 100%. If it is 100%, • Company vendors – includes both contracts and look for information parameters beyond the scope of the purchasing. search. • Financial – banks, investment managers, insurance 2. Check the country of origin of your claimant/poli- and real estate brokers. cyholder against the one on the OFAC list. • Internal – employees, consultants, independent con- 3. See how long your claimant/policyholder has been tractors including third-party administrators, and in the United States and how long at the same address. vendors of employee reimbursable expenses. 4. If your claimant/policyholder is not in the United States or has a foreign address, that should raise a red flag. A non-routine transaction involving the transfer of Assets must be frozen by placing moneys across United States borders may require further inquiry. But don’t rule out domestic sources of terrorism. them in interest-bearing accounts, 5. If you do not have an exact hit, but can’t rule it out, at commercially reasonable rates. call the OFAC hotline at 1-800-540-6322. You may wish to assign an investigative unit, such as your special investigations unit, to run down your hits. 3. Begin searching manually. Since every searching Computer-related investigative skills go a long way system produces matches, culling the true hits from false toward resolving those issues. positives is the most difficult part of the program. You can manually download the list from the OFAC Web site What to Do When You Get a Match
26 | Journal | September 2005 hence, an opportunity to free the assets. Finally, upon §§ 2332d, 2339B) and the Foreign Narcotics Kingpin Designation Act (21 U.S.C. notification by OFAC, the assets are either freed or §§ 1901–1908); 8 U.S.C. § 1182). ordered to be paid over to OFAC. 9. This juxtaposition was even seen in a New York Law Journal column: Marvin In the case of a policy or contract, the insurance com- Bagwell, Land Title Patriot Paperwork; A 9/11 Law Wastes Time and Money, N.Y.L.J., Jan. 12, 2005. pany may not enter into or maintain a policy with an 10. The Bank Secrecy Act of 1970 requires U.S. banks to file a Currency SDN or Blocked Person. Does this require cancellation of Transaction Report (CTR) for cash deposits of $10,000 or more. 31 U.S.C. existing policies? According to one source, no, but such §§ 5313, 5316(a). Persons who conspire to conceal the existence, origin and policy would have to be frozen. What does “frozen” transfer of bank deposits of more than $10,000 in cash by making deposits in sums less than $10,000 at several different banks or in increments at one bank mean? The unearned premium must be calculated as (known as smurfing) violate the Conspiracy Act. 18 U.S.C. § 371; United States though the policy had been canceled and deposited into v. Richter, 610 F. Supp. 480 (N.D. Ill. 1985). the account established for OFAC-blocked transactions. These laws were followed by several additional banking and other types of No claims may be paid out of the policy.16 financial institution control laws, including: the Money Laundering Control Act of 1986 (Pub. L. No. 99-570, codified as 18 U.S.C. § 981), the Money In the commercial arena, licenses for entering into Laundering Prosecution Improvement Act of 1988 (Pub. L. No. 105-310, codi- transactions that would otherwise be blocked can be fied as 18 U.S.C. § 981), the Crime Control Act of 1990 (Pub. L. No. 101-647, cod- sought through the Department of Commerce (e.g., sell- ified as 18 U.S.C. § 1), the Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub. L. No. 102-242, codified as 12 U.S.C. § 1811), the Annunzio- ing a computer to a Cuban company). The OFAC insur- Wylie Anti-money Laundering Act (Pub. L. No. 102-550, codified as 12 U.S.C. ance regulations do not as yet encompass such a process § 1811), the Money Laundering and Financial Crimes Strategy Act of 1998 (Pub. for insurance companies. L. No. 105-310, codified as 31 U.S.C. § 5301), the Civil Asset Forfeiture Reform Act of 2000 (Pub. L. No. 106-185, codified as 18 U.S.C. § 981) and the USA Very few domestic insurers are even aware of OFAC Patriot Act of 2001 (Pub. L. No. 107-56, codified as 18 U.S.C. § 1). requirements, much less implement them. Yet a clear pol- 11. Robert F. Worth, Yemeni Cleric, Convicted in Terror Case, Is Sentenced to the icy and implementation program is necessary to avoid Maximum, N.Y. Times, July 29, 2005 at B3. problems later. The commitment of resources should 12. Associated Press State and Local Wire, As Terror War Spreads into Money- match an insurer’s exposure to the possibility of an Moving Network, an Ice Cream Shop Takes Center Stage, Nov. 9, 2003. adverse revelation and willingness to shoulder the result 13. William Glaberson, Judge Vacates Guilty Plea in Yemeni Case, N.Y. Times, of the public disclosure of an SDN or Blocked Person May 12, 2003, at B1. transaction. Being known as the insurer that funded the 14. John Solomon, Senators Question U.S. Ability to Block Terror Money, N.Y. Sun, Jan. 2, 2004, at 4. next terrorist bombing or international drug deal is not an 15. Marvin Bagwell, supra note 9. association that any insurer would want. ■ 16. Kathleen Jensen, On the Trail of Terror: Insurers that Do Business with Known 1. Exec. Order No. 13224 is entitled, “Blocking Property and Prohibiting Terrorists or Drug Traffickers May Face Stiff Penalties Under New Rules Enforced by Transactions with Persons Who Commit, Threaten to Commit or Support the Office of Foreign Assets Control, Best’s Rev., Sept. 1, 2002. Terrorism.” 66 Fed. Reg. 49079 (Sept. 25, 2001). 2. Terrorism is defined in Executive Order 13224 as an activity that “involves a violent act or an act dangerous to human life, property or infrastructure, and MOVING? let us know. appears to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion or to affect the conduct Notify OCA and NYSBA of any changes to your address of a government by mass destruction, assassination, kidnapping or hostage or other record information as soon as possible! taking.” 66 FR 49079. 3. William W. Weisner & Hope K. Plasha, Anti-Terrorism Law Imposes Duties upon Lenders and Others Must Stay on Alert for ‘Restricted Parties,’ N.Y.L.J., Nov. OCA Attorney Registration 25, 2002. PO BOX 2806 4. Foreign Assets Control Regulations and the Insurance Industry, Office of Church Street Station Foreign Assets Control, U.S. Department of the Treasury, available at
Journal | September 2005 | 27 Changes Affecting Trust & Estate Law 2004 New York State Legislative Session By Joshua S. Rubenstein
he 2004 legislative session saw significant activity preventing trustees who are beneficiaries from exercising affecting estate and trust planning and administra- discretion in their own favor) to those enumerated in Ttion in New York. Important areas addressed §§ 2041 and 2514 of the Internal Revenue Code. include the unification of professional privileges, the ter- The change is a result of the Governor’s concern, after mination of uneconomical trusts, the procedural and sub- the 2003 amendment to EPTL 10-10.1, that the portion of stantive requirements for guardianship proceedings, the the statute permitting other ascertainable standards appointment of attorney-executors, and the calculation of might conflict with the federal tax law and inadvertently the New York State estate tax. The following provides a create a general power of appointment, to the detriment summary of each of these enactments, and their status as of a donee or trustee. This change is effective immedi- of press time. ately.2
Estates, Powers & Trusts Law (EPTL) Insurance Law The EPTL has been amended by adding a new section, Subsection (a) of Insurance Law § 1110 has been amend- 7-1.19. This section allows any trustee or beneficiary of a ed to authorize charities to issue gift annuities for cash lifetime or testamentary express trust, other than a whol- and other property. Formerly, New York limited the assets ly charitable trust, to apply to the surrogate’s court for charities were allowed to receive in exchange for a chari- early termination, provided the court finds that (1) con- table gift annuity to cash and marketable securities. This tinuation of the trust is economically impractical, (2) the change is effective immediately.3 trust’s early termination is not prohibited by the express terms of the disposing instrument, and (3) such termina- Mental Hygiene Law tion would not defeat the specified trust purposes and Section 81.03 of the Mental Hygiene Law (MHL) has been would be in the best interests of its beneficiaries. amended by adding “health care proxies” to the defini- Distribution shall be made among the current and pre- tion of “available resources” in subdivision (e), and by sumptive remainder beneficiaries in such manner as the court determines. This change is effective immediately JOSHUA S. RUBENSTEIN is the managing partner at the New York office of and applies to trusts whenever created.1 Katten Muchin Rosenman LLP. He received his J.D. from Columbia EPTL 10-10.1 has been amended to ensure that the lan- University School of Law, where he was a Harlan Fiske Stone Scholar, and guage of the statute does not inadvertently create estate his B.A. magna cum laude from Columbia, where he was elected Phi tax liability by limiting the permissible ascertainable stan- Beta Kappa. dards that would override this savings statute (generally
28 | Journal | September 2005 adding definitions of “life-sustaining treatment,” “facili- to have.” This change is effective as of December 13, 2004 ty” and “mental hygiene facility” as new subdivisions (j), (90 days after enactment).11 (k) and (l). This change is effective as of December 13, MHL § 81.10 has been amended to clarify that persons 2004 (90 days after enactment).4 seeking relief under the article have the right to be repre- Section 81.04 of the MHL has been amended to clar- sented by legal counsel of their choice. This change is ify that the jurisdiction of the surrogate’s court over an effective as of December 13, 2004 (90 days after enact- Article 81 proceeding extends not just to persons who ment).12 are residents of, or physically present in a county in Subsection (f) of MHL § 81.11 has been amended to which the proceeding is pending, but also to persons allow only an incapacitated person or such person’s who have property in the county. This change is effec- counsel the right to request a jury trial. This change is tive as of December 13, 2004 (90 days after enact- effective as of December 13, 2004 (90 days after enact- ment).5 ment).13 MHL § 81.05 has been amended to clarify the location Section 81.13 of the MHL has been amended to reduce of venue when the alleged incapacitated person is in a the time for the court to issue its decision to within seven facility. This change is effective as of December 13, 2004 days of the hearing. This change is effective as of (90 days after enactment).6 December 13, 2004 (90 days after enactment).14 Section 81.06 of the MHL has been amended to allow MHL § 81.15 is amended to give the court the power institutions flexibility in identifying the person who acts to decide whether an incapacitated person should receive on their behalf in commencing guardianship proceed- copies of the initial and annual reports. This change is ings, by allowing the chief executive officer (CEO) to des- effective as of December 13, 2004 (90 days after enact- ignate someone to assume this responsibility. Formerly, ment).15 only the CEO could act in this capacity. This change is Section 81.16 of the MHL has been amended to pro- effective as of December 13, 2004 (90 days after enact- vide that the order and judgment be entered and served ment).7 within 10 days of its signing, and that the court evaluator, Section 81.07 of the MHL has been amended to make guardian or counsel for a person subject to a proceeding, substantial changes to the manner in which notice of a explain an order or judgment in a manner that the person proceeding is to be given. This change is effective as of December 13, 2004 (90 days after enactment).8 Subsection (a)(2) of MHL § 81.08 has been amended to require that a petition identify the persons the petitioner intends to serve with notice of the proceeding in order to facilitate the court evaluator’s investigation. This change is effective as of December 13, 2004 (90 days after enact- ment).9 Subsection (a)(5) of MHL § 81.08 has been amended to require the petition to include any of the information required by § 81.21(b) when powers are sought to trans- fer a part of the alleged incapacitated person’s property or assets to or for the benefit of another person. This change is effective as of December 13, 2004 (90 days after enactment).10 Section 81.09 of the MHL, dealing with the duties of the court evaluator, has been amended by assigning the evaluator additional duties. These include determining whether the alleged incapacitated person understands English or only another language, thus requiring an inter- preter. It also provides the court with authority to appoint as court evaluator “any person including, but not limited to, the mental hygiene legal service in the judicial depart- ment where the person resides, a not-for-profit corpora- tion, an attorney, physician, psychologist, accountant, social worker, or nurse, with knowledge of property man- agement, personal care skills, the problems associated with disabilities, and the private and public resources available for the type of limitations the person is alleged
Journal | September 2005 | 29 could reasonably be expected to understand. This change cemeteries, prior to removal of interred bodies, to provide is effective as of December 13, 2004 (90 days after enact- notice not only to the next of kin but also to the county ment).16 clerk and county historian and, in the case of buried vet- Subsection (a) of MHL § 81.21 has been amended to erans, the New York State Division of Veterans’ Affairs. In provide additional powers to a guardian to help enable the absence of next of kin, the amendment further author- the guardian to manage the person’s estate, both during izes, but does not require, cemetery owners to act as a life and after death. This change is effective as of guardian to ensure proper reburial. This change is effec- December 13, 2004 (90 days after enactment).17 tive immediately.24
Public Health Law The 2004 legislative session Section 18 of the Public Health Law has been amended to add a patient’s distributees, if no personal representative saw significant activity affecting has been appointed, and the attorney for a qualified per- son or the patient’s estate, if he or she has a power of estate and trust law. attorney, as a qualified person to have access to a patient’s medical records. This change is effective immediately.25
Section 81.25 of the MHL has been amended to allow Surrogate’s Court Procedure Act the court – in cases where the value of the estate is so Subdivision 1 of SCPA 1105 has been amended to provide great or for other sufficient reason for which the court that public administrators of the counties comprising the determines it is inexpedient to require security in the full city of New York shall receive at least two-thirds of the amount prescribed by law – to restrict some or all of the amount paid to the judges of the surrogate’s court of such assets of an estate without further court order, and to counties. This change is effective as of February 27, 2005 require a bond in reduced amount. The statute accom- (30 days after enactment).26 plishes this by adding language almost identical to that of Subdivisions 2 and 3 of SCPA 2307-a have been Surrogate’s Court Procedure Act 803 (SCPA). This change amended to provide that a testator’s written acknowledg- is effective as of December 13, 2004 (90 days after enact- ment of disclosure relating to attorney-executors’ fees ment).18 and commissions must be separate from the will, but may Section 81.28 of the MHL has been amended to elimi- be annexed to it. In addition, the acknowledgment form nate language referring to SCPA 2309, to clarify that the has also been amended to include a statement providing courts are not bound by the SCPA scheme in devising that absent the disclosure acknowledgment, an attorney compensation for the guardian. This change is effective as serving as executor is entitled only to one-half the com- of December 13, 2004 (90 days after enactment).19 mission he or she would otherwise be entitled to receive. Subsection (d) of MHL § 81.29 has been amended to This change is effective immediately.27 provide the court with power to revoke durable powers of attorney in situations where the attorney-in-fact has Tax Law breached his or her fiduciary duty. This change is effec- Article 10 of the Tax Law, dealing with transfer, inheri- tive as of December 13, 2004 (90 days after enactment).20 tance, and estate taxes of residents dying prior to MHL § 81.30 has been amended to expand the require- September 1, 1930, has been repealed. Article 10-A, deal- ments of the guardian’s initial report. This change is effec- ing with such taxes of nonresidents dying prior to tive as of December 13, 2004 (90 days after enactment).21 September 1, 1930, and Articles 10-B and 10-C, dealing Section 81.31 of the MHL has been amended to permit with such taxes of residents and nonresidents dying after the Mental Hygiene Legal Service to monitor the cases in August 31, 1930, and prior to April 1, 1963, appear not to which it has acted as counsel or court evaluator. This have been repealed. This change is effective immediately change is effective as of December 13, 2004 (90 days after but does not affect any refund applications.28 enactment).22 Subsection (b) of Tax Law § 952 has been amended to Subsection (c) of MHL § 81.36 has been amended to change the calculation of the estate tax for estates with permit the court to dispense with a hearing on an appli- property located both in New York and in another state. cation for an order of modification increasing the powers Specifically under this section, if a resident’s estate of the guardian. This change is effective as of December includes real or tangible personal property having an 13, 2004.23 actual situs outside of New York, the tax imposed shall be reduced only by “an amount determined by multiplying Not-For-Profit Corporation Law the maximum amount of the federal credit for state death Paragraph (b) of § 1401 of the Not-For-Profit Corporation taxes by a fraction, the numerator of which is the dece- Law has been amended to require owners of private dent’s federal gross estate reduced by his or her New
30 | Journal | September 2005 York gross estate and denominator of which is his or her federal gross estate,” and no longer by however much is claimed by other states, if that is less. This change is effec- HELPFUL tive immediately for estates of decedents dying on or Member Discount Numbers after January 1, 2002.29 Subsection (b) of § 960 of the Tax Law has been HARDWARE & LEGAL SOFTWARE amended to extend to nonresidents the same relief afford- • AbacusLaw 800.726.3339 • Dell™ 877.568.3355 ed to residents under Tax Law § 952(b), as amended. This • CaseSoft 904.273.5000 change is effective immediately for estates of decedents • Corel 800.545.1294 ® dying on or after January 1, 2002.30 • Gateway 888.888.2069 • PCLaw 800.387.9785 x2 Subsection (b) of Tax Law § 976 has been amended • T.A.M.E.™ 888.826.3529 by changing the date on which interest begins to run for late estate tax payments. Interest for late estate tax pay- LEGAL RESEARCH & ALERTS • LegalRA www.LegalRA.com ments will now begin to run from the original due date • LexisNexis™ 866.836.8116 for filing the estate tax return and not from the date of the • Loislaw.com 800.364.2512 decedent's death. This change is effective immediately for • CourtAlert 212.227.0391 the estates of decedents dying on or after February 1, FINANCIAL SERVICES & INSURANCE PROGRAMS 2000.31 ■ • Bertholon-Rowland (Insurance) 800.727.7770 & 800.987.9350 • MBNA Financial Services 800.447.5555 & 800.345.0397 1. 2004 N.Y. Laws ch. 359, A10967, S5166 (signed on August 10, 2004). • NYSBA-Endorsed ABA Retirement Program 800.826.8901 2. 2004 N.Y. Laws ch. 82, A10962, S6308 (signed on May 18, 2004). OFFICE PRODUCTS & SERVICES 3. 2004 N.Y. Laws ch. 199, A10286, S5987A (signed on July 20, 2004). • MeetingBridge www.meetingbridge.com • Overnight Delivery Services: 4. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). DHL Express® 888.758.8955 5. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). UPS® 800.325.7000 • Blumberg Forms Online 800.221.2972 x565 6. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). • NOVA 800.526.8286 7. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). OTHER 8. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). • Car Rental Discount Programs: ® 9. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). Avis 800.698.5685 Hertz® 800.654.2210 10. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). • BAR/BRI® Bar Review 800.472.8899 11. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). • JuryVoice.com www.nysba.org 12. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 13. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). For more information, go to: 14. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). www.nysba.org/MemberDiscounts 15. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 16. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 17. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 18. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 19. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 20. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 21. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 22. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 23. 2004 N.Y. Laws ch. 438, A8838A, S6830A (signed on September 14, 2004). 24. 2004 N.Y. Laws ch. 675, A3163A, S1465A (signed on November 3, 2004). 25. 2004 N.Y. Laws ch. 634, A8602-B, S4964A (signed on October 26, 2004). 26. 2004 N.Y. Laws ch. 751, A6619, S147-A (signed on January 28, 2005). 27. 2004 N.Y. Laws ch. 709, A11127, S6986 (signed on November 16, 2004). 28. 2004 N.Y. Laws ch. 60, A9560-B, S06060 (signed on August 20, 2004). 29. 2004 N.Y. Laws ch. 60, pt. I, § 5, A9560-B, S06060 (signed on August 20, 2004). 30. Id.
31. 2004 N.Y. Laws ch. 60, pt. I, § 2, A9560-B, S06060 (signed on August 20, 2004).
Journal | September 2005 | 31 TAX ALERT BY BARRETT D. MACK
Major Changes in Rules Governing Nonqualified Deferred Compensation Plans and Arrangements
resident Bush signed the of § 409A is not limited to NQDCAs ments, 401(k) wrap plans, 457(f) plans, American Jobs Creation Act of between an employer and an employ- and 401(k) mirror plans are required to P2004 on October 22, 2004.1 By ee, as it applies to NQDCAs between comply with new IRC § 409A. Stock adding new Internal Revenue Code an independent contractor and a com- appreciation rights (SARs) are also § 409A, the Act dramatically changed pany, or between a partner and a part- required to comply with the Act, the rules that govern nonqualified nership.4 although the Notice exempts SARs deferred compensation plans and that meet particular requirements.9 arrangements (NQDCA). The new Coverage Qualified retirement plans such as Code section generally applies to NQDCAs are deferred compensation common 401(k) plans, 403(b) annuity amounts deferred under a NQDCA arrangements that do not meet the tax plans, 457(b) plans, simplified employ- after December 31, 2004. Compliance qualification requirements of IRC ee pension (SEP) plans, SIMPLE plans with new Code § 409A, when § 401. NQDCAs are typically part of a (Savings Incentive Match Plan for required, is necessary to avoid a tax compensation package designed to Employees), 422 incentive stock option disaster. provide executive and middle-man- plans, and 423 employee stock pur- This column briefly explains the agement employees with incentives in chase plans, are not required to comply requirements of § 409A and offers tips excess of those allowed under quali- with the Act.10 toward complying with the new law fied plan rules. Approximately 92% of given IRS Notice 2005-1 (the “Notice”), Fortune 1000 companies maintain a Avoiding a Tax Disaster issued December 20, 2004, which pro- NQDCA.5 As a quick synopsis, IRC § 409A con- vides initial guidance on the require- The Act defines the term “nonquali- tains three basic requirements. The ments of § 409A and a generous transi- fied deferred compensation plan” first requirement deals with timing of tion period for compliance. broadly as “any plan that provides for distributions from NQDCAs. Under If a NQDCA does not in form or the deferral of compensation, other the Act, distributions are only permit- operation comply with the require- than . . . (A) a qualified employer plan, ted upon one of the following six ments of IRC § 409A, then all compen- and (B) any bona fide vacation leave, events: separation from service; dis- sation deferred under the NQDCA will sick leave, compensatory time, disabil- ability; death; a time (or fixed sched- be includable in the recipient’s gross ity pay, or death benefit plan.”6 A plan ule) specified under the NQDCA at the income to the extent that compensation includes any agreement, method or date of deferral; change in control; and is not subject to a substantial risk of arrangement, including one that unforeseeable emergency.11 Each of forfeiture.2 The amount of the tax is applies to only a single person.7 also increased by an interest-based Because of this broad definition, sever- BARRETT D. MACK is an attorney with The penalty, plus 20% of the compensation ance plans8 and programs, individual Goldstein Law Firm, P.C., located in Albany. He includable in the recipient’s gross employment agreements with defer- received his undergraduate degree from the income.3 Given the broad coverage of rals, defined benefit restoration plans, University of Tennessee at Chattanooga, and his the Act, most NQDCAs will now have supplemental executive retirement law degree from Albany Law School of Union to meet the requirements of the new plans (SERPs), excess benefit plans, University. Code section. Further, the application bonus and incentive deferral arrange-
32 | Journal | September 2005 these permissible events is defined specifically under the Act and/or the Compliance with new Code § 409A, Notice. More than likely, current NQDCAs must be amended to reflect when required, is necessary to avoid these specific definitions. a tax disaster. The second requirement, and proba- bly the most substantial, prohibits the acceleration of elected distributions ed on Form W-2. In this regard, the grandfathered, but such is beyond the except as provided by the Notice.12 Treasury issued Announcement 2004- scope of this article.18 Again, these This provision of new IRC § 409A, in 96 which adds new Code Y for the 2005 rules should be reviewed. effect, has eliminated what are com- Form W-2, for use in Box 12.15 monly referred to as “haircut provi- Transition Relief sions.” Haircut provisions are common Effective Date Although the Act requires major in current NQDCAs and permit partic- The requirements of the Act are appli- changes to NQDCAs, and is effective ipants to accelerate elected distribu- cable to amounts deferred in years as of December 31, 2004, the Notice tions subject to a penalty. These must beginning after December 31, 2004. provides for a generous transitional be eliminated from current NQDCAs. Amounts deferred before the effective period for compliance. Under the The third requirement deals with date are grandfathered and not subject Notice, a NQDCA adopted before initial compensation deferral elections to the Act, unless the NQDCA was December 31, 2005, will not violate and subsequent changes (delays) in the “materially modified” after October 3, new Code § 409A if (1) the NQDCA is time and form of payment.13 The initial 2004. The Notice indicates that any operated in good-faith compliance election to defer must be made during addition of a new benefit, right, or fea- with the new rules, and (2) the the calendar year prior to the year in ture, such as adding a haircut provi- NQDCA is amended on or before which the compensation is earned, sion or accelerating vesting, is treated December 31, 2005, to comply with the unless otherwise provided in regula- as a material modification, even if that new rules.19 tions, or within 30 days after initial benefit, such as an unforeseeable emer- In addition, generally, a NQDCA participation in the NQDCA. A subse- gency distribution, is added to comply sponsor may not terminate a NQDCA quent election to further defer pay- with new IRC § 409A.16 The exercise of that is subject to IRC § 409A and then ment or change form of payment will a reduction of an existing benefit, right, make distributions. However a not be effective for at least 12 months. or feature (such as a change in plan NQDCA sponsor may terminate and Actual payment under a subsequent administrator or the elimination of a make distributions from a pre-October election may not be made for at least haircut provision) is not a material 4, 2004, NQDCA on or before Decem- five years from the original payment modification.17 The Notice explains ber 31, 2005, without it being a materi- date, except in the event of death, dis- in detail what amounts are actually al modification.20 Finally, a NQDCA ability or an unforeseeable emergency. For NQDCAs in existence prior to and on December 31, 2004, the Notice treats deferral elections made by March 15, 2005 as valid under new § 409A.14 Section 409A(b) also contains other rules regarding the funding of NQDCAs. These rules, generally, will be met if (1) any amounts set aside to pay benefits under the NQDCA are kept and maintained within the United States (and not in any offshore trusts or accounts), and (2) no assets have been or will be restricted to pay benefits under the NQDCA in connection with a change in the employer’s financial health, regardless of whether they are otherwise available to pay claims of the employer’s creditors. Finally, the Act requires amounts deferred under a NQDCA to be report-
Journal | September 2005 | 33 adopted before December 31, 2005, can deferral elections by December 31, the scope of this article. Employers should review be amended to allow participants to 2005; and (4) organize immediately these rules with a qualified expert. cancel deferral elections made before with outside NQDCA recordkeepers, 10. IRC § 409A(d)(2); IRS Notice 2005-1, Q & A- 3(b). then, or to terminate participation in or other outside NQDCA administra- 2005, in whole or in part, with respect tors. The IRS has indicated in the 11. IRC § 409A(a)(2)(A). to amounts deferred that are subject to Notice that additional guidance will be 12. The Notice allows acceleration of benefits pay- ments for payment of benefits in connection with a 21 IRC § 409A. issued sometime in 2005. domestic relations order, the payment of taxes Employers will need to again resulting from taxation of deferred compensation Tips review their NQDCAs after this guid- under IRC § 457(f) plans, cash-outs of plan benefits by December 31 of the year in which an employee Although generous transitional relief ance is issued, but in the meantime can separates from service (or within 2 ½ months after has been provided by the IRS, employ- rely on the current Notice.22 ■ the end of such year) in amounts of up to $10,000 ers should begin reviewing their and the payment of payroll taxes applicable to 1. P.L. 108-357 (HR 4520). deferred compensation. IRS Notice 2005-1, Q & A- NQDCAs immediately for compliance 15; IRC § 409A(a)(3). 2. IRC § 409A(a)(1)(A) (2005). with the new Code section. Employers 13. IRC § 409A(a)(4). 3. IRC § 409A(a)(1)(B). should make sure that their existing 14. IRS Notice 2005-1, Q & A-21. NQDCAs are operated in good-faith 4. IRC § 409A(d)(1); IRS Notice 2005-1, Q & A-3(a), available at
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By Edward P. Yankelunas
commercial tenant has a dispute with a landlord. Yellowstone injunctions in federal court under the Erie doc- The landlord demands that the tenant cure an trine. Aalleged breach of the lease within the time stated Yellowstone injunctions maintain the status quo in the lease. Now the tenant has a serious dilemma. If the between commercial landlords and tenants by extending cure period expires after litigation ensues and the tenant the cure period under the lease while the parties litigate loses the fight with the landlord, the tenant would lose the point in dispute. Should the tenant lose on the merits, the ability to cure the default under the lease. The result the default may be cured and the lease saved. Moreover, would be eviction and the tenant’s complete forfeiture of conditions may be imposed to protect the landlord’s its investment and rights under the lease. What are the interests. For example, the tenant may be required to post tenant’s options? an undertaking or pay rent into escrow while the injunc- A Yellowstone injunction is a powerful tool available to tion is in effect. There is no question that Yellowstone commercial tenants to challenge a landlord’s claim of injunctions are available in state court in New York upon breach without risking eviction and the forfeiture of lease a proper showing. However, the availability of such relief rights. This article provides a brief explanation of the seminal decision in First National Stores v. Yellowstone EDWARD P. YANKELUNAS is a partner with Damon & Morey, LLP, in Buffalo, Shopping Center,1 comments on the most recent decisions New York. He received his undergraduate degree from the State of the New York Court of Appeals relative to Yellowstone University of New York at Geneseo and his law degree from the State injunctions, and then addresses the availability of University of New York at Buffalo.
36 | Journal | September 2005 Yellowstone injunctions in diversity actions in federal court is less clear. The deter- maintain the status quo by mination turns largely on whether a federal litigant’s entitlement to a Yellowstone injunction presents a question extending the cure period of state substantive law or federal procedural law for the purpose of Erie Railroad Co. v. Tompkins.2 while the parties litigate the Because commercial tenants in shopping malls, office point in dispute. buildings and other commercial properties in New York are often business entities from throughout the United States, diversity jurisdiction in United States District ed that the tolling of the cure period under the lease did Court often exists in the event of a dispute with the mall not relieve the tenant of the necessity of complying with or building owner. A commercial tenant who has the the condition precedent to renewal set forth in the lease.8 option of invoking diversity jurisdiction should know More recently, in Graubard v. 600 Third Avenue Assoc.,9 whether or not the Yellowstone injunction is among its the issue was whether the tenant remained obligated to weapons in the event it chooses to litigate in federal pay interest on rent arrears at the rate specified by the court. lease after the granting of a Yellowstone injunction. Noting that “[a]lthough Yellowstone injunctions historically have Yellowstone in State Court been used to protect tenants from eviction, they provide a In First National Stores v. Yellowstone Shopping Center,3 the modicum of protection to landlords as well,” the Court New York Court of Appeals first expressed its approval of repeated the reasoning of Waldbaum that the injunction what is now simply referred to as a Yellowstone injunction: “does not nullify the remedies to which a landlord is oth- an injunction which, as noted, maintains the status quo erwise entitled under the parties’ contract” and directed between a landlord and commercial tenant so that the that the interest be paid.10 tenant may protect its interest in the lease while challeng- Thus, the Court of Appeals has focused on the need to ing the landlord’s assessment of its rights. The courts in apply the teaching of the Yellowstone case in an even- New York have consistently held that the showing handed manner, and Yellowstone injunctions remain a sta- required of a tenant seeking a Yellowstone injunction is far ple of commercial landlord-tenant law in New York. less than that required for a preliminary injunction. Unlike applications for injunctions prescribed by Article Inconsistent Approach in Federal Courts 63 of the Civil Practice Law and Rules, applicants for The decisions of the United States District Courts sitting Yellowstone injunctions have not been required to demon- in New York with respect to the availability of Yellowstone strate likelihood of success, irreparable injury or that the injunctions in federal court have been inconsistent. In NL equities favor injunctive relief.4 Industries Inc. v. PaineWebber Inc.,11 an action between a In fact, as was pointed out in Jemaltown of 125th Street, sublessor and sublessee relative to the possession of Inc. v. Leon Betesh/Park Seen Realty Assoc.,5 “the traditional leased commercial premises, the court, sitting in diversi- criteria for obtaining preliminary injunctive relief, viz, the ty and citing Yellowstone, acknowledged that a tenant likelihood of ultimate success on the merits, a balancing seeking to challenge a lease termination “must obtain of the equities, and the danger of irreparable harm” rep- injunctive relief to toll the running of the cure period.”12 resent the “wrong standard” when a commercial tenant After noting that the subtenant sought to enjoin the cure applicant seeks a Yellowstone injunction because “[r]ather period under the lease at issue, the court, referencing than requiring the tenant to prove, on his application, that Yellowstone and Federal Rule of Civil Procedure 65 (Rule he can cure the alleged defects, all he need do to obtain 65), considered the application on the merits and con- the Yellowstone injunction is to convince the Court of his cluded that the subtenant had failed to demonstrate that desire and ability to cure the defects by any means short the cure period had not expired.13 of vacating the premises.”6 The court also considered a commercial tenant’s The most recent decisions of the New York Court of request for a Yellowstone injunction on the merits in Broad Appeals further define the parameters of the Yellowstone Financial Center LLC v. National Association of Securities decision by emphasizing that, when upholding a com- Dealers, Inc.14 There, because the tenant had already mercial tenant’s right to extend the cure period under a vacated the premises and a possible forfeiture of lease lease through a Yellowstone injunction, the courts will con- rights was no longer an issue, the court denied the ten- tinue to enforce the landlord’s rights under the lease. ant’s request for the injunction. In so ruling, the court Specifically, in Waldbaum, Inc. v. Fifth Avenue Realty described a Yellowstone injunction as “an equitable device Assoc.,7 the Court was confronted with the question of made available under New York law to prevent the cure whether the granting of a Yellowstone injunction extend- period in a commercial real estate lease from expiring ing the cure period under the lease had any effect on the before the tenant can litigate its rights.”15 As in NL tenant’s deadline to renew the lease. The Court conclud- Industries, the court in Broad Financial Center did not
Journal | September 2005 | 37 address the issue of whether requests for Yellowstone extension of the Yellowstone rule to the indentures at issue injunctions are governed by New York substantive law as before the court.”20 In doing so, the court acknowledged articulated by the Yellowstone decision and its progeny, or that First National Stores Inc. v. Yellowstone Shopping Center, by the more rigorous requirements of Rule 65. Inc.21 was the “real estate law of New York,” which, the However, in The Children’s Place Retail Stores Inc. v. court noted, was “limited to landlord-tenant relations.”22 Pyramid Co. of Onondaga,16 an unreported decision, the The court wrote: U.S. District Court for the Northern District of New York To the extent that the court [below] relied on the real held that a Yellowstone injunction is a procedural device estate law of New York, that reliance was misplaced. and that, therefore, the standard for a Yellowstone injunc- We have found no indication that the state courts of tion articulated by New York’s state courts was inapplica- New York have granted stays tolling cure-period type ble in federal court. The court concluded that an applica- provisions except in landlord-tenant matters, where, tion by a commercial tenant for an injunction tolling the because of the unique nature of real estate, the absence 23 passage of a cure period under a lease presented to a fed- of a stay would result in a forfeiture. eral court sitting in diversity was governed by the Clearly, it was the unique nature of real estate and the requirements of Rule 65. In Scherer v. Equitable Life inequity that would result if a tenant could not toll the Assurance Society of the United States,17 the U.S. District running of a cure period while litigating the point in dis-
One commentator has described Justice Frankfurter’s test for separating substantive law from procedure as being “simultaneously elegant and deeply flawed.”
Court for the Southern District of New York was con- pute that led the New York Court of Appeals to add the fronted with a request for a “Yellowstone-type” injunction Yellowstone injunction to the real estate law of New York. by a claimant seeking to enjoin the cancellation of a dis- Arguably, because Yellowstone injunctions reflect a right to ability income insurance policy. After concluding that avoid forfeiture of a lease, and not solely a means or Yellowstone injunctions are not available “outside of the device to protect a right, the standard that evolved under landlord-tenant arena,” the court, in a footnote and with- Yellowstone is substantive and not procedural. out addressing the question of whether Yellowstone The answer to the question of Yellowstone’s application injunctions are substantive or procedural, stated that in federal court necessarily begins with Erie Railroad Co. v. “even if Yellowstone injunctions were available in the cir- Tompkins.24 Under the Erie doctrine, “federal courts will cumstances of this case in New York courts, it is difficult apply, in diversity cases, state law permitting the enforce- to see how that might help plaintiff here given that feder- ment of a state-created right by means of an injunction.”25 al law controls the issuance of preliminary injunctions The U.S. Supreme Court elaborated on the impact of the even in this diversity case.” Erie doctrine on equitable remedies in federal court in Although the U.S. Court of Appeals for the Second Guaranty Trust Co. v. York.26 Writing for the Court, Justice Circuit has not specifically decided the question of Frankfurter concluded: whether Yellowstone injunctions are available in federal [S]ince a federal court adjudicating a State-created courts, in Metropolitan Life Insurance Co. v. RJR Nabisco, right solely because of the diversity of citizenship of Inc.18 the court said Yellowstone and its progeny constitute the parties is for that purpose, in effect, only another the “real estate law of New York.”19 Metropolitan Life court of the State, it cannot afford recovery if the right involved a dispute concerning alleged defaults under a to recover is made unavailable by the State nor can it series of notes and debentures governed by indentures substantially affect the enforcement of the right as which provided for a “cure period” as to any default. given by the State. After a dispute arose concerning an alleged default, the In the context of motions for a preliminary injunction District Court granted a preliminary injunction tolling the under Rule 65, the language from Justice Frankfurter’s running of the cure period contained in the indentures, opinion in Guaranty Trust has been construed to mean pending a determination as to the issue of the alleged that state law applies when “the remedy sought is so default. inextricably interwoven with the substantive right invad- On appeal, the Second Circuit reversed and concluded ed that the denial of the remedy would be tantamount to that the District Court’s ruling was not authorized by the denial of the right.”27 “any body of applicable law.” Specifically, the court In the following frequently quoted passage from the found there was no New York “authority permitting the Guaranty Trust opinion, Justice Frankfurter explained the
38 | Journal | September 2005 “outcome determination” test for evaluating the distinc- avoidance of inequitable administration of the law.34 tion between substance and procedure: Writing for the Court, Chief Justice Warren went on to It is . . . immaterial whether [a given state rule is] char- reason that acterized either as “substantive” or “procedural” in [t]he line between substance and procedure shifts as State court opinions in any use of those terms unrelat- the legal context changes. . . . When a situation is cov- ed to the specific issue before us. Erie R. Co. v. Tompkins ered by one of the Federal Rules, the question facing was not an endeavor to formulate scientific legal ter- the Court is a far cry from the typical, relatively minology. It expressed a policy that touches vitally the unguided Erie choice: the Court has been instructed to proper distribution of judicial power between State apply the federal rule, and can refuse to do so only if and federal courts. In essence, the intent of that deci- the Advisory Committee, this Court, and Congress sion was to insure that, in all cases where a federal erred in their prima facie judgment that the rule in court is exercising jurisdiction solely because of the question transgresses neither the terms of the Enabling diversity of citizenship of the parties, the outcome of Act nor constitutional restrictions.35 the litigation in the federal court should be substantial- ly the same, so far as legal rules determine the out- Noting the Court’s observation in Hanna that, pur- come of a litigation, as it would be if tried in a State suant to Article III of the Constitution, Congress had the court. The nub of the policy that underlies Erie R. Co. v. “power to regulate matters which, though falling within Tompkins is that for the same transaction the accident the uncertain area between substance and procedure, are of a suit by a non-resident litigant in a federal court rationally capable as being classified as either,”36 instead of in a State court a block away should not lead Professor Crump argues that Hanna resulted in the “gray- 28 to a substantially different result. area-controlling federal rule approach.”37 In the gray area One commentator has described Justice Frankfurter’s – where matters can be reasonably classified as either test for separating substantive law from procedure as substantive or procedural – “the implied judgment that being “simultaneously elegant and deeply flawed.”29 the matter was procedural would be accepted at face While elegant in its simplicity, the flaw, according to value. And if such a federal rule controlled, it would be Professor Crump, is that the test is too simple because given effect.”38 The Court further adjusted the line of “[a]ny legal rule can determine the outcome in an appro- demarcation between substance and procedure in Walker priate case.”30 For example, the federal rules governing v. Armco Steel Corp.39 There, the Court clarified the above- discovery or service of process could determine the out- described Hanna approach by construing federal rules come of a case, but that should not make those rules sub- narrowly and holding that the state rule must be applied stantive. where the state and federal rule can “exist side by side, . . . Whether measured against Justice Frankfurter’s “out- each controlling in its own intended sphere without con- come determination test” in Guaranty Trust or the modi- flict.”40 fied tests described below, Yellowstone represents the sub- In order to comply with the teaching of Hanna and stantive law of the state of New York as articulated by Walker and conclude that Rule 65 governs requests for New York’s highest court. It represents a state-created Yellowstone injunctions, a federal court sitting in diversity right of a commercial tenant, who makes the required would have to conclude either that the issue presented by showing under the case law, “to avoid the forfeiture of a Yellowstone application is solely one of procedure, or [the tenant’s] valuable improvements as well as of the that it is predominately procedural. While Rule 65 obvi- good will it built upon the location of the leased premis- ously is one of procedure, Yellowstone prescribes a state- es.”31 Because a request for a Yellowstone injunction is an created substantive right to avoid a lease forfeiture and to attempt to invoke the “real estate law of New York” to toll a cure period under a commercial lease; and the pre- avoid forfeiture of a commercial lease, an application for dominant issue when a Yellowstone injunction is request- a Yellowstone injunction presented to a federal court sit- ed is substantive under what the United States Court of ting in diversity represents a classic situation where the Appeals for the Second Circuit has described as the “real remedy requested is “inextricably interwoven” with the estate law of New York.” Also, unlike Rule 65 – which substantive right sought to be enforced. prescribes procedures for injunctions generally – It can be argued that a contrary view would be incon- Yellowstone provides for a specific equitable remedy in the sistent with the reasoning of the Supreme Court in Hanna specific context of landlord-tenant cases. The Yellowstone v. Plumer.32 In Hanna, the Court acknowledged that if the rule and Rule 65 can “exist side by side . . . each control- federal rule involved does not cover the “point in dis- ling its own intended sphere of coverage without con- pute, Erie command[s] the enforcement of state law.”33 flict.”41 And in analyzing the applicability of a federal rule under Even if Yellowstone was found to be in direct conflict the Erie doctrine, the Court noted that the application of with Rule 65, the application of Rule 65 in the context of the rule must be considered in light of the “twin aims” of a request for a Yellowstone injunction must not violate the the Erie rule: discouragement of forum shopping and
Journal | September 2005 | 39 Rules Enabling Act.42 In pertinent part, the Rules tionships that follow from that. Applying Rule 65 or any Enabling Act provides: other federal rule of procedure in a manner that frustrates a) The Supreme Court shall have the power to pre- that state policy would “violate[] the fundamental tenet scribe general rules of practice and procedure and rules of federalism announced in Erie by regulating primary of evidence for cases in the United States district courts behavior that the Constitution leaves to the exclusive (including proceedings before magistrates thereof) and province of States.”44 ■ courts of appeals. b) Such rules shall not abridge, enlarge or modify any 1. 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968). substantive right.43 2. 304 U.S. 64 (1938). 3. 21 N.Y.2d 630. 4. Post v. 120 East End Ave. Corp., 62 N.Y.2d 19, 475 N.Y.S.2d 821 (1984). Unlike a competing statute 5. 115 A.D.2d 381, 496 N.Y.S.2d 16 (1st Dep’t 1985). 6. Id. at 382. or rule of procedure, 7. 85 N.Y.2d 600, 627 N.Y.S.2d 298 (1995). Yellowstone had its birth in 8. Id. at 604. 9. 93 N.Y.2d 508, 693 N.Y.S.2d 91 (1999). judge-made law. 10. Id. at 515. 11. 720 F. Supp. 293 (S.D.N.Y. 1989). 12. Id. at 298. Thus, Rule 65 may not be applied in a manner that 13. Id. at 302. abridges any substantive right under New York law. 14. 187 F. Supp. 2d 139 (S.D.N.Y. 2002). Applying Rule 65 in a manner at odds with Yellowstone 15. Id. at 140; see also Phoenix Racing, Ltd. v. Lebanon Valley Auto Racing Corp., 53 would have that effect. A ruling that refuses the injunctive F. Supp. 2d 199 (N.D.N.Y. 1999) (noting that a Yellowstone injunction had been issued by the court in an earlier order in the case). relief available under Yellowstone and requires a commer- 16. No. 97-CV-1047 (N.D.N.Y. Aug. 13, 1998). cial tenant to pay rent or other charges in dispute to the 17. No. 01-CIV-10193, 2001 U.S. Dist. LEXIS 20241 (S.D.N.Y. Dec. 4, 2001). landlord to avoid the forfeiture of a lease completely 18. 906 F.2d 884 (2d Cir. 1990). destroys the Yellowstone rule and abridges the tenant’s 19. Id. at 889. substantive right under New York State law to avoid that 20. Id. 890–91. very step. Further, if Yellowstone were never to apply in 21. 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968). federal court, there would be strong incentive for a com- 22. Metro. Life Ins., 906 F.2d at 891. mercial landlord to remove landlord-tenant cases from 23. Id. state to federal court when diversity jurisdiction exists. 24. 304 U.S. 604 (1938). That is precisely what the Erie doctrine is supposed to 25. 19 Fed. Procedure, L. Ed. § 47:23 at p. 458. prevent and would clearly frustrate the “twin aims” of 26. 326 U.S. 99 (1945). that doctrine by promoting forum shopping and an 27. Wright, Miller & Kane, Federal Practice and Procedure; Civil § 2943 at p. 77; see also Port of N.Y. Auth. v. Eastern Airlines, 259 F. Supp. 745, 753 (E.D.N.Y. inequitable administration of the law. 1966). 28. 326 U.S. at 109. Conclusion 29. Crump, The Twilight Zone of the Erie Doctrine: Is There Really a Different It is beyond the scope of this article to address and evalu- Choice of Equitable Remedies in the ‘Court a Block Away’?, 1991 Wis. L. Rev. 1233. ate all of the changing tests which have been applied in 30. Id. at 1238. discerning the line between substantive law and proce- 31. Waldbaum v. Fifth Ave. Realty Assoc., 85 N.Y.2d 600, 607, 627 N.Y.S.2d 298 dure under the Erie doctrine. It is submitted, however, (1995). that treating an application for a Yellowstone injunction 32. 380 U.S. 460 (1965). 33. Id. at 470. presented to a federal court sitting in diversity as a proce- 34. Id. at 468. dural device and just another request for a preliminary 35. Id. at 469–71. injunction under Rule 65 cannot be reconciled with the 36. 1991 Wis. L. Rev. at 1265. Yellowstone source of the right being invoked in a injunc- 37. Id. tion or the Erie doctrine. Unlike a competing statute or 38. Id. rule of procedure, Yellowstone had its birth in the judge- 39. 446 U.S. 740 (1980). made law resulting from the decisions of New York’s 40. Id. at 752. courts, not the action of the legislature or other rule-mak- 41. Id. ing body. Further, as part of the real estate law of New 42. See Douglas v. NCNB Tex. Nat’l Bank, 979 F.2d 1128, 1130 (5th Cir. 1992) York, the right to seek a Yellowstone injunction plays an (“this court must not apply a federal rule of civil procedure if application . . . important function in New York’s economy by promoting violates . . . the Rules Enabling Act”). 43. 28 U.S.C. § 2072 (emphasis added). certainty with respect to rights in commercial real estate and the stability and predictability of commercial rela- 44. Chambers v. NASCO, 501 U.S. 32 (1991) (Kennedy, J., dissenting).
40 | Journal | September 2005 THE NEW YORK STATE BAR ASSOCIATION ANNOUNCES A MAJOR NEW PUBLICATION
Commercial Forms on CD Leasing
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Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: CL2539 Mediating Domestic Violence A Potentially Dangerous Tool
By Susan L. Pollet
One in three women will suffer from some physical abuse in person to obey. Domestic violence occurs among all her lifetime from someone she knows. Six million American socioeconomic, racial, religious, and cultural groups. women are beaten each year by their husbands or boyfriends. Without intervention, it will escalate in frequency and Four thousand are killed as a result. Child abuse takes place intensity.3 in 70% of the households where domestic violence is also A form of such intervention, mediation, is defined as present. Twenty-eight percent of teen girls report some dat- ing violence.1 “a type of negotiation in which the parties use a neutral third party mediator to help them reach a voluntary set- hese are daunting statistics. Responses to the per- tlement.” The mediator, however, “is not authorized to vasive problem they reflect have been multifaceted; impose a decision on the parties if they do not reach Tsome garner praise as being effective, others are agreement through mutual consensus.”4 condemned as inadequate or even harmful. Mediation The unequal position of abuser and victim, and the exists as one such response. This article will examine its inherent nature of mediation, has sparked a debate about use, which has both proponents and detractors. mediation’s effectiveness – and even its safety – in the domestic violence context. As Defined The broadest definition of domestic violence includes Mediation Debated “physical assault, threats, emotional abuse, verbal abuse, Mediation has been touted as an “excellent vehicle for harassment, and humiliation by current or former inti- conflict resolution for both men and women.”5 Mediation mate partners.”2 A description used by the Domestic proponents do acknowledge that there are some cases Violence Screening Training Curriculum of the New York where mediation is inappropriate.6 However, proponents State Unified Court System, Office of ADR Programs, is state that the reality is that there is a “continuum” of fam- a pattern of behavior used in an intimate relationship ily violence that ranges from “pervasive abuse to occa- by a partner to establish power and control over the sional violence.” It is therefore argued that mediation can other partner. This coercive control is for the deliberate purpose of domination. The abuser uses physical, SUSAN L. POLLET is Executive Director, Pace Women’s Justice Center. She is sexual, social, emotional and economic abuse to ter- a graduate of Cornell University and Emory University School of Law. rorize, intimidate, isolate, and manipulate the target- Maria Perinetti, a third-year Pace School of Law student, assisted in the ed partner. In an abusive relationship, the batterer’s preparation of this article. intention is to control his partner and to force that
42 | Journal | September 2005 be “an appropriate and effective problem-solving tech- every other state has implemented some form of media- nique with at least a percentage of those persons whose tion for domestic disputes; however, California is one of lives have been touched at some point by violence.”7 the small minority of states in which mediation is manda- Proponents also contend that effective mediators can tory.20 serve to correct a balance of power where there is an Most advocates for domestic violence victims have imbalance, and that mediation is more effective than the stated that there should not be mediation when domestic adversarial process because that process can exacerbate violence is involved.21 Critics of California’s mandatory the relationship between abusive partners. They argue mediation legislation contend that it fails to “recognize that litigation can be very expensive and can take a very and address the complexity of domestic violence and the long time, which extends the conflict with the batterer.8 dangerous implications that arise in the context of medi- They cite research indicating that mediation may be effec- ation in a battering relationship.”22 tive in reducing abuse.9 However, there are also a number of arguments that can be made against the use of mediation in domestic vio- Mediation requires characteristics lence cases. Notwithstanding the claim that mediation that are lacking in a domestic can level the playing field, as noted, detractors point out that mediation by its very nature is “premised on a rela- violence-filled relationship. tively equal balance of power, and that where domestic violence is present, even the most skilled mediator will Judges have also weighed in on the issue. For exam- likely not be able to compensate for the disparity of ple, the National Conference of Juvenile and Family power.”10 Further, mediation requires joint decision-mak- Court Judges’ Model Code on Domestic and Family ing based upon honesty, a desire to settle the dispute, and Violence, in section 407, states that “courts shall not order a capacity to compromise – all of which are characteristics mediation in domestic violence cases where a restraining that are lacking in a domestic violence-filled relation- order is in effect.”23 Similarly, even among states that ship.11 Indeed, abusers often engage in “victim blaming,” have mandatory mediation programs, some permit the and refuse to “acknowledge their responsibility for their victims to opt out, or prohibit them from participating, violence and its impact on the family.”12 where domestic violence is identified.24 There also is the claim that the entire process can be Highlighting much of the foregoing, the Pace flawed because victims will not even be able to “articu- Women’s Justice Center recently presented a program at late and/or discern their own interests and needs,” in Pace University’s Judicial Institute titled “Domestic that they have been conditioned to put their spouse’s Violence and Responsible Mediation: A Critical Look at needs above their own, and thus any resultant agreement Screening and Safety,” during which the various aspects would be made under duress.13 Related to this is the fact of the issue were explored. Attending were judges, that the batterer may use children and custody issues to lawyers, mediators, and members of the domestic vio- force women to drop their financial claims, and domestic lence prevention community. violence can cause victims to settle prematurely and not Participants noted that even though there is an necessarily in their best interests.14 increasing trend toward using alternative methods of dis- Further, victims are often “reluctant to voice any dis- pute resolution in family law cases to “promote efficient agreement with the batterer” and may fear retaliation if justice and to better serve family relations,”25 the “red they address the violence issue when the batterer is pres- flags” are up when domestic violence is in the mix. ent.15 It is even asserted that mediation puts victims at Professionals in all fields join in a desire to protect not risk for continuing and future violence, especially only the legal rights of victims, but their physical and because the most dangerous time for a battered woman emotional well-being as well. All agree that mediation “is when she separates from her partner.”16 For all these should not be employed in cases involving persistent, reasons, the mediators cannot “redress” the “long-term ongoing, and violent abuse. pattern of manipulation, coercion, and control.”17 Finally, There are circumstances, however, where it is difficult there is a concern about the insight of the mediator: to come up with a “hard and fast” rule about the use of domestic violence can sometimes be “subtle,” and the mediation: for example, those involving pushing and mediator may not be able to detect it.18 shoving years ago that never recurred; or when parties resolve conflict by manipulation, which can be damaging Current State of the Mediation Debate but is not overtly dangerous; or when there are threats or Because of “soaring divorce rates” and “increasing bur- withdrawal of financial support, without physical abuse; dens on court resources,” California took the lead and in or when the parties ask for mediation when they have 1981 became the first state to mandate mediation of cus- outside legal counsel advising them.26 Even though there tody and visitation disputes.19 Since that time, nearly is a continuing debate as to whether mediation can be
Journal | September 2005 | 43 appropriate in domestic violence cases at any level, there may be inadequate. Nevertheless, rigid rules about its use is a significant focus on whether there are “effective tools may prevent certain cases from being handled by a medi- to determine when such cases even exist, because ator when it would be appropriate to do so. Experience research and experience has shown that victims and bat- teaches that there are many “gray area” cases for which terers rarely talk about the abuse.”27 there are no easy answers. The domestic violence com- The program also revealed a real divergence in views munity, the mediators and the courts must continue to regarding a critical question – whether or not victims can work together to fashion appropriate rules, protocols and be protected through screening techniques before and intelligent screening processes for those cases that seem during the mediation process. There are many different to lend themselves to mediation, with safety of victims screening procedures that are utilized by private and foremost in mind. ■ community mediators, and by the courts. One such technique, often used by mediation services, is a face- 1. Amy Carron Day, Responsible Mediation and Domestic Violence, N.Y. Fam. L. Monthly, June 17, 2003, p. 1 (hereinafter “Day”). to-face interview with each party separately, with the 2. Mary P. Brewster, Domestic Violence Theories, Research, and Practice woman to be interviewed first. Proponents often speak Implications in Handbook of Domestic Violence Intervention Strategies (Albert of such techniques as promoting safety and self-deter- R. Roberts, ed., 2002). mination. 3. Domestic Violence Screening Training Curriculum, “Policy of New York Even where domestic violence has been identified State’s Unified Court System, Office of ADR Programs,” CDRC Program Manual, Guideline II, Ch. 4, Pt. 4.030 (hereinafter “Domestic Violence Screening (which, as noted above, is a circumstance that many Training Curriculum”). believe renders mediation inappropriate), some servic- 4. Sarah Krieger, The Dangers of Mediation in Domestic Violence, 8 Cardozo es continue with the mediation, but employ “safe- Women’s L.J. 235, 242 (2002) (hereinafter “Krieger”). guards.” These include the following: having the par- 5. Carol F. Simkin, Exposing the Fallacy of Women Being Disadvantaged in ties sit in different rooms during the mediation; making Mediation, N.Y.L.J., June 10, 2004, p. 4. 6. Rene L. Rimelspach, Mediating Family Disputes in a World with Domestic sure attorneys attend the mediation sessions with Violence: How to Devise a Safe and Effective Court-Connected Mediation Program, 17 clients; providing a “safety plan” for the parties when Ohio St. J. on Disp. Resol. 95, 100 (2001) (hereinafter “Rimelspach”). leaving the mediation; utilizing only the most experi- 7. Id. enced mediators; and having more intensive follow-up 8. Day, supra note 1, at p. 2. of the enforcement of any agreements that may be 9. Id. (citing P. Salem & A.L. Milen, Making Mediation Work in a Domestic reached.28 Violence Case, Fam. Advoc., Winter 1995). On the other hand, critics of mediation argue that the 10. Rimelspach, supra note 6, at p. 97. screening available for domestic violence is poor, and that 11. Id. there is an absence of legislative mandates for mediator 12. Lois Schwaeber, Domestic Violence: The Special Challenge in Custody and Visitation Dispute Resolution, Divorce Litig., Aug. 1998, p. 141, 160 (hereinafter training; they contend that this will lead to the “inevitable “Schwaeber”). re-privatization of domestic violence” and will “set back 13. Rimelspach, supra note 6, at p. 97. the legislative progress achieved by the battered women’s 14. Domestic Violence Screening Training Curriculum, supra note 3. movement.”29 15. Schwaeber, supra note 12, at p. 160. Finally, other issues can arise that can influence 16. Rimelspach, supra note 6, at p. 99. whether mediation is appropriate. There can be a situa- 17. Schwaeber, supra note 12, at p. 160 (citing L. Newmark, A. Harrell & P. tion in which domestic violence has occurred in the past Salem, Domestic Violence and Empowerment in Custody and Visitation Cases, 33 Fam. & Conciliation Ct. Rev. 30 (Jan. 1995); Family Violence Prevention Fund, and the victim has been treated in therapy. In some cir- Family Violence: Improving Court Practice 28 (1990)). cumstances, that might be a case ripe for mediation. For a 18. Domestic Violence Screening Training Curriculum, supra note 3. person who has never had therapy, it might be needed as 19. Alana Dunnigan, Comment: Restoring Power to the Powerless: The Need to a support in order to proceed with mediation, even if Reform California’s Mandatory Mediation for Victims of Domestic Violence, 37 such mediation would otherwise be an attractive option. U.S.F.L. Rev. 1031 (Summer 2003) (hereinafter “Dunnigan”). As indicated, there are a number of “gray areas” in this 20. Id. family law area that do not lend themselves to easy 21. Day, supra note 1. 22. Dunnigan, supra note 19, at p. 1063. answers, simply because it is difficult to be categorical 23. Schwaeber, supra note 12, at p. 160. about every nuance of human behavior. 24. Id. Conclusion 25. Krieger, supra note 4. 26. Day, supra note 1, at p. 2. Utilizing mediation in domestic violence cases can be an 27. Id. at p. 2. extremely serious undertaking. Mistakes can cost victims 28. Id. at p. 3. their lives. A host of problems can exist: screening tools 29. Krieger, supra note 4, at p. 259. may not work; mediators may not be sensitive and well trained in the domestic violence area; safety planning during the mediation process may fail; and follow-up
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NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: CL2540 METES AND BOUNDS BY BRUCE J. BERGMAN
Predatory Lending for All
lawyer preparing a mortgage adding new § 6-l), the General house occupied as the borrower’s for a client – something he Business Law (adding new § 771-a) principal residence. Adoes only once in a while – and the Real Property Actions and Such a loan becomes “high cost” called one afternoon with a number of Proceedings Law (RPAPL) (adding when it crosses one or more of the fol- questions. When he mentioned an new § 1302). It is effective as of April 1, lowing lines: interest rate of 14%, I asked if he had 2003, applying to any covered loan for • if a first mortgage, the interest considered the requirements of the which application is made after that rate exceeds eight points above new “Predatory Lending” statute. date. the yield of treasury securities “No,” he said, he was unfamiliar with Of course the law does not apply to with a comparable maturity; or those. The lawyer quickly reconsid- all loans, but it is vital to determine • if a subordinate mortgage, the ered the task he had accepted for his which loans can be affected; and the interest rate equals or exceeds client in order to avoid a close brush provisions are profoundly serious. nine points above the yield of with malpractice. There must be a “home loan” and, once treasury securities with a compa- This suggests that any lawyer who within that category, the statute will rable maturity; or may ever prepare a mortgage should control if the loan crosses the threshold • total points and fees exceed 5% of have an understanding of what the of being considered a “high cost home the loan amount when the loan is statute imposes. Then too, any attor- loan.” $50,000 or more, or 6% of the loan ney who represents a borrower, or will According to the statute, a home amount when the loan is $50,000 foreclose a mortgage or represent the loan (including an open-end credit or more and the loan is a pur- purchaser (or insurer) of a title devolv- plan, but other than a reverse mort- chase money loan guaranteed by ing through a foreclosure, should gage) is one where: the FHA or VA. understand the role of the statute. Of • the principal does not exceed the all the laws passed year in and year lesser of the Fannie Mae conform- BRUCE J. BERGMAN
46 | Journal | September 2005 If the loan spills over into predatory territory, what next? It depends upon one’s perspective but, as mentioned, con- Informed sequences are significant. The major thrust of all this is imposition (by Banking Consumers Make Law § 6-l) of no fewer than 19 commandments relating to the mortgage, a compelling series of both do’s and don’ts. Space prohibits listing all these, but the need to be aware of Better Clients them if consummating a covered transaction is obvious and Legal Ease Brochure Series From essential. The New York State Bar Association And the significance of the sundry mandates goes well beyond mere drafting of the mortgage documents. For NEW YORK STATE BAR ASSOCIATION 15 titles on topics your clients example, if the mortgage is to be foreclosed, the new Adoption need to know...written by experts in New York RPAPL §1302(1) requires the complaint to allege compli- from NYSBA’s Sections. ance with all the provisions of Banking Law §§ 595 and 6-l. NEW YORK STATE BAR ASSOC IATION in cooperation with t Put them to work for Published en ork City Departm the New Y Then, that allegation must be proved before judgment can Rightsfor the Aging of your firm. be awarded. Violation of any provision of Banking Law Residential § 6-l is specifically delineated as a defense to foreclosure Owners and Tenants For more information, call (RPAPL § 1302(2)). 800-582-2452 or 518-463-3724 Penalties for violation of the Mention Code MK067 statute create unpredictable peril.
Note that an assignee of the mortgage may find it diffi- cult – or impossible – to determine this compliance with certainty. As trying as it may be for a closing party to glean statutory compliance, it may be even more troublesome for a title company invited to insure such a title. What really occurred at the inception of the loan to comply with the statute may either be unclear as a matter of fact or open to interpretation as a matter of law. (Read each mandate to confirm that you could be likewise perplexed.) Burdens of drafting and compliance aside (although these are significant indeed), penalties for violation of the statute create unpredictable peril. Loan assaults in general almost invariably emanate from disgruntled borrowers. In this realm of predatory lending, though, enforcement can come from the attorney general, the superintendent of banking or any party to the loan. A lender’s liability for vio- lation includes not only actual damages (inclusive of conse- quential and incidental damages) but statutory damages as well, requiring forfeiture of all interest – earned or unearned – points, fees and closing costs. Added too is court discretion to grant injunctive, declaratory or other equitable relief. Should violation be held intentional, the loan is deemed void and the lender must then disgorge all payments received. In a foreclosure situation, recission is available as a defense or counterclaim with no statute of limitations to bar its use. Conclusion seems an opportune time to highlight an earlier point. Many statutes languish in obscurity, recon- dite exercises for those still wearing eyeshades and ensconced at tall desks. Not this law. ■
Journal | September 2005 | 47 ATTORNEY PROFESSIONALISM FORUM
To the Forum: to avoid even the appearance of impro- adequate funds for estate expenses, I am a general practitioner with a priety? and maximizes her inheritance. You, potential win-win business deal with a Sincerely, however, have a personal interest in long-time client. This person recently Wondering on the West Side purchasing the apartment at an afford- inherited seven co-operative apart- able price so that you are able to make ments in a charming brownstone on Dear Wondering: monthly mortgage and maintenance the tony and expensive west side of Your uncertainty is understandable, payments. In addition, even if the price Manhattan. She is both the sole benefi- and the question you pose must be offered for the apartment was objec- ciary and executor, and hired me to set- evaluated from a conflicts-of-interest tively fair, there are other elements in tle the estate. perspective. the proposed transaction – such as the The estate has no liquid assets. The first issue is whether you may terms of the contract, the co-operative There are sizeable estate taxes to be purchase the co-operative apartment board’s approval of the sale, and the paid, both federal and state. After from your client at all. Although a financing of the sale – where your obtaining an appraisal of the apart- lawyer is not prohibited from entering interests and those of your client are ments, my client listed two apartments into a contract with a client, it general- not fully aligned. These interests likely for sale to raise funds to pay the estate ly is inadvisable to do so because there qualify as “differing interests” under taxes and for other administration is a risk that the lawyer may exploit the the Code that may “adversely affect” expenses. One of the listed apartments client by failing to disclose fully all your judgment or loyalty to the client. quickly sold (I handled the closing) for existing conflicts or by taking steps Accordingly, your involvement in the about $20,000 over the appraised during the course of the transaction transaction may violate DR 5-101(A) value. that benefit the lawyer at the client’s and DR 5-104(A). There have been no realistic offers expense. See, e.g., Schlanger v. Flaton, Notwithstanding these differing made on the second apartment, and 218 A.D.2d 597, 601, 631 N.Y.S.2d 293 interests, however, you still may enter the listing agreement with the broker (1st Dep’t 1995). into the transaction with your client if has expired. As it happens, I have a This concern is reflected in the certain conditions are met. They are as daughter in graduate school a few Disciplinary Rules, which provide that blocks away from the building and a lawyer may not accept or continue The Attorney Professionalism Committee would like to purchase the apart- employment for a client, or enter into a invites our readers to send in comments ment for her. With 90% financing business transaction with a client, if the or alternate views to the responses based on the appraised value, I differing interests of the lawyer and printed below, as well as additional should be able to swing the monthly client will impair the lawyer’s inde- hypothetical fact patterns or scenarios to mortgage payments and mainte- pendent professional judgment. DR 5- be considered for future columns. Send nance until my daughter gets a job (I 101(A); DR 5-104(A). In addition, the your comments or questions to: NYSBA, hope) after she graduates. With the opinions of the Committee on One Elk Street, Albany, NY 12207, Attn: estate tax due date looming and the Professional Ethics state that it is Attorney Professionalism Forum, or by saving of brokerage commissions, I unethical for a lawyer to recommend e-mail to [email protected]. think it would be a great deal for my that a client purchase a product or client as well. service in which the lawyer has a per- This column is made possible through the I raised the idea with my client and sonal financial interest. See N.Y.S.B.A. efforts of the NYSBA’s Committee on she was delighted. She said that Comm. on Prof’l Ethics, Formal Op. Attorney Professionalism. Fact patterns, although she may be able to get a 694 (1997) (“N.Y.S.B.A. Op.”) (lawyer’s names, characters and locations presented higher price on the open market, she financial incentive to influence client to in this column are fictitious, and any resem- so appreciated the work I have done secure contract of sale violates DR 5- blance to actual events or to actual persons, for her over the years that I should 104(A)); see also In re Estate of Stalbe, 130 living or dead, is entirely coincidental. These consider any potential loss of profit to Misc. 2d 725, 729, 497 N.Y.S.2d 237 columns are intended to stimulate thought be a gift. She was also grateful that we (Sur. Ct., Queens Co. 1985) (lawyer and discussion on the subject of attorney wouldn’t have to deal with another breached fiduciary duty to client by professionalism. The views expressed are attorney on the contract of sale and acting in dual capacity as executor and those of the authors, and not those of the closing. real estate broker). Attorney Professionalism Committee or I am unsure as to whether this Your obligation to represent your the NYSBA. They are not official opinions transaction is permissible, profession- client’s interests zealously, see DR 7- on ethical or professional matters, nor ally and ethically. If it is permissible, 101(A), includes advising your client to should they be cited as such. what precautions should I take, if any, sell estate assets at a price that ensures
48 | Journal | September 2005 follows: viewing the transaction objec- conflict, because it will be necessary for the advice and representation of inde- tively, your interests do not adversely you to negotiate directly with your pendent counsel regarding the pro- affect your representation of or loyalty client. It therefore will not be possible posed transaction. Independent coun- to the client; the terms of the transac- for you to adequately represent both sel will have the opportunity to evalu- tion itself are fair and reasonable; the your interests and your client’s inter- ate the client’s savings on brokerage client consents after full disclosure; ests. Accordingly, it appears that dual fees, whether there are (or are likely to and you advise the client to consult representation in the proposed transac- be) any realistic offers for the apartment with independent counsel. DR 5- tion is not permissible under DR 5- above the appraised value, and negoti- 101(A); DR 5-104(A). In fully disclosing 105(A) and (C). ate with you to achieve a fair and rea- the implications of your self interest, If you purchase the apartment at sonable price for the apartment. you should explain to your client the the appraised value, the final issue is Representation by independent counsel advantage of selling the apartment to a whether the client’s potential loss of will render the issues of dual represen- purchaser who does not require financ- profit, caused by removing the apart- tation and impermissible gift moot. If ing, and the co-operative board’s poten- ment from the market, constitutes an the client consents to the transaction tial rejection of your daughter’s tenan- impermissible gift. EC 5-5 provides: after full disclosure, her representation cy. Additionally, you should obtain the “A lawyer should not suggest to his by independent counsel will likely ren- client’s consent in writing. See client that a gift be made to the lawyer der the proposed transaction profes- N.Y.S.B.A. Op. 688 (1997). The transac- or for the lawyer’s benefit. . . . If a sionally and ethically permissible. tion must be abandoned if the above client voluntarily offers to make a gift The Forum, by conditions are not met and the client to the lawyer, the lawyer may accept Danielle M. White does not consent to waive the conflict. the gift, but before doing so, should Paul, Hastings, Janofsky If the transaction proceeds, the sec- urge that the client secure disinterest- & Walker, LLP ond issue is whether you may repre- ed advice from an independent, com- New York, NY sent both the estate and yourself in petent person who is cognizant of all preparing the documents for the sale the circumstances.” In your case, and closing. DR 5-105(A) and (C) pro- should the sale result in a loss of prof- QUESTION FOR THE vide that attorneys may not represent it to the client, your offer to purchase NEXT ATTORNEY multiple clients with differing inter- the apartment at the appraised value ests, unless it is obvious that the could be construed as a suggestion PROFESSIONALISM FORUM: lawyer can adequately represent the that the client make a gift to you. If interests of each, and if each consents your offer is so construed, the transac- Recently, an important client asked if to the representation after full disclo- tion would be contrary to this Ethical my firm would substitute as counsel in a sure of the possible effect of such rep- Consideration. dispute in which prior counsel had filed resentation on the lawyer’s independ- However, even though you suggest- a demand for arbitration pursuant to an ent professional judgment. ed the transaction, it was the client agreement. It turned out that my firm While the situation addressed in its who offered to make the gift by sacri- had previously performed legal work on opinion is not directly on point, the ficing a potentially higher price on the behalf of the named arbitrator. While I Committee on Professional Ethics has open market. You may accept such a was debating whether it would be prop- recognized the difficulty of a lawyer gift only if you urge your client to er to accept the representation under representing both the buyer and lender secure disinterested advice from inde- these circumstances, and before any in a sale. It cautioned that “it would pendent counsel. Absent such inde- hearings had been held, the arbitrator, not be possible for one lawyer to play pendent advice, your agreement to sua sponte, issued a decision that the both roles, even with consent, because purchase the apartment at a price that matter in dispute was not within the that would put the lawyer in a position is potentially less than market value scope of the arbitration agreement. Can I of negotiating with him or herself.” See constitutes a breach of your profession- now properly go to court and argue that N.Y.S.B.A. Op. 753 (2002). Where the al responsibility to the client. See, e.g., the arbitrator was wrong as a matter of parties “do not directly negotiate with In re Estate of Tank, 132 Misc. 2d 146, law, seek to overturn his ruling under each other,” the Committee has recog- 503 N.Y.S.2d 495 (Sur. Ct., Schoharie Article 75 of the CPLR, and ask that the nized that dual representation “can be Co. 1986) (acceptance by attorney- arbitration be directed to proceed? permissible with consent after disclo- draftsman of $5,000 bequest from his Sincerely, sure.” Id. In your case, representing client constitutes overreaching). I’d Rather Be Right yourself and your client in this transac- In sum, to safeguard your client’s tion clearly raises the potential for a interests, you should advise her to seek
Journal | September 2005 | 49 LANGUAGE TIPS GERTRUDE BLOCK
uestion: I have seen the word In creating blends, the second word (which in Middle English meant, fruesta substituted for the two of the original phrase is shortened and “threadbare”) and hassled (which in Qwords “fruit fiesta.” My dic- treated like a suffix, as in -burger for Middle English meant “tangled”). tionary doesn’t list that word. Does it hamburger. The final syllables of alco- exist outside the mind of the person holic (-oholic) were attached to the From the Mailbox who used it? words work, shop, and chocolate, creat- Washington, D.C. attorney Andreas ing the blends workoholic, shopoholic, Stargard has taken exception to my Answer: Dictionaries do not list that and chocoholic. In that final blend, the discussion about the negative con- term. Apparently it is a merger of the word chocolate is shortened to become a struction “all . . . are not,” which words, fruit and fiesta and was created prefix, choco- and joined to the newly appeared in the March/April by the W.C.T.U. (Women’s Christian created suffix -holic to form the blend. “Language Tips.” I wrote that the con- Temperance Union) to promote social struction is ambiguous because when gatherings serving only non-alcoholic And remember Watergate, the name people use it they erroneously believe drinks. (See Pyles & Algeo, English, An of the hotel that provided a political they are expressing an unequivocal Introduction to Language, at 111.) scandal several decades ago? The last negative statement, although they are Mergers are common in English; lin- syllable of that name, -gate, became a not. For example, when one says, “All guists call them blends. A recent letter- newly created suffix in the blends cats are gray,” that is an unambiguous writer asked about the word prebuttal, Leakgate (in The Washington Post), negative statement. But the statement, a blend of rebuttal and pre-. Democrats Spygate (in Business Week), and intimi- “All cats are not gray,” means that created that word to denote a response, gate (in a speech by a Democratic some, but not all, cats are gray. To prepared in advance, to the State of the politician). avoid ambiguity, I wrote, one should Union Message. say, “No cats are gray.” Other blends have limited usage. Blends combine part of the sounds For example, in a recent advertisement, But Mr. Stargard wrote that “All and meanings of two words to create a a dictionary of “hip-hop” language cats are not gray,” does express an new single word. In the case of prebut- was announced. The dictionary is unambiguous statement, equivalent to tal, the prefix pre- is substituted for the called “Hiphoptionary.” It changes the “No cats are gray.” He pointed out letters re- of rebuttal. Another blend last three syllables of dictionary (- that, as logic books reveal, “All . . . are was recently created by Roger Federer, tionary) into a suffix. From the French not” is equivalent to “No . . . is.” He after he had won the third straight noun sequel, a blend was formed by added that all lawyers should be famil- final men’s single match at Wimble- treating the second syllable of sequel as iar with the classic E-E-I-O “Square of don. He described his win as a three- a suffix and adding the prefix pre- to Oppositions,” and the interrelation- peat, a three-time repeat. Blends like create prequel. And a Time magazine ships between the universal and par- these are coinages that may exist only journalist created the blend mingy, ticular forms that it diagrams, which for a single occasion, or that catch on which combines mean and stingy. are studied by every logic student to become part of the English lan- Whether or not these recent blends will since Aristotle’s Organon. guage. last is anybody’s guess. (Linguists call these nonce words – words created for I confess that I was unaware of the Many blends have caught on. Take an occasion.) “Square of Oppositions.” The problem the word hamburger, which was origi- with an argument based on logic, how- nally a phrase, hamburger steak, named But many blends have lasted so well ever, is that language is not always for the German city of Hamburg. The that we do not even recognize them as based on logic. The statement, “All pit story is that the Earl of Hamburg was merged phrases. For example, the bulls are not vicious; they must be exceedingly fond of ground beef, but word twirl came from twist and whirl; trained to attack,” would, I think, be often in a hurry. For a quick meal, flush came from flash and blush; chortle, interpreted by most people to mean without cutlery or a mess, he placed from chuckle and snort; flurry, from flut- that only those pit bulls who are the slice of beef between two pieces of ter and hurry; and meld, from melt and trained to attack are vicious. bread. Hamburgers became immense- weld. And how could we manage with- ly popular and various versions of out the word brunch (breakfast + lunch) The “all . . . are not” construction them were created, all involving and motel (hotel + motor), an overnight has deep roots in English. At the end of blends. We can now order cheeseburg- stop when traveling? Finally, if travel- the 14th century Chaucer wrote, in The ers, fishburgers, low-fat burgers, soy- ing with children affects you as it does Canterbury Tales: “But al thing which burgers, and possibly other combina- me, how could we do without the shineth as the gold/Nis not gold, as tions. word frazzled, a blend of the word fray that I have herd it told.” That proverb
50 | Journal | September 2005 was not new with Chaucer; he bor- rowed it from Parabolae, a book of poet- ry, which he had translated from Latin.
The proverb “All that glitters is not gold” was then appropriated by Shakespeare in The Merchant of Venice. But Shakespeare substituted glisters for glitters: “All that glisters is not gold–/Often have you heard that told.” (I.e., “Things may not always be as they appear.”)
And the expression is still being quoted today. ■
GERTRUDE BLOCK is lecturer emerita at the University of Florida College of Law. She is the author of Effective Legal Writing (Foundation Press) and co-author of Judicial Opinion Writing (American Bar Association). Her new book is Legal Writing Advice: Questions and Answers (W. S. Hein & Co., 2004).
Correction: On page 31 of the June 2005 issue of the Journal, the WishWish youyou couldcould taketake aa recess?recess? article titled “2004 Case Update – Part II,” discussed the holding in Pomerico v. ELRAC, Inc., stating that tortfeasor recourse lies with MVAIC. That holding was reversed. Tortfeasor recourse lies with PMV, not MVAIC.
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Journal | September 2005 | 51 NEW MEMBERS WELCOMED
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52 | Journal | September 2005 Junine Kelly Johnson Thomas J. Lepri Jason Curry Matson Yuval Navot Dawn Marie Pinkston Sloan Slavin Jones Jennifer Kim Lerner Guy Maurice Omeca Natasha Nedd Antonia Margit Pisacane Johnston Ian Lester Yael Lerman Mazar Edward Eliezer Neiger Christian James Pistilli Julie Cassidy Jones Cindy Michel Levine Stephen Mazzalonga Mark John Nemetz Timothy Robert Pitrelli Nadia Ramadan Jones Noah Adam Levine Alison R. McCabe Emel Nesli Stephanie Uhlman Kelly Lynn Jordan Nicholas James Lewin Ryan Patrick McCarthy Karen B. Newman Poliseno Scott Harris Kaiser Dori A. Lewis Shawn Marie McEnnis Leslie K. Nguyen Paul Matthew Polking David Alexander Kanarek Wenying Li Kristin Leigh McFetridge Peter Andreas Nielsen Sally Spencer Pritchard Grace Kang Jeffrey Liao Erica Lee McHale Kirstein A. Noethen Kevin Lee Prokup Pia Kristina Kappy Scott Stephen Licata Ella Kathleen McHugh Robin R. Nordblad James B. Radford Gina E. 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Journal | September 2005 | 53 Joshua Brett Sandberg Brian Steven Smetana Mark Alan Vandehaar Laurice Zaki Bekheet Melissa Sager Madiana Aminata Sanoh Christopher George Stephen Gerald Vander Arroyo Joseph Salvo Mario Santa Maria Smith Stoep Lara T. Bianchi Emily Erin Sandie Giannina Santo Julie I. Smith Liat Varozlavsky Anne Marie Broomfield Laura Patricia Sette Teresa Faye Santos Gareth David Smyth Jeffrey T. Veber Lisa Marie Browne Shannon June Stallings Aram A. Sarafian Graeme Paul Smyth Daniel John Venditti Richard W. Bryan Jerrold Louis Steigman Narisa Sasitorn Gwen Elizabeth John Gibson Verkjil Thomas Anthony Bucaro Elizabeth Mary Stellato Audra Lyn Savage Snorteland Don Steven Vermut Elizabeth A. Carini Sylvie Straus-Figueroa Hassen Amir Sayeed David Thomas Sobol Victoria Vron Jordan Ryan Carpenter Deena Abel Subar Peter Edmund Sayer Matthew D. Sobolewski Michelle K. Waller Joel Cohen Timothy Davis Syrett Ian Carleton Schaefer Susie C. Sohn Erik C. 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Mulligan Christine Marie Maloney Dorothy Kelly McDonald Jeremy A. Colby Richard Edmond Weill Heather R. Nicoletti Kathleen Marie Maloney Eugene P. McGloin Kimberly Suzanne Conidi David Warner Maeghan H. O’Keefe Lisa J. Masone Louis Newton Mendys Michael B. Engdahl Woodworth Glenn Adam Opell Julia Medynskaya Liezl Irene Que Janine Crawley Fodor Franklin Rafael Pena Erin Christine Ming Pangilinan Daniel Charles Gard TENTH DISTRICT Lisa Angela Perillo Alexandra Mishail Darrol M. Pattillo Ryan Patrick Hanna Liliya Abramchayeva Syed F. Qamer Jessica Molinares Laura Lynne Pitter Gregory A. Heeb Letal Algazy Tahirah Kalik Rankins Michael Patrick Mullahy Hilary Sue Poris Lori Ann Hoffman Ann Marie Alves Sean Patrick Joseph Jeffrey Pascale Bethany Suzanne Pray Ashley Wales Johnson Harry C. Riordan Jennifer A. Pax Trevor John Saccente Carolyn Elizabeth Leed Anagnostopoulos Michael Evan Ritchkin Rose M. Poggi Mariam A. Sanni
Journal | September 2005 | 55 Eylan Schulman James R. Brockway Scott Danaher Sanj Gayle Timothy Turner Howard Crystal S. A. Scott Meredith Barri Brodsky Jobe Galope Danganan Divya Anna George Yu-chieh Hsiao Stephanie Marie Sneed Mark R. Brown Samuel Louis David Erin Heather Gerstenzang Hong Hu Martha Juliette Vasquez Courtney Allison Bryan Jaime Michele Davids Diba Debbie Ghamkhar Ying H. Huang Ana Maria Vizzo Frank Turner Buford Townsend Davis Diba Ghamkhar-Nassiri Hayes Andrew Hunt Omer Wiczyk Carla Burke Daniel Steel Deller Kathleen Giles Elizabeth Husa Janelle Lynn Winston Anissa Burnley Marit A. Delozier Jennifer Lauren Giliberti Jordi H. Hutchinson Misty Leann Wyatt Richard Allen Burns Mike DeLuca Rebecca Susan Giltner Phillip Hwee Procop Buruiana Eloitt Deur Adrien Gingles Christopher B. Hynes OUT OF STATE Niamh Patricia Butler Daniel P. Dillon Nathaniel Michael Takeo Iijima Pierre Abinakle Salvatore Gerard Nicholas G. Dimaio Glasser Muhammas Ikhlas Sandra Adams Caldarise Anthony D’Imperio Kathleen Glis Takeshi Isokawa Femi A. Aderohunmu- Luis Fernando Calderon Yiraldi Dirocie Kevin M. Glynn Kenneth Wayne Jackman Adeniyi Lawrence Anthony Calli Robert W. Diubaldo James David Golkow Ryan Steven James Robert Jacob Adler Kelly R. Camamis Stephen M. Dolben Jennifer Layne Gonzalez Debbie Jerome Cathal Ahern Meredith Ann Campanale Andrew Erskine Downes Julian Jose Gonzalez Ming Ji Rana Sajjad Ahmad Andrea Carska Florence Dubosc Marlene Gonzalez Ruth Jin Muna Nathalia Al-dilaimi Michael T. Carton Anne Sophie Dufetre Megan Sloane Gordon C. Johnson Rodney John Alberto Barbara A. Casey Alan Duffy Megan Gorman Stephen Ashley Johnson Lara-Anne Allem- Susan June Campbell Brian P. Duffy Sanjoy Kumar Goyle Alyson R. Jones Romanello Caudell Patricia Anne Dugan Joshua E. Gradinger Christina Elizabeth Nicole S. Allen Mana M. Celis Jamie N. Duong Julie Ann Graves Jones-Rowe Jose R. Almonte Maria Mayela Celis Travis Eagan Justin Adam Greenblum Kangwon Joo Robert Valpey Alvarado Cindy S. Chae T’shura Ann Elias Michael J. Grohs Eun Young Jung Karni Amit Annoushka Josette Grace Hannah Franklyn Guillaume L. Groisard Saima R. Kahn Ijeoma Oluchi Amobi Chaillet Entwisle Melanie K. Gross Daniel Robert Kalderimis Randall K. Anderson Hsiao-yang Chang Jeremy C.R. Entwisle Stacey A. Guthartz-Cohen Abdulla Morgan Kamber Scott Christian Anderson Serk Ha Chang Liu Fang Myriah Aleah Habeeb Shi Kang Cariica Andrea Jaime L. Chase Aaron Farkas Esther Hagege Anne Kanyusik Gabor Antal Gisela Chavez-Garcia John A. Farmer Mary J. Hahn Smit Kapadia Irfana Anwer Michael James Chelland Jay L. Farrow Mark Phillip Hale Tina R. Karkera Carol Lim Yee Leng Apel Chao-ching Chen Michael Fastert Thomas Manlio Hall Jennifer Katz Joseph Owen Armstrong Chasching Chen David T. Fasunloye Laura Rosen Hallett Robert Jonathan Kaufman Eri Asano I-Chieh Chen Sara Faulman Stephanie Hallouet Min Ke Kimberly Baker Jie Chen Olivier R. Favre Adam F. Halper Lindsey Kevn Christine Michelle Ya-ping Chen Barbacar Sedikh Faye Mary Kate Halpin Ashutosh Khaitan Ballantyne Diego Agustin Chighizola Olutobi D. Fayemiwo Jain Hang Karen Khan Chen Bao Medea Barbara Chillemi Solomon S. Fenjiro Shinichiro Hara Danbee Kim Ori Bar-am Rozain C. Chitty Karen Fenyus Irina Haracoglou Dohoom Kim Elizabeth Ann Barrow Erin Rebecca Chlopak Jennifer Mary Dunbar Kaoru Harada Jongahn Kim Jessie Christine Basner Young Sun Cho Ferns Dorothy Harbeck Joohee Kim Nicholas Jorg John T. Chung Pablo Cesar Ferrante Erika Harriford-McLaren Justina Kingen Baumgartner Ting Lu John Chung Allison N. Fihma Joshua Harvey Jenna Lauter Klatell Sarah Hawa Bawayn Christopher Allen Holly Elizabeth Files Keiji Hattori Katherine G. Klaus Ashley Baynham Clausen Eve Lynne Filip Jessica Ruth Hauser Blake Austin Klein Keith A. Becker Heather Clements Erin M. Fishman Frederick John Hawkins Catherine Mary Klein Lazlo Beh Sara Beth Clevering Eric Fleisig-Greene Hiroki Hayabuchi Jason Edward Klurfeld Brian Gabriel Benhamou Conor Clyne Sarah Fleming Jie He Danny Knight Valerie Bennett Darren Cohen Jonathan Todd Flynn Morgan Heavener Oxana Igorevna Ryan Thomas Bergsieker John Robert Cohn Francine O’Neill Forster Kristina C. Heese Kompaniyets Daniel Berhane Ramon Concha Sabrina Renee Fox Verena Hellweg Margaret Korgul Susan Jane Berkowitz Courtney Connell Branden Francavillo Vincent Paul Herman Michael Korik Guy F. Birkenmeier Jason Conway Unni Fredheim Daniel R. Herr Charlene Kow Gael Bizel-Bizellot Randall Hastings Cook Yuji Fujita Katherine Hersh Jacqueline E. Kozary- Nigel Edwin Blackman Anthony Joseph Corino Hongjie Gao Sabine J. Hertveldt Scott Adam Blank Natalie Ann Corrigan Shan Gao Tracey C. Hinson Maria Kraybill David Bloch Amy D. Criscuolo Andrea M. Garcia Georg Friedrich Hirsch David Krell Martin Blumann Fionnuala Croker Carla Natalia Gargiulo Steve G. Hockaday Mahir Kucukalic Rajesh Kumar Bobal Matthew Jeffrey Melanie Jane Gargliardo Jason Douglas Hoge Pui-Yan Kwok Carolina Boechal-Lopes Cumming Jefferson Stewart Garn Kristina Ann Hokenberg Hyuk J. Kwon Hugo K. Bonar Sinead Frances Lucia B. Garrett Katherine Anne Holbrook Tiffany Amanda Lacker Tina Fernandes Botts Cunningham Charles Travers Garvin Sangseok Hong Arran Lal Joseph William Bowley John Czajka Travers Garvin Seung-in Hong Todd C. Landis Jossy Ho Bragassam Amy Beth Dambeck Jason Christopher Seung-jin Hong Raphaela Ute Lange Sarah Brandoff Jana K. Dammann Gavejian Akio Hoshi Gillian Mary Langman
56 | Journal | September 2005 Gina M. LaPlaca Marissa Miraldi Jason E. Rheistein Karen C. Sinai Adam Q. Voyles Leah Lederberger Deborah Misir Brian Patrick Rice Anika Singh Lori Anne Wagner Byung Mun Lee Mark N. Mogavero Shirley C.S. Rivadeneira Aaron Siri Manar Waheed Corey Lee Adrian Taylor Keren Zipora Rivlin Christine M. Siscaretti Corinne Lea Wainwright Jae Soog Lee Montgomery Yvonne Marie Rizzo Patricia Skuster Barbara Wally JiYoung Lee Michelle Lynn Montoro De Laguna Jonathan Marc Slawsby Allison Christine Walsh Jonathan Hyui Lee Anna Morawiec Kirsten Valerie Kucharik Bruce Douglas Smith Suzanne Marie Walsh Jong Ho Lee Mansfield Robbins Shannon Kimberly Smith Bangmin Wang Kangseop Lee Noel Peter Mpada Janet H. Roh Scott Michael Solkoff Hui-Ju Wang Li-Pu Lee Nora Newton Muller Kim Rosen Jamie Song Na Wang Soh Hyoun Lee Stephen P. Murray Kira Samuelle Rosen Samuel Spital Sarah Elizabeth Warlick Somee Lee Jeffrey Lee Murrell Marcy Lauren Rosen Amanda Bradshaw Steck Yumiko Watanabe Soo-Hyung Lee Sharmila Leela Murthy Nick Rosenberg Adam T. Stofsky Gregory Chales Watt Tae Ho Lee Vanessa C. Nagpal Alissa Rossman Kosta Stanko Stojilkovic Eric Jason Weiner Francesca Lefante Saiko Nakajima Jan Elis Rozemeijer Jennifer K. Stone Jo Florence Weingarten Rudolph Francis Lehrer Kenneth S. Nankin Joseph John Russell Lory C. Stone John Frederick Weingold Jeffrey Alan Letalien Michael Patrick Nanne Lauren Clare Russell Aaron Stonecash Jennifer L. Westbrook Anne LeVassuer Amanda Lynn Nelson Alissa Ryder Megan Jordan Strickland Jennifer Robin White Matthew Strahl Levine Kristen R. Nelson Kathleen M. Ryder Stephanie Stubbe Charles David Wien Sigal Lewkowicz Marcia Nelson Eric Ryu Stacy-Ann Elizabeth Peter Damian Wimmer Ying Li Jihui Ni Yosuke Saitoh Suckoo Roland Conrad Witzel Marmaduke R. Ligon Palle Steinicke Nielsen Paul Salazar Sang Myun Suh Robert M. Wolf Seoung Young Lim Kengo Nishigaki Christina Salib Nigar Suleman Janice Wu Abbey Jane Lisbon Ernest Nnebe Cynthia Kellie Sargeant Bernard Eelco Szabo Yu-chieh Wu Silvia Xiao Wei Liu Gabriel S. Oberfield Keita Sasaki Satoshi Takagi Geoffrey McIntyre Wyatt Charlotta Ljungdahl Cliodhna Maria Matthew Richard Savare Tomoko Takezawa Haifeng Xue Wen-mei Lo O’Callaghan William G. Schimmel Tzong-jyh Tarn Li Xue Scott A. London Danielle O’Connell Joanne Rian Schleifman Joel Monroe Taylor Jin Mo Yang Nicole Laura Lorenz Josephine Evbaruese Tobie Lozman Schlosstein Lucai Terrazzer Jingyi Yang Tara Lynne Lotito Okunseri-Omobude Luzius O. Schmid Ros Mac Thoim Xueyu Yang Michael Kah Heng Lum Tara Ollapally Claudia Schubert Dorothy E. Thornton Hiroyuki Yasuda Julie Judith Lurman Steve Omer Friedrich Bela Schulte- Asia Monique Timmons Wendy Yeo Dana Luther-Lambert Francine Oneill Forster Hillen Heather S. Timmons Erick C. Yin Elizabeth Jean Mackay Rita-Anne O’Neill Andrew A. Seewald John B. Treder Shouhau Yu Iain Macsween Olumuyiwa Adedoyin Naomi Kate Seiler John Elliot Trinidad Mark David Yudell Damien P. Magee Oremosu Michael S. Selyem Rachel Trirp Erica Lynn Zahornasky Sina Maghsoudi Alison O’Shea Theary Chan Seng Shlomo Benjamin Milosz Zemanek Norah Mallam Katherine G. Ovalle Amanda Elizabeth Shafer Troodler Zheng Zha Tahmineh Irene Maloney Ellison K. Owusu- Miki Michael Shapira Margaret Tsai Weihily Zhou Maria Antonietta Mameli Fordwoutt Andrew Brendan Shea Po-keng Tsai Taryn R. Zimmerman Charysmel Farah Claudia Teresa Parga Lorne Brahm Sheren Koji Tsurumi Shaul Zioni Manasra Vazquez Shengming Shi Sandhya Tulshyan Adam D. Mandell Ji-Young Park Sakura Shibata Martina Tusek Yehuda I. Manor Isabel Jane Parker Naoki Shibuya Zagar F. Vakhidov Brian Christopher Martel Effie A. Patrick Yoichi Shio Nicole Valenta Nathaniel Lord Martin Adam David Peacock Maria I. Simmerman Michele Marie Vercoski Danielle Maschuci Carlos Rafael Pellecer Emily Mancina Simon Renee Marie Von Elten Keith S. Massey Lopez Adam Mauntah Jennifer M. Pendleton William John McCallig Matthew Daniel Peterdy Daniel J. McCarey Chris Phillips In Memorium Jared Dylan McCutchen Fulvio A. Picerno Donal McElwee Erin Kimberly Pitts Lorna Corrie Howe Claire L. Pizzarello Loren C. Berry Irvin B. Green McGregor Kelly-Ann Pokrywa Hilton Head Island, SC New York, NY Peter McKenzie Meri S. Ponist Morris Bogash Norman Jay Itzkoff Brian Christopher Erin Elaine Powers New Rochelle, NY Riverdale, NY McPeake Michael Proto C. McPherson Naveed A. Quraishi Bryan Cullen Vincent T. O’Donnell Caroline Daniel Jessica L. Radke Albany, NY Gouverneur, NY McWhorter Derek Dahlgren Reed Jerrold T. Doros Elizabeth Kasulis Padilla Dorothy D. Mehta Danhoe Reedy-Girard Atlanta, GA Brooklyn, NY Amy Jill Metzger Harry M. Reichenberg Elizabeth S. Ellard Alfred L. Shiels Robert Migliorini Arvidas Jonas Remeza Cambridge, NY Yonkers, NY Lina Reyes
Journal | September 2005 | 57 THE LEGAL WRITER “eny,” “sed,” and “becos.”15 To cope • Write a paragraph for each major CONTINUED FROM PAGE 64 with impaired spelling, LD lawyers point and review it before finish- should: ing a first draft; — a problem because presentation • Create mnemonic devices to • Organize facts chronologically; counts for so much in legal writing. In remember how to spell tricky • Organize a legal argument by WordPerfect, users can fix formatting words — like mnemonic;16 issue; within each issue, in the issues like spacing and margin errors • Continuously practice reading following order, start with your by using the “Reveal Codes” option. and seeing words; and point, provide the legal rules, Press Alt + F3 and edit the document • Use word-processing software to apply law to fact, rebut the other through the codes shown in a separate draft their documents and spell side’s law and fact, and state the window at the bottom of the screen. check every time they exit a file. relief requested; Word doesn’t have a code function that • Introduce something before explaining it; For the learning disabled lawyer, the key to writing well • Watch out for undefined isn’t to work harder, faster, longer. It’s to develop efficient acronyms; • Discuss things once, all in one strategies to compensate. place; and • Organize the document’s parts allows its users to edit every aspect of LD writers can forget to capitalize a into increasingly smaller units a document. But in Word 2002, the user sentence’s first word or use periods. using thesis paragraphs, topic can control formatting by using the Basic grammatical errors can make the sentences, and thesis sentences. “Reveal Formatting” function from the LD lawyer’s writing difficult to read. To improve their writing abilities in drop-down menu. To remedy punctuation problems and general, LD lawyers should also: Both dyslexia and dysgraphia can to make the LD aware of grammar’s • Start early; profoundly impair a lawyer’s writing. importance, the LD lawyer should: • Find a mentor to edit and teach Dyslexics are unable to read and edit • Practice correcting sentences writ- writing and citing; accurately what’s been written. ten without capital letters or • Edit and re-edit, producing sever- Dysgraphics have poor motor and orga- punctuation; al drafts; nizational skills. Because the LD often • Write out sentences someone • When editing, check off correc- suffer from more than one disorder, reads to them and edit those sen- tions to avoid missing them; with each LD having a unique combina- tences; • Read the final draft aloud for- tion of symptoms, the rest of this col- • Read sentences aloud to under- ward and backward a few times; umn will use the all-inclusive “LD” to stand where punctuation should be; • Edit on a hard copy rather than refer to the effects that dyslexia and • Use the grammar check on on the computer screen. dysgraphia have on legal writing. WordPerfect or Word. • Manage time carefully — leaving LD writers can have difficulty mem- enough time to edit repeatedly; LD and Legal Writing orizing the sequence of movements and Writing is the most difficult activity the that make up writing each letter. It’s • Keep their workspace organized LD can perform. Practicing law hard for them to remember how to and uncluttered. revolves around documents. Writing write some round letters. (That’s why letters, contracts, briefs, memoran- some believe that LD is backward writ- Reasonable Accommodations dums, motions, orders, and stipula- ing rather than a complex cognitive Under the Americans with Disabilities tions are daily rituals for lawyers. To disorder.) The LD can get confused Act (ADA) of 1990 and the Individuals the LD, writing is a slow, tedious strug- between a “b” and “d” or a “p” and with Disabilities Education Act (IDEA) gle. But LD’s effects can be mitigated. “q.” The best way to combat this con- of 1997, those with special needs must A learning disability in writing fusion is to write in cursive or to use a be placed on equal footing with those affects four main areas: spelling, punc- word processor. without disabilities. tuation, sequencing ideas, and hand- Critical for lawyers is the ability to The road to becoming a lawyer is writing.14 Spelling is affected because tell a coherent story. LD writers can grueling for all, and especially for the the LD often can’t distinguish between find it difficult to sequence ideas or tell LD. A person must first conquer the sound and meaning. Some words are a story in the correct order. To improve law school admission test (LSAT), law- spelled correctly phonetically; others their ability to write logically, LD school exams, the Multistate Profes- are difficult to spell from their letters’ lawyers should: sional Responsibility Exam (MPRE), sounds. For example, the LD might • Outline before beginning any sig- and the bar exam. These difficult tasks spell “any,” “said,” and “because” like nificant piece of writing; require students to analyze complex
58 | Journal | September 2005 facts in light of applicable law. Under culaic.21 He was, he said, “a kind of 14. John Bradford, Dyslexia and Writing, Dyslexia the ADA, LDs are entitled to a reason- talking frog — a learning disabled Online Magazine, at http://www.dyslexia-parent. com/mag40.html (visited May 5, 2005). able accommodation during these judge.”22 15. Id. exams if their major life activities of By the time Judge Gallet was diag- 16. Think “Men never escape Mounties on nags in reading and writing are substantially nosed, he had learned strategies to mit- Canada.” limited.17 Accommodations for LD stu- igate his LD. He used word processors, 17. See, e.g., Bartlett v. N.Y.S. Bd. Law Examiners, No. dents include: dictaphones, and computers instead of 93 CIV 4986, 2001 U.S. Dist. LEXIS 11926, at *163 • Extra time for exams; hand-writing documents.23 Instead of (S.D.N.Y. Aug. 15, 2001) (granting dyslexic-plaintiff • Large-print exams; doing math in his head, Judge Gallet accommodation under ADA to take New York bar exam). Some contend that the LD label is applied • A separate testing room; used a calculator. His only concession loosely and gives undeserving students an advan- • Administering oral rather than was that he wouldn’t see subtitled tage during exams. written exams; movies.24 18. M. Kay Runyan & Joseph F. Smith, Jr., • Allowing oral answers rather An LD is a gift.25 For the LD lawyer, Identifying and Accommodating Learning Disabled Law School Students, 41 J. Legal Educ. 317, 328 (1991). than requiring written ones; the key to writing well isn't to work 19. Dan Lynch, David Boies Talks on Politics and the • Giving the student a reader; and harder, faster, longer. It's to develop Need to Listen, Miami Daily Bus. Rev., Feb.16, 2005, • Letting the LD student use a efficient strategies to compensate. at 1. word processor.18 With perseverance, determination, 20. 37 Buff. L. Rev. 739 (1989). Once out of law school and admit- and a good attitude, the LD can 21. Id. at 743. ted to the bar, practicing lawyers become prolific, adept writers. ■ 22. Id. at 740. receive no accommodations from 23. Id. at 750. 1. Unmesh Kher, Deconstructing Dyslexia, Time, clients or courts. The practice of law is Mar. 26, 2001, at 56, 56. 24. Id. unforgiving. Thus, LD lawyers must 2. LD Myths, County College of Morris, at 25. See generally Ronald D. Davis, The Gift of get professional treatment or develop http://www.ccm.edu/horizons/LDmyth.html Dyslexia (rev. ed. 1997). (visited May 5, 2005). coping strategies. GERALD LEBOVITS is a judge of the New York City 3. LD at a Glance, Nat’l Ctr. for Learning Civil Court, Housing Part, in New York County Coping Strategies from Disabilities, at http://www.ncld.org/LDInfoZone and an adjunct at New York Law School. He /InfoZone_FactSheet_LD.cfm (visited May 5, 2005). Successful LD Lawyers thanks court attorney Justin J. Campoli and LD lawyers can do extremely well, 4. Id. David Koshers, a New York Law School student, despite the myths and false assump- 5. Genetic Cause of Dyslexia, Med. Research News, for assisting in researching this column. Judge tions they encounter. New York’s at http://www.newsmedical.net/?id=8147 (Mar. 3, Lebovits’s e-mail address is [email protected]. 2005). David Boies is a successful litigator 6. ADHD, formerly called ADD, is characterized who has written a well-received mem- by difficulties focusing and controlling impulses oir, Courting Justice (2004). Boies, a and affects about two million American children. dyslexic, has coped by abandoning the Nat’l Inst. of Mental Health, at http://www.nimh written word. As Boies has said, “I .nih.gov /publicat/adhd.cfm (visited May 5, 2005). trained myself to listen well.”19 His 7. Dysnomia is characterized by a verbal difficul- ty recalling names or remembering words. Nalanda strategy is to argue without notes. That Inst., at http://www.nalandainstitute.org/aspfiles means he’ll know his case cold because /types.asp#dysnomia (visited May 5, 2005). he memorizes details. Not using notes 8. Discalculaics have trouble with basic math prob- also lets him maintain eye-contact with lems and retaining basic math facts like the multipli- his listeners. cation table. Nat’l Ctr. for Learning Disabilities, at http://www.ncld.org/LDInfoZone/InfoZone_Fact The late Jeffrey Gallett often spoke Sheet_Dyscalculia.cfm (visited May 5, 2005). about his profound LD. Required 9. Suzanne Day, Dyslexia: A Misunderstood inspirational reading is his The Judge Learning Difficulty, But Also a Hidden Gift, Canada’s Who Could Not Tell His Right From His Christian Community Online, at htpp://www. Left and Other Tales of Learning christianity.ca/education/homeschooling/ 2004/07.000.html (visited May 5, 2005). Disabilities.20 By the time he was 46 years old, he was a New York City 10. Nat’l Ctr. for Learning Disabilities, at http://www.ncld.org/LDInfoZone/InfoZone_Fact Family Court judge who had written Sheet_Dysgraphia.cfm (visited May 5, 2005). five books, 40 articles, and over 30 11. Nat’l Ctr. for Learning Disabilities, at http:// published opinions. At 50, he was a www.ncld.org/LDInfoZone/InfoZone_FactSheet_ Bankruptcy Judge for the Southern Dyslexia.cfm (visited May 5, 2005). District of New York. Yet when he was 12. Why is Dyslexia a Gift?, http://www.dyslexia 34, Judge Gallett discovered that he .com (visited May 5, 2005). was dyslexic, dysgraphic, and discal- 13. Kher, supra note 1, at 56.
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62 | Journal | September 2005 2005-2006 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
A. VINCENT BUZARD FIRST DISTRICT THIRD DISTRICT McCarthy, Jeremiah J. Alcott, Mark H. Ayers, James B. McCarthy, Joseph V. President Barson, Alan D. Carlucci, James A. Meyer, Harry G. Rochester Bienstock, Peter Copps, Anne Reynolds Peradotto, Hon. Erin M. Boyers, Hon. Seymour Davidoff, Michael Porcellio, Sharon M. MARK H. ALCOTT Brett, Barry J. DeFio, Elena M.R. Seitz, Raymond H. Brown, Geraldine Reed Dixon, Philip H. Shaw, James M. President-Elect † Campos-Galvan, Manuel Dolin, Thomas E. Young, Oliver C. New York Chambers, Hon. Cheryl E. Doyle, Hon. Cathryn M. NINTH DISTRICT Cheng, Pui Chi Fernandez, Hermes Berman, Henry S. JAMES B. AYERS Christian, Catherine A. Greenberg, Henry M. Campanaro, Patricia L. Treasurer * Cometa, Angelo T. Higgins, John Eric Enea, Anthony J. Davis, Tracee E. Kelly, Matthew J. Gordon Oliver, Arlene Antoinette Albany Dimon, Samuel J. Kinum, John B. Gouz, Ronnie P. Dominguez, Ivan J. Kretser, Rachel Ingrassia, John KATHRYN GRANT MADIGAN Eppler, Klaus Lynch, Margaret Comard Johnson, Martin T. Secretary Ferrara, Lucas A. Martinelli, Patricia Klein, David M. Binghamton Fish, Daniel G. McNally, Richard J., Jr. Kranis, Michael D. Flood, Marilyn J. Meislahn, Harry P. Krooks, Howard S. * Forger, Alexander D. Moy, Lillian M. Lagonia, Salvatore A. KENNETH G. STANDARD Frank, Paul M. Netter, Miriam M. Lau-Kee, Glenn Immediate Past President * Gillespie, S. Hazard Perino, Justina Cintron Lindgren, Thomas New York Grays, Taa R. Potter, James T. Markhoff, Michael S. Green, Prof. Bruce A. Privitera, John J. Marwell, John S. Gregory, Prof. John D. Rosenberg, Philip Miklitsch, Catherine M. Gross, Marjorie E. Sandner, James R. * Miller, Henry G. VICE-PRESIDENTS Gutekunst, Claire P. †* Tharp, Lorraine Power Murray, Conal E. † Haig, Robert L. Thornton, Timothy B. †* Ostertag, Robert L. First District Harris, Joel B. * Williams, David S. Plotsky, Glen A. Harris, John B. * Yanas, John J. Stephen D. Hoffman, New York Ramsey, Hon. B. Harold Hendricks, Susan L. FOURTH DISTRICT Ruderman, Hon. Terry Jane Bernice K. Leber, New York Hoffman, Stephen D. Bartlett, Hon. Richard J. Seiden, Hon. Adam Hollyer, A. Rene Breedlove, Brian H. †* Standard, Kenneth G. Horan, John R. SECOND DISTRICT Burke, J. David Sweeny, Hon. John W., Jr. Jackson, Damian S. Cantwell, Lori A. Tyre, Margaret H. Barry Kamins, Brooklyn Jacobs, Robert A. Cioffi, Cristine Wallach, Sherry Levin Jacobs, Sue C. Hoffman, Robert W. Welby, Thomas H. THIRD DISTRICT Kiernan, Peter J. King, Barbara J. Wilson, Leroy, Jr. * King, Henry L. Manning, John T. Zeltner, Peter P. Rachel Kretser, Albany Kougasian, Peter M. McAuliffe, J. Gerard, Jr. †* Krane, Steven C. TENTH DISTRICT Pelagalli, Paul Asarch, Hon. Joel K. FOURTH DISTRICT Kuntz, William F., II Tishler, Nicholas E. Lansner, David J. * Bracken, John P. Cristine Cioffi, Niskayuna Leber, Bernice K. FIFTH DISTRICT Castillo, Nelson A. Lee, Charlotte C. Benedict, Timothy A. Clarke, Lance D. Carmen, Peter D. Cooper, Ilene S. FIFTH DISTRICT Lesk, Ann B. Levinsohn, Robert J. Doerr, Donald C. D’Angelo, Frank G. Michael E. Getnick, Utica Lieberman, Ellen Fetter, Jeffrey M. Duffy, James P., III Lieberstein, Marc Ari Getnick, Michael E. Fredrich, Dolores SIXTH DISTRICT Lindenauer, Susan B. Girouard, Theresa M. Giorgio, Frank, Jr. * MacCrate, Robert Hayes, David M. Glanzer, Mona N. James C. Gacioch, Binghamton McShea, Sarah Diane McClusky, James P. Gross, John H. Millett, Eileen D. Myers, Thomas E. Karson, Scott M. SEVENTH DISTRICT Minkowitz, Martin Norfleet, Doren P. Kossove, Scott E. Peterson, Margaret Murphy †* Levin, A. Thomas C. Bruce Lawrence, Rochester Mitchell, Thomas J. Mitzner, Melvyn Priore, Nicholas S. Makofsky, Ellen G. Moreland, Thomas H. * Richardson, M. Catherine Mihalick, Andrew J. EIGHTH DISTRICT Nathanson, Eugene Rivera, Ramon E. Millman, Bruce R. Sharon Stern Gerstman, Buffalo Nathanson, Malvina Weinstein, Ellen Stempler * Pruzansky, Joshua M. * Patterson, Hon. Robert P., Jr. SIXTH DISTRICT Purcell, A. Craig Quinlan, Robert F. NINTH DISTRICT Paul, Gerald G. Campanella, Ottavio Plevan, Bettina B. Cummings, Patricia A. * Rice, Thomas O. Henry S. Berman, White Plains Reimer, Norman L. Egan, Shirley K. Santemma, Jon N. Reitzfeld, Alan D. Gacioch, James C. Shulman, Sir. Arthur E. Smolowitz, Barry M. TENTH DISTRICT Richman, Steven H. Gorgos, Mark S. Rifkin, Richard Lee, Carolyn S. Sperendi, Michael F. Hon. Joel K. Asarch, Hempstead Robertson, Edwin David Madigan, Kathryn Grant Tell, M. David Rothstein, Alan Smyk, Stephen D. Thompson, Charlene R. ELEVENTH DISTRICT Runes, Richard N. Tyler, David A. Tully, Rosemarie Walsh, Ronald T., Jr. Walsh, Owen B. Seymour W. James, Jr., Kew Gardens Safer, Jay G. Schultz, Kenneth A. SEVENTH DISTRICT ELEVENTH DISTRICT * Seymour, Whitney North, Jr. Amuso, John P. Cohen, David L. TWELFTH DISTRICT Sherman, Carol R. Barney, Brian J. Dietz, John R. Lawrence R. Bailey, New York Sherwin, Peter J.W. † Buzard, A. Vincent Goldblum, A. Paul Sherwood, O. Peter Castellano, June M. Hans, Stephen D. Silkenat, James R. Doyle, Hon. John D. Haskel, Jules J. Smoley, Lewis M. Harren, Michael T. James, Seymour W., Jr. MEMBERS-AT-LARGE OF THE Sonberg, Hon. Michael R. Lawrence, C. Bruce Lee, Chanwoo EXECUTIVE COMMITTEE Spitzmueller, Janiece Brown †* Moore, James C. Leinheardt, Wallace L. Stenson, Lisa M. * Palermo, Anthony R. Nashak, George J., Jr. Donald C. Doerr Wachtler, Lauren J. Reynolds, J. Thomas Rosenthal, Edward H. Wales, H. Elliot Schraver, David M. Walsh, Jean T. Vincent E. Doyle, III Walsh, Susan J. Tyo, John E. Twelfth District Warner, Rita Wasserstein * Vigdor, Justin L. Bailey, Lawrence R., Jr. David L. Edmunds, Jr. Williams, Bryan R. * Witmer, G. Robert, Jr. Chavez, Daniel M. Kessler, Muriel S. SECOND DISTRICT John H. Gross EIGHTH DISTRICT Millon, Steven E. Branda, Rose Ann C. Brady, Thomas C. Claire P. Gutekunst Connors, John P., Jr. †* Pfeifer, Maxwell S. Cosgrove, Edward C. Price, Hon. Richard Lee Glenn Lau-Kee Cyrulnik, Hon. Miriam Doyle, Vincent E., III DiGiovanna, Lawrence F. Summer, Robert S. Edmunds, David L., Jr. Weinberger, Richard Jay G. Safer Hall, Thomas J. Flaherty, Michael J. OUT-OF-STATE David M. Schraver Kamins, Barry * Freedman, Maryann Saccomando Longo, Mark A. Gerber, Daniel W. * Fales, Haliburton, II Romero, Manuel A. Gerstman, Sharon Stern Peskoe, Michael P. Slavin, Barton L. †* Hassett, Paul Michael Smith, Prof. Beverly McQueary Sunshine, Hon. Jeffrey S. Kelly, Michael T. * Walsh, Lawrence E. Sunshine, Nancy T. Lamantia, Stephen R. Martin, Jeffrey R.
† Delegate to American Bar Association House of Delegates * Past President
Journal | September 2005 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
process information slowly because they transfer their pictures into words and vice versa.12 When they encounter words that can’t be put into pictures Learning Disabilities and the like “the,” “was,” or “and,” the dyslex- ic might get confused or frustrated. Legal Writer That affects their concentration and confidence. The more complex a written lan- guage is, the more pronounced the pward of 15% of Americans and become successful in school, LD’s symptoms become. English has — lawyers included, readers work, and life. about 1,120 different ways of spelling of this column included — “Learning Disability” is an umbrel- its 40 phonemes — the sounds that cre- U 1 are learning disabled to some degree. la phrase, often encompassing a num- ate words. By comparison, Italian The effects of LD, short for learning ber of other, more specific disabilities needs only 33 letter combinations to disabled or learning disability, make like attention deficit hyperactivity dis- spell out its 25 phonemes.13 The result lawyering especially difficult. Diag- order (ADHD),6 dysnomia,7 discalcu- is that Italian dyslexics read and write nosing and compensating for LD is lia,8 dyslexia, and dysgraphia. This better than American dyslexics. essential. column addresses dyslexia and dys- Dyslexia affects an LD lawyer’s The phrase “learning disability” graphia — LDs that affect lawyers’ writing. Often dyslexics will leave carries a negative connotation. Stereo- writing the most. Dyslexia, the most words out of their sentences, alter quo- types and myths abound. Some believe common LD, is characterized by prob- tations from citations, or cite improper- that the LD can’t learn, have low IQs, lems reading and understanding the ly by giving inaccurate page and vol- or don’t try hard enough.2 That’s non- written or spoken word.9 Dysgraphia ume numbers. The best remedies for sense. Some of the greatest thinkers and writers of the 20th Century have been LD. Among them: Alexander Some believe that the learning disabled can’t learn, have Graham Bell, Simón Bolívar, Winston low IQs, or don’t try hard enough. That’s nonsense. Churchill, Walt Disney, Thomas Edison, Albert Einstein, George Patton, Nelson Rockefeller, and Woodrow Wilson. affects writing and organizational abil- this are rigorous editing, checking, and There’s a correlation between creativi- ities and is characterized by poor re-checking sentences, citations, and ty and LD. spelling, handwriting, and written quotations — and then having some- How the LD’s brain computes infor- expression.10 one else edit their work. In the comput- mation makes reading, writing, speak- er age, an LD lawyer’s inability to ing, and math difficult. But solutions Dyslexia quote accurately can be corrected by are available. And the methods the LD Dyslexia is more than reversing letters cutting and pasting a quotation from a should use to write clearly and coher- while reading. Dyslexics do not read reliable source into a word-processed ently apply to all legal writers. backwards, although reversing letter document. A learning disability is a neurologi- sequence is sometimes a symptom. cal disorder that affects the brain’s abil- Dyslexics have difficulty reading and Dysgraphia ity to receive, store, and respond to writing. Many also have problems Dysgraphia is characterized by poor information.3 It afflicts adults and chil- expressing themselves. Dyslexia’s handwriting. Dysgraphics have poor dren. Science recognizes no single, warning signs include difficulty motor skills. They sometimes can’t known cause for LD. Suspected con- organizing thoughts, understanding even determine which hand is domi- tributors include exposure to toxins that words are made up of sounds, nant. The solution to illegible hand- like lead,4 pregnancy or birth prob- pronouncing words, and spelling.11 writing is to rely on word processors, lems, head injuries, nutritional depri- Professionals can identify the disabili- speech-recognition software, or dicta- vation, and heredity.5 LDs manifest ty through testing. Self-diagnosis is a tion. themselves differently in different peo- starting point. But professional help is A dysgraphic’s poor typing skills ple. LDs are lifelong challenges. No necessary because each LD’s treatment can cancel out a word processor’s ben- common cure or quick fix is available. differs. efits. Dysgraphia’s symptoms will With support and intervention, how- Dyslexics think more in pictures adversely affect how a document looks ever, the LD can overcome obstacles rather than in words. Their brains CONTINUED ON PAGE 58
64 | Journal | September 2005 New York State Bar Association’s Forms
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