Vol. 8 Issue 21 | May 2014 | www.nycla.org New York COUNTY LAWYER The Beat of New York Law Employment Protections in New York for Individuals with Criminal Backgrounds

against individuals with criminal records. By Jamie Sinclair, Esq. and Additionally, laws banning questions regard- Julieanne Yanez, Esq. ing criminal history on job applications, Edited by Stephen McQuade, Esq. informally called “Ban the Box” laws, are increasing in popularity. These laws require employers to remove questions about crimi- Statistics on Incarcerated Persons nal history from job applications and post- The United States leads the world in put- pone such inquiries until later stages of the ting people in prison. According to reports, hiring process. Currently 10 states, as well as in 2012, the United States boasted 760 51 municipalities, including New York City, prisoners per 100,000 people, as compared have such laws. to most European countries that have one- seventh that number per capita, leading Article 23-A of the New York some commentators to suggest that we are Correction Law becoming a “nation of criminals.” The total In New York State, an individual who has number of Americans under correctional been convicted of one or more offenses is supervision (i.e., prison, parole, etc.) is 7.1 afforded limited protection in the applica- million. Locally, in New York State, there tion for a license or employment. Article were 565,164 arrests in 2012; and in New all Americans have some sort of criminal behaviors and to associate with people who 23-A of the New York Correction Law pro- York County, there were 85,528 arrests in record including arrests that did not lead to do.” Having a job “enables individuals to con- hibits the denial of any license or application 2012. criminal convictions. The National Employ- tribute income to their families, which can for employment based on an applicant’s According to the United States Depart- ment Law Project estimates that about one- generate more personal support, stronger prior convictions. ment of Justice, approximately one-third of fourth of all Americans, or 65 million people, positive relationships, enhanced self-esteem, When considering a convicted individual’s has a criminal record that would show up on and improved mental health.” However, application for employment or licensure, a routine background check. survey results published by The National public agencies or private employers are INSIDE NY COUNTY LAWYER Institute for Justice suggest that between 60 required to consider the following eight stat- State Legislation to Curtail and 75 percent of ex-offenders are jobless up utory factors: (a) the public policy of New Employment Protections in New York for Employment Discrimination to a year after their release. York to encourage the licensure and employ- Individuals with Criminal Backgrounds . . 1 The Bureau of Justice Assistance, an arm In order to encourage the reintegration of ment of persons previously convicted of one of the United States Department of Justice, criminal offenders into society and decrease or more criminal offenses; (b) the specific Emergency Medical Services as a reports that employment “refocuses individ- recidivism rates, a number of states, includ- duties and responsibilities related to the Behavior Modification Tool: A Multiple uals’ time and efforts on pro-social activities, ing New York, have passed laws banning dis- license or employment sought; (c) the bear- Rights Violation ...... 1 making them less likely to engage in riskier crimination by public and private employers { See Employment on page 3} For U .S . Employers, Immigration Law Compliance is Part of High-Stakes Recruitment Challenge ...... 2 Recent Decision Leaves Immigrant Emergency Medical Services as a Behavior Defendants with No Real Remedy . . .2 Message from the President . . . . . 3 Modification Tool: A Multiple Rights Violation Message from the ing to hospital records, emergency room NYCLA Foundation ...... 3 By Nelson Mar, Esq. staff identified the following reasons for 2014 Attorneys’ Guide ...... 6 John’s four admissions to the emergency John* is an active 6-year-old boy. A year room: (1) hitting and kicking a school Speaking Tip ...... 6 ago, he relocated to the South Bronx along safety agent; (2) refusing to sit on the rug with his mother, Ms. Doe and older siblings and not listening; (3) being out of control; NYCLA Recent Events ...... 7 after an incident of domestic violence. Ms. and (4) hitting and kicking his teacher. NYCLA Upcoming Events ...... 8 Doe* enrolled John in kindergarten at a School officials did not provide Ms. community school not far from the pub- Doe any documents detailing the circum- NYCLA Library Notes ...... 9 lic housing complex where they lived. A stances that precipitated the need to call month after the start of the school year, emergency medical services for her son. Electronic Research Center Ms. Doe began receiving calls and reports On each occasion, the school staff person CLE Programs ...... 9 from school officials about John’s disrup- who accompanied John to the hospital NYCLA In The News ...... 11 tive behaviors. The calls initially described no further information about the incident. had little to no knowledge of the underly- John as acting out and not listening to Ms. Doe immediately rushed over to the ing incident. On two occasions when Ms. school officials but later calls involved hospital where she found John sitting Doe arrived at the school before John was more serious disruptive behaviors such as calmly in the pediatric unit of the hospital transported by emergency medical tech- John being physically aggressive. emergency room along with a school staff nicians, she was told that John had to go Index to Advertisers In late October 2012, Ms. Doe received a person. Only later through the hospital to the hospital despite her objections and JAMS ...... 4, 11 call from school officials. She was told that staff did Ms. Doe learn that school officials request to take her son home. she needed to come to the school immedi- called 911 because John allegedly kicked a John’s experience of being transported KLG ...... 6, 11 ately because school officials were sending school safety agent. to a hospital emergency room for his Collard & Roe ...... 8, 11 John to the hospital. Ms. Doe proceeded Then over the following two months, disruptive behaviors is neither new nor Law Office of Randy C . Botwinick . . . 9, 11 to the school as quickly as possible believ- school officials called 911 for emergency unique in New York City. As early as 2004, NAM ...... 11,. Back Cover ing her son was involved in some serious medical services on three additional occa- emergency room doctors and advocates accident. Upon arriving, she was told sions in response to John’s disruptive raised concerns about the practice. In by school officials that her son had been behaviors. In total, school officials sent one news article, officials from hospitals taken by ambulance to the local hospital John to the hospital emergency room four throughout the city complained that New emergency room but was provided with times within a two-month period. Accord- { See Emergency on page 5 } 2 • May 2014 The New York County Lawyer

For U.S. Employers, Immigration Law Compliance is Part of High-Stakes Recruitment Challenge

visa holders. According to court documents, available and the April 1 “filing season.” The By Shirley Tang, Esq. Infosys gained a competitive advantage by consensus among these professionals is how providing “invitation letters” to U.S. Con- difficult it is to fill jobs where talent is sorely This past fall, the Indian company Info- sular officials falsely describing the purpose needed for their businesses to excel. sys, one of the world’s premier technology of workers’ travel and by coaching workers One might think that with the unemploy- outsourcers, agreed to pay a $34 million fine on what not to say when questioned during ment level hovering above seven percent to the U.S. government. This was the larg- the interview process at the U.S. Embassy in recent years and at 6.6 percent in Janu- est civil settlement ever paid to the U.S. in abroad and at the U.S. port of entry. As ary 2014, it would be easy to recruit talent an immigration compliance case. The U.S. human resources professionals know, the domestically. But the statistics show what alleged that the company routinely used employment eligibility verification process, technology and other business executives short-stay B-1 business visas to bring skilled beginning with Form I-9 completion, would keep telling me: It is still hard to find the tech workers to the U.S. to fill jobs that bar the employment of any worker who right talent. A CareerBuilder.com survey should have gone to U.S. workers or to H-1B entered on a B-1 business visa. Thus, the fine last summer showed that 104,000 software took into account both the alleged visa fraud developer jobs were created in the previous and the failure to perform I-9 verification three years that have gone unfilled for at least and maintain records. 12 weeks. Almost 50,000 IT manager/net- The Infosys fine illustrates what is all too work administrator positions had also gone familiar to HR and recruitment profession- unfilled for at least 12 weeks. als: securing the right talent is crucial to a To be clear, the complexity of immigration business, but when it comes to cross-border laws are not the cause of these unfilled posi- Published for issues, the complex immigration processes, The Competitive Landscape tions. However, the business stakes of proper New York County Lawyers’ Association visa quotas, and restrictions and limita- As our economy becomes more global, corporate immigration processes and proce- 14 Vesey Street tions along with multi-agency bureaucracies and talent travels around the world to work dures may never have been higher. Industries New York, NY 10007 add to an already challenging recruitment wherever it is needed, immigration has that have traditionally high representations (212) 267-6646 environment. These issues, in addition to become a necessary aspect for many com- of foreign talent, such as technology, are www.nycla.org cultural or personality fit, are what make or panies in intensely competitive markets. changing more rapidly than ever, and when break whether the new hire is the right one When I speak with business executives and a company cannot secure the talent it needs, Barbara Moses in the long run. It is important for immigra- human resources professionals, the issues it stands to miss opportunities or lose its President tion practitioners to be mindful of fit and are not limited to the high immigration fil- competitive edge. personality as well. ing fees or the limited number of H-1B visas Sophia J Gianacoplos { See Immigration on page 5 } Executive Director Toni Valenti Director of Marketing & Membership Development Recent Decision Leaves Immigrant Ariella Greenbaum Editor Senior Communications & Defendants with No Real Remedy Social Media Manager As Chief Judge Lippman and Judge the very attorney that previously repre- By Evangeline M. Chan, Esq.. Published by Rivera recognized in their dissent, the sented the defendant to now testify in oppo- Apogee Publications result is simply incongruous. Piggy- sition of the defendant’s motion. Which is 6528 Greenleaf Avenue, Ste. 219 Originally published as a Letter to the Editor backing onto the remedy for ineffective not surprising considering in an ineffective Whittier, CA 90601 in the New York Law Journal on January assistance of counsel claims is akin to an assistance of counsel claim, one can hardly (562) 698-3424 10, 2014. “empty gesture” when one considers just expect an attorney to actually admit to any Publisher how extraordinarily difficult it is to prevail deficient representation. Consequently, Mel Sturr New York State’s highest court recently in such post-conviction motions. As the defendants can find themselves up against ruled that judges must warn all non-citi- moving party, it is the defendant that bears not just one but two attorneys. It’s an uphill Accounts Director zen defendants prior to pleading guilty to the burden of establishing prejudice and battle, and the odds are stacked against Kathleen Pishotta a felony that doing so may result in depor- that is a very heavy burden to meet. them. In the end, defendants are effectively Art & Design Adjudicator tation. While some may applaud this deci- First, these defendants suffer from a lack right where they started, with a due process Aude Cabaldon sion as yet another measure to safeguard of documentary evidence. Speaking little violation and no real remedy to cure it. the rights of non-citizens, as an immigra- or no English and unaware of the intrica- The appropriate remedy for these defen- Editor tion attorney that has represented clients cies of our legal system, this vulnerable dants must be an automatic withdrawal of Nicole Millman-Falk that have not been adequately warned— class of defendants rarely keeps records of the plea. Anything less is the equivalent of For advertising information, whether by judges or by defense coun- their dealings with their attorneys. Second, letting the offending party—the court— call (888) 371-4933. sel—of the immigration consequences these defendants must deal with opposi- off the hook. stemming from their pleas, from a practi- tion from individuals who have been spe- Reprinted with permission from the cal point-of-view this ruling falls woefully cifically trained to handle just these types January 10, 2014 issue of The New York ®2014 New York County Lawyers’ Associa- short of providing non-citizen defendants of motions—individuals in the District Law Journal. ©2014 ALM Media Proper- tion. All rights reserved. New York County with any real remedy. Attorney’s appeals bureau. In the wake of ties, LLC. Further duplication without Lawyers’ Association grants permission Padilla v. Kentucky, the Supreme Court permission is prohibited. All rights for articles and other material herein or In its decision, the majority partially portions thereof to be reproduced and overturned its 1995 ruling in People v. Ford, decision that held that defense counsel reserved distributed for educational or professional that deportation is just a collateral conse- must properly warn non-citizen defendants use through direct contact with clients, quence of a plea, and therefore, trial courts of the deportation consequences of a plea, Evangeline M. Chan, Esq. prospective clients, professional colleagues need not warn of it. The court found that while there has not been an influx of post- is an Immigration Attorney and students provided that such shall not deportation today is such a substantial conviction 440 motions, the DA’s office was with her own law practice involve any matter for which payment and unique consequence of a plea that nonetheless prepared to meet the challenge. and an Adjunct Assistant (other than legal fees or tuition) is made trial courts must warn defendants as a The DA’s office, for the most part, does keep Professor of Family-Based and provided further that all reproductions matter of fundamental fairness. Failure to proper records and does its due diligence. Immigration Law at include the name of the author of the do so amounts to a due process violation And they secure witnesses—often getting CUNY School of Professional Studies. article, the copyright notice(s) included in and the avenue of recourse would be a the original publication, and a notice indi- cating the name and date of the Association direct appeal. However, the court stopped publication from which the reprint is made. short of providing such defendants with the remedy that typically accompanies other due process violations of this sort, Correction: The article, “Addressing the Justice Gap for Poor New Yorkers,” in the April New York County Lawyer misstated the effect of amended Rule of Professional Responsibility 6.1, Subscription • New York County Lawyer specifically, automatic withdrawal, hold- entitled Voluntary Pro Bono Service. The rule states that lawyers are encouraged to provide pro is published monthly (except January and ing instead that a defendant must first bono legal services to benefit poor persons and should aspire to provide at least 50 hours of August) for $10 per year by New York establish prejudice. This threshold is the such service each year. The biennial registration form requires attorneys to report the number County Lawyers’ Association, 14 Vesey same one a defendant must cross in inef- of hours of unpaid pro bono services the attorney personally provided to the poor and to report, Street, New York, NY 10007. fective assistance of counsel claims, which within specified ranges, the amount the attorney contributed to organizations that provide such services. However, pro bono legal services and financial contributions remain completely are established vis-à-vis a post-conviction voluntary for attorneys admitted to practice in New York State. “440 motion.” The New York County Lawyer May 2014 • 3

Message from Barbara Moses Message from the President of NYCLA NYCLA Foundation

Dear Readers: Meanwhile, we revamped our member- Dear Member: Foundation is recognized by the IRS as a 501 When I was ship dues structure, making NYCLA more Among the many (c) (3) organization, gifts are deductible to inducted as NYCLA affordable to young lawyers just starting out programs funded the extent provided by law. President late last in their careers. Instead of raising rates across by the NYCLA On May 29, 2014, at the NYCLA Annual May, my vision the board (after seven years with no dues Foundation are sev- Meeting, I will become the President of for the year ahead increases in any category), NYCLA actually eral geared to law the New York County Lawyers’ Associa- included three major lowered dues for young lawyers not yet well students and young tion. Carol Sigmond, who will become the goals: to launch new established in their careers. Newly admitted lawyers. Every sum- President-Elect of the Association, will also pro bono projects; to lawyers continue to receive a complimentary mer, the Hon. Har- become President of the NYCLA Founda- make NYCLA more membership from the Association during the old Baer Jr. and Dr. tion, and will take over writing this column affordable to lawyers just starting their first year they are licensed to practice. There- Suzanne Baer Minority Judicial Internship each month. She has been an active Member careers; and to help restore adequate fund- after, dues start at $75 for lawyers admitted Program places high-achieving minority of NYCLA since 2005, participating in the ing for the federal and state courts in New one to two years—a figure that drops to $50 law students in the chambers of both federal Association’s Construction Law, Federal York. I’m proud to say we have delivered on for young lawyers who were NYCLA mem- and state judges with stipend-supported Courts Law, Professional Discipline, and these initiatives. bers while in law school or before admission internships. This summer’s interns are Vince Supreme Court Committees. She has also One of the pro bono programs we launched to the bar. This is a substantial reduction from Chan from CUNY School of Law; Lawrence chaired NYCLA’s House/Facilities Com- this year was the Veterans Discharge Upgrade NYCLA’s previous dues structure, and a very Huang from Columbia Law School; Rodolfo mittee, participated in NYCLA’s Task Force Pro Bono Pilot Program, which helps veterans competitive rate as well. Martinez from St. John’s University School on Judicial Selection, and represented the suffering from PTSD and related disorders Since last May NYCLA has also advocated of Law; Wesley Paisley from New York Law Association at the New York State Bar Asso- obtain discharge upgrades. Seventy NYCLA for the courts, vigorously investigating the School; and Rogendy Toussaint from St. ciation’s House of Delegates. She is a con- Members participated in the program’s first real-world effects of recent judicial budget John’s University School of Law. struction lawyer by trade, offering creative, training session in September. Meanwhile, cuts—including sequestration—publicizing After graduation, newly admitted lawyers tenacious representation to members of working in collaboration with the New our findings and conclusions, and advocat- working as prosecutors and defense attor- New York’s construction industry over the York County District Attorney’s Office, the ing for adequate funding for systems that neys are eligible for NYCLA’s Public Service past several decades. I am sure that Carol will Asian American Bar Association, the Chi- faced severely decreased appropriations. In Fellowships, awarded annually based on an drive the Foundation forward tapping into nese Chamber of Commerce of New York, September, NYCLA’s Task Force on Judicial essay competition. In addition, through- her strong background here at NYCLA and Chinatown Partnership, and the Chinatown Budget Cuts issued a report on the effects of out the year, young lawyers benefit from in the New York legal community. Business Improvement District, NYCLA sequestration and related cuts on the admin- NYCLA’s Mentoring Program and enjoy the NYCLA needs both your support and held a series of workshops in Chinatown to istration of justice in the United States District social and networking events hosted by the your ideas. After May 29, please do not assist small business owners in understanding and Bankruptcy Courts for the Southern and NYCLA Young Lawyers’ Section. hesitate to contact Carol with suggestions for various laws and regulations related to record Eastern Districts of New York. In December, NYCLA depends on the generous contri- fundraising or related topics. You can reach keeping, taxes, labor issues, construction the Task Force held a day-long public hear- butions of Members—through the NYCLA her at [email protected]. permitting, and immigration. Through these ing to gather testimony about the continuing Foundation—to support these initiatives and other programs, the Association and its impact of judicial budget cuts on the admin- since membership dues do not cover them dedicated volunteers have once again helped istration of justice in both the federal and the completely. Please go to www.nycla.org and to make our community a better place, serv- state courts. The hearing was open to the pub- choose “Giving to NYCLA.” It doesn’t mat- Lewis F. Tesser, President ing 1,700 individuals this year alone. { See MESSAGE on page 9 } ter how much you give. Because the NYCLA NYCLA Foundation

conviction and the employment sought, The Appellate Division determined that her application for the security clearance, EMPLOYMENT or (b) granting the license or employment the commission rationally concluded that, the employer denied the petitioner’s appli- Continued from page 1 involves an “unreasonable risk to property based on the consideration of the factors cation. The Court noted that the employer or to the safety or welfare of specific indi- enumerated in Correction Law § 753, there failed to consider any information sub- ing, if any, the criminal offense(s) for which viduals or the individual general public.” was no “direct relationship” between the mitted by the petitioner in support of her the person was previously convicted will past offenses and the position of a Water- position and that such failure was in direct have on his fitness or ability to perform one Direct Relationship Exception shed Maintainer. contravention to the purpose of the statute. or more such duties or responsibilities; (d) The courts in this state have heard several New York Correction Law 23-A is an the time which has elapsed since the occur- cases involving the above-referenced “direct Unreasonable Risk Exception important tool to protect against the dis- rence of the criminal offense(s); (e) the age relationship” exception. In Marra v. City of Courts have also considered the above- crimination of individuals with criminal of the person at the time of occurrence of White Plains, the Appellate Division held referenced “unreasonable risk” exception. backgrounds. The law provides several the criminal offense(s); (f) the serious- that the employer’s findings of a direct rela- In Arrocha v. Board of Education of the City statutory factors for employers to consider ness of the offense(s); (g) any information tionship between the prior conviction and of New York, the Court of Appeals held that when weighing an individual’s application, produced by the person, or produced on the employment sought were based on an the applicant’s prior conviction for the sale and allows for two exceptions to protect the his behalf, in regard to his rehabilitation inadequate consideration of the statutory of cocaine posed an unreasonable risk. The public and employer in certain situations. and good conduct; and (h) the legitimate factors. Specifically, the court stated that the employer’s determination was neither arbi- New York courts continue to provide guid- interest of the public agency or private employer failed to recognize the statutory trary nor capricious because his conviction ance to employers as to how to construe the employer in protecting property, and the presumption of rehabilitation in the appli- was “serious in nature” and the granting two exceptions, and as well as continue to safety and welfare of specific individuals or cant’s certificate of good conduct. However, of employment “would pose a risk to the protect convicted persons’ rights by ensur- the general public. In addition to these fac- the court noted that a “direct relationship” safety and welfare of the student popula- ing that the statutory factors and presump- tors, public agencies and private employers can be found where the applicant’s prior tion and Board of Education employees.” tion of rehabilitation are complied with in are also instructed to consider a certificate conviction was related to the occupation or The Court found that the employer had each situation. of relief from disabilities or a certificate of industry at issue. adequately considered all eight statutory good conduct issued to the applicant, which In Formica Construction, Inc. v. Mintz, factors in reaching its conclusion. In addi- Jamie Sinclair, Esq., a creates a presumption of rehabilitation in the petitioner commenced an Article 78 tion, although the petitioner had obtained Member NYCLA’s Labor regard to the offense(s). proceeding to review the determination of a certificate of relief from disabilities, the & Employment Law New York Correction Law Article 23-A the New York City Department of Con- employer was not precluded from consider- Committee, is an Associate permits an individual who is denied a license sumer Affairs, which denied the petitioner’s ing any of the other seven factors in making at Goldstein, Rikon, Rikon & or employment the right to request the request to renew their home improvement the determination. Thus, the employer was Houghton, P.C. reasons for said denial. A written response contractor license. The agency denied the not obligated to rebut the presumption of must be provided enunciating the reasons application on the ground that petitioner rehabilitation. Julieanne Yanez, Esq., a for such denial within 30 days of a request. had a recent felony conviction that was In Acosta v. New York City Department of Member of the NYCLA An individual seeking to challenge a denial directly related to the license sought. The Education, the Court of Appeals held that Labor & Employment may do so by commencing a proceeding Appellate Division held that, in making its the New York City Department of Educa- Committee, is an EEO/ pursuant to Article 78 of the New York Civil determination, the agency did not consider tion failed to comply with the requirements AA Officer at the New York Practice Law and Rules. He/she may also all eight statutory factors set forth in the of Article 23-A and thus acted arbitrarily City Health and Hospitals Corporation. commence a proceeding with the New York Correction Law § 753(1) before making the in denying the individual’s application for State Division of Human Rights or the New decision as to whether to renew the license. a security clearance. The petitioner took a Stephen Mc Quade, Esq., York City Commission on Human Rights. In City of New York et al., v. New York part-time position at a not-for-profit pri- Chair of NYCLA’s Labor Also pursuant to Article 23-A, employers City Civil Service Commission, et al., the vate corporation that provided pre-school & Employment Law are prohibited from denying applicants for Appellate Division affirmed the finding of special education services in New York City. Committee, is an Associate a job based on a finding of lack of “good the New York City Civil Service Commis- The petitioner engaged in clerical activities at Certilman Balin Adler & moral character” when that determination sion that there was no direct relationship and had no responsibility for providing Hyman, LLP. is based on a prior conviction unless, (a) a between the employee’s convictions and pedagogical instruction. Despite the sub- direct relationship exists between the prior the position of a Watershed Maintainer. mission of documentation in support of

The New York County Lawyer May 2014 • 5

Ms. Doe was referred to Bronx Legal Ser- least restrictive environment in violation of EMERGENCY vices where she eventually joined five other the Individuals with Disabilities Education Nelson Mar, Esq. is a Continued from page 1 families from various parts of the City Act (IDEA). Senior Staff Attorney and whose children were similarly sent to hospi- As for relief, plaintiffs are seeking declar- education law specialist at York City schools were using their emer- tal emergency rooms for disruptive behav- atory and injunctive relief that would end Bronx Legal Services. He gency rooms frequently as a “dumping iors. These six families filed suit against the practice of using emergency medical has represented hundreds ground” for “unruly students.”1 Upwards the City of New York, the Department of services as a behavior modification tool. of families in Bronx over of 40 students were being sent to one hos- Education, and the Fire Department of New Plaintiffs would like to see the Department the last 15 years regarding education law pital each month from schools claimed York in December 2013 challenging the of Education provide better training and matters and Social Security Disability one hospital official. practice of “EMSing” disruptive students to additional resources to allow schools to benefits. Nelson has been a member of Despite the media attention (the prac- local emergency rooms. The caption for the better manage students engaged in serious NYCLA since 1999 and currently chairs the tice was reported by local journalists in a lawsuit is T.H. v. Walcott, 13 CV 8777 and disruptive behaviors. Lastly, plaintiffs also Education Committee. number of news articles since 2004) the the suit was filed in the Southern District seek damages for costs, pain, and suffering. practice continued somewhat unabated.2 of New York. The lawsuit brought by Ms. Doe and five * Name changed to protect privacy Data obtained through the Freedom of The complaint alleges violations of plain- other parents endeavors to end a form of Information Law (FOIL) by Legal Ser- tiffs’ federal and state constitutional rights exclusionary discipline that contributes to 1 See, Richard Morgan, “The New Craze: Schools vices NYC confirm the pervasiveness with and rights protected by federal and city the “schools to prison pipeline.” Over the Using ER’s as Dumping Ground,” NY DAILYNEWS, May 17, 2004, at http://www.nydailynews.com/ which New York City public schools utilize law. Specifically, plaintiffs claim their rights last 10 years, a growing chorus of voices archives/news/new-craze-schools-ers-dumping- emergency medical services to address against unreasonable seizure under the has raised concerns regarding the negative ground-educators-shuttling-surly-students-city- “unruly students.” The Fire Department of Fourth Amendment of the United States effects of harsh out-of-school disciplin- white-coats-article-1.647686#ixzz2uMTckZNk; New York provided data for the calendar Constitution and Article I of the New York ary practices and how it contributes to the and Elissa Gootman and Sara Rimer, “Hospitals years 2005–2010. During those six years, State Constitution were violated by school “schools to prison pipeline.” Recently, the Say City Schools Use Them as a Cure-All,” NY TIMES, May 18, 2004, at http://www.nytimes. approximately 3,000 calls per year were staff and emergency medical technicians federal government acknowledged that com/2004/05/18/nyregion/hospitals-say-city- made requesting emergency medical ser- when their children were removed from public schools (from preschool through schools-use-them-as-a-cure-all.html vices for an “emotionally disturbed person” school and sent to the hospital despite their high school) are disproportionately sub- 2 See, Carrie Melago, “5-Year-Old Boy Handcuffed (EDP) at a New York City school. The most objections in non-life threatening situa- jecting minority students, specifically In School, Taken To Hospital For Misbehav- recent data obtained from the Department tions. Plaintiffs further allege defendants African American and Hispanic students, ing,” NY DAILYNEWS, January 25, 2008, at http://www.nydailynews.com/news/5-year-old- of Education confirm that calls requesting violated their due process rights to autho- to higher rates of discipline and to harsher boy-handcuffed-school-hospital-misbehaving- 3 emergency medical services from public rize and direct the medical care for their disciplinary practices. Faced with irrefut- article-1.341677#ixzz2wdwtRyVu; and Meredith schools continued to steadily increase over children under the Fourteenth Amendment able data of severe disproportionality, the Kolodner, “Special-Ed Student Joseph Anderson, 7, the last few years: approximately 3,300 in of the United States Constitution. Plaintiffs U.S. Department of Education and the Handcuffed By Cops At Queens School After Easter the 2009-2010 school year to more than also allege school officials and emergency U.S. Department of Justice issued joint Egg Tantrum,” NY DAILYNEWS, April 21, 2011, at http://www.nydailynews.com/new-york/education/ 3,600 such calls in the 2011-2012 school medical technicians discriminated against guidance this past January to assist public special-ed-student-joseph-anderson-7-handcuffed- year or a rate of 20 students each school day. their children by excluding them from elementary and secondary schools in meet- cops-queens-school-easter-egg-tantrum-article- After the fourth time John was trans- access to school based on their disability or ing their obligations under the Civil Rights 1.113913#ixzz2wdyidujW ported to the hospital emergency room, perceived disability in violation of Section Act of 1964 to administer student discipline 3 See, Motoko Richmarch, “School Data Finds Pattern Ms. Doe was at her wits end. The constant 504 of the Rehabilitation Act of 1973, the without discriminating on the basis of race, of Inequality Along Racial Lines,” NY TIMES, March 4 21, 2014 at: http://www.nytimes.com/2014/03/21/ calls during the day and the hours spent in Americans with Disabilities in America Act color, or national origin. Although advo- us/school-data-finds-pattern-of-inequality-along- the emergency room affected her ability to (ADA), and New York City Human Rights cates applaud the steps taken by the federal racial-lines.html?hpw&rref=education maintain her job. By January 2013, Ms. Doe Law. Finally, plaintiffs allege defendants government to staunch the flow of students 4 U.S. Department of Education, Guiding Principles: was laid off due to poor work performance forced their children to undergo evalu- down the “schools to prison pipeline,” far A Resource Guide for Improving School Climate and started receiving medical bills for the ations without their consent and denied more needs to be done as the story of Ms. and Discipline, Washington, D.C., 2014, p. ii. ambulance transports and hospital visits. their children educational services in the Doe and John demonstrates.

• E-1 Treaty Trader or E-2 Treaty Investor A Question of Fit style, U.S. employers are often faced with the IMMIGRATION visas allow a foreign national of a country Welcoming the foreign national to the issue of cultural fit, especially in hiring for- Continued from page 2 that maintains a bilateral treaty of com- company and verifying his/her eligibility to eign nationals. Of course, cultural differences merce and navigation with the U.S. to come work in the U.S. is only the beginning of the come into play even when hiring domestically Types of Work Visas That Are Important to the country to engage in trade or business HR professional’s task. Even with the proper because of regional differences in the way busi- to U.S. Employers (also known as the or to work in a supervisory, managerial, or visa documentation in place, there is still the ness is conducted. This issue is amplified in “Alphabet Soup”) essential skills capacity for a company that question of fit within an organization—ulti- the context of foreign nationals because they There are a variety of work visas for for- qualifies for E visa classification. mately one of the most important aspects of are exposed to an entirely different culture in eign nationals allowing U.S. employers to • L-1A and L-1B visas allow employees of whether an employee will succeed. the U.S., not only from a business perspective, attract and retain talent. The list below is multinational companies with offices both Companies now have more scientific and but also on a social level. For example, what not an exhaustive list of work visa catego- in the U.S. and abroad to be transferred to analytical methods than ever to evaluate is considered a derogatory comment in the ries, but these are the most common work the U.S. to work in executive, managerial, the fit of a candidate. With the high costs of U.S. that may rise to the level of a discrimina- visas available for hiring foreign talent: or specialized knowledge occupations. onboarding and of replacing talent, they are tion complaint may not be so considered in • O-1 visas allow U.S. employers and/ also more attentive than ever to it. Immigra- Europe. Therefore, U.S. employers are often • H-1B visas allow U.S. employers to hire or agents to hire foreign nationals with tion counsel can greatly increase their value faced with an added challenge to make their highly skilled foreign nationals to work extraordinary ability or achievement in to clients by understanding this critical sec- foreign nationals staff aware of social and occupations that require a minimum of a the sciences, arts, education, business, or ond piece of the puzzle. Securing the right cultural sensitivities in the workforce. Some Bachelor’s degree or its equivalent in a spe- athletics, among other areas. talent from overseas means much more than U.S. employers have implemented cultural cific field. H-1B visas are commonly used • Foreign students studying at an institu- completing the right visa process and secur- sensitivity training to their workforce to avoid for positions in information technology, tion of higher education in the U.S. pur- ing the visa for the business. Immigration uneasy and awkward situations caused by allied health care, life sciences, engineering, suant to an F-1 visa are permitted to work counsel is an integral partner to a client’s these cultural differences. teaching, pharmaceutical, business, and in the U.S. for up to 12 months pursuant human resources team by understanding finance. However, H-1B visas are capped to Optional Practical Training (OPT) how culture and work style matter to the role Getting It Right annually with a tight quota. Each govern- upon completion of a course of study. In within an organization. Immigration procedures can be complex, ment fiscal year, which begins on October some instances where the U.S. employer Fit is different than competence. An but are far from the only challenge for HR 1, U.S. Citizenship & Immigration Services has registered for E-Verify, and the for- employee may be very experienced and tal- professionals and business owners. Immi- (USCIS) allocates only 65,000 H-1B visas eign student majored in a field related to ented; but some roles require a highly collab- gration counsel can add value to clients by plus an additional 20,000 H-1B visas for the Sciences, Technology, Engineering, or orative work style. A few common examples understanding the other important pieces graduates of U.S. Master’s (or higher) Mathematics (also known as the STEMS that I often hear about from HR profession- of the puzzle, including personality and programs. U.S. employers may submit list), the student may be able to extend his als include situations where an employee is cultural fit and the business goals of the cli- the H-1B petition to USCIS beginning or her OPT for an additional 17 months. highly talented and skilled but is unable to ent. It is recruiting, not just immigration, on April 1, but the effective date of the multitask in a fast-paced work environment that has become more challenging than ever approval will be October 1. In the event of Choosing the right documentation is not that requires the ability to manage several for many employers in a highly competitive an over subscription of H-1B applicants, simply a matter of matching the candidate to projects at the same time. Another example is global marketplace. USCIS implements a computer-generated a visa category. It can be a strategic calcula- where the role requires an individual to bring random selection process (also known as tion based on the likelihood of success and the team together in consensus, or take more Shirley Tang, Esq. is Senior the H-1B lottery). In 2013, the H-1B quota the goals of the business, including retention of a stand in unpopular but necessary deci- Counsel at Cohen Tauber was filled in five days by April 5, 2013. of talent. Immigration practitioners should sions, but the individual lacks the consensus- Spievack & Wagner, P.C. • TN visas under the North America Free understand the broader business issues building or persuasive communication skills (www.ctswlaw.com), a Trade Agreement (NAFTA) allow Cana- involved in hiring talent and talent manage- to achieve this result. business law firm based dian and Mexican citizens to work in the ment so the processes undertaken will even- in Manhattan. She can U.S. in certain occupations designated tually drive business goals. A Question of Cultural Differences be reached at 212-586-5800 or at stang@ under the treaty. In addition to fit of personality and work ctswlaw.com. 6 • May 2014 The New York County Lawyer

Access Vital Current Information on the New York County Supreme Court with the 2014 Attorneys’ Guide to Civil Practice

navigate through the courthouse and The Committee urges all NYCLA By Pamela Gallagher, Esq. and its many Parts and the County Clerk’s members who handle civil cases in New Brian D. Graifman, Esq. Office. This is where the Attorneys’ Guide York County Supreme Court or may comes in. do so to obtain a copy of the 2014 edi- NYCLA’s Supreme Court Committee is The Guide provides a wealth of current tion of the Guide. Practitioners are sure pleased to have issued, for the 19th time, information that the practitioner needs to to find it worth their while. Ordering its annual publication, the Attorneys’ know in order to deal with the court in could not be easier—one need only go Guide to Civil Practice in the New York a painless but effective way. It contains a to NYCLA’s website (www.nycla.org) and County Supreme Court. It is our Commit- comprehensive listing of the locations and follow the simple directions given there. tee’s view that every serious practitioner phone numbers of all the Justices of the The print Guide costs only $50 ($100 in this court, especially new attorneys, court and their assignments, as well for for non-members) and the digital edi- should have a copy of this latest edition all the offices of the court and the Office tion $40 ($80 for non-members), which of the book. of the County Clerk. The Guide describes is a bargain considering how much vital, New York County Supreme Court is each back office and its role in overall current information the book provides. a complex place. The court has a large operations, as well as key programs and Ordering a copy is a winning strategy and diverse caseload; it is located in four procedures. It explains, for example, how all the way around—the Guide benefits separate facilities; and there are a variety an attorney should commence a case, practitioners and, indirectly, their clients; of “back offices” with which counsel must both in paper and electronically; how a it makes practice more comfortable and deal every day, as well as additional offices Request for Judicial Intervention should important things as how to commence a convenient; and it conserves the time of of the County Clerk. The court operates a be filed; what should be done about cases case under seal or an anonymous caption hard-pressed court and County Clerk number of programs, such as the neutral thought to be related; how to file a pro- and how to obtain a judgment and have staff by providing answers to questions evaluation program informally known as posed order to show cause; jury selection; it entered. that otherwise would be posed to them. “Mediation” and the Differentiated Case how correctly to file motion papers; how As in past years, the Guide presents At the same time—an important consid- Management effort, that significantly to track developments in pending cases; extensive biographical information about eration for all of us—it is a wonderful way affect how cases move through the court- and the like. The configuration and struc- and photographs of the Justices of the to support NYCLA. So, be sure to order house to trial. Also, the court remains the ture of individualized court Parts and court, including those who are new to a copy today. We greatly appreciate your principal venue for implementation of judicial assignments are explained. There the court this year. In addition, there are support and, on behalf of our Committee the state court system’s electronic filing are chapters on references and Article 81 appendices of important documents. and NYCLA, we thank you. program, which has an impact on deal- cases. The Guide also highlights a number The Guide is available in digital format, ings between the Bar and the court. of important recent developments that which allows the user to access its infor- Pamela Gallagher, Esq. and Brian D. Thus, there is much information about will directly affect practitioners in 2014. mation from anywhere at any time using Graifman,, Esq. are the Co-Chairs of the court operations and procedures with Further, the Guide describes all of the an electronic device. For the digitally chal- Supreme Court Committee. which the practitioner needs to be famil- key litigation-related functions of the lenged, the Guide can also be obtained in iar in order efficiently and effectively to County Clerk’s Office, including such good old fashioned paper.

Fast Talkers: How to Hold Your Horses

pace. After the initial discomfort of dis- By Maria Guida rupting your attention to content and destroying the flow of your delivery, you If you suspect (or have been told) that will find that, with practice, this disci- your natural speaking pace is too fast, you pline of the “forced slow-down” will have can apply a technique that actors use, to a subliminal effect that creates a slower slow down and achieve an appropriate pace delivery. for pitches, presentations, and speaking in the courtroom. Part 4: Rehearse without silent repeti- As soon as you have internalized (not tions: After you rehearse every go-round memorized!) the content of your talk, use using each part of this exercise, repeat this technique: as you rehearse aloud, with your delivery without the strict discipline every other repetition of your talk, deliber- of silently repeating words; try to main- ately pause at the predetermined moments tain the “spirit” of the discipline as you described below. You can approach this by speak. applying the technique to one section of Continue to rehearse aloud, every once in your talk at a time. Do this exercise during a a while alternating between the “unnatural few rehearsal sessions, in this order: slow-down” techniques and your deliv- ery without the unnatural pauses and silent Part 1: Pause between sentences. Take a repetitions. long pause after each sentence by silently Over time, as you approach this disci- repeating the last few words of each sen- pline with commitment, you will find that tence before speaking the next sentence. the technique will ultimately slow down Part 2: Pause between phrases. Take a your delivery, helping your listeners under- long pause after each phrase by silently stand you easily and remain engaged! repeating the last word of each phrase before speaking the next phrase. (Use Maria Guida is a speaking meaning, rather than your use of com- strategist/coach at major law mas, to determine the end of one phrase firms and law associations, and the beginning of the next phrase as well as a corporate and within sentences.) television spokesperson. As an actor on Broadway, Part 3: Pause between words. Take a TV, and film, she has worked with Paul pause after each word by silently repeating Newman, James Earl Jones, and Kevin Kline. that word before speaking the next word. Maria can be reached at 718-884-2282 or This will be jarring and even frustrat- via email at maria@successfulspeakerinc. ing at first, but keep at it; the objective com. is to destroy your natural, too-speedy The New York County Lawyer May 2014 • 7 Recent Events

New York Public Library General Counsel Receives Black History Month Award

On February 24 in honor of Black History Month, Michele Coleman Mayes (second from left), Vice President, General Counsel and Secretary of the New York Public Library was presented with the Ida B. Wells-Bar- nett Award by New York County Lawyers’ Association President Barbara Moses (far left); Chair of the Ida B. Wells-Barnett Justice Award Com- mittee and Justice of the Supreme Court Pam Jackman Brown (second from right); and Metropolitan Black Bar Association President Nadine Fontaine (far right), at a joint event hosted by NYCLA and MBBA. Named for one of the first African American women to run for public office in the United States, the award is presented annually to a woman of color whose life reflects her spirit and courageousness by distinguishing herself in the right for racial and gender equality.

NYCLA Unveils Portrait of Immediate Past President Stewart D. Aaron

The New York legal community celebrated the accomplishments made by immediate past NYCLA President Stewart D. Aaron, Partner and Head of the New York office at Arnold & Porter LLP, during his presidency from 2011 to 2013 at the unveiling of his portrait on March 5th.

Membership Appreciation For 106 years, the New York County Lawyers’ Association has been a respected voice in the New York legal community and the work we have done as a collective has significantly impacted the community where we live and CLE Institute Hosts work. We thank each and every one of our 9,000 Members for their outstanding contributions, leadership, and support. You have all made NYCLA what it is today – dynamic, vibrant and continually evolving and growing to meet the changing needs of the New York legal community.

Insurance Regulation A Special Thank You to NYCLA’s Sustaining Members Program listed below whose continued support has made many programs possible.

Stewart David Aaron, Esq. Hon. Betty Weinberg Ellerin David Jaroslawicz, Esq. Godfrey H. Murrain, Esq. Joshua Aaron Stadtlander-Miller, Alton L. Abramowitz, Esq. Klaus Eppler, Esq. Frank S. Johnson, Esq. Kay Crawford Murray, Esq. Esq. Joseph Aisley, Esq. Lawrence Epstein, Esq. Peter J. Johnson, Esq. Gary P. Naftalis, Esq. James L. Stengel, Esq. Morton Alpert, Esq. Michael C. Fahey, Esq. Alan E. Kahn, Esq. Charles Frederick Niemeth, Esq. Theodore D. Stuzin, Esq. Ian Anderson, Esq. Dean John D. Feerick Roberta A. Kaplan, Esq. Bernard W. Nussbaum, Esq. David J. Sweet, Esq. William B. Aronstein, Esq. Bernard Feigen, Esq. Ronald J. Katter, Esq. Ronald Joel Offenkrantz, Esq. Herman Taub, Esq. Joyce Phillips Austin, Esq. Hon. Wilfred Feinberg Harry I. Katz, Esq. John William Olivo, Jr., Esq. Marvin B. Tepper, Esq. Ernest Edward Badway, Esq. Alan Leslie Fell, Esq. Robert M. Kaufman, Esq. Paul J. O’Neill, Jr., Esq. Lewis F. Tesser, Esq. Hon. Harold Baer, Jr. Asher Fensterheim, Esq. John J. Kenney, Esq. Hon. David G. Oringer George N. Tompkins, Jr., Esq. William Edward Banfield, Esq. Robert V. Ferrari, Esq. Jeffrey Mitchel Kimmel, Esq. Seymour Ostrow, Esq. Hon. Nicholas Tsoucalas Elisa Barnes, Esq. Gilbert C. Ferrer, Esq. Robert A. Klipstein, Esq. Donald W. Paley, Esq. Vinoo P. Varghese, Esq. Earl Barrison, Esq. Arthur Norman Field, Esq. James B. Kobak, Jr., Esq. Andrew G. Patel, Esq. Mark Robert Von Sternberg, Esq. Ravi Batra, Esq. Ralph Finerman, Esq. Belle G. Kopel, Esq. Gerald Gordon Paul, Esq. Leandros A. Vrionedes, Esq. Simeon Harold Baum, Esq. Hon. Margaret J. Finerty Daniel J. Kornstein, Esq. Alan D. Pekelner, Esq. Hon. Leonard M. Wagman Jack A. Bennardo, Esq. Robert S. Fink, Esq. Herbert Kramer, Esq. Gregory J. Perrin, Esq. Bernard J. Wald, Esq. Morrell I. Berkowitz, Esq. Rosalind S. Fink, Esq. Carolyn A. Kubitschek, Esq. Marvin G. Pickholz, Esq. H. Elliot Wales, Esq. Scott Mitchell Berman, Esq. Fern J. Finkel, Esq. Hon. William Francis Kuntz, II, Gary B. Pillersdorf, Esq. Frederic D. Walker, Esq. Kenneth J. Bialkin, Esq. Cynthia Dale Fisher, Esq. Esq. Herbert S. Podell, Esq. Jerome Walker, Esq. Peter Bienstock, Esq. Jack Flamhaft, Esq. Edward Labaton, Esq. Hon. Richard Lee Price Hon. Lawrence E. Walsh Giuseppe Bisconti, Esq. Thomas J. Fleming, Esq. Rafael Lacot, Esq. Dr. Herbert Rand Fred Waxman, Esq. Thomas Charles Bivona, Esq. Leo Fox, Esq. Steven S. Landis, Esq. Robert J. Randell, Esq. Charles Street Webb, III, Esq. Jacob Black, Esq. Sigmund Fox, Esq. Craig A. Landy, Esq. Alan Ira Raylesberg, Esq. Bruce Laurence Weiner, Esq. Martin Blackman, Esq. Peter James Franco, Esq. Robert Todd Lang, Esq. Maurice A. Reichman, Esq. Aaron Weitz, Esq. Hon. Albert A. Blinder Joseph Frank, Esq. Glenn Lau-Kee, Esq. John Peter Reiner, Esq. Howard Weitz, Esq. Franklin S. Bonem, Esq. Louis L. Frank, Esq. Charlotte Cho-Lan Lee, Esq. Edwin M. Reiskind, Jr., Esq. Stephanie G. Wheeler, Esq. Shoshana T. Bookson, Esq. Samuel Friedman, Esq. Ephraim K. Leibowitz, Esq. Michael Rikon, Esq. Daniel K. Wiig, Esq. William Brafman, Esq. Stanley D. Friedman, Esq. Philip Lerner, Esq. Jordan Evan Ringel, Esq. Richard A. Williamson, Esq. David N. Brainin, Esq. Harlan J. Funk, Esq. Ruth Lerner-Levitt, Esq. Frank Joseph Rio, Esq. David W. Wiltenburg, Esq. Joseph Bruno, Esq. Anthony Henry Gair, Esq. Ann B. Lesk, Esq. Geraldo M. Rivera, Esq. Eugene Wollan, Esq. Howard Walter Burns, Jr., Esq. Lt. Col. Martin Gallin Stephen C. Lessard, Esq. Edwin David Robertson, Esq. Hon. Geoffrey D. S. Wright H. Donald Busch, Esq. Barry H. Garfinkel, Esq. Seymour S. Lesser, Esq. Dean Janice Sheryl Robinson, Jerome J. Yates, Esq. Hon. Herman Cahn Aaron Gelbwaks, Esq. Chaim A. Levin, Esq. Esq. Jack Yoskowitz, Esq. Robert A. Calinoff, Esq. Robert Thomas Girling, Esq. Jack P. Levin, Esq. David Barry Rosenbaum, Esq. Nancy Young, Esq. Emily A. Canelo, Esq. Richard Godosky, Esq. Jay H. Levine, Esq. Charles H. Rosenberg, Esq. Alexander Yunis, Esq. Gregory J. Cannata, Esq. David M. Goldberg, Esq. Robert J. Levinsohn, Esq. Mordecai Rosenfeld, Esq. Mark C. Zauderer, Esq. John A. Cannistraci, Esq. M. Robert Goldstein, Esq. Sue Schleifer Levy, Esq. Barney Rosenstein, Esq. Vincent J. Zichello, Esq. Bruno Cappellini, Esq. Stephen F. Gordon, Esq. Nathan Lewis, Esq. Leonard Rovins, Esq. Donald Marc Zolin, Esq. Larry Carbone, Esq. Michael E. Gorelick, Esq. Herman Lieblich, Esq. Hon. Israel Rubin Saul J. Zucker, Esq. Gerald I. Carp, Esq. Paul B. Gottbetter, Esq. Bernard Liles, Esq. Nancy Rucker, Esq. Adrian Zuckerman, Esq. Vincent Ted Chang, Esq. Prof. Bruce A. Green Susan B. Lindenauer, Esq. Harold J. Ruvoldt, Esq. John F. Zulack, Esq. Seymour N. Chesir, Esq. David M. Grunblatt, Esq. Martin Lipton, Esq. Bradley A. Sacks, Esq. Robert M. Zweiman, Esq. Sylvia Fung Chin, Esq. Russell F. Guba, Esq. Robert MacCrate, Esq. Jeffrey E. Schanback, Esq. Catherine Ann Christian, Esq. Robert L. Haig, Esq. Walter Mack, Esq. Harvey I. Schneider, Esq. NYCLA’s Insurance Law Committee welcomed Karen Elinski (left), TIAA- Lisa Elaine Cleary, Esq. Thomas J. Hall, Esq. Melvin Maiman, Esq. Herbert Alan Schneider, Esq. Jeffrey R. Coleman, Esq. Edward Halle, Esq. Harvey Taylor Malakoff, Esq. Harry Richard Schumacher, Esq. CREF; Financial Women’s Association’s (FWA) President Elect Maureen Andrew Robert Colmant, Esq. Philip M. Halpern, Esq. Thomas V. Marino, Esq. Donald Schupak, Esq. Leslie D. Corwin, Esq. Stanley Hamberger, Esq. Lionel Alan Marks, Esq. Marvin Schwartz, Esq. Adolf (center); and Thomas Leonardi (right), Connecticut Insurance Hon. Stephen G. Crane Vilia Beleckas Hayes, Esq. Sayward Mazur, Esq. Murray Schwartz, Esq. Emanuel Dannett, Esq. Thomas T. Hecht, Esq. Michael J. McNamara, Esq. Samuel A. Shacter, Esq. Commissioner, at the CLE program, The Changing World of Insurance Marvin M. David, Esq. Philip D. Held, Esq. Olivera Medenica, Esq. Sybil Shainwald, Esq. Arnold Davis, Esq. Isaac Henkoff, Esq. Joel Paul Mellis, Esq. Steven Bradley Shapiro, Esq. Regulation on February 27. Megan P. Davis, Esq. William Charles Herman, Esq. Henry Theodore Meyer, III, Esq. Martin I. Shelton, Esq. Robert B. Davis, Esq. Adria S. Hillman, Esq. Harvey R. Miller, Esq. Carol A. Sigmond, Esq. Robert Dembia, Esq. Jack S. Hoffinger, Esq. Lorraine D. Miller, Esq. Robert G. Silversmith, Esq. Norbert Dengler, Esq. Stephen D. Hoffman, Esq. Michael Miller, Esq. Lea S. Singer, Esq. Lawrence Dick, Esq. Michael J. Holland, Esq. Seymour W. Miller, Esq. Scott N. Singer, Esq. Charles E. Dorkey, III, Esq. Hon. Howard M. Holtzmann Charles G. Moerdler, Esq. Bryan Charles Skarlatos, Esq. Mary Dale Dorman, Esq. Joy M. Holz, Esq. Richard E. Montag, Esq. Hon. George Bundy Smith Raymond James Dowd, Esq. Richard W. Hulbert, Esq. Deidra R. Moore, Esq. Thomas M. Smith, Esq. Thomas G. Draper, Jr., Esq. Jerome E. Hyman, Esq. Robert M. Morgenthau, Esq. Ira Lee Sorkin, Esq. Byron Dresner, Esq. Robert A. Jacobs, Esq. Edward W. Morris, Esq. Eugene P. Souther, Esq. Mary J. Eaton, Esq. Sue C. Jacobs, Esq. Leonard M. Morrow, Esq. Samuel P. Sporn, Esq. Charles Edwards, Esq. Laurence E. Jacobson, Esq. Barbara Moses, Esq. 8 • May 2014 The New York County Lawyer Upcoming Events

May June 2014 Law Day Luncheon Matrimonial Law Section Spring Cocktail Party Friday, May 9 • Reception – 11:30 a.m.; Lunch–12:30 p.m. • Cipriani Wall Street, 55 Wall Street Hosted by NYCLA’s Matrimonial Law Section • Monday, June 2 – 6 p.m. • Battery Park Gardens Sponsored by NYCLA’s Supreme Court Committee This event will honor the team from the New York County Matrimonial Support Office. First Annual Young Lawyers’ Awards Ceremony 2014 Annual Meeting: Induction and Reception Hosted by NYCLA’s Young Lawyers’ Section • Thursday, June 12 – 6:30 p.m. Thursday, May 29–5:30 p.m. Lunch with a Judge All NYCLA members are invited to attend the Association’s annual induction ceremony of Hosted by NYCLA’s Young Lawyers’ Section • Sessions from 1-4 p.m. . • Attendees will meet NYCLA officers and members of the Board. with featured judge over lunch and will experience motions within the judge’s courtroom. Public Forum on the Mandatory Reporting of Voluntary Pro Bono • W ednesday, June 11 • Featuring Hon. Helen Freedman, Associate Justice of the Supreme Court, Tuesday, May 27 - 4 p.m. Appellate Division, First Department NYCLA will hold a Public Forum to address new rules that now require New York attor- • T hursday, June 19 • Featuring Hon. Sidney Stein, United States, District Court, Southern District neys to report certain information about their pro bono service, as well as their charitable of New York • T hursday, June 26 • Featuring Hon. Joan Madden, Justice of the Supreme Court, New York Court contributions to organizations that provide pro bono legal service, on their biennial reg- Asian American Bar Association/NYCLA Joint Event istration statements. Wednesday, June 18 – 6 p.m.

All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.

All New. Real Motions. Real Arguments. Real-World Education For Your Summer Associates.

The Committee on the Supreme Court of the New York County Lawyers’ Association Lunch with a Judge 2.0: You Are Invited to Celebrate Law Day 2014 American Democracy and the Rule of Law: Why Every Vote Matters The Courtroom Experience at its annual LAW DAY LUNCHEON NYCLA’s 22nd Annual Program for Summer Associates The Justice Louis J. Capozzoli Gavel Award will be presented to NYCLA Will Deliver An Experience Like No Other To Your Summer Associates: * * * Hon. O. Peter Sherwood * * * Witness Real Motions & Arguments • Face-time with each judge in an intimate, small group setting bonus: All participants receive a NYCLA membership 3 Sessions • 3 Courthouses • 3 Judges . . . 1 Low Price!

Law Day remarks by Errol Louis, Host of NY1’s Inside City Hall; Recognition of the New York Law Journal on its 125th anniversary, June 11 June 19 June 26 acceptance by Kris Fischer, Editor-in-Chief. New York State United States District New York State Supreme Court, New York County, Commercial Division Supreme Court, Courthouse, Supreme Court, Appellate Division, Southern District New York County Friday, May 9, 2014 • Reception: 11:30 – 12:30 p.m. • Lunch: 12:30 – 2 p.m. First Department with Hon. Sidney Stein with Hon. Joan Madden Cipriani Wall Street • 55 Wall Street • New York, NY with Hon. Helen Freedman A New York landmark featuring stately Corinthian columns and a 70-foot Wedgwood dome ceiling RESERVE YOUR SPACE—VISIT NYCLA.ORG Space is limited to first 35 Registrants! Questions? Contact Christina Andujar • [email protected] REGISTER NOW: NYCLA.org or call Dana Burr 212.267.6646

Notice of Annual Meeting & Reception May 29, 2014 at 5:30 p.m. • NYCLA Home of Law, 14 Vesey Street Annual Report of the President • Treasurer’s Report Revised NYLCA Charter • Election of Officers and Directors On January 13, 2014 the following were nominated as officers and directors by the Committee on Nominations: Officers: Directors—Class of 2017: Committee on Lewis F. Tesser, Scott M. Berman Nominations— President Bruce A. Green Class of 2017: Carol A. Sigmond, Roberta A. Kaplan Vincent T. Chang President-Elect Carolyn A. Kubitschek Barbara Moses Michael J. McNamara, Susan B. Lindenauer Carol A. Sigmond Vice President Gregory A. Markel Lewis F. Tesser Stephen C. Lessard, Hon. Joseph Kevin McKay Daniel K. Wiig Treasurer Martin Minkowitz Megan P. Davis, Jonathan D. Pressment Secretary Brett S. Ward

Below is a proxy for your use if you cannot attend the Annual Meeting. Please send your completed proxy to Anne Wells by e-mail at [email protected]; by mail, Attention, Anne Wells, New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007; or by fax 212-406-9252 prior to the Annual Meeting on May 29, 2014. PROXY For Annual Meeting of Members of the New York County Lawyers’ Association To be held May 29, 2014 Know all people by these presents: That the undersigned Member of New York County Lawyers’ Association hereby constitutes and appoints Barbara Moses, Lewis F. Tesser, Carol A. Sigmond, or any of them, proxies of the undersigned, with full power of substitution to each, for an in the name, place and stead of the undersigned, to attend the Annual Meeting of Members of the New York County Lawyers’ Association, to be held at the Home of Law, 14 Vesey Street on May 29, 2014 at 5:30 p.m. and any adjournment or adjournments thereof; and thereat to vote upon all matters that may properly come before said meeting as fully and with the same effect as the undersigned might or could do if personally present at said meeting or any adjournment or adjournments thereof. The undersigned hereby revokes any proxy or proxies heretofore given by, for or on behalf of the undersigned to vote at said meeting or any adjournment or adjournments thereof.

D aTED: ______/______/______

Signature: ______

Printed name: ______The New York County Lawyer May 2014 • 9 Library Notes

of retyping the entire document. of State forms for LLC/LLPs; LLP/LLC fee contracts; and art contracts. This month, I review several of the many schedule; and helpful checklists. One more litigation form database: databases in the Library, which provide forms • Enforcing Judgments & Collecting Debts • New York Motions in Limine (Westlaw) Part for transactional matters. in New York (Westlaw) Lawyer-client treatise, part form set. Organized by type of contingency fee/hourly rate agreement; evidence to be excluded. • New York Forms, Legal and Business unfair collection practices forms; (Westlaw) This is my “go to” set for New prejudgment collection forms; provisional Not infrequently, it is necessary to look in York transactional forms. This set is broad, remedies; bankruptcy considerations; several sets to find a form that meets your covering many areas of law including: Real liens and executions on real property; particular needs on a particular matter. Ask property and leasing, consumer protection, enforcement of judgments against personal the Reference Staff for assistance. We like to contracts, personal property, business property; procedures supplementary to help our NYCLA members. enterprises, limited liability companies, obtaining a judgment; enforcement of sister Most NYCLA members qualify for the By Dan Jordan estate planning, family law, nonprofit state and foreign judgments; enforcement New York State Library-Attorney Borrower’s organization forms, and forms relating to of non-money judgments; and satisfaction Card. Have you applied? It is available to New Formbooks in the NYCLA Library the Uniform Commercial Code. of judgments. York state residents admitted to practice law In the NYCLA Library, many lawyers use • Harris New York Estates: Estate Planning & • Lindey on Entertainment, Publishing and in New York. For information about this free formbooks as an aid as they draft various Taxation (Westlaw) Estate planning process the Arts, 3d (Westlaw) Text coverage Internet based access to legal information, legal papers. Form sets can be transactional forms, including drafting wills, living trusts, of all types of entertainment law, mass contact Dan Jordan at [email protected] for or oriented toward litigation. Formbooks in and marital deduction planning; forms communications, and the arts. Includes an application for the NYSL-ABC. the NYCLA Library are now nearly exclusively for use of disclaimers; forms for a three- state-of-the-art forms. in digital form. Both Lexis and Westlaw/ trust will and charitable planning; and • Entertainment Industry Contracts To make suggestions about book, WestlawNext allow the forms to be downloaded irrevocable lifetime trusts forms. (Retrievable by citation thru Lexis) ebook, or database purchases for or sent by e-mail in Word, WordPerfect or as • New York Limited Liability Companies and Ask the Librarian for assistance. Covers the NYCLA Library, please contact a PDF. There is also no charge for printing Partnerships (Westlaw) Forms of articles motion pictures, book publishing; Dan Jordan, Director of Library from the NYCLA Library PCs. Downloading of organization; checklist and form of television; the Internet and interactive Service, at [email protected] or at or emailing a form to oneself in Word or operating agreement; forms for estate media; theatre; music; entertainment 212-267-6646, x201. Wordperfect allows you to avoid the keystrokes planning re: LLC/LLPs; NY Department industry executive employment; sports

obligations in the face of shrinking resources ing events and programs to bring together program devoted to discussing the case and MESSAGE and growing caseloads. Thereafter, Congress practitioners of all levels. We freshened up the continuing issues it raises. Continued from page 3 acted to restore most of the sequestration- our Member newspaper; offered discounts on These initiatives and programs were made related cuts to the federal courts, and the New new products and services (such as JurisPage, possible through NYCLA’s dedicated Officers, lic and featured seven hours of testimony from York judiciary submitted its budget request to a web design, marketing, and search engine Directors, Committees, and staff. I value the 23 witnesses, including the chief judges of the the Governor. Mostly recently, in February, I optimization tool); and served our Members’ opportunity to work with this great group Second Circuit and the Southern and East- submitted written testimony to the Joint Fiscal research needs through our Library. and I am grateful for all they do for our Asso- ern District Courts, and the Presidents of the Committees of the New York State Legislature We also offered cutting-edge CLE programs ciation. American and the New York State Bar Associa- in support of the full budget amount requested in substantive law and skill building at com- tion. In January, the Task Force followed up the by the judiciary. This budget was enacted. petitive rates. For example, after the Supreme hearing with a report describing the struggles Of course we didn’t stop there. NYCLA con- Court invalidated a portion of the Defense of of both the state and federal judiciaries in tinues to provide Members with career-build- Marriage Act, NYCLA brought in many of the Barbara Moses, President meeting their constitutional and statutory ing tools and offers a wide range of network- key players in U.S. v. Windsor for a special CLE New York County Lawyers’ Association

LEGAL PROFESIONAL CORNER Electronic Research To advertise in the Legal Professional Corner, Center CLE Programs contact Kathleen Pishotta at 888-371-4933 or by email at [email protected]. May

Westlaw: Advanced Research on U.S. Bankruptcy Court Electronic Westlaw Next Case Filing System May 8 – 10-11 a.m. May 21 – 10 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional 2.5 MCLE Credits: 2.5 Skills; Transitional Westlaw: Form Finder/Form Member: $65 Builder on Westlaw Next Non-member: $85 May 8 – 11:30 a.m.-12:30 p.m. Non-legal Staff: $35 1 MCLE Credit: 1 Skills; Transitional Westlaw: Introduction to Lexis: Basic Legal Research Westlaw Next May 15 – 10:30-11:30 a.m. May 22 – 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional 1 MCLE Credit: 1 Skills; Transitional

Lexis: Advanced Legal Research Westlaw: Basic Public Records May 15 – 12-1 p.m. Searching on Westlaw Next 1 MCLE Credit: 1 Skills; Transitional May 22 – 3-4 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Expert Witness Research May 15 – 1:30-2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional

Unless otherwise noted, courses are free and open to the public. Register at nycla.org Questions? Contact Irina Chopinova at [email protected] or 212-267-6646 Ext. 203. HeyHey batterbatter batter!batter! Join us for a CLE event & game at Yankee Stadium Friday, June 20th, 7:05PM vs Baltimore

Seminar starts at 6PM: “Who is Who in the Global Economy” 1 NY/NJ MCLE credit; 1 CPE for accountants in Specialized Knowledge

Event includes: Suite style theater seating Private Restroom Private entrance and elevator with access to enclosed concourse Typical baseball snacks - popcorn, chips with dip, etc. Baseball fan food favorites, soft drinks & Otis Spunkmeyer cookies

NYCLA Members: $275 Non-Members: $325

registration & more info at www.nycla.org

37TH ANNUAL Friday & Saturday CIVIL TRIAL INSTITUTE May 2 & 3, 2014 9:00AM – 5:00PM

A BRIDGE THE GAP FOR LITIGATORS 16 NY Credits: 3 Ethics; 7 PP/LPM; 6 Skills Program Chair Robert Kelner, Kelner & Kelner and Co-chair Emeritus Hon. Robert Lippman (Ret.), have brought together an extraordinary faculty of judges, experienced litigators, academics 16 NJ Credits: 3 Ethics; 13 General and medical experts for the 37th Annual Civil Trial Practice Institute. The program will take attendees through the entire state civil trial process. You will learn ways to develop and improve trial Transitional & Non-Transitional preparation and litigation techniques within the context of personal injury and commercial cases. Program Chair: This program will also satisfy the first or second year NY MCLE requirements for first or second Robert Kelner, Kelner & Kelner year newly admitted attorneys. It will also serve as an excellent refresher for more experienced Program Co-chair Emeritus: practitioners. Hon. Robert Lippman (Ret.) Topics Include: Faculty (In Formation): • Civil Pre-Trial Practice: Commercial Litigation & Personal Injury Litigation Brian Kalman, London Fischer LLP; • Preparation of Plaintiffs and Defendants Hon. Richard F. Braun, NYS Sup. Ct., Civil Term; Robert J. Conway, • Conference and Settlement – Personal Injury Litigation Marshall Conway & Bradley, P.C.; • Courtroom Techniques: Dealing with Expert Testimony and Hearsay Tracee Davis, Zeichner Ellman & Krause LLP; Professor Richard T. • Ethical Issues for Litigators Farrell, Brooklyn Law School; Hon. • Dealing With Evidentiary Problems During Trial Barbara Jaffe, NYS Sup.Ct., Civil • How to Conduct a Voir Dire, With Demonstration Term; David Jaroslawicz, Jaroslawicz and Jaros LLC; Robert Kelner, • Preparation of Opening Statements Kelner & Kelner; Hon. Israel Rubin • Direct and Cross Examination of Lay and Expert (Ret.), Greenberg Traurig; Jay G. Witnesses, With Demonstration Safer, Locke Lord LLP; Hon. Saliann Scarpulla, NYS Sup. Ct., • Preparation of Summations Commercial Division; Harold Lee Schwab, Lester Schwab Katz & Tuition Assistance is available for qualified attorneys. Dwyer, LLP; Richard L. Spinogatti, Proskauer Rose LLP; Hon. Michael Stallman, NYS Sup. Ct., Civil Term; Barry Temkin, WWW.NYCLA.ORG Mound Cotton Wollan & Greengrass The New York County Lawyer May 2014 • 11 In The News

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

New York Law Journal New York Law Journal New York Law Journal New York Law Journal Mandatory Pro Bono Weighed as Supreme Court Grants Lawyers Portrait Unveiling Library Lawyer Honored Disclosure Rule is Criticized Whistleblower Protection March 7, 2014 February 26, 2014 March 24, 2014 March 13, 2014 A photo from the March 5 Portrait Unveiling A photo from NYCLA and the Metropolitan NYCLA’s President, Barbara Moses, is quoted An Ethics Opinion by NYCLA’s Professional of immediate past NYCLA President Stewart Black Bar Association’s February 24 Ida B. in this article about mandatory pro bono Ethics Committee is mentioned in this D. Aaron ran in this issue, featuring Aaron Wells-Barnett Award Reception honoring reporting explaining why NYCLA has histor- article. and current NYCLA President Barbara Michele Coleman Mayes, General Counsel of ically been opposed to mandatory pro bono. Moses. New York Public Library, ran in the Journal.

NYCLA Comments on and Supports Issues NYCLA frequently reports, comments on, and supports issues affecting the New York City legal community and has recently commented on or supported the following issues: • Civil Court Practice Section Proposes that Third Parties Producing Documents for Trial In Special Proceedings Be Permitted to Authenticate Documents by Certification Learn more on the News & Publications section of nycla.org.

Ethics Hotline

The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplin- ary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article “Guidelines on NYCLA’s Ethics Hotline,” pub- lished in the September 2006 issue of New York County Lawyer.

May 1-15 May 16-31 June 1-15 June 16-30 Ron Minkoff Alison Jacobs Sarah D. McShea Kyle Medley 212-705-4837 212-566-7081 212-679-9090 212-557-2800

Please Note: Assignments are subject to change.

Business to business

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