JULY/AUGUST 2007 VOL. 79 | NO. 6 JournalNEW YORK STATE BAR ASSOCIATION
No Greater Rights
The Limits of Pro Se Litigation in Also in this Issue New York Courts The Animal Welfare Act – What’s That? by Richard L. Weber Religious Motif in Law and Nation Building Motorist Insurance Law Update – Part II Preparing for Your First Oral Argument NEW YORK STATE BAR ASSOCIATION Practical Solutions to… Developing your professional skills
There are many ways in which the New York State Bar Association can help you develop your professional skills. Three opportunities that stand out in particular are: sections, committees and CLE. Scores of attorneys – just like you – take an active part in NYSBA’s 23 sections and 60+ committees, and fulfill their mandatory requirements with our outstanding selection of New York law-specific continuing legal education seminars and products.
With NYSBA sections and committees you can: • Enhance your knowledge through section publications. • Access extensive online resources such as automatic case updates, substantive reports and discussion groups. • Attend section-sponsored continuing legal education seminars at significant member savings. • Network with judges and peers in your areas of practice. • Influence the legislation that impacts your profession. With NYSBA CLE you can: • Save money with members-only discounts of more than 25%. • Choose from the latest, largest collection of New York courses anywhere – including more than 200 live programs. • Save time with easy online access to high quality programs from New York’s #1 CLE provider. Sections, committees and CLE – some of the best investments you can make in your career, your practice, and yourself – all available through NYSBA membership.
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July/August 2007
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Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0091 JournalNEW YORK STATE BAR ASSOCIATION
BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany EDITOR EMERITUS Eugene C. Gerhart Binghamton MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
PUBLISHER Patricia K. Bucklin Executive Director
NYSBA PRODUCTION STAFF PRODUCTION COORDINATOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org
ADVERTISING REPRESENTATIVE Network Publications Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] CONTENTS JULY/AUGUST 2007
NO GREATER RIGHTS The Limits of Pro Se Litigation in New York Courts BY RICHARD L. WEBER 10
DEPARTMENTS 5 President’s Message 17 The Animal Welfare Act – What’s That? 8 CLE Seminar Schedule BY MARIANN SULLIVAN 15 Burden of Proof COMMENTARY BY JAMES F. G ESUALDI BY DAVID PAUL HOROWITZ 28 Law Practice Management 24 Religious Motif in Law and MARIAN C. RICE Nation Building 32 Planning Ahead An American Federalist Perspective BY JOSHUA S. RUBENSTEIN BY FRANK V. K ELLY 46 Computers & the Law BY DAVID P. M IRANDA 35 Uninsured Motorist/Supplementary 48 Attorney Professionalism Forum Uninsured and Underinsured Motorist 52 Language Tips Update – Part II BY GERTRUDE BLOCK A Review of Cases Decided in 2006 54 New Members Welcomed BY JONATHAN A. DACHS 61 Classified Notices 61 Index to Advertisers 44 Preparing for Your First Oral Argument 63 2007–2008 Officers BY STEVEN C. BENNETT 64 The Legal Writer BY GERALD LEBOVITS
CARTOONS © CARTOONRESOURCE.COM
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2007 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.
NYSBA Journal | July/August 2007 | 3 PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN
Justice for All
s long as I can remember, appropriation, moving us from 30th access to justice has been the place to 20th in state funding per poor Acornerstone of the State Bar’s person.1 Yet we trail well behind our legislative and policy agenda. This sister states of Massachusetts, New past year, we went beyond the con- Jersey and Vermont, who provide two ceptual and embraced a number of to four times the $5 we now spend for initiatives intended to bridge the gap each poor person in our state. between the need for civil legal servic- We support the Report of the New es for the poor and available state and York Equal Justice Commission which federal funding. Despite the millions calls upon the state to create a perma- of hours of pro bono legal services nent access to justice fund at a level of awards provide significant opportu- provided each year by New York law- $50 million in the state budget, so that nities to further advance the goal of yers, we have an 80% “justice gap,” New York does not continue to be one access to justice. which translates into thousands of of the seven states that fail to provide citizens who do not get the help they a stable funding mechanism for civil Civil Gideon need to avoid eviction, fight for health legal services. Last year was the 40th anniversary care or fight for other essentials. of Gideon v. Wainwright, which estab- Use of Cy Pres Funds lished the constitutional right to coun- Empire State Counsel The Cy pres doctrine (from the French: sel for indigent criminal defendants. On June 1, 2006, Mark Alcott launched “cy pres comme possible” meaning “as If, instead of facing the loss of liberty, the Empire State Counsel Program to near as possible”) is a court-approved you face the loss of your home or a recognize members who render 50 or method of distributing funds when the child, do you have a right to counsel? more hours of free legal services to original purpose cannot be achieved. Cy Many Americans believe that. While the poor. In its initial year, 462 mem- pres can be used in any class action or those instincts are right, that is not the bers were credentialed as Empire State mass tort action where the payment of case. Despite a clear social cost/ben- Counsel. I plan not only to continue this damages to individual class members efit in providing counsel for the poor outstanding program but to expand its would be impossible, impractical or in such critical areas as housing and breadth to include pro bono services inappropriate. In such circumstances, public benefits, there is no civil right rendered to not-for-profit, governmen- judges and counsel can recommend to counsel. Last year, our Association tal or public services organizations that those funds be directed to civil endorsed a Civil Gideon Resolution – where the legal services are designed legal services programs. urging states to provide a right to primarily to address the needs of the In January, our Special Committee counsel to the poor in matters involv- poor – or organizations specifically on Funding for Civil Legal Services, ing shelter, sustenance, safety, health designed to increase the availability of chaired by Barbara Finkelstein and and child custody. legal services to the poor. You can self- Bruce Lawrence, published a manual Other states have taken up the chal- certify for this designation at our Web promoting the use of cy pres, which lenge. California Governor Arnold site at www.nysba.org. is a superb tool for the class action Schwarzenegger has proposed a $5 bench and bar. I have appointed a million pilot project to provide repre- State Funding for working group to develop an effective sentation in eviction, custody proceed- Civil Legal Services educational and marketing strategy, in ings and other urgent civil legal mat- This was an historic year in New York partnership with our Bar Foundation, ters. Never before have I felt so warm- State. For the first time, the Governor building on the models in other states included funding for civil legal ser- such as the Chicago Bar Foundation, KATHRYN GRANT MADIGAN may be vices in the Executive Budget. Funding which last year received more than $3 reached on her blog at http://nysbar. this year more than doubled last year’s million in cy pres funding. Clearly such com/blogs/president.
NYSBA Journal | July/August 2007 | 5 PRESIDENT’S MESSAGE ly toward the Terminator. Housing tenants, especially senior citizens, lose ered unacceptable. And while we do advocates are finalizing proposed leg- their homes. indeed have miles to go in achieving islation for New York City, designed to But when we talk about access to the goal of access to justice for all create a right to counsel for poor ten- justice, it does not all come down to New Yorkers, not just for those who ants, age 62 and older, facing eviction. dollars and cents. It is about who we can afford it, our Association is lead- We know that for every dollar spent are as a society. And I believe that ing the way. I hope you will join us in in New York City in preventive evic- we, as a society, are measured by the this historic effort. ■ tion legal services, $4 are saved from way we care for our children, our the costs associated with homeless- poor and our frail elderly. Limited 1. This information is provided by the American Bar Association Resource Center for Access to ness and increased public benefits. We access to justice should not be consid- Justice Initiatives. know that medical costs also rise when ered inevitable – it should be consid-
There are millions of reasons to do Pro Bono. (Here are some.)
Each year in communities across New York State, indigent people face literally millions of civil legal matters without assistance. Women seek protection from an abusive spouse. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help. If every attorney volunteered at least 20 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent.
Call the New York State Bar Association today at 518-487-5640 or go to www.nysba.org/probono to learn about pro bono opportunities.
6 | July/August 2007 | NYSBA Journal Partial Schedule of Fall Programs NYSBACLE (Subject to Change) The New York State Bar Association is 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 Real Estate Titles and Transfers NOTE: CLE Seminar Coupons and Complimentary Passes October 12 New York City CANNOT be used for this program. October 26 Tarrytown September 7 New York City November 1 Albany September 12 Westchester November 2 Melville, LI +Trust Your Planning: A Comprehensive Review of November 14 Rochester Trust Planning and Drafting Techniques A Day in Discovery with Jim McElhaney (Video Replay) NOTE: CLE Seminar Coupons and Complimentary Passes September 19 Jamestown CANNOT be used for this program. Supplemental Needs Trusts October 16 Syracuse October 17 Buffalo September 24 Tarrytown November 7 Melville, LI September 25 Albany; Buffalo; Melville, LI November 8 New York City September 26 New York City Risk Management Crisis Intervention Training (half-day program) October 3 New York City October 16 Buffalo Medical Malpractice November 2 New York City October 4 Albany November 13 Uniondale, LI October 19 Buffalo Health Law October 25 Syracuse October 19 New York City November 2 Rochester November 7 New York City Practical Skills Series: Introduction to Estate Planning TBD Long Island October 23 Albany; Buffalo; Melville, LI; Update 2007 New York City; Rochester; Syracuse; Westchester Live Sessions October 5 Syracuse +Ninth Annual Institute on Public Utility Law October 19 New York City October 26 Albany +Video Replays Special Education Law Update October 24 Binghamton October 26 Albany; Buffalo; New York City October 25 Utica October 30 Albany; Buffalo New York’s Fault Divorce Law at Age 40: Pleading and November 1 Rochester Proving Your Grounds Case November 7 Ithaca; Plattsburgh; Saratoga (half-day program) November 8 Jamestown; Suffern October 26 Buffalo November 15 Tarrytown; Uniondale, LI November 2 Albany November 16 Canton November 16 Melville, LI November 28 Poughkeepsie December 7 Syracuse November 30 Loch Sheldrake; Watertown December 14 New York City Practical Skills Series: Basic Matrimonial Practice At the Ramparts: Challenges in Representing and October 10 Albany; Buffalo; Melville, LI; New York Litigating With Public Companies in the Post-DURA/ City; Rochester; Syracuse; Westchester IPO/Sarbanes-Oxley Environment October 30 New York City Second Corporate Counsel Institute October 11–12 New York City +Fifth Annual Sophisticated Trusts and Estates Institute NOTE: CLE Seminar Coupons and Complimentary Passes 2007 No-Fault Insurance Update CANNOT be used for this program. October 11 New York City November 8–9 New York City October 12 Albany October 18 Syracuse Practical Skills Series: Purchases and Sales of Homes October 19 Melville, LI November 13 Albany; Buffalo; Hauppauge, LI; New York City; Rochester; Syracuse; Women’s Health/Medical Malpractice Westchester October 12 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. 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 For a complete fall schedule, go to www.nysba.org/CLE/fall2007 (Note: As a NYSBA member, you’ll receive a substantial discount) NEW YORK STATE BAR ASSOCIATION
Lawyer Referral and Information Service Interested in expanding your client base?
Join the Lawyer Referral & Information Service Why Join? > Expand your client base > Benefit from our marketing strategies > Increase your bottom line Overview of the Program The New York State Bar Association Lawyer Referral and Information Service (LRIS) has been in existence since 1981. Our service provides referrals to attorneys like you in 41 counties. Lawyers who are members of LRIS pay an annual fee of $75 ($125 for non-NYSBA members). Proof of malpractice insurance in the minimum amount of $100,000 is required of all partici- pants. If you are retained by a referred client, you are required to pay LRIS a referral fee of 10% for any case fee of $500 or more. For additional information, visit www.nysba.org/joinlr. Sign me up Download the LRIS application at www.nysba.org/ joinlr or call 1.800.342.3661 or e-mail [email protected] to have an application sent to you. GGiveive uuss a ccall!all! 8800.342.366100.342.3661
No Greater Rights The Limits of Pro Se Litigation in New York Courts
By Richard L. Weber
n over-zealous pro se litigant can present a unique problem for the courts, and a unique challenge for opposing coun- Asel. An engaged attorney must balance the duty of zealous advocacy against the obligation to adhere to the Code of Professional Responsibility.1 Lawyers may also restrain their zeal in order to pre- serve collegiality with members of the local bar, and their reputation and standing within the legal community. In contrast, a non-lawyer pro se litigant is not bound by the Code of Professional Responsibility, and has no reputation to preserve within the legal community. The pro se litigant’s involvement in the legal system will likely end after he or she prosecutes or defends the case at issue. A lawyer facing a motivated pro se litigant may become frustrated by unconventional or outrageous litigation tactics. Worse yet, it may seem that the pro se litigant is being coddled or excused by the court, forgiven for procedural irregularities and blatant breaches of decorum. This article outlines the limits of pro se representation in civil actions in New York State courts, and the remedies available for quelling an overzealous pro se litigant.
The Inherent Restrictions of Pro Se Status In New York, a party may prosecute or defend a civil action in person or by attorney, except for a few statutory exceptions. A corporation or voluntary association must have an attorney.2 Similarly, infants and incompetents have no standing to appear on their own behalf – an appropriate guardian is required to represent the interests of these parties.3 Also, where a party has already engaged an attorney, the party is barred from proceeding pro se except by subsequent consent of the court.4 CPLR 105(c) provides that a pro se “party” is generally treated as an “attorney” for purposes of the rules of civil procedure.5 However, a pro se litigant is not automatically entitled to all the privileges afforded to 6 an engaged attorney. An obvious example is service of process: CPLR RICHARD L. WEBER ([email protected]) is an attorney in 2103 bars service of papers by parties.7 Similar provisions bar a pro se the Syracuse office of Bond, Schoeneck & King PLLC. litigant from issuing a subpoena without court order,8 or from certify- He received his undergraduate degree from the State ing papers under CPLR 2105,9 or from submitting an affirmation in University of New York at Buffalo, and his law degree lieu of an affidavit.10 Depending on the particular forum, additional from the College of William and Mary School of Law. restrictions may exist. For example, a non-lawyer party cannot file a
NYSBA Journal | July/August 2007 | 11 summons to commence a proceeding in justice court – in ing wasted court time and added cost to opponents.26 the absence of an attorney, the summons must issue from Furthermore, the courts are willing to act where the the court clerk.11 conduct of the pro se litigant frustrates or exasperates the Although pro se litigants are not afforded all the presiding justice.27 privileges of practicing attorneys, it would be an error to Once the pro se litigant crosses the threshold into abu- conclude that the New York State court system does not sive litigation, a wide range of remedies are available to accommodate pro se litigants. It is common for the courts quell his or her conduct. Options available to the court to grant pro se litigants certain “latitude” that might not include imposing sanctions on the pro se litigant,28 man- be extended to attorneys, in order to provide the pro se dating court approval as a prerequisite to motion practice litigant with an opportunity to make a full presentation or commencement of further litigation,29 and enjoining of his or her case.12 A review of case law demonstrates further self-representation by the pro se litigant.30 that courts may be influenced by the relative inexperience All litigants – pro se or otherwise – are subject to sanc- of a pro se litigant.13 For example, a pro se litigant may be tion and contempt orders.31 Sanctions are appropriate Pro se litigants are entitled to no greater rights in court than any other litigant, and cannot use their pro se status to deprive opponents of the same rights they would otherwise have. relieved from a stipulation where the lack of representa- where the pro se litigant engages in frivolous conduct.32 tion resulted in a stipulation that was unduly one-sided However, it is incumbent on opposing counsel to docu- or unfair.14 In one case, a pro se litigant was even relieved ment the exact grounds for any sanctions requested: sanc- of the apparent abandonment of his claim where it was tions demand a written order of the court setting forth the clear that the litigant never intended to create the aban- basis for the court’s conclusion that the litigant’s conduct donment.15 was frivolous, as well as a justification for the amount of In addition to the informal latitude routinely granted sanctions imposed.33 to pro se litigants, the courts have promulgated policies While monetary sanctions can be an effective deter- and court rules that facilitate equal full access and oppor- rent to some overzealous pro se tactics, rare cases may tunity for the self-represented.16 This reflects the public require more extreme intervention. In Muka v. New York policy of the state to facilitate “equal access to justice” State Bar Ass’n, the court faced a pro se litigant who had for the self-represented, a policy that is continually being commenced hundreds of prior lawsuits in New York examined and revised by court officials.17 State courts, most of which were dismissed as lacking merit.34 Frustrated, the pro se litigant turned her attention Curbing Abusive or Overzealous Pro Se Litigants to the courts themselves, and filed suit against the state Pro se litigants are entitled to no greater rights in court Supreme Court and its judges.35 At that point, the bench than any other litigant, and cannot use their pro se status concluded that enough was enough: to deprive opponents of the same rights they would oth- [T]he right to appear pro se is not unlimited. . . . 18 erwise have against a represented litigant. As a result, Insofar as any litigant unnecessarily consumes inor- pro se litigants cannot use their status to excuse defective dinate amounts of judicial time and energy, he or she service of process or court orders,19 or the failure to intro- deprives other litigants of their proper share of these duce an affidavit of merit to rebut a motion to dismiss for resources. A balance must be kept. When it becomes failure to prosecute,20 or the failure to introduce required clear that the courts are being used as a vehicle of expert testimony at trial.21 The “latitude” shown by the harassment by a “knowledgeable and articulate expe- judiciary cannot save the pro se litigant from his or her rienced pro se litigant,” the issuance of an injunction 36 own fundamental litigation errors, and cannot include is warranted. the delivery of legal advice.22 As is often documented in The Muka court dismissed the plaintiff’s claim against the case law, litigants appearing pro se do so at their own the defendant, and issued an injunction prohibiting the peril.23 pro se plaintiff from commencing any civil action against Although courts are inclined to excuse minor breaches the defendant in any New York State court unless she first of decorum or procedure,24 compelling circumstances engaged an attorney.37 warrant court action to limit or terminate the right of In re Rappaport provides another instructive example. self-representation. The critical factor is whether the pro In that case, the court faced a pro se plaintiff who failed to se litigant is abusing the judicial process.25 Judges will act to produce duly-demanded documents, engaged in outra- protect the courts – and other litigants – from the negative geous courtroom antics, and physically assaulted oppos- impact of egregious or repetitive pro se litigation, includ- ing counsel.38 After “clear and repeated” warnings about
12 | July/August 2007 | NYSBA Journal the misconduct, the court directed the pro se litigant to abuse the judicial process are too numerous to count. For retain and appear by counsel of his choice; in the event he that reason, each case of abusive pro se litigation requires was unwilling to do so, the court would appoint counsel a custom-tailored solution to the particular nature and for him.39 In revoking his right to self-representation, the level of misconduct at hand.43 court cited its concern that the actions of the pro se litigant “prevented the fair and orderly disposition” of the issues Conclusion raised at trial.40 When confronted with an overzealous pro se litigant, Sassower v. Signorelli provides a third instructive exam- opposing counsel must tolerate a certain amount of lati- ple. In that case, the pro se litigant filed suit against the tude granted to the pro se party by the court. However, Suffolk County Surrogate, who had required the litigant counsel must remain vigilant to assure that the court’s to account for his activities as a fiduciary. The Second latitude does not evolve into something more damaging. Department affirmed the order of the lower court that Counsel must take care to document any egregious or enjoined the pro se plaintiff from commencing any further unwarranted conduct of the pro se litigant, and should proceedings in the case. Noting its objection to “use of seek prompt relief where the conduct of the pro se litigant the legal system as a tool of harassment,”41 the court set becomes abusive of the judicial process. ■ forth a compelling rationale for enjoining frivolous pro se claims and tactics: 1. See generally Spremo v. Babchik, 155 Misc. 2d 796, 804, 589 N.Y.S.2d 1019 (Sup. Ct., Queens Co. 1992). A litigious plaintiff pressing a frivolous claim can be 2. CPLR 321(a). extremely costly to the defendant and can waste an 3. CPLR 1201; see also Mental Hygiene Law art. 81. inordinate amount of court time, time that this court 4. CPLR 321(a); Melnitzky v. City of N.Y., 1 A.D.3d 222, 767 N.Y.S.2d 97 (1st and the trial courts can ill afford to lose. Thus, when, Dep’t 2003). as here, a litigant is abusing the judicial process by 5. CPLR 105(c); Ryan v. Blupal Realty Corp., 45 Misc. 2d 542, 257 N.Y.S.2d 235 hagriding individuals solely out of ill will or spite, (App. Term, 1st Dep’t 1965). equity may enjoin such vexatious litigation.42 6. See generally 1 Weinstein Korn Miller, NY Civil Prac. ¶ 105.04. These three examples are not all-inclusive – the means 7. CPLR 2103(a). by which a motivated pro se litigant can harass, obstruct or 8. CPLR 2302(a).
NYSBA Journal | July/August 2007 | 13 9. CPLR 2105; see also 1 Weinstein Korn Miller, NY Civil Prac. ¶ 105.04. 19. Goldmark, 226 A.D.2d at 144 (pro se petitioner served order to show cause by mail instead of required personal service); Brooks, 188 A.D.2d at 921 (failure 10. LaRusso v. Katz, 30 A.D.3d 240, 818 N.Y.S.2d 17 (1st Dep’t 2006) (affirma- to timely serve a complaint); Kitch v. Markham, 174 Misc. 2d 611, 665 N.Y.S.2d tion of attorney/pro se party in support of motion was properly disregarded 1019 (Sup. Ct., Westchester Co. 1997) (failure to timely serve complaint); by court). Maddox v. State Univ. of N.Y. at Albany, 32 A.D.3d 599, 819 N.Y.S.2d 605 (3d 11. Uniform Justice Court Act § 401(a). Dep’t 2006) (failure to properly serve Article 78 notice of petition and peti- 12. See generally Duffen v. State of N.Y., 245 A.D.2d 653, 654, 665 N.Y.S.2d 978 tion). (3d Dep’t 1997); Sloninski v. Weston, 232 A.D.2d 913, 914, 648 N.Y.S.2d 823 (3d 20. Yule, 140 A.D.2d at 981-82; Schneider v. Cookson Am., Inc., 267 A.D.2d 998, Dep’t 1996) (noting supreme court “made every reasonable effort to afford 700 N.Y.S.2d 886 (4th Dep’t 1999); see also Kanat v. Ochsner, 301 A.D.2d 456, plaintiff leeway during the trial so as to insure that he had an opportunity to 457–58, 755 N.Y.S.2d 371 (1st Dep’t 2003) (default judgment appropriate where make a full presentation of his case”); Mosso v. Mosso, 6 A.D.3d 827, 828, 776 pro se litigant failed to demonstrate reasonable excuse for default and meritori- N.Y.S.2d 599 (3d Dep’t 2004) (noting “some latitude is appropriate” with pro ous defense to the action). se litigants, especially in proceedings “where a pro se litigant wishes to pres- 21. Roundtree, 143 A.D.2d at 995; Duffen, 245 A.D.2d at 654. ent evidence in her defense, but is frustrated from doing so through her own inexperience and lack of legal training”). 22. See Davis v. Mut. of Omaha Ins. Co., 167 A.D.2d 714, 716, 562 N.Y.S.2d 883 (3d Dep’t 1990). 13. See generally Mosso, 6 A.D.3d at 828 (latitude appropriate where pro se litigant “frustrated” from presenting evidence due to inexperience and lack of 23. Id. at 716; Sloninski, 232 A.D.2d at 914; Banushi v. Lambrakos, 305 A.D.2d legal training); Vill. of Attica v. Nutty, 184 A.D.2d 1057, 584 N.Y.S.2d 252 (4th 524, 759 N.Y.S.2d 345 (2d Dept 2003). Dep’t 1992). 24. See, e.g., Chrysler Credit Corp. v. Smith, 157 Misc. 2d 56, 595 N.Y.S.2d 912 14. See 105 N.Y. Jur. 2d, Trial § 263 (citing 144 Woodruff Corp. v. Lacrete, 154 (Civ. Ct., Kings Co. 1993) (despite failure of pro se defendant to submit answer- Misc. 2d 301, 585 N.Y.S.2d 956 (Civ. Ct., N.Y. Co. 1992)). ing papers or request oral argument on motion, court may hear the pro se liti- gant to determine whether formal oral argument is warranted on the motion); 15. Vill. of Attica, 184 A.D.2d at 1057 (pro se respondents relieved of abandon- In re Rappaport, 109 Misc. 2d 640, 440 N.Y.S.2d 532 (Sur. Ct., Nassau Co. 1981) ment of claim, despite failure to comply with Rule 202.48 of the Uniform Civil (noting courts must be “tolerant of minor infractions of courtroom procedure Rules for the Supreme and the County Court). where an inexperienced party has only television attorneys as role models”). 16. Self Represented Litigants: Characteristics, Needs, Services – The Results of 25. See generally Sassower, 99 A.D.2d at 359; Spremo v. Babchik, 155 Misc. 2d 796, Two Surveys, Office of the Deputy Chief Administrative Judge for Judicial 803, 589 N.Y.S.2d 1019 (Sup. Ct., Queens Co. 1992); In re Rappaport, 109 Misc. 2d Initiatives (2005) (providing recommendations to ensure equal access to justice 640. for self-represented litigants) available at
14 | July/August 2007 | NYSBA Journal BURDEN OF PROOF BY DAVID PAUL HOROWITZ
DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.
Is There a Doctor in the House? The Physician-Patient Privilege May Need One! (Part I)
ew York State may justifiably thus waiving, in whole or in part, the nurse that Dr. A will be out for a few be proud to have been the first physician-patient privilege.4 weeks because of surgery to his right Njurisdiction to depart from the A personal injury plaintiff’s waiver arm earlier that day. common law and adopt the physician- of the physician-patient privilege is Months later, the infant is admit- patient privilege, by statute, in 1828.1 limited to those parts of the body and ted for left shoulder surgery by Dr. The Court of Appeals has explained: those conditions claimed to have been D, an orthopedic surgeon, to Hospital In its current form, the privilege exacerbated or activated by the con- E. Dr. D notes in the hospital record prohibits disclosure of any infor- duct of the defendant, and does not that he believes the condition of the mation acquired by a physician “in extend to unrelated injuries, illnesses, infant’s shoulder has been worsened 5 attending a patient in a profession- and treatments. These limitations on by the actions of the mother, whom he al capacity, and which was neces- the waiver apply in medical malprac- believes suffers from Munchausen’s 6 sary to enable him to act in that tice cases. Syndrome by proxy. While in Doctor capacity.” The privilege applies not It is the application and extent of the D’s private office for a follow-up visit only to information communicated waiver in personal injury cases that is following discharge from Hospital E, orally by the patient, but also to the subject of this column. I will also the infant is accidentally stuck with a “information obtained from obser- discuss my perception that there has used hypodermic needle, and is put vation of the patient’s appearance been an expansion of the scope and on a prophylactic course of HIV medi- and symptoms, unless the facts application of the waiver in personal cation. Two weeks later, while in the observed would be obvious to injury cases in recent years. waiting room of Dr. F, the physician laymen.” Moreover, the form in As with many things, the devil is monitoring her HIV status, a wall- which the information is sought in the details, and I offer the following mounted television falls on the child, to be introduced is irrelevant, as hypothetical case as a framework for and re-injures her left shoulder. After the privilege operates whether delving into those details. six months, the infant tests negative for the information is contained in a HIV infection. patient’s medical files or is sought Facts of the Case to be introduced at trial in the form Imagine the following case scenario: The Disclosure Demands of expert testimony.2 An expectant mother has pre-natal care The mother, as mother and natural with Dr. A. She is delivered by Doctor guardian on behalf of the infant and The Physician-Patient Privilege in A, an obstetrician, at Hospital B, and on her own behalf, individually, com- Personal Injury Cases her baby, an infant girl, is born with left mences an action against defendants There are a number of exceptions shoulder dystocia. During the delivery, “A” through “F” for the left shoul- to the application of the physician- the mother sustains ruptures of tissue der injury to the infant. The action patient privilege. Most practitioners that Dr. A repairs in the hospital later against defendants “A” through “E” have encountered the exception for that day. The infant remains an inpa- is for medical malpractice, and the plaintiffs who commence an action tient at Hospital B for two months, on action against defendant “F” is for for personal injuries. This exception Dr. C’s pediatric service, and then is negligence. The plaintiff alleges in is premised on the concept of waiver: released home. When the mother calls her complaint that Dr. A was suffer- by bringing suit, the personal injury Dr. A’s office on the day of her dis- ing from his own arm injury at the plaintiff places his or her medical con- charge to make an appointment for a time of the delivery, and that his arm dition affirmatively “in controversy,”3 follow-up office visit, she is told by a injury was a proximate cause of the
NYSBA Journal | July/August 2007 | 15 infant’s shoulder injury. The plaintiff 5. Authorization for the infant’s issue for my ideas on how the court also alleges that Dr. F knew, or should medical records from Drs. C, D, should rule, wouldn’t it be more fun have known, that the television was in and F; to issue your own “rulings”? So, take danger of falling. 6. Authorization for all records of all a minute, and put a “Y” for yes and The plaintiff claims, in her bill of treating physicians of the infant; an “N” for no, to record your particulars, the following injuries: 7. Independent medical exam (IME) answers.7 Next issue, we will see if 1. Left shoulder dystocia; of the infant by an orthopedist, a we agree. ■ 2. Left brachial plexus injury; psychiatrist, and an HIV special- 3. Surgery to the left shoulder; ist; and 1. Dillenbeck v. Hess, 73 N.Y.2d 278, 539 N.Y.S.2d 707 (1989). 4. Exacerbation of the left shoulder 8. IME of the mother by psychia- 2. Id. at 284 (citations omitted). See CPLR 4504(a). injury; trist. 3. See, e.g., Dillenbeck, 73 N.Y.2d 278. 5. Future surgery to the left shoul- Plaintiff also serves disclosure 4. Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858 der; demands, requesting, among other (1969). For an overview of privilege and waiver, see 6. Pain and suffering; and things: New York Civil Disclosure, ch. 8, et seq. (2007). 7. Mental anguish and loss of enjoy- 1. All medical records of Dr. A relat- 5. Kohn v. Fisch, 262 A.D.2d 535, 692 N.Y.S.2d 429 ment of life. ing to any injury to, or medical (2d Dep’t 1999). After issue is joined, the defendants condition of, his right arm, for the 6. Gill v. Mancino, 8 A.D.3d 340, 777 N.Y.S.2d 712 demand the following: period running from two years (2d Dep’t 2004). 1. Authorization for the mother’s before the delivery through one 7. Of course, being lawyers, or law students, or others involved with the legal profession, you are pre-natal records from Dr. A; week after the date of Dr. A’s competitive, so you will score yourselves, i.e., two 2. Authorization for the mother’s delivery of the infant girl; and out of 10, nine out of 10, etc. Only because you will and infant’s delivery records from 2. The identity of the patients and then need to place your score in context (why else score it?), I offer the following thoughts on what Dr. A and Hospital B; staff present in the HIV clinic your score (for correct answers) suggests: 0–4, you 3. Authorization for the mother’s when the television fell. are qualified to be a law school professor; 4–8, you post-delivery records from Dr. A are qualified to be a judge or lawyer; and 9–10, you are wasting your time in the legal profession and and Hospital B; Questions Presented should consider getting a real job. 4. Authorization for the infant’s How should the court rule with regard hospital records from Hospitals B to these disclosure demands? While and E; you are welcome to wait for the next From the NYSBA Bookstore Estate Planning and Will Drafting in New York Estate Planning and Will Drafting in New York Book Prices provides an overview of the complex rules and 2006 • 822 pp., loose-leaf considerations involved in the various aspects of PN: 4095 (includes 2006 update) estate planning in New York State. Each chapter NYSBA Members $125 / Non-Members $160 has been brought completely up to date for the 2006 Update Editor-in-Chief: 2006 revision. Several chapters – including (available to past purchasers only) Michael E. O’Connor, Esq. “New York Estate and Gift Taxes” and “Marital PN: 50953 DeLaney & O’Connor, LLP Deduction” – have been totally revised for this NYSBA Members $75 / Non-Members $95 Syracuse, NY update. Book and CD Prices Written by practitioners who specialize in the 2006 • PN: 4095C field, Estate Planning is a comprehensive text NYSBA Members $175 / Non-Members $210 Forms available on CD that will benefit those who are just entering this growing area. Experienced practitioners will also CD Prices benefit from the practical guidance offered by PN: 60955 Free shipping and handling within the continental U.S. their colleagues, and use this book as a text of NYSBA Members $95 / Non-Members $115 The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include first reference for areas with which they may not applicable sales tax. be as familiar. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0092
16 | July/August 2007 | NYSBA Journal MARIANN SULLIVAN (marisul@ earthlink.net) is the Deputy Chief Court Attorney at the New York State Supreme Court, Appellate Division, First Department and is a graduate of Fordham Law School. The opinions expressed are solely her own.
The Animal Welfare Act – What’s That? By Mariann Sullivan
ith increasing attention being paid to the for research are excluded.3 And, even though the defini- treatment of animals and the role of the law tion already set forth could not conceivably be interpreted Win regulating their care, many lawyers are to include them, the Act goes on to specifically exclude surprised to discover that a federal law governing ani- farm animals. mal welfare is already on the books. While the Animal Thus, the Act, in spite of its expansive title, does not Welfare Act1 (AWA or the “Act”) is often criticized for cover the vast majority of animals held by humans in the its purported failings, such as limitations on the animals United States. Clearly, farm animals, nine to 10 billion of who are covered, inadequate standards of care, and poor whom are killed every year, are the largest omission. The enforcement, it is important to appreciate that it repre- Act (with a few additions) covers only some animals, and sents a fundamental federal policy that animals should only those used in three areas: be treated “humane[ly]” and that, without it, the lives • in research (including product testing); of millions of animals would be very much worse than • on exhibition (including in zoos and circuses); and they are. • as pets. Moreover, within each of these categories, the Act further What Animals Are Covered? limits coverage by applying only to certain actors and The Act is something of a hodgepodge of provisions that activities. have been added over the years and, somewhat confus- ingly, it uses a variety of ways to set forth the limitations Which People Are Covered? on which animals are covered. First, a covered “animal” Dealers and Carriers is defined both by its species and by the use to which the First, the Act covers all “dealers” of animals in any of animal is put. Thus, the Act defines an “animal” as any these areas. A dealer is, in essence, someone who deals “warm-blooded animal, as the Secretary [of Agriculture] commercially in “animal[s]” for use in research, teaching, may determine is being used, or is intended for use, for exhibition, or as a pet, or any dog for hunting, security, research, testing, experimentation, or exhibition pur- or breeding purposes. Retail pet stores selling pets only poses, or as a pet.”2 All other dogs are included as well, to the public, as well as certain dealers whose business such as those used for “hunting, security, or breeding is de minimis, are specifically excluded. The Act also purposes.” However, some animals are then excluded covers “carriers,” in other words, those who transport from this general definition. First, a provision enacted in “animal[s]” for hire, though, of course, the definition of 2003 provides that birds, rats, and mice are excluded, but “animal” limits the carriers who are covered. Thus, for only if they were bred for research, effectively excluding example, those who transport farm animals to slaughter the vast majority of research animals. All horses not used are not covered by the Act.
NYSBA Journal | July/August 2007 | 17 Exhibitors minimum requirements for handling, housing, feed- The Act covers “exhibitor[s],” those who exhibit ing, watering, sanitation, ventilation, shelter from “animal[s]” to the public for compensation, and includes extremes of weather and temperatures, adequate vet- 7 carnivals, circuses, and zoos. However, state and county erinary care, and separation by species. fairs, livestock shows, rodeos, purebred dog and cat Thus, the Act does not, itself, set forth any standards shows, and “fairs or exhibitions intended to advance by which animals are to be kept, but leaves that to the agricultural arts and sciences” are specifically excluded.4 agency, with the crucial requirement that those standards be “humane.” The statute also has two species-specific mandates, i.e., the creation of standards for the exercise It is no simple inquiry to ask of dogs and for a “physical environment adequate to pro- mote the psychological well-being of primates.”8 Finally, whether a particular animal is separate standards are to be promulgated for carriers. covered by the Act. Essentially, the standards set forth by the USDA,9 which are quite detailed, require little more than that animals be fed, watered, vetted, and kept in reasonably Researchers clean and safe enclosures that allow them to make spe- Research facilities are relatively broadly defined as insti- cies-appropriate postural adjustments. Indeed, even the tutions and individuals who use or intend to use live “exercise” standards for dogs merely require that they “animal[s]” in “research, tests or experiments” and either be housed in groups or that their cages be a bit larger.10 act in commerce or receive federal funding.5 The primary While this may not seem sufficient to some, even the most exclusion is for elementary and secondary schools. avid animal advocate would admit that the standards, when enforced, are a vast improvement over much of Pet Wholesalers the behavior in these industries before the Act, and over Those in possession of “animal[s]” used as pets are gov- current behavior in industries not covered by the Act, erned by the Act if they fit the definition of a “dealer” including agribusiness. which, as noted, does not include retail pet stores or In addition to these general animal care standards, the commercial carriers. Perhaps most notably, wholesale USDA is tasked with promulgating regulations apply- puppy breeders, often called “puppy mills,” and the ing additional requirements to research facilities. These subject of much criticism, come within the definition requirements include the minimization of pain and dis- of “dealer” and are thus covered by the Act. However, tress during experimental procedures, the consideration the expansive regulatory definition of “retail pet store” of alternatives to painful or distressing procedures, and excludes from the Act’s coverage those breeders who that, subject to certain exceptions, no animal be subjected sell their animals directly to the public.6 Hobby breed- to more than one major operative experiment from which ers, commercial “backyard breeders” and puppy mills the animal is allowed to recover.11 While these provisions that sell directly to the public are excluded, as well as obviously have some relevance to the actual experimen- facilities, no matter how large, that sell animals to the tation, the USDA is, at the same time, prohibited from public via the Internet. The definition of “dealer” also regulating on animal welfare grounds the design, out- does not include animal shelters or individuals who lines, or guidelines of research or experimentation. The have pets and they are therefore not covered by the Act. implementation of these statutory requirements is to be However, since “carriers” of all covered animals are accomplished by the establishment, in each facility, of an regulated by the Act, it governs all carriers of animals Institutional Animal Care and Use Committee (IACUC), used as pets, including animals shipped by dealers, and with agency oversight. The IACUC also oversees compli- dogs and other pets who accompany their families on ance with the general animal care standards. airplanes and other carriers. Along with the regulation of exhibition, research, and pet dealers, the Act deals with certain specific uses of ani- Statutory and Regulatory Requirements mals. Section 2156 prohibits the knowing sponsorship or It is no simple inquiry to ask whether a particular animal exhibition of an animal in an “animal fighting venture” if is covered by the Act. But, once it is figured out, a ques- the animal has been moved in commerce (with a limited tion remains about what such coverage entails. While the exception for any state in which cockfighting is legal, cur- Act imposes licensing and record-keeping requirements, rently Louisiana), as well as the sale, purchase, transport, the most significant provision – from the point of view of delivery or receipt of animals for such purpose. “Animal” the animals – requires the United States Department of is defined differently for this section as “any live bird, or Agriculture (USDA) to promulgate standards to govern any live dog or other mammal, except man.”12 the “humane” care, treatment, and transportation of ani- Another special section of the Act relates to limitations mals including on the procurement of pets, or former pets, for research.
18 | July/August 2007 | NYSBA Journal It requires various entities, such as animal shelters, to settlements state that the facility neither admits nor denies hold the animals for five days before a sale to a “dealer,” violating the Act20 and thus permits it to inform the public to allow people whose pets have been lost to find them that it has not been found in violation.21 before they are sold for use in research. Notably, 14 In recent years, efforts have been made by animal states,13 New York14 included, have prohibited the sale of protection advocates to encourage Congress to increase shelter animals for research, thus rendering this provision funding for enforcement. Notably, the agency has often unnecessary in those states. requested less money for enforcement than Congress has appropriated,22 demonstrating what many contend is a Enforcement fundamental disinterest in the task. Regardless of the rea- The subdivision of the USDA in charge of enforcing the sons, the amount appropriated for the current fiscal year, Act is known as Animal Care (AC), which is under the i.e., $20 million, is certainly a minuscule percentage of the aegis of the Animal and Plant Health Inspection Service USDA’s budget, which totals $92.8 billion.23 (APHIS). According to the USDA’s own Office of the Inspector Inspections are required of research facilities once a General (OIG), enforcement of the Act has been prob- year but other facilities are inspected only as the agency lematic, and, in fact, OIG’s occasional audits of AC have deems necessary. In 1998, AC implemented a “risk- been vehemently critical. The most recent of these audits based” inspection system, which uses several criteria, (“Audit”)24 reviewed the 2003 and 2004 fiscal years and including compliance history, to determine the appropri- was released in September 2005. It set forth significant ate inspection frequency for each facility, ranging from problems regarding the initiation of enforcement actions, every six months to every three years.15 According to AC, particularly at the management level in the Eastern Region all complaints from the public are reviewed, but do not (the country is divided into two regions for management necessarily result in an inspection. purposes). Even where inspectors have uncovered serious Adequate inspection of the over 10,000 licensed wrongdoing, and requested that the matter be referred to facilities, many of which are quite large and in posses- IES, management has failed to carry through. sion of many animals of varied species, each with vastly We found cases where the Eastern Region declined to different needs, is unquestionably an enormous job. AC take enforcement action against violators who compro- currently has approximately 110 inspectors to perform mised public safety or animal health. For example, one 16 this task. AC inspector requested an investigation of a licensee Although the Act authorizes both criminal and civil whose primate had severely bitten a 4-year-old boy penalties, generally the agency pursues civil penalties, on the head and face. The wounds required over 100 which can include fines of up to $2,500 per violation per stitches. Although this licensee had a history of past 17 day and/or license suspensions and revocations. In violations, IES has no record of a referral from AC. In determining the penalty, the agency must consider “the another case, the Eastern Region did not take enforce- size of the business of the person involved, the gravity ment action when an unlicensed exhibitor’s monkey of the violation, the person’s good faith, and the history bit two pre-school children on separate occasions. of previous violations.”18 Minor violations are frequently dealt with by a warning notice. Where serious violations This lack of action is not isolated to a few incidents. are found, AC coordinates with the USDA’s Investigative During FY 2004, Eastern Region referrals to IES were and Enforcement Services (IES) staff, which conducts down to 82 from an average of 209 in the prior two years. further investigation and then returns the matter to AC Moreover, of the 475 serious violations that were referred for enforcement. to IES from 2002 to 2004, management failed to take action According to AC, it varies enforcement strategy depend- against 126, and when action was taken penalties were ing on whether the facility actually wants to take better often minimal. These problems were systemic and origi- care of its animals. Thus, “for licensees and registrants nated at a high management level. Thus, while the Audit who show an interest in improving conditions for their opined that “most AC employees are highly committed animals, AC actively pursues innovative penalties that to enforcing the AWA,” it nevertheless reported that a allow the individuals to invest part or all of their monetary majority of the Eastern Region veterinarians employed sanctions in facility improvements.”19 While the agency as AC inspectors who were interviewed “believe that the defends this practice as benefiting not only the facility, region does not support their work or does not enforce but the animals in its care, the practice has led to criticism the AWA as aggressively as it should.” that the agency is undermining the incentive to comply In addition to problems relating to the initiation of by requiring wrongdoers to do nothing more than simply enforcement, the Audit was extremely critical of AC’s come into compliance. The agency also commonly avoids practice of negotiating penalties. For example, as stan- the expense of prosecution by offering facilities the option dard policy, AC offered a 75% discount on stipulated of settling instead of being officially charged. Many such fines and other concessions as an incentive for violators,
NYSBA Journal | July/August 2007 | 19 including repeat violators, to settle. According to the penalties were assessed, “IES did not comply with APHIS’ Audit, this practice internal cash controls to secure the collection of fines.” One example involved a zoo in Texas that was offered lower[s] the actual amount paid to a fraction of the a stipulation discounting a $22,500 fine to $5,600 for vio- original assessment. An IES official told us that as a lations that led to the death of a rhinoceros as well as the result, violators consider the monetary stipulation as death, in a separate incident, of five gorillas from chlorine a normal cost of conducting business rather than a gas. Aside from the 75% reduction, in other cases addi- deterrent for violating the law. tional concessions were made. For example, one exhibi- Notably, this same criticism was leveled against the agency tor who failed to construct an adequate bear pen, which in an audit performed in 1995. Moreover, even where resulted in a bear biting a volunteer, and who also was
Improve Administration of the Animal Welfare Act By James F. Gesualdi
Congress recognized the importance of animal welfare, that is, the Services (IES)] for formal investigation, and to pursue stipulated “humane care and treatment” of animals, in the landmark Animal fines.”11 As the AC Western Regional Director stated, “AC’s mis- 1 Welfare Act (AWA). Improved administration of the AWA holds sion is to achieve compliance through inspection and education. great potential for fostering further advances in animal welfare. However, if education does not have the desired impact on the The Importance of Training Under the AWA violators’ activities, then enforcement is the best way to achieve The AWA mandates training of research facility staff;2 compliance. It punishes the violator and is a deterrent to others. the regulations cover training3 of animals, animal husbandry and In the Western Region, we do not decline any cases if there is evi- training of veterinary staff to promote animal welfare.4 dence of violations in the investigation report. At a minimum, we would issue a formal warning.”12 Within Animal Care (AC), the agency responsible for AWA enforcement, training field inspectors is essential to fostering OIG concluded that clearer policy guidance would foster greater 13 consistent quality inspections. Training covers regulations, inspec- parity in regional enforcement activities and effectiveness. tions and animal-specific biology and husbandry. Staff expertise Consequently, AC operating documents, like the comprehensive is developed through preceptorships. AC also trains and educates detailed Inspection Guides used by inspectors, were modified regulated entities to promote animal welfare and foster AWA to provide uniform national standards and a clearly delineated compliance. enforcement pathway.14 AC now requires documentation justifying decisions on whether to prosecute alleged violations.15 The Importance of Office of Inspector General Audits in Recommending Corrective Action OIG favors AC’s revised penalty assessment schedule that elimi- The U.S. Department of Agriculture Office of Inspector General (OIG) nates reductions for repeat or direct violators, and incorporates conducts independent audits of departmental agencies to promote the compliance history, number of animals affected, severity of the programmatic effectiveness5 through specific recommendations that alleged violations, and “willingness to work towards compliance” address and resolve any findings. These audits contain valuable les- into the calculation of a given fine.16 OIG agreed that congressional sons for the constructive advancement of animal welfare. authority is needed for higher potential fines for research facilities Brief Historical Note on Past AWA Audits (because they are not subject to license suspension or revocation like other types of facilities).17 A review of past OIG audits shows repeat concerns and demon- strates the successful resolution of some important issues. For Also, OIG found that AC and research facility Institutional Animal example, a 1995 audit found AC had inadequate authority to deny Care and Use Committees (IACUCs) need to improve monitoring license applications or renewals.6 Subsequently, AC’s discretion to of research activities through increased inspection of IACUCs with deny such applications and renewals was significantly expand- repeat violations, and that IACUCs and their members be fully ed.7 The 1995 audit also recommended the current Risk Based trained “on protocol review, facility inspections and the AWA.”18 Inspection System (RBIS)8 that targets problematic facilities for AC’s Research Facility Inspection Guide was revised to explicitly 9 additional and more frequent inspections, thus better allocating require inspector verification of animal inventories and review of agency resources towards promoting animal welfare. research protocols.19 Review of the Most Recent AWA Audit The continuing shortcomings in the agency’s database are a criti- An important but understated finding in the 2005 audit is that cal challenge. This database tracks inspections, as well as corrective there is evidence of effective AWA enforcement. For example, the actions requiring follow-up re-inspections to assure compliance. audit shows that the AC’s Western Region had lower numbers Developing a more reliable database is a work in progress, subject 10 of alleged “violators” and repeat “violators,” and “greater to availability of funding.20 likelihood to refer alleged violators to [Investigative Enforcement
20 | July/August 2007 | NYSBA Journal cited for two other serious violations, 13 moderate viola- violators who agreed to a stipulated fine continued to tions, and one minor violation, agreed to pay a fine of commit violations, while 62% committed similar or the $3,300, after the discount, and was then allowed to spend same violations. $1,650 of that to repair the facility. Another exhibitor who Additional criticisms included that AC was so poor at was cited for five serious violations involving failure to monitoring the number of animals used in research that provide veterinary care, along with 15 moderate viola- 13 of the 16 facilities audited were found to have mis- tions and three minor violations, agreed to pay $4,300 reported their numbers – without having been caught. (after the discount) of which $3,300 was suspended, Inspectors assigned to research facilities did not verify provided that the exhibitor remain in compliance for two that they were being provided with a complete set of years. Furthermore, for FYs 2002–2004, 76% of audited research protocols; they simply relied on the facilities’
Enhancing Administration and Enforcement of the AWA to allow successes to be documented and shortcomings to be The most immediate and effective way to enhance AC’s adminis- remedied. tration of the AWA involves building consensus to promote animal Conclusion welfare, and specific measures to achieve that end. Building consensus and working cooperatively to enhance AC’s resources and capabilities is the best means for promoting animal Build Consensus. welfare through the AWA. ■ Great progress has been made in the name of animal welfare when different groups have worked together. In one instance, 1. 7 U.S.C. §§ 2131–2159. a broad coalition of groups with divergent views on the AWA 2. 7 U.S.C. § 2143(5)(d). worked cooperatively to get Congress to substantially increase 3. See, e.g., 9 C.F.R. §§ 2.131(b)(2)(i), (ii), 3.77, 3.108, 3.109. AC’s funding. The Marine Mammal Negotiated Rulemaking pro- 4. See, e.g., 9 C.F.R. §§ 1.1, 2.33, 2.40, 2.131, 3.108. duced a comprehensive revision of the marine mammal regula- 5. “About OIG” at
NYSBA Journal | July/August 2007 | 21 good faith in providing them with accurate records. viduals have no cause of action against someone who is Criticisms were also leveled against the IACUCs at violating the Act. the audited research facilities, for failure to effectively Moreover, even where a statutory cause of action exists, monitor both animal care and research protocols. As a prospective AWA plaintiffs have failed to get into court. result, most of the inspectors assigned to research facili- For example, the Administrative Procedure Act (APA) ties “believe there are still problems with the search for provides a right to bring suit against a government agency alternative research, veterinary care, review of painful to any person “suffering legal wrong because of agency procedures, and the researchers’ use of animals.” action, or adversely affected or aggrieved by agency action Another area of performance found lacking involved within the meaning of a relevant statute,”30 and permits a AC’s Licensing and Registration Information System reviewing court to, inter alia, “compel agency action unlaw- (LARIS), which, the Audit said, “does not effectively fully withheld or unreasonably delayed.”31 However, ani- track violations and prioritize inspection activities.” mal welfare organizations attempting to sue the USDA LARIS, which is crucial to enforcement in that it not only for wrongful agency action under the APA have gener- records AC inspections, but archives violation histories, ally been found to lack standing32 because, inter alia, they “generates unreliable and inaccurate information, limit- cannot satisfy the requirement that they, rather than the ing its usefulness to AC inspectors and supervisors.” animals, have suffered an injury in fact. The one, limited, Previous OIG audits have been similarly unfavorable. exception has been where an individual human was able For example, a January 1995 audit report about research to demonstrate aesthetic injury by having been personally facilities and licensed dealers found that APHIS did exposed to animals living under inhumane conditions.33 not effectively use its enforcement authority, that refus- Obviously such plaintiffs are relatively rare, as many of the als to admit inspectors were accommodated and that covered animals are not exposed to the public eye. penalties were too low and too poorly collected to be a disincentive to violating the Act.25 According to a 1996 Proposals for Change audit, unqualified individuals were able to keep wild or Among the recent successful efforts mounted by animal exotic animals, including bears and tigers, as pets in cir- advocacy organizations to modify the Act were 2002 and cumvention of state law by obtaining AWA exhibitor’s 2007 amendments strengthening the penalties for the ani- licenses.26 A 1998 OIG audit that focused on airlines mal fighting provisions. On industry’s side, the most recent found that, for the more than two-year period of review, successful effort was the 2003 removal of rats, mice and only 32% of 221 sample sites had been inspected and birds bred for research from the definition of “animal.” inspections were unsuccessful because inspectors could Currently pending in Congress is the Pet Safety and not predetermine when a registered carrier was actually Protection Act (S. 714/H.R. 1280), which would prohibit transporting animals.27 Class B dealers from selling “random source” animals Complaints about enforcement do not come only to research facilities. The Pet Animal Welfare Statute of from within the agency. One example, as reported in the 2005, known as PAWS, which was introduced in the 109th February 21, 2006 New York Times, involved a documenta- Congress but has not, as yet, been introduced in the 110th, ry regarding “Class B dealers” in “random-source” dogs, would focus on regulating retail commercial breeders i.e., dogs not specifically bred for research, showing: and Internet sellers. a kaleidoscope of horrors: dogs covered with wounds Another, and somewhat broader, proposal is for the from fighting with other dogs over food; workers creation of a citizen’s suit provision similar to that striking dogs. . . . At one point, he leads the investiga- found in other federal statutes, including the Endangered tors working with him to a table soaked in blood and Species Act and the Clean Air Act.34 a grassy field scattered with dog parts and rotting Several years ago, the New York City Bar Association corpses. . . . He shows how dogs spend hours in the released a report35 taking the position that a citizen’s suit wet concrete kennels, without proper medical care. He provision is not only as necessary for effective enforce- estimates that five to eight dogs die each week, with ment of the AWA as it is for such environmental statutes, the dead dogs sometimes lying undiscovered for long but arguably even more so because of the minimal fund- periods.28 ing available to the enforcement agency. In response to such enforcement failures, animal The report suggests that a provision creating a cause of advocacy organizations have made numerous attempts action enabling a private citizen to bring an action could to bring complaints about violations, or about the USDA’s be modeled directly on those in environmental statutes.36 handling of its regulatory role, before the courts. However, However, as the report acknowledges, the creation of a these attempts have been largely unsuccessful. citizen’s suit provision in the AWA presents particular The first roadblock is that the Act does not contain an constitutional challenges. Any citizen who brought suit express provision creating a private right of action, and pursuant to such a provision in federal court would have the courts have held that none is implied.29 Private indi- to meet the constitutional requirements for standing,
22 | July/August 2007 | NYSBA Journal including injury in fact, a very tough standard to meet 7. 7 U.S.C. § 2143. when it is the animals that have been harmed, not the 8. 7 U.S.C. § 2143(a)(2)(B). person bringing the suit. Thus, the second, and far more 9. 9 C.F.R. §§ 3.1 et seq. difficult, legal challenge in creating citizen’s enforcement 10. 9 C.F.R. § 3.8. is to craft it in such a way that it will not run afoul of 11. 7 U.S.C. § 2143(a)(3). Article III of the Constitution but, at the same time, will 12. 7 U.S.C. § 2156(g)(5). not limit its prospective plaintiffs to the rare humans who 13. Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Maine, New have suffered aesthetic injury by witnessing a violation Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, South Carolina, Vermont, and West Virginia. of the Act. The proposal suggests two ways to meet this 14. N.Y. Agric. & Mkts. Law § 374(2)(e). challenge. First, Congress could create a qui tam action, 15. See
NYSBA Journal | July/August 2007 | 23 FRANCIS KELLY (francis.kelly@ us.army.mil) is a Major in the U.S. Army, currently serving as a Staff Judge Advocate in Iraq. He received his undergraduate and law degrees from St. John’s University. He is also a graduate of the U.S. Army Command and General Staff College, and received post-graduate training at the Judge Advocate General’s School at the University of Virginia. In civilian life, Major Kelly is a trial lawyer in New York City.
The author (center) with Brigadier General Silva with a local sheik, business leaders, and an Iraqi Army officer. The photograph was taken between Balad and Baquba. Two of the Iraqis shown were later killed by assassination near that location. Religious Motif in Law and Nation Building An American Federalist Perspective
By Frank V. Kelly
he role of the theologian and the lawyer are popu- The presence of religion in law and society has been larly considered to be mutually exclusive and explored by such thinkers as Professor Joseph Vining in Tare walled off in modern America. This conceit “Recognition: The Neglected Metaphor.”1 Vining com- is of very recent vintage and quite parochial. Much of pares the role of lawyer and theologian in contemporary the world in which the United States is now earnestly culture. But how does the analogy play out in American engaged does not see much separation in these endeav- historical perspective? Interestingly, our founding fathers ors at all. The prevalence and power of imams, mullahs, would have thought it odd that the relationship required and ayatollahs in nascent nations warrant a comparison expression or explanation. Alexander Hamilton and James with historical antecedents – including our own founding Madison (and John Jay, not discussed in this article), in fathers. the person of Publius, author of the Federalist Papers, may The areas in which the United States has commit- be said to have exposited the roles of lawyer and theo- ted itself have a pervading sense of religion that is dif- logian in public life. It is interesting to see the evolution ficult for a contemporary American to fully appreciate. of today’s ethos from that genesis. The Federalist Papers is However, it was not too long in the past when America commonly held, among political scientists, to be one of acknowledged a more public affirmation of religiosity. the great works of the philosophy of government. The rule of law can be considered a cornerstone of a The Federalist began to appear in New York newspa- nation. It is said of our own country that we are a nation pers in the fall of 1787; the last number was published in of laws, not men. When the law is subject to dictate by those papers in the spring of 1788, and during that year religious figures, the warp and woof of what each nation the first edition of The Federalist as a bound book was also believes is right is tightly bound indeed. published. The first volume, containing numbers 1–36,
24 | July/August 2007 | NYSBA Journal was published on March 22, 1788. The second volume, left to their personal interpretation of the pervading theo- containing the balance, appeared on May 28, 1788. rem. There is an assumption within the Federalist Papers Federalist Paper No. 1 was a call to the faithful, a generally, that the good of one is toward the good of all. pastoral message to believers that girded them and, it Even further, it seems that if Hamilton does not find a was hoped, strengthened their resolve. We may draw national spirit (which he assumes) he will implant one. analogies to Paul’s letters of the New Testament. Paul The instrumentality toward our growth under the spirit acknowledges the weakness of the human spirit. He says of Liberty will be the Constitution. The Constitution, as the body without the influence of the head is muddled the manifest will of the people, is to be superior to mere in its direction. Hamilton instructs his readers in their political expedient. It is meant to be the American Torah. course of dealing within the community and asks that In times of political turmoil, the Constitution’s strength they be on their guard against heretics and misguided and stability will keep the faithful away from that which prophets. Yet, in the interest of plural government, this is unclean. newly revealed society of commonly interested citizens From a mechanistic (more temporal) standpoint, the should be accommodating as an open community. superiority of the Constitution, as the will of the people, It is self-defeating, and here Hamilton speaks as a over subsequently enacted republican statutes, seems theologian and a savvy political lawyer, to tyrannically contrived as a brake on the passions of the moment, creat- impose one’s will upon another. “For in politics, as in ing a thoughtful integration of exigency and ideology. religion, it is equally absurd to aim at making proselytes The shamans of the judiciary are empowered to medi- by fire and sword. Heresies in either can rarely be cured ate conflict between exigency and ideology with a distinct by persecution.” The foregoing is a natural corollary in a prejudice towards the preservation of the Constitution. It society where Liberty and Plural Republican government is certainly debatable whether or not the judiciary, arbi- are the communal articles of faith. ters of rationality and intergenerational expositors, are Hamilton makes his position, with regard to the pro- the least dangerous branch. Given the power of reason, posed Constitution, well known: “You will, no doubt . . . natural law, ideology and social psychology, one wonders have collected from the general scope of the [evidences of whether the sword and purse are effective counter-dialec- truth] that they proceed from a source not unfriendly to tical intervenors. the new constitution.” Upon taking this position, he Federalist Paper No. 79 is a plea for stability with clothes himself in the guise of a legal censor examining a goal of permanence. It is interesting that Hamilton’s the ambient political condition. However, Hamilton’s evaluation of factors contributing to the sovereignty of tone is that of expositor revealing the natural law mani- the judiciary are also those of contemplative significance. fest in America. Hamilton argues for a Platonic model where all of the It is more difficult to read Federalist Paper No. 1 as a mundane basic human necessities are not a cause for legal brief than to see it as a pastoral letter, directing and worry. Thus, the federal government provides a monastic strengthening the adherents, and cajoling the opponents. society dedicated to logic and metalegal thinking. In all However, as an advocate in the legal-political realm, fairness, this may be a gross overstatement of intent. It Hamilton downplays the differences and stresses the uni- may just be that Hamilton wishes to take the judiciary versality of some concepts to bolster his case. He delin- eates a motif for the rest of the argument and ordinates the parameters of the conflict. In Federalist Paper No. 78, Hamilton examines the role of the judiciary as a functioning arm of government. Specifically, a well-thought-out form appears – mode of appointment, tenure, and dynamic interaction between courts. Hamilton’s work is sensible legal counsel. It is almost as if a modern lawyer were giving practical guid- ance to a corporate client wishing to grow and protect himself from liability at the same time. It cannot be forgotten, for all its patent empiricism, that Hamilton is using his utmost reasoning power to encapsulate the prevalent theories on the primacy of the natural law in a form of government dedicated to the preservation and growth of this tenet. Publius, in this tenor, espouses reason and good behavior as touchstones for evaluation, without once alluding to particular nor- mative values. Readers (read jurors or communicants) are
NYSBA Journal | July/August 2007 | 25 The author in a meeting with the local governing council.
attainment in the realm of competing interests and sub- jective interpretivism. The mean for both Hamilton and Madison is a com- monality of spirit with their readers in the temporal and spiritual ethos. The ideology strikes the reader on many levels, as good government supports its constituency on many levels. One can go so far as to say, that the support exists on subconscious or only semiconscious planes. As lawyers and prophets, Hamilton and Madison are within their rightful bailiwick in the Federalist exegesis. Professor Vining’s “Recognition: The Neglected out of the hands of grubby factionalism. One wonders Metaphor” describes in the contemporary West what has what Hamilton, a man of the public realm, would never been neglected in the Middle East. Can modalities think of depriving the judiciary of popular dynamism. in concert exist between theologians and the ideological Nonetheless, the paradigm remains, as there is historical orientation of the Federalist Papers? precedent for removing the holy or the wise from pedes- The most striking coordination of theology and law, trian affairs. and most apparent, is the appeal to authority. The author- Secondarily, in Federalist Paper No. 79, Hamilton asks ity which is prayed to, is implied to contain the absolute that we allow judges to remain in active service to the ideal or the abstract good. Union until they wish to retire or have to be removed for Our job then, as lawyers, is to codify and ordinate, so cause. This recommendation has much currency as we that the absolute ideal or the abstract good can be mani- are now making great strides in longevity, such that 60 is fest in the case in controversy. Whether the ideal be justice the new 40, and productive work life is greatly expanded. or god, we strive within our spheres to attain it. Lawyers, (This is countered on the other side by the argument as architects of society, are at liberty to create the covenant against the intellectual decrepitude occasionally seen and the ark – our social contract, the Constitution, is an among the very senior on the bench. It is not unknown icon to the natural law deity and the institution of gov- to many societies that the elders are the possessors of ernment is the worshipful church carrying the contract wisdom and attributes spiritual.) One can see the efficacy through time. of reference to great age by looking at the Old Testament, It is obvious, but worth stating, that the institutions where great age is imbued time and again to the great, of religion, as well as government, are run by people. wise and holy. Therefore, they are subject to the sociological context of In Federalist Paper No. 80, Hamilton traces the outline their era in history. As such, it is difficult to objectively of judicial power. A rational and persuasive case is made analyze the operation of the institution without being for the installation of the judicial branch into the symbi- prejudiced by the ramifications or result of the actions of otic triune of federal government. Once prior Federalist people who have gone before. Reconciling theology and Papers have been accepted, it is only natural that the politics is not easy. To some, it is not to be considered. But proclamation of enactment should follow, ergo No. 80. ignoring it or re-visioning it does not make the effect of Hamilton asks that we allow the head to lead the body religion on law and society go away. in a leap of faith, that is, to believe that if we give to the federal judiciary some of the individual power, the sum will be greater than the whole. The most striking Hamilton compares our new polity with that of other societies – most notably, the Italian and German states coordination of theology whose internecine difficulties accrue to no one’s benefit. and law, and most Hamilton then says jurisdiction empowered on paper must be authorized in spirit. Thus, the social contract, apparent, is the appeal once negotiated and drawn, must now be signed. Or, in a Catholic analogy, having been baptized into the faith, to authority. one must receive the sacrament of confirmation to be an active communicant member and supporter of the belief Perhaps the most pervading use of law and theology, system. as almost all other inquiring disciplines, is in the quest The subsequent works by Hamilton, and those by for meaning. The rationalization of reality and the human Madison, bespeak a canonical dogmatism of practical condition, in particular and generally, seems endemic to utopians; that is, men of vision setting the rules for goal humanity. Various support systems make us comfortable traveling throughout our lives. When a support system
26 | July/August 2007 | NYSBA Journal is outmoded, great passions are inflamed because of the deprived of the opportunities of that life and feels spiritu- basic insecurity engendered among the system’s former ally bankrupt. adherents by the absence of its comforts. A renunciation The concepts of natural law, justice and other sub- of the goal along with the process is common when great jective constructs remain firmly entrenched in modern institutions fail. Vining suggests that we should not have people. Our perpetual desire to understand and be to go back to ground level to reconstruct our theory of the comfortable with the world around us causes us to re- world. It would be wise to leave some strong walls stand- evaluate our goals and the modes of investigation of our ing in order to build a bigger and better house next time. universe. Our current focus on a part of the world imbued with Does one require the principles of order within the omni-present religion, and a popular resurgence of reli- context of freedom to live a valid life? Are the principles gious strength in the United States, warrants a re-exami- of religious order antithetical to the concept of freedom? nation of where we wish the theory of god to take us in The process of applying theological principles to the our temporal quest, or whether the theory of god should political realm is one that has been with us throughout be better encapsulated and quarantined against incur- history and is likely to continue. Alexander the Great was sion into public life. Yet, as the foregoing has argued, it chief priest in addition to leader and general. The kings of is unlikely that religious predilection can be objectively the medieval period commanded as a divine right. Often delineated sufficient to disable all influence. in history leadership had a spiritual component – or at In a country of such strong though divergent religious least leaders gave the appearance of spirituality. confraternities, it may be argued that the institutions of Human beings interpret the absolutes of the natural the theory of god have never been on the wane. If noth- law in a way that facilitates actualization of individual ing else, we can certainly say that metaphysics is in the potential. Emanations of the subjective interpretations media. Popular interest in metaphysical notions, to the are established as rational ordinations inuring to the com- extent they supervene nationality and cultural identity, is mon good, the common good being only the individual likely a reaction to existential malaise. People are distrust- good in aggregate. ■ ful of ubiquitous technological empiricism and want to have or ascribe meaning. 1. See Joseph Vining, The Authoritative and the Authoritarian (U. Chi. Press 1986). What is becoming increasingly important is the inter- twining of religion and politics on a global scale. In the United States, patent establishment of interdiscipline between religion and politics is expressly proscribed. However, because many of the tenets of religion are deeply interwoven with the warp of everyday life, much is integrated unquestioningly. As we practice the pro- scription in the United States, the bright line emerges when we have antagonist institutions contending for establishment. Transmigration between religious values and public social values or constitutional values is not disallowed and may not even be disavowed. A society does not spring full grown from nothing in a spontaneous generation of abstract thought. A society carries with it attributes of what was, stressing variously thesis, antithesis and syn- thesis. Regardless of in which direction the pendulum of current emphasis swings, the potentiality of harmonic oscillation always exists. The framers of the Federalist Papers assert it is the peo- ple who embark on the social experiment of government, and the religious institutions that preceded the advent of the Union have served as model or contributor in some fashion or another. People seek to have confidence and belief in their institutions, temporal or spiritual. Institutions exist by convention as abstract constructs of the social human psyche. When institutions become staid and unresponsive, the constituency that gives it life feels
NYSBA Journal | July/August 2007 | 27 LAW PRACTICE MANAGEMENT BY MARIAN C. RICE
MARIAN C. RICE ([email protected]) is a partner in the firm of L’Abbate, Balkan, Colavita & Contini, LLP, whose practice concentrates on the representation of attorneys and risk management for lawyers. She is a member of the Law Practice Management Committee of the New York State Bar Association.
Maintenance of Conflict Procedures
t doesn’t matter how long you a conflict exists is from the point of the commitment to compliance with have been practicing – whenever a view of the client or potential client, the Rule. In 2003, the New York City Inew client or a new matter comes and it is often made from the vantage Bar released a comprehensive ethics into the office – you feel that sense of point of hindsight after something has opinion addressing the issue of what satisfaction. Having to then reject that gone wrong. As a result, the process of constitutes an effective procedure for representation because of the existence conflicts identification and resolution identifying conflicts of interest.5 It is of a non-waivable conflict is one of the should always err on the side of cau- strongly recommended that the opin- most frustrating experiences an attor- tion. The consequences of failing to do ion be read by every practicing attor- ney faces. A far more frustrating expe- so can be embarrassing, expensive and ney with a critical eye to see how the rience, however, is to be the subject of time-consuming. If the conflict is suf- attorney’s current procedures compare a civil claim or grievance as a result of ficiently egregious, it can even threaten to those found “effective.” the existence of a conflict of interest your ability to practice law.2 that was missed or ignored. According Identifying and resolving identified System Basics to statistics compiled nationwide, 6.3% conflicts are difficult processes and If you have not done so already, the of all malpractice claims are asserted outside the scope of this particular first step is to select conflicts software because of administrative errors that article. But before any conflicts analy- that is user-friendly. In this day and occur in the identification of conflicts.1 sis can take place, the law firm must age maintaining a manual card file for Based solely upon anecdotal evidence, have in place procedures designed to conflicts identification and analysis lawsuits against attorneys involving permit a review of the entities and is no longer appropriate. Choosing errors in identifying, analyzing and individuals the firm and its attorneys the proper program is important – resolving conflicts in New York well have represented. The Rules require talk with colleagues in your area of exceed the nationwide statistics. all law firms to maintain a conflicts practice, check out the Vendor Resource Conflicts of interest must be check system and to have a policy in Guide at the NYSBA Law Practice addressed every day of a legal career; place pursuant to which the law firm Management Web site, attend local they are the bane of every attorney’s regularly implements the system to trade shows, read reviews in magazines existence. No single topic in the Code screen for conflicts.3 The Rule creates devoted to law office computer systems of Professional Responsibility is more what amounts to a per se violation of and consult with a professional to problematic than the determination as the Disciplinary Rules and provides a make sure that your needs are met. to whether a conflict exists between an basis upon which attorneys and law Ideally, the program you select should attorney and client or former client. firms4 may be found to have engaged be able to integrate with other office Attorneys who believe that the client’s in misconduct without the necessity systems, provide easy access to conflict consent to a conflict immunizes the of demonstrating intent. It is sufficient data for everyone in the office, and attorney or law firm from the conse- to show that the firm failed to keep have the ability to search for spelling quences of conflict issues are sadly contemporaneous records of engage- variations. In order to facilitate analy- mistaken. ments by clients and did not maintain sis, it must be able to show the firm’s It is important to remember when a policy for checking past relationships relationship with the client. analyzing a conflicts issue that the with clients before new retentions appearance of a conflict is nearly as were undertaken. However, the bet- Standardized Intake devastating as the existence of a true ter practice is to reduce your conflict Once you have selected your soft- conflict. The perception of whether procedures to writing, documenting ware, all potential retentions with
28 | July/August 2007 | NYSBA Journal new or existing firm clients (even if counsels” present special challenges. cate on the letterhead. However, as a rejected) must be entered on stan- As lateral hires are brought into the usual practice, for purposes of analyz- dardized intake sheets and entered firm, care must be taken to incorporate ing conflicts of interest, the “of coun- into the firm’s system. No exceptions the new attorney’s prior representa- sel” relationship should be treated as – everyone must be required to follow tions into the firm’s system. While if the “of counsel” and the law firm the same practice. A reasoned con- NYSBA Ethics Opinion 720 concludes are conducting business as a single flicts analysis can only be performed that, unless protected as a client con- firm.11 As summarized by the New if this practice is rigorously and scru- fidence or secret, the firm must seek York State Bar Association: “[I]f a law- pulously maintained. At a minimum, the names of clients represented by a yer acting alone would be disqualified the intake sheet, which should be new lawyer (or if the former firm was from a particular representation based modified to suit your practice areas, small, all clients of the former firm), on any of the rules enumerated in DR should contain the following infor- the opinion sidesteps the all-important 5-105(D), then that disqualification is mation: issue as to how to obtain this infor- imputed to a law firm with which that 1. the name, address and contact mation if the original firm refuses to lawyer has an ‘of counsel’ relation- number of the client and any voluntarily disclose it or if the lateral ship.”12 In other words, where “of entities related to the client; hire does not want any contact with counsel” relationships exist, their con- 2. the date of the intake; the former firm prior to acceptance 3. the nature of the representation; of the new employment opportunity.6 4. if the client is a new client with- Attorneys seeking to change law firms Law firms having out established terms of compen- must be very cognizant of the impact “of counsel” sation, the terms and conditions that a proper conflicts analysis may relationships should of the engagement; have upon a prospective employer or 5. if the client is a new client, the even the attorney’s current employer.7 follow the identity of the person authoriz- Before even interviewing a candidate, one-entity rule. ing the engagement; the question of whether a conflict 6. the names, addresses and contact might preclude a law firm from hiring flicts are your conflicts. On a disquali- numbers of all parties involved the attorney or face losing a significant fication motion where the criterion is in the representation; client must be effectively analyzed.8 whether the conflict has tainted the 7. the terms/names which should The failure to perform such an court proceedings, the Second Circuit be included in a conflict search. analysis can be devastating. The deci- rejected the blanket imputation of an Identification of the terms that sion in Ogden Allied Abatement & “of counsel’s” conflicts to a law firm must be searched should not be Decontamination Services, Inc. v. ConEd9 and instead took a more pragmatic left to the discretion of a clerical presents a factual scenario that consti- approach in holding that the conflict employee. tutes the ultimate nightmare for any would depend on the nature of the Remember that accuracy counts. A associate. After making a job offer to an relationship between the “of counsel” name misspelled will not be prop- associate from an adversary law firm and the law firm.13 Finding that the erly recorded in the law firm’s conflict during a pending litigation, the new relationship between the “of counsel” system and may form the basis for a law firm withdrew the offer because attorney and the law firm was attenu- missed conflict. Consistency counts as the adversary law firm made a motion ated and the attorney clearly continued well. Those individuals charged with to disqualify when the associate gave to operate his sole practice in addition entering information into the conflict notice. While the Ogden court did not to serving as transactional counsel for system must be taught to enter names disqualify the law firm that had made certain enumerated firm clients and and other information in the same the offer to the associate because the that adequate screening procedures manner every time it is done. associate did not actually start employ- negated any taint, the court denied the ment, the court soundly criticized the motion to disqualify. Notwithstanding What to Enter firm’s conduct in continuing the inter- the content of this decision, however, The ability to identify the existence of view process while discovery was from the point of view of compliance a conflict is dependent upon the extent underway. with the Code, effective risk manage- of the information put into the conflict The Code recognizes the existence ment and just plain good client rela- system. The current and former names of “of counsel” relationships, which it tions, law firms having “of counsel” of every person or entity represented defines as a “continuing relationship relationships should follow the one- by the law firm must be entered, as well with a lawyer or law firm, other than entity rule. as every person or entity represented as a partner or associate.”10 If there is In addition to the clients, every by “of counsels,” lateral hires and even an ‘of counsel’ relationship, a law firm person or entity involved in every suite members. Lateral hires and “of or an individual attorney may so indi- matter the firm, its attorneys and “of
NYSBA Journal | July/August 2007 | 29 counsel” has handled must be entered claims are asserted, businesses merge 2. In re Lazroe, 38 A.D.3d 17, 825 N.Y.S.2d 389 (4th Dep’t 2006); In re Green, 36 A.D.3d 12, 827 N.Y.S.2d into the system. This includes the par- or split, divorces, etc. 67 (2d Dep’t 2006); In re DeSousa, 36 A.D.3d 121, 826 ties, related parties, attorneys, impor- N.Y.S.2d 306 (2d Dep’t 2006). tant witnesses and even experts. When to Run the Conflict Search 3. 22 N.Y.C.R.R. § 1200.24 [DR 5-105(E)]. In the event a prospective client is More often than not, law firms that are 4. 22 N.Y.C.R.R. § 1200.3 [DR 1-102(A)(1)]. rejected by the firm, the information diligent in their conflict check practices 5. Ass’n of the Bar of the City of N.Y. (ABCNY), on the prospective client must also get it right on the intake but the proce- Formal Op. 2003-03, Checking for Conflicts of Interest. be entered. Although technically the dures tend to fall down as the repre- 6. NYSBA Comm. on Professional Ethics, Formal rejected prospective client need only sentation proceeds. A law firm practice Op. No. 720 (8/27/99) (“NYSBA Op.”). be entered if confidential information of performing a conflicts check only 7. It is recommended that any attorney contem- plating a change in employers read James Altman, was exchanged, including all rejected at the intake does not comply with an Ethical Problems Caused by Job Searches, N.Y.L.J., Oct. clients allows a firm to recognize the attorney’s obligations under the Code. 20, 2000, p. 24, col. 1; James Altman, A Young Lawyer’s potential for a conflict and decide Conflict checks should be performed Nightmare, N.Y.L.J., Feb. 16, 2001, p. 16, col. 1. how to address it upfront rather than before initial consultations, before a 8. Absent the former client’s consent, a lawyer changing firms may not undertake representation after the fact – that is, after a problem new file is opened, whenever a new adverse to the former client if (1) moving lawyer has arisen. In addition, any business party, attorney, witness or expert enters personally “represented” the client or otherwise entity for which any attorney at the the representation and whenever the acquired relevant confidences or secrets of the cli- ent, and (2) moving lawyer would be undertaking firm serves as an officer or director or firm decides to interview a candidate representation in the same matter or in a matter that has a significant ownership interest for possible hire. is substantially related to one in which the moving in, or any municipality with which the lawyer or the old firm previously represented the former client. Absent the client’s consent, if the attorney is formally involved – e.g., Conclusion moving lawyer is disqualified from engaging in the planning board, board of trustees, No one said this was easy. All of the representation under this rule, the moving lawyer’s zoning board of appeals, etc. – should above must be put into place before an new law firm is also disqualified. NYSBA Op. No. 723 (10/12/99). be entered into the conflict system. attorney even begins the difficult pro- 9. 6 Misc. 3d 1012(A), 800 N.Y.S.2d 351 (Sup. Ct., Include in each entry the nature of cess of effectively analyzing a conflict N.Y. Co. 2000). the relationship (or role in the matter), and deciding how an identified con- 10. 22 N.Y.C.R.R. § 1200.7(A)(4) [DR 2-102(A)(4)]. the type of the representation in which flict should be resolved. The obliga- 11. See, e.g., ABA 90-357; ABCNY Formal Op. the relationship between you and the tion to identify conflicts is the respon- 1995-8 (“attorneys will need to keep in mind that party arose and whether the matter sibility of every attorney – not just for purposes of analyzing conflicts of interest, ‘of is active or inactive. For the purposes the senior attorneys in a firm. Above counsel’ relationships are treated as if the ‘counsel’ and the firm are one unit”). ABCNY Formal Op. of conflicts analysis, it is important all, if a conflict comes to your atten- 2000-4. to keep accurate records of whether tion, do not take the ostrich approach. 12. NYSBA Op. No. 773 (1/23/04). a matter is open or closed since the Conflicts ignored become harder to 13. Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, standard is different if the individual address after the problem arises. ■ 409 F.3d 127 (2d Cir. 2005). or entity is a former client. 1. ABA Standing Committee on Professional Liability, Profile of Legal Malpractice Claims 2000–2003 When to Update Table 5, p. 12 (ABA 2005). Since the Code provides that attorneys may not continue a representation in which a conflict exists, attorneys are obligated to constantly update the con- flict entries on every representation. As with the need to maintain the confiden- tiality of client secrets and confidences, attorneys also need the assistance of staff to identify times when the con- flict entries need to be updated. At a minimum, automatic updates must be made whenever a new client or matter is accepted (or rejected); whenever an individual’s or entity’s name changes; whenever a new party, expert, witness or attorney is added to existing repre- sentations; and whenever the relation- ship of a party changes, e.g., adverse
30 | July/August 2007 | NYSBA Journal PLANNING AHEAD BY JOSHUA S. RUBENSTEIN
JOSHUA S. RUBENSTEIN ([email protected]) is the Co-Managing Partner in the New York City office of Katten Muchin Rosenman LLP. He is a former chair of the Trusts & Estates Law Section of the New York State Bar Association. He received his undergraduate and law degrees from Columbia University.
2006 New York State Legislative Session: Changes Affecting Trust & Estate Law
here was significant legislative with respect to decedents dying on or district where the office of the corpora- activity affecting estate and trust after that date.3 tion is or was located. This change is Tplanning and administration in effective July 26, 2006.9 New York during the 2006 legislative Insurance Law A new § 608(f) has been added to session. Important areas addressed Insurance Law § 4240(d)(2) has been the NPCL defining the term “per- include transfer-on-death securities amended to require the payment of son.” This change is effective July 26, registration, parental rights, after-born interest on death benefits for individ- 2006.10 children, guardianship of infants, dis- ual and group variable annuities. This Section 719(a)(4) of the NPCL has solution of private foundations, dis- change is effective immediately.4 been amended to conform its require- posal of remains and anatomical gifts. ments to the new procedures for car- Not-For-Profit Corporation Law rying out a plan of dissolution and Estates, Powers and Trusts Law Section 102(a)(19) of the Not-For-Profit distribution of assets. This change is Section 4-1.4 of the Estates, Powers and Corporation Law (NPCL) has been effective April 9, 2006.11 Trusts Law (EPTL) has been amended amended to define the term “person.” NPCL § 1001 has been amended to to provide that a parent whose rights This change is effective April 9, 2006.5 set forth simplified procedures for the were terminated (or, in some cases, Section 102(a)(19) of the NPCL has plan of dissolution and distribution of suspended) is disqualified from shar- been repealed. This change is effective assets of Type B, C or D corporations ing in intestacy a distributive share of July 26, 2006.6 with assets to distribute. This change the child’s estate. The purposes of the NPCL § 303(a) has been amended to is effective April 9, 2006.12 section is to prevent a parent found to permit a domestic corporation intend- Section 1001 of the NPCL has been have abused a child, as well as parents ing to file the consent of the Attorney amended to provide that if the dis- who abandon children, from sharing in General to reinstate such corporation solving corporation has no assets, or that child’s estate. This change is effec- pursuant to § 1014 to reserve a corpo- assets other than a reserve fund (not to tive January 1, 2007.1 rate name. This change is effective July exceed $25,000), the plan shall so state. EPTL 5-3.2 has been amended to 26, 2006.7 This change is effective July 26, 2006.13 provide that in order for an after-born Section 608 of the NPCL has been Section 1002 of the NPCL has been child to take a share of a testate estate, amended by adding a new paragraph amended to simplify the approval pro- such child must have been born during (e), to enable membership corporations cess for the plan of dissolution of Type the testator’s life or in gestation during unable to obtain the necessary quora B, C or D corporations with no assets the testator’s life and born after the tes- under their certificates and by-laws to distribute (except a reserve fund not tator’s death. This change is effective to petition the Supreme Court for an to exceed $25,000). This change is effec- immediately with respect to decedents order enabling them nonetheless to tive April 9, 2006.14 dying on or after July 26, 2006.2 conduct business. This change is effec- NPCL § 1002 has been amended Section 13-4.12 of the EPTL has been tive April 9, 2006.8 to regulate the number of directors or amended to provide that the effective Section 608(e) of the NPCL has been members required to approve a plan date of New York’s Transfer on Death amended to provide that the petition of dissolution. This change is effective security legislation is January 1, 2006, be to the Supreme Court in the judicial July 26, 2006.15
32 | July/August 2007 | NYSBA Journal A new § 1002-a has been added to es with respect to references to other by the Secretary of State for one year, the NPCL setting forth the procedures means of dissolution. This change is and such a corporation, with the con- for carrying out the plan of dissolution effective April 9, 2006.26 sent of the Attorney General, may be and distribution of assets prior to filing Section 1009 of the NPCL was reinstated if it has filed all delinquent the certificate of dissolution with the amended to make further conform- annual reports. This change is effective Department of State. This change is ing changes with respect to references April 9, 2006.29 effective April 9, 2006.16 to other means of dissolution. This Section 1014 of the NPCL has been Section 1002-a of the NPCL has change is effective July 26, 2006.27 amended to clarify the method of been amended to conform to the new Section 1012 of the NPCL (deal- notice and of reservation of names in methods of receiving judicial and non- ing with annulment of a dissolution) the case of the dissolution of a domes- judicial approval for the plan of dis- has been amended to conform to the tic corporation by proclamation. This solution. This change is effective July changes for methods of dissolution. change is effective July 26, 2006.30 26, 2006.17 This change is effective April 9, 2006.28 Section 1109(c) of the NPCL has Section 1003 of the NPCL has been A new § 1014 has been added to the been amended to coordinate judicial amended to permit dissolution with NPCL, authorizing dissolution by proc- dissolutions with non-judicial disso- Attorney General, as opposed to lamation of the Secretary of State of a lution plans. This change is effective Supreme Court, approval. This change domestic corporation formed pursuant April 9, 2006.31 is effective April 9, 2006.18 to NPCL that has failed for a period NPCL § 1115(a) has been amended NPCL § 1003 has been amended of at least five years to file its annual to eliminate reference to § 1005 with to reflect that affixation to the plan report with the Attorney General pur- respect to dissolutions. This change is of Attorney General approval is not suant to EPTL 8-1.4 and Article 7-A of effective April 9, 2006.32 always required. This change is effec- the Executive Law. The name of a cor- Section 1212(b) of the NPCL has tive July 26, 2006.19 poration so dissolved must be reserved been amended to coordinate a receiv- Section 1005 of the NPCL (with respect to procedures after dissolution) has been repealed. This change is effec- tive April 9, 2006.20 Section 1006(a) of the NPCL has been amended specifically to prohibit a dissolved corporation from commenc- ing any new activities. This change is effective April 9, 2006.21 NPCL § 1007 has been amended to make conforming changes to the procedure for giving notice to credi- tors. This change is effective April 9, 2006.22 Section 1007 of the NPCL has been amended to provide that the plan of dissolution must be authorized and approved before notice to creditors may be sent. This change is effective July 26, 2006.23 Section 1008 of the NPCL has been amended to make conforming changes with respect to notice to the Attorney General where assets are required to be used for a particular purpose. This change is effective April 9, 2006.24 NPCL § 1008(a)(15) has been amend- ed to clarify the procedure when assets are earmarked for a particular purpose. This change is effective July 26, 2006.25 Section 1009 of the NPCL was amended to make conforming chang-
NYSBA Journal | July/August 2007 | 33 er’s actions with non-judicial dissolu- Donor Registry a recordation of con- 10. Id. tion plans. This change is effective sent, not intent, so that consent is not 11. 2005 N.Y. Laws ch. 726, § 3 (signed on October April 9, 2006.33 subsequently required. This change is 11, 2005). 36 12. 2005 N.Y. Laws ch. 726, § 4 (signed on October effective February 12, 2007. 11, 2005). Public Health Law PHL § 4351 has been amended to 13. 2006 N.Y. Laws ch. 434, § 4 (signed on July 26, Section 4201 of the Public Health Law allow checking the New York State 2006). (PHL), dealing with the ability to give Organ and Tissue Donor Registry 14. 2005 N.Y. Laws ch. 726, § 5 (signed on October binding instructions with respect to the before having to obtain consent to an 11, 2005). disposition of one’s remains, has been anatomical gift from a decedent’s fam- 15. 2006 N.Y. Laws ch. 434, § 5 (signed on July 26, 2006). amended to (1) make technical correc- ily members. This change is effective 16. 2005 N.Y. Laws ch. 726, § 6 (signed on October 37 tions to definitions, to the hierarchy February 12, 2007. 11, 2005). of individuals with the right to carry 17. 2006 N.Y. Laws ch. 434, § 6 (signed on July 26, out the wishes of a decedent, and to Surrogate’s Court Procedure Act 2006). the written instrument by which one Section 103(27) of the Surrogate’s 18. 2005 N.Y. Laws ch. 726, § 7 (signed on October gives instructions; (2) provide that Court Procedure Act (SCPA) has been 11, 2005). subsequent instruments revoke prior amended to change the definition of 19. 2006 N.Y. Laws ch. 434, § 7 (signed on July 26, 2006). instruments; (3) protect agents, funeral “infant” to include a person under 21 20. 2005 N.Y. Laws ch. 726, § 8 (signed on October directors and cemeteries who act rea- who consents to the appointment of 11, 2005). sonably and in good faith; (4) provide a guardian after the age of 18. This 21. 2005 N.Y. Laws ch. 726, § 9 (signed on October that disputes be resolved by special definition is not applicable to New 11, 2005). proceedings in courts of competent York’s Uniform Transfers to Minors 22. 2005 N.Y. Laws ch. 726, § 10 (signed on October jurisdiction; (5) provide that in the Act (UTMA) statute. This change is 11, 2005). event of conflict, § 453 of the General effective immediately.38 23. 2006 N.Y. Laws ch. 434, § 8 (signed on July 26, Business Law (dealing with funeral SCPA 1707(2) has been amended to 2006). service contracts) prevails; (6) provide extend the office of a guardian of the 24. 2005 N.Y. Laws ch. 726, § 11 (signed on October 11, 2005). that this section does not abridge any person or property of an infant until 25. 2006 N.Y. Laws ch. 434, § 9 (signed on July 26, provision of the Anatomical Gift Act; age 21, if the infant consents. This 2006). 39 and (7) provide that this section does change is effective immediately. 26. 2005 N.Y. Laws ch. 726, § 12 (signed on October not alter the enforceability of a con- 11, 2005). tract for funeral services. This change Vehicle and Traffic Law 27. 2006 N.Y. Laws ch. 434, § 10 (signed on July 26, is effective August 2, 2006, the effec- Section 502(1) of the Vehicle and 2006). tive date of the original legislation.34 Traffic Law (VTL) has been amended 28. 2005 N.Y. Laws ch. 726, § 13 (signed on October PHL § 4301 has been amended to to require the application for a driv- 11, 2005). permit organ and tissue donors to reg- er’s license to include the opportunity 29. 2005 N.Y. Laws ch. 726, § 17 (signed on October 11, 2005). ister in the New York State Organ and to register with the New York State 30. 2006 N.Y. Laws ch. 434, § 11 (signed on July 26 Tissue Donor Registry. This change is Organ and Tissue Donor Registry. 2006). 35 effective February 12, 2007. This change is effective February 12, 31. 2005 N.Y. Laws ch. 726, § 14 (signed on October Section 4310 of the PHL has been 2007.40 ■ 11, 2005). amended to make registration with 32. 2005 N.Y. Laws ch. 726, § 15 (signed on October the New York State Organ and Tissue 1. 2006 N.Y. Laws ch. 285, § 1 (signed on July 26, 11, 2005). 2006). 33. 2005 N.Y. Laws ch. 726, § 16 (signed on October 2. 2006 N.Y. Laws ch. 249, §§ 1, 2 (signed on July 11, 2005). 26, 2006). 34. 2006 N.Y. Laws ch. 76, § 1 (signed on June 7, Your CLE 3. 2006 N.Y. Laws ch. 11, § 1 (signed on March 21, 2006). 2006). 35. 2006 N.Y. Laws ch. 639, § 1 (signed on August 4. 2006 N.Y. Laws ch. 381, § 1 (signed on July 26, Classroom 16, 2006). 2006). 36. 2006 N.Y. Laws ch. 639, § 2 (signed on August 5. 2005 N.Y. Laws ch. 726, § 1 (signed on October 16, 2006). 11, 2005). 37. 2006 N.Y. Laws ch. 639, § 3 (signed on August 6. 2006 N.Y. Laws ch. 434, § 1 (signed on July 26, 16, 2006). 2006). 38. 2006 N.Y. Laws ch. 518, § 3 (signed on August 7. 2006 N.Y. Laws ch. 434, § 3 (signed on July 26, 18, 2006). Come click for CLE credit at: 2006). 39. 2006 N.Y. Laws ch. 518, § 5 (signed on August www.nysbaCLEonline.com 8. 2005 N.Y. Laws ch. 726, § 2 (signed on October 11, 2005). 18, 2006). or to purchase CDs call 800.582.2452 9. 2006 N.Y. Laws ch. 434, § 2 (signed on July 26, 40. 2006 N.Y. Laws ch. 639, § 4 (signed on August 2006). 16, 2006).
34 | July/August 2007 | NYSBA Journal JONATHAN A. DACHS (jdachs@ shaynedachs.com) is a member of the firm of Shayne, Dachs, Stanisci, Corker & Sauer, in Mineola, New York. A graduate of Columbia University, he received his law degree from New York University Law School.
Uninsured Motorist/ Supplementary Uninsured and Underinsured Motorist Update – Part II A Review of Cases Decided in 2006
By Jonathan A. Dachs
evelopments from 2006 with respect to gen- was irrational, arbitrary and capricious, in violation of eral issues pertaining to the areas of uninsured public policy or in excess of the arbitrator’s powers. “On Dmotorist (UM), underinsured motorist (UIM), review, an award may be found to be rational if any basis and supplementary uninsured motorist (SUM) law were for such a conclusion is apparent to the court based upon discussed in the previous issue of the Journal. Part II will a reading of the record.” discuss several additional general issues addressed by Insofar as the arbitrator’s decision on liability was the courts in 2006, as well as other issues more specific to based upon testimony in the record, it was not arbitrary these separate categories of coverage. and capricious. Moreover, although the failure by an arbitrator to grant an adjournment may, under certain cir- Arbitration Awards – Scope of Review cumstances, constitute an abuse of discretion constituting In CNA Global Resource Managers v. Berry,1 the court misconduct under CPLR 7511(b)(1)(I), where, as in this observed that “‘in the interest of preserving the inde- case, the petitioner had “more than enough time prior to pendence of the arbitral process and conserving judicial the hearing” to obtain the necessary evidence, “no mis- resources, the courts have been assigned a minimal role in conduct on the part of the arbitrator existed which would supervising arbitration practice.’ Even though the scope support the vacatur of the subject arbitration award.” of judicial review of an award rendered after a compul- The court further held that an arbitrator acts in excess sory arbitration, such as that undertaken pursuant to a of his or her powers when the arbitrator considers the SUM policy, is greater than that in the case of consen- question of whether there was actual physical contact sual arbitration such review is nonetheless limited to the with a hit-and-run vehicle and reviews evidence that statutory grounds delineated in CPLR 7511.” Thus, the there may have been no contact between the allegedly burden is on the movant to demonstrate that the award offending vehicle and the vehicle operated by the claim-
NYSBA Journal | July/August 2007 | 35 ant seeking UM benefits, because “it is well settled that a outside of Montreal, in the Province of Quebec, Canada, court, and not an arbitrator, must resolve” that issue. the vehicle left the roadway and turned over in a ditch, In State Farm Mutual Automobile Ins. Co. v. MVAIC,2 the allegedly injuring the plaintiff. The dispute centered court held that where the petitioner was properly served around the responsibility of the owner, because New with a notice of intention to arbitrate, but nonetheless York and New Jersey have different rules. New York failed to appear at or participate in the arbitration, there law provides that a plaintiff who is seriously injured in was no basis, pursuant to CPLR 7511(b), upon which to an automobile accident may recover damages for pain vacate the arbitration award rendered against it. and suffering against the owner of the car, because of In Nationwide Mutual Ins. Co. v. Michaels,3 the court held the provisions of N.Y. Vehicle & Traffic Law § 388 (VTL), that the mere allegation that certain rulings of the arbitra- which makes an owner vicariously liable. Under New tor established partiality in favor of insurers was insuffi- Jersey law, the vehicle owner is vicariously liable only cient to establish actual bias or the appearance of bias. if the driver was the employee or agent of the owner. In rendering the choice of law options, the court considered Conflicts of Law a number of factors: The plaintiff was unquestionably a Allstate Ins. Co. v. Tupin4 concerned an accident that resident of New York and carried a New York license; Ali occurred in New York between a vehicle in which the was living only temporarily in New Jersey and intended claimant was a passenger and a vehicle licensed by and to return to New York; neither party had any interest in registered to a resident of Rhode Island and driven by a Quebec and Quebec had no interest in an accident involv- resident of New York. The alleged insurer for the offend- ing two non-Canadians; Car Rentals, the liable party, was ing vehicle disclaimed coverage on the basis of late notice a New Jersey business and the car was rented in New six months after it received notice of the loss. After finding Jersey. The court concluded that despite New York’s that the laws of New York and Rhode Island conflicted on interest in protecting its residents, New Jersey’s law the issue of whether this disclaimer was timely, the court would apply. Although New York is unique in holding engaged in a conflicts of law analysis to determine which owners vicariously liable, that policy must yield to New state’s law to apply. Applying the “center of gravity” or Jersey’s countervailing interest in protecting its domi- “grouping of contacts” doctrine, the court noted that the ciliary, the vehicle owner, from vicarious liability that it subject policy was written and issued in Rhode Island, the deemed to be unwarranted. owner of the vehicle was a Rhode Island resident, and the This decision contains an excellent discussion and vehicle was licensed and registered in Rhode Island, and, analysis of the choice of law rules. thus, applied Rhode Island law. The court then went on to hold the disclaimer invalid because the insurer “failed Statute of Limitations to provide any documentation or case law to support its In Liberty Mutual Ins. Co. v. Cooper,6 the court held that “[a] claim that its six-month delay in disclaiming coverage Demand for Arbitration of an uninsured motorist claim was reasonable as a matter of law,” and “under Rhode is subject to the six-year statute of limitations which runs Island law,” “any doubts as to coverage are to be resolved from the date of the accident or from the time when subse- in favor of the insured and against the insurer.” quent events rendered the offending vehicle uninsured.”7 In King v. Car Rentals, Inc.,5 a cross-border case, the The court observed, in Travelers Indemnity Co. v. court decided on the law to be applied based on domi- Yagudaev,8 “The party seeking the demand has the burden nant contacts. Ali rented an automobile in New Jersey of showing that a later accrual date than the date of the from defendant Car Rentals, a New Jersey corporation accident is applicable.” Thus, where the claimants were that did business solely in New Jersey as a licensee of not aware that the offending vehicle was uninsured until defendant Avis, a Delaware corporation that has substan- the alleged owner testified at his examination before trial tial business activity in New York. Ali had just moved that his vehicle was not of the same color and description out of his sister’s apartment in Manhattan, where he as the offending vehicle previously identified, the court had been living for six months after graduating from found that the claimants sufficiently demonstrated that New York University while waiting for a job to start in an accrual date later than the date of the accident was Manhattan. In the meantime, he moved into his parents’ applicable “as the claim with respect to the unidentified home in Metuchen, New Jersey. Ali’s intent, as unequivo- hit and run vehicle only was realized upon discovery of cally expressed in his deposition testimony, was to move the misidentification of the . . . vehicle.” back to New York City after training, in Chicago, for his new employment in Manhattan. Ali then drove to Actions Against Brokers – Connecticut, where he picked up the plaintiff, who was Failure to Procure Insurance employed in Connecticut, but resided in both Kings Park, In Hoffend & Sons, Inc. v. Rose & Kiernan, Inc.,9 the Court New York, and Hamden, Connecticut. The two drove to of Appeals rejected an action by a policyholder against its Canada for the New Year’s weekend. On the return trip, insurance broker for failure to obtain a policy that would
36 | July/August 2007 | NYSBA Journal have covered its loss, in the absence of proof of a specific regarded as the intentional and knowing relinquishment request for the coverage in question – a prerequisite to of a known right of Defendant.” Moreover, “where ‘there the trigger of the common-law duty of a broker either to is no coverage under the policy, the doctrines of waiver obtain the coverage that a customer requests or to inform and estoppel may not operate to create such coverage,’ the customer of an inability to do so, and in the absence and ‘where the issue is the existence or nonexistence of of proof that the policyholder had a “special relationship” coverage . . . , the doctrine of waiver is inapplicable.’”14 with the broker sufficient to impose upon the broker any additional duties with regard to the procurement of Uninsured Motorist Issues insurance.10 “Uninsured” Motor Vehicle The court in Zaki v. Hereford Ins. Co.,11 found existence In Allstate Ins. Co. v. Vitiello,15 the court held that the of only “the standard consumer-agent insurance place- offending vehicle, ment relationship,” stating that “it cannot transform [the which was owned by a non-resident and, if insured at plaintiff’s] difficulty into a new, expanded tort opportuni- all at the time of the accident, was insured by an out- ty for peripheral redress. The record simply does not sup- of-state carrier not authorized to transact business in port plaintiff’s effort in this manner to shift to defendant the State of New York and not subject to personal juris- insurance agent the customer’s personal responsibility diction in this State, was an “uninsured motor vehicle” for initiating and obtaining appropriate coverage.” within the meaning of Insurance Law article 52 In Luna v. Hyundai Motor America,12 the defendant rental car company conceded that while it had purchased Insurer’s Duty to Provide Prompt the supplementary liability insurance that the plaintiff had Written Notice of Denial or Disclaimer ordered when she rented the car, it neglected to purchase A vehicle is considered “uninsured” where the offend- the uninsured/underinsured motorist insurance she also ing vehicle was, in fact, covered by an insurance policy ordered at that time. The court held that the rental car at the time of the accident, but the insurer subsequently company “is responsible for providing the UM coverage disclaimed or denied coverage. Insurance Law § 3420(d) it admittedly failed to procure.” In Ward v. County of Allegany,13 the plaintiff – the administrator of the estate of a deputy sheriff killed in the line of duty when his patrol car was struck by another vehicle – sought a judicial declaration that the defendant county, the decedent’s employer, was liable to pay SUM ben- efits. The court affirmed the grant of summary judgment to the defendant on the ground that the documentary evidence established as a matter of law that the defendant did not procure SUM coverage that was applicable to the decedent’s accident. The pertinent declarations in the policy made clear that no SUM endorsement was part of the automobile insurance coverage and that the defendant did not pro- cure such coverage. Thus, the court rejected the plaintiff’s contention that SUM coverage was provided under the defendant’s $250,000 Self-Insured Retention. In addition, the court reject- ed the plaintiff’s alternative contention that the defendant waived its right to deny the existence of SUM coverage, finding that “[t]he County Attorney’s ill-advised admission concerning the existence of such coverage cannot be
NYSBA Journal | July/August 2007 | 37 requires liability insurers to “give written notice as soon sons for the insured’s late notice, including a canceled as is reasonably possible of . . . disclaimer of liability or appointment by the insured/claimant. The disclaimer, denial of coverage to the insured and the injured person issued 21 days “after the insurer became aware that the or any other claimant.” The statute applies when an acci- plaintiff had breached the notice provision,” was deemed dent occurs in the state of New York, and the insurer will “reasonable under the circumstances of this case.” be estopped from disclaiming liability or denying cover- For the purpose of determining whether a liability age if it fails to comply with this statute. The timeliness insurer has a duty promptly to disclaim in accordance of an insurer’s disclaimer or denial is measured from the with Insurance Law § 3420(d), a distinction must be made point in time when it first learns of the grounds for the between (1) policies that contain no provisions extend- disclaimer or denial. It is the insurer’s responsibility to ing coverage to the subject loss, and (2) policies that do explain its delay in disclaiming coverage. A failure by the contain provisions extending coverage to the subject loss,
The court observed that an insurer’s assertion of untimely notice as a defense in an answer may constitute a notice of disclaimer. insurer to give notice of disclaimer as soon as is reason- and which would thus cover the loss but for the existence, ably possible precludes effective disclaimer or denial.16 elsewhere in the policy, of an exclusionary clause. It is In Legum v. Allstate Ins. Co.,17 the court held that only in the former case that compliance with Insurance Insurance Law § 3420(d) does not apply to claims that do Law § 3420(d) may be dispensed with. not involve “death or bodily injury.” In Ciasulo v. Nationwide Ins. Co.,23 the court held that In City of New York v. Welsbach Electric Corp.,18 the where the insurer denied coverage based upon a policy court observed that an insurer’s assertion of untimely exclusion for “bodily injury to an insured while occupy- notice as a defense in an answer may constitute a notice ing a motor vehicle owned by that insured, if such motor of disclaimer. Further, the court held that a stipulation to vehicle is not insured for SUM coverage by the policy extend the time to answer a complaint does not constitute under which a claim is made,” it was required to issue a a waiver of the right to a timely disclaimer or the right timely disclaimer. to rely upon an untimely disclaimer insofar as in such a In Liberty Mutual Ins. Co. v. Goddard,24 the court situation there is no “intentional relinquishment” of the held that the insurer was not required by Insurance Law untimely disclaimer claim. § 3420(d) to issue a timely disclaimer because its denial In Allstate Ins. Co. v. Swinton,19 the court held that a 34- of coverage on the ground that the collision at issue was day delay in issuing a disclaimer was unreasonable. (This intentional and staged was based upon a lack of coverage appears to be the shortest delay held unreasonable by the and not a policy exclusion.25 Appellate Division, Second Department, to date. Notably, The Court of Appeals, in New York Central Mutual Fire the court cited with approval West 16th Street Tenants Ins. Co. v. Aguirre,26 held that “the policy’s requirement to Corp. v. Public Service Mutual Ins. Co.,20 a First Department fill out and return a proof-of-claim form is an exclusion case that held a 30-day delay unreasonable as a matter of or a condition of coverage,” thus requiring the insurer to law.) Although the insurer asserted that its delay resulted timely disclaim pursuant to Insurance Law § 3420(d) for from its claims adjuster’s investigation of whether the the insured’s failure to complete and return such a form. insured attempted to notify the insurer through its agent, In this case, where the insurer sent the claimants a letter it failed to produce the claims adjuster at the framed issue directing their “immediate completion and return” of hearing, and, thus, failed to substantiate its assertion.21 the notice-of-claim forms, the Court held that the insurer On the other hand, in Schoenig v. North Sea Ins. Co.,22 expected receipt of the completed forms “right away, or the court noted that “[w]hile Insurance Law § 3420(d) without substantial loss or interval of time after they were speaks only of giving notice ‘as soon as is reasonably pos- sent” and, thus, the insurer became aware of its basis for sible,’ investigation into issues affecting an insurer’s deci- denying coverage, i.e., the claimant’s failure to complete sion whether to disclaim coverage obviously may excuse and return the forms long before it disclaimed. The Court delay in notifying the policyholder of a disclaimer.” In added that the fact that the claimant never returned the that case, although the total delay in issuing the disclaim- forms and/or that its letter did not set a precise dead- er was 46 days, the first 25 days of that period included line for their return did not extend the insurer’s time to the insurer’s reasonable efforts to investigate the rea- disclaim or deny coverage, or excuse its delay in doing
38 | July/August 2007 | NYSBA Journal so. Indeed, the majority rejected the insurer’s argument as ambiguous because the second ground was accurate that it could not disclaim as soon as reasonably possible and sufficient. Moreover, the insurer acted properly by until after it received the filled out proof-of-claim forms promptly sending copies of its disclaimer to the attorneys because it could not evaluate whether the claimants had and insurers of other potential claimants after being noti- timely provided the facts until the forms were reviewed. fied of their existence. As stated by the Court, “The simple answer to this In Allstate Ins. Co. v. Swinton,34 the court observed that conundrum, of course, is for the insurer to set a deadline the insurer could have immediately disclaimed coverage for return of a proof-of-claim form. And, of course, if the based upon a lack of timely notice, and thereafter dis- insurer suspects fraud in this case, it can still fight the claimed in a separate letter on the additional ground that claim in arbitration on this basis.”27 the driver was not listed as an insured driver once that In Continental Ins. Co. v. Bautz,28 the court recited the fact was ascertained. well-known rule that “[a]n insurance carrier that seeks to disclaim coverage on the ground of lack of cooperation Cancellation of Coverage ‘must demonstrate that it acted diligently in seeking to One category of an “uninsured” motor vehicle is where bring about the insured’s co-operation; that the efforts the policy of insurance for the vehicle had been canceled employed by the insurer were reasonably calculated to prior to the accident. Generally speaking, in order effec- obtain the insurer’s co-operation; and that the attitude tively to cancel an owner’s policy of liability insurance, of the insurer, after his [or her] co-operation was sought, an insurer must strictly comply with the detailed and was one of “willful and avowed obstruction” [Thrasher complex statutes, rules and regulations governing notices v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168-169, 278 of cancellation and termination of insurance, which dif- N.Y.S.2d 793].’” In Bautz, the court held that the insurer fer depending upon whether, for example, the vehicle at failed to demonstrate that it met these requirements to issue is a livery or private passenger vehicle, whether the disclaim on the ground of lack of cooperation. policy was written under the Assigned Risk Plan, and/or On the other hand, in Allstate Ins. Co. v. Rico,29 the was paid for under a premium financing contract. court held that the insurer’s disclaimer based upon its In Progressive Northeastern Ins. Co. v. Barnes,35 the court insured’s lack of cooperation was valid and effective held: where the evidence showed that the insured and her hus- Pursuant to Vehicle and Traffic Law § 313(2)(a), the band made repeated misrepresentations designed to hide insurer was required to file a notice of cancellation the fact that the driver of the insured’s vehicle at the time with the Commissioner of the Department of Motor of the accident was the insured’s husband, who was not Vehicles no later than 30 days following the effective licensed to drive. date of the cancellation of its policy, and the failure In USAA v. Ogilvie,30 the court held that when the strictly to comply with this provision results in an invalid termination of coverage as to third parties first notice of an accident is given to the insurer by an (Veh. & Traf. L. § 313[3]). injured party, the failure of the insurer specifically to refer to that notice in its disclaimer letter results in the The court, in Erie Ins. Co. v. Williams,36 held that the disclaimer being invalid. Where, as in this case, the only claimant was a member of the named insured’s house- notice was given by the injured party, “the disclaimer hold for purposes of this VTL § 313(3) because on the date must address with specificity the grounds for disclaiming of the cancellation, he “actually resided in the insured’s coverage applicable to both the injured party as well as household with some degree of permanence and with the insured.”31 the intention to remain for an indefinite period of time.” In Hernandez v. American Transit Ins. Co.,32 the court More specifically, although the Record established that held that since neither the plaintiff nor the insured ever the claimant and the named insured were “platonic notified the insurer of the accident, the insurer had no roommates,” they were living together “as members of duty to disclaim liability, notwithstanding the fact that it a single household and indeed were sharing the costs of was made aware of the accident by counsel to one of the maintaining their vehicles and the insurance thereon.” insured’s co-defendants in the personal injury action. The Thus, the cancellation of the named insured’s policy was duty to disclaim is not triggered by receipt of notice from effective as to the claimant as well, and the policy was not a third party. in effect on the date of the accident. A proper notice of disclaimer must apprise with a high In Chubb Group of Ins. Carriers v. DePalma,37 the court degree of specificity of the ground or grounds on which it applied the law of Connecticut, the state with the most is predicated. In State Ins. Fund v. Utica First Ins. Co.,33 the significant contacts with the parties involved and the sub- insurer’s disclaimer contained two grounds: (1) that the ject policy of insurance, to determine that the purported policy was not in effect on the date of the accident; and cancellation by the additional respondent was invalid (2) that an employee exclusion applied. Although the first and ineffective because it did not contain the warnings ground was erroneous, the disclaimer was not deficient required by Connecticut Statutes Annotated § 38a-343.
NYSBA Journal | July/August 2007 | 39 faintly acquiesced to legislation by Congress, particu- Under Connecticut law, as under New York law, “when larly when there is no preponderance of constitutional written notice of cancellation is required, an insurer must authority to support such a conclusion. While the strictly comply with policy provisions and statutory court’s decision is strictly limited to the facts of this mandates.”38 case, this court cannot wholly exempt a corporate And, in Progressive Direct Ins. Co. v. Trilla,39 the court class of tortfeasor from liability to otherwise innocent held that the tortfeasor’s insurer, a North Carolina com- men, women and children, who seek recompense in pany not licensed or authorized to do business in New the courts of the State of New York when they become York State, complied with the applicable North Carolina sick, seriously injured, permanently maimed or even statute, North Carolina General Statutes § 58-35-85, when killed, directly as a result of a dangerous instrumental- it canceled its policy. ity owned by that corporate class of tortfeasor who is doing business in the State of New York and subject to the laws of the State of New York, unless otherwise Stolen Vehicle directed by the New York State Legislature.42 Automobile insurance policies generally exclude cover- age for damages caused by drivers of stolen vehicles In Country-Wide Ins. Co. v. National Railroad Passenger and/or drivers operating without the permission or con- Corp.,43 the Court of Appeals, answering questions cer- sent of the owner. In such situations, the vehicle at issue is tified to it by the Second Circuit, held that the uncon- considered “uninsured” and the injured claimant will be tradicted statements of both the owner and the driver entitled to make an uninsured motorist claim. that the driver was operating the vehicle without the In Stanley v. Punch,40 the court noted that VTL § 388 owner’s permission will not necessarily warrant a court does not apply to vehicles that were “‘neither registered in awarding summary judgment for the owner. In most nor ever operated or used in New York’ (see Fried v. circumstances, the court will, but not as an absolute or Seippel, 80 N.Y.2d 32, 40 [1992]).” invariable rule. In short, whether summary judgment is By amendment to subchapter 1 of Chapter 301 of Title warranted depends on the strength and plausibility of the 49, United States Code, signed by President George W. disavowals, and whether they leave room for doubts that Bush and effective August 10, 2005, states are prohibited are best left for the jury. Here, the Court noted that the from holding leasing or rental companies vicariously liable contemporaneously filed accident report, the fact that the for accidents involving their leased or rented vehicles. driver accepted punishment for taking a vehicle without The effect of this federal provision is to nullify VTL § 388 authority, and the lack of any evidence to the contrary, as it applies to leasing companies or rental agencies. was enough to convince the Court that permission was Specifically, the new law provides: not granted. However, the Court left open the possibil- An owner of a motor vehicle that rents or leases the ity that proof could be submitted that would make the vehicle to a person (or an affiliate of the owner) shall issue of permission a jury question, even if the owner and not be liable under the law of any State or political driver submitted evidence both denying permission.44 subdivision thereof, by reason of being the owner of In State Farm Mut. Auto. Ins. Co. v. Ellington,45 the court the vehicle (or an affiliate of the owner), for harm to held that the uncontradicted testimony of a vehicle owner persons or property that results or arises out of the that the vehicle was used without his or her permission use, operation, or possession of the vehicle during the did not, by itself, overcome the presumption of permis- period of the rental or lease, if – (1) the owner (or an sive use. affiliate of the owner) is engaged in the trade or busi- In Bernard v. Mumuni, the court held that triable ques- ness of renting or leasing motor vehicles; and (2) there tions of fact existed as to whether the owner of a vehicle is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). gave a friend to whom he entrusted the vehicle implied consent to drive it, and whether that friend gave implied In Graham v. Dunkley,41 Justice Polizzi of the Supreme consent to his son, who held only a learner’s permit, to Court, Queens County, held that VTL § 388 is a legisla- drive the car when he left the keys on the table of his tive act within the New York State Legislature’s inherent house. Moreover, the court observed, “It is well estab- authority pursuant to the United States Constitution, lished that, when the owner of a vehicle places it under Tenth Amendment, and that the Transportation Equity Act the unrestricted control of a second person, the owner’s is an unconstitutional exercise of congressional authority consent to use of the vehicle may reasonably be found to under the Commerce Clause of the U.S. Constitution, extend to a third person whom the second person permits Article I, § 8. As stated by the court, to drive it.”46 The issue of supremacy of congressional legislation over New York State law is not one to be simply Hit-and-Run assumed, for Congress has only those powers to One of the requirements for a valid uninsured motorist legislate that are conferred on it by the United States claim based upon a hit-and-run is “physical contact” Constitution. The substantive law of torts is not to be between an unidentified vehicle and the person or motor
40 | July/August 2007 | NYSBA Journal A requirement for a vehicle of the claimant. In New York Central Mutual Fire Ins. Co. v. McLeary,47 the court held that a boat that slipped “hit-and-run” claim is a report from a trailer on a boat launch, which the claimant saw coming towards her, but could not avoid, attempted to of the accident within 24 hours or push it away and was caused to fall to the ground and as soon as reasonably possible. become injured, was not an integral part of the vehicle to which the trailer was attached, and, therefore, did not give rise to a valid hit-and-run claim. Security Fund (“PMV Fund”), which would otherwise Another requirement for a valid “hit-and-run” claim provide coverage, was “financially strained.” This court is a report of the accident within 24 hours, or as soon as held that the letter from the Liquidation Bureau did not reasonably possible, to a police officer, peace or judicial constitute a disclaimer of liability or a denial of cover- officer, or to the Commissioner of Motor Vehicles. In age. As explained by the court, “The letter states in part Progressive Northeastern Ins. Co. v. Lau,48 the claimant testi- that if the claim is on the trial calendar, the Liquidation fied at a framed issue hearing that after he was struck, as Bureau will attempt to settle the claim. The very text of a pedestrian, by an unidentified vehicle, someone placed the letter reveals the availability of compensation from a call to 911 informing emergency services of the accident. the Liquidation Bureau and the PMV Fund.” Thus, the After being taken by ambulance to the hospital, where court held that the remedy of the claimant, who did not he was treated and released, the claimant went the next purchase SUM coverage, was with the PMV Fund and day to the local police precinct, where he reported the not with his uninsured motorist carrier. accident and requested a copy of a police report, which, In Nationwide Mutual Ins. Co. v. Carlini,52 the respon- had not, in fact, been made. On these facts, the court dents were passengers on a bus that was involved in an rejected the insurer’s contention that the claimant failed accident in New Jersey. The bus was insured by a liability to comply with the reporting requirements for a hit-and- policy with Security Insurance Company, which had a run claim. Specifically, the claimant’s inability to produce deductible/self-insured retention of $250,000. The bus a police report did not preclude his claim in view of the company subsequently filed a petition in bankruptcy. The “very liberal interpretation” of the 24-hour reporting respondents immediately filed a claim for UM benefits requirement pursuant to which the courts have accepted with their own insurer, contending that the bankruptcy of “police contacts that fall far short of obtaining a police the bus company was equivalent to having no insurance, report.” Here, the arrival of the ambulance corroborated thus implicating the UM coverage. the claimant’s contention that someone reported the acci- In the context of a motion to vacate the claimant’s dent to 911 on his behalf within 24 hours of the accident, default in opposing a petition to stay, the court held that and the claimant’s own oral report at the police station the movants did not demonstrate a meritorious defense constituted sufficient compliance. because they could not establish that the offending Yet another requirement for a valid hit-and-run claim vehicle was uninsured. Relying upon the decision of the is the filing of a statement under oath that the claimant Supreme Court, New York County in Fireman’s Fund Ins. has a cause of action against a person whose identity Co. v. Wisham,53 which held that, under similar circum- is unascertainable. In Ins. Co. of State of Pennsylvania v. stances, the vehicle can be considered an “uninsured Dentale,49 the court held that this requirement only motor vehicle” for purposes of SUM coverage (Insurance applies where neither the owner nor the operator can be Law § 3420(f)(2)), but not for purposes of UM cover- identified. age (Insurance Law § 3420(f)(1)), the court held where, as here, the claimant only purchased mandatory UM Insurer Insolvency coverage, the vehicle was considered “insured” because The SUM endorsement under Regulation 35-D includes the claimant could look to the Motor Vehicle Accident within the definition of an “uninsured” motor vehicle a Indemnification Corp. (MVAIC), up to the same limits as vehicle whose insurer “is or becomes insolvent.” Under found in the mandatory endorsement. that endorsement, any and all insolvencies, whether or not covered by a Security Fund, give rise to a valid SUM Underinsured Motorist Issues claim.50 In cases involving mandatory UM coverage, as Exhaustion of Underlying Limits opposed to SUM coverage, only insolvencies that are Insurance Law § 3420(f)(2) provides that as a condition not covered by a Security Fund give rise to a valid UM precedent to the obligation of the insurer to pay under claim. the supplementary uninsured/underinsured motorist In American Transit Ins. Co. v. Barger,51 the Liquidation insurance coverage, the limits of all bodily injury liability Bureau sent out a similar letter with respect to the status bonds or insurance policies applicable at the time of the of Legion Insurance Company as insolvent and in liqui- accident shall be exhausted by payment of judgments dation and noting that the Public Motor Vehicle Liability or settlements. In Zaki v. Hereford Ins. Co.,54 the court
NYSBA Journal | July/August 2007 | 41 observed that “[t]he statutory scheme thus requires paid to him pursuant to GML § 207-c. As stated by the primary insurers to pay every last dollar, and requires court, a plaintiff to accept no less, prior to the initiation of an A municipality’s right, pursuant to General Municipal underinsurance claim.” Since in this case, the plaintiff Law § 207-c(6), to the reimbursement of the salary settled his claim for personal injuries against the tortfea- and medical expenses it had previously paid to or sor for $24,000, which was $1,000 less than the $25,000 on behalf of an officer injured in the line of duty, is limit of the tortfeasor’s coverage, the court rejected subject to the limitations articulated in the no-fault the plaintiff’s claim, notwithstanding its recognition provisions of Insurance Law § 5104. Insurance Law and understanding of “the financial predicament which § 5104(a) limits the items of damage that may be recov- motivated plaintiff to accept less than the entire primary ered in an action commenced by a person injured in a policy from the responsible vehicle.” motor vehicle accident against another motor vehicle operator or owner, here the uninsured motorist, to non-economic loss, i.e., pain and suffering, plus only Policy Limits that economic loss which exceeds basic economic loss, 55 In Penna v. Federal Ins. Co., the insured brought suit defined by statute as $50,000 for medical and hospital seeking a declaration that her policy provided $1 million expenses, lost wages, and incidental expenses, with SUM coverage. The insurer argued that the maximum certain exceptions not applicable here. The plaintiff’s SUM coverage afforded the plaintiff under the policy’s UIM claim, by definition, could only seek recov- “drive other car” endorsement was $50,000, relying upon ery only for non-economic loss and economic loss the fact that the schedule in that endorsement listed greater than basic economic loss. Thus, there can be $50,000 next to “Uninsured Motorist Limit.” The plaintiff no Insurance Law § 5104(b) lien imposed upon any countered that the policy provided $1 million of SUM amount he might recover on account of non-economic coverage, relying upon the fact that the schedule in the loss in the arbitration which will determine that claim. Where no Insurance Law § 5104(b) lien attaches, there declarations page of the policy listed $25,000/$50,000 can be no recovery under General Municipal Law next to “Uninsured Motorists,” and $1 million next to § 207-c(6).57 “SUM Coverage.” Since the “drive other car” endorse- ment did not list SUM coverage at all, and stated The court distinguished City of Newburgh v. Travis,58 in that “[t]his endorsement changes only those coverages which the court had held that payments made to a police where a premium is shown in the Schedule or in the officer injured in the course and scope of his employ- Declarations,” and a premium was shown for the $1 ment were analogous to those payments set forth in the million of SUM coverage on the business policy’s dec- policy’s offset provisions, i.e., “all sums paid or payable larations, the plaintiff contended that the $1 million of under any worker’s compensation disability benefits or SUM coverage was incorporated by reference into the similar law,” and were, therefore, also subject to offset, “drive other car” endorsement. Reading the policy and on the basis that the Village of Lake Success, unlike the the “drive other car” endorsement together, the court City of Newburgh, was not self-insured and had nothing concluded that they were reasonably subject to either of to offset since any arbitration award would be paid by its the two interpretations proffered by the parties. Given insurer. Moreover, the policy in Musgrove, unlike in City of the rule that ambiguities in an insurance policy are to be Newburgh, did not contain a specific offset provision. ■ construed against the insurer and in favor of the insured, the construction favoring the plaintiff prevailed. As such, 1. 10 Misc. 3d 1074(A), 814 N.Y.S.2d 560 (Sup. Ct., Kings Co. 2006) (citation omitted). the plaintiff was entitled to a judgment declaring that the 2. 25 A.D.3d 740, 807 N.Y.S.2d 570 (2d Dep’t 2006). policy provided her with SUM coverage in the sum of 3. 35 A.D.3d 1189, 828 N.Y.S.2d 739 (4th Dep’t 2006). $1 million. 4. 11 Misc. 3d 1080(A), 819 N.Y.S.2d 846 (Sup. Ct., Queens Co. 2006). Offsets 5. 29 A.D.3d 205, 813 N.Y.S.2d 448 (2d Dep’t 2006). In Musgrove v. American Protection Ins. Co.,56 the court 6. 10 Misc. 3d 1072(A), 814 N.Y.S.2d 562 (Sup. Ct., Kings Co. 2006). held that the plaintiff, a police officer who was injured 7. See also Allcity/Empire Ins. Co. v. Mirghani, 11 Misc. 3d 1080(A), 819 N.Y.S.2d 846 (Sup. Ct., Kings Co. 2006) (“There is a six year statute of limitations for SUM in the line of duty when an underinsured vehicle col- claims; this is based on contract law – insurance falls under contract law.”). lided with his police vehicle, whose salary and medical 8. 11 Misc. 3d 1080(A), 819 N.Y.S.2d 852 (Sup. Ct., Queens Co. 2006). expenses during the period of his disability were paid 9. 7 N.Y.3d 152, 818 N.Y.S.2d 798 (2006). by his employer, the Village of Lake Success, pursuant to 10. See Norman H. Dachs & Jonathan A. Dachs, Court of Appeals: Deciding and General Municipal Law § 207-c (GML), and who received Deciding Not to Decide, N.Y.L.J., July 6, 2006, p. 3, col. 1, analyzing this decision. a settlement from the underinsured motorist’s liabil- See also Curiel v. State Farm Fire & Cas. Co., 35 A.D.3d 343, 826 N.Y.S.2d 391 (2d ity insurer, and thereafter filed a claim for underinsured Dep’t 2006). motorist benefits with the insurer of the police vehicle, 11. N.O.R., N.Y.L.J., July 17, 2006, p. 24, col. 1 (Civ. Ct., Queens Co.). was not obligated to reimburse the village for the money 12. 25 A.D.3d 321, 808 N.Y.S.2d 38 (1st Dep’t 2006).
42 | July/August 2007 | NYSBA Journal 13. 34 A.D.3d 1288, 824 N.Y.S.2d 542 (4th Dep’t 2006). 50. See Am. Mfrs. Mut. Ins. Co. v. Morgan, 296 A.D.2d 491, 745 N.Y.S.2d 726 (2d 14. Id. at 1290 (citations omitted). Dep’t 2002). 15. 35 A.D.3d 459, 460, 824 N.Y.S.2d 735 (2d Dep’t 2006) (citations omitted). 51. 13 Misc. 3d 386, 819 N.Y.S.2d 654 (Sup. Ct., N.Y. Co. 2006). 16. See Allstate Ins. Co. v. Cruz, 30 A.D.3d 511, 817 N.Y.S.2d 129 (2d Dep’t 2006); 52. 12 Misc. 3d 718, 814 N.Y.S.2d 856 (Sup. Ct., Nassau Co. 2006). Schoenig v. N. Sea Ins. Co., 28 A.D.3d 462, 813 N.Y.S.2d 189 (2d Dep’t 2006); see 53. 6 Misc. 3d 1017(A), 800 N.Y.S.2d 345 (Sup. Ct., N.Y. Co. 2005). also City of New York v. Welsbach Elec. Corp., 11 Misc. 3d 1085(A), 819 N.Y.S.2d 54. N.Y.L.J., July 17, 2006, p. 24, col. 1 (Civ. Ct., Queens Co. 2006). 847 (Sup. Ct., N.Y. Co. 2006). 55. 28 A.D.3d 731, 814 N.Y.S.2d 226 (2d Dep’t 2006). 17. 33 A.D.3d 670, 821 N.Y.S.2d 895 (2d Dep’t 2006). 56. 32 A.D.3d 916, 823 N.Y.S.2d 165 (2d Dep’t 2006). 18. 11 Misc. 3d 1085(A), 819 N.Y.S.2d 847 (Sup. Ct., N.Y. Co. 2006). 57. Id. at 918 (citations omitted). See Ins. Law § 5102(c). 19. 27 A.D.3d 462, 811 N.Y.S.2d 108 (2d Dep’t 2006). 58. 228 A.D.2d 497, 644 N.Y.S.2d 281 (2d Dep’t 1996). 20. 290 A.D.2d 278, 279, 736 N.Y.S.2d 34 (1st Dep’t 2002). 21. See also AIG Centennial Ins. Co. v. Chunasamy, 29 A.D.3d 786, 818 N.Y.S.2d 95 (2d Dep’t 2006) (delay of over three months unreasonable as a matter of law). From the NYSBA Bookstore 22. 28 A.D.3d 462, 813 N.Y.S.2d 189 (2d Dep’t 2006). 23. 32 A.D.3d 889, 823 N.Y.S.2d 85 (2d Dep’t 2006). 24. 29 A.D.3d 698, 815 N.Y.S.2d 650 (2d Dep’t 2006). The New York State 25. See also GEICO v. Spence, 23 A.D.3d 466, 805 N.Y.S.2d 625 (2d Dep’t 2005) (since the insurer was endeavoring to adduce evidence of fraud – i.e., a staged Physician’s HIPAA accident – which may have established that the occurrence or collision was not covered, there was no need for it to disclaim in a timely fashion). Privacy Manual New 26. 7 N.Y.3d 772, 820 N.Y.S.2d 848 (2006). 27. See also N.Y. Cent. Mut. Fire Ins. Co. v. Gonzalez, 34 A.D.3d 816, 825 N.Y.S.2d 132 (2d Dep’t 2006) (insurer’s timely commencement of proceeding to stay arbitration – within 20 days of receipt of Notice of Intention to Arbitrate, and within 26 days of receipt of untimely Notice of Intention to Make Claim – con- stituted a timely, sufficient denial of coverage or disclaimer). Authors Lisa McDougall, Esq. 28. 29 A.D.3d 989, 815 N.Y.S.2d 718 (2d Dep’t 2006). Philips, Lytle LLP 29. 28 A.D.3d 353, 814 N.Y.S.2d 114 (1st Dep’t 2006). Buffalo, NY 30. 12 Misc. 3d 1157(A), 819 N.Y.S.2d 213 (Sup. Ct., N.Y. Co. 2006). Christopher R. Viney, Esq. 31. See also Steinberg v. Hermitage Ins. Co., 26 A.D.3d 426, 809 N.Y.S.2d 569 (2d Lackawanna, NY Dep’t 2006) (“[W]here the insured is the first to notify the carrier, even if that notice is untimely, any subsequent information provided by the injured party This new title is designed to be a “hands on” tool for health is superfluous for notice purposes and need not be addressed in the notice of care providers as well as their legal counsel. Consisting of 36 disclaimer issued by the insurer [citations omitted]. Here, the claimant’s attor- policies and procedures—as well as the forms necessary to ney did not directly notify the defendant of the accident until after the insured had done so. Thus, the defendant was not required to cite the claimant’s failure implement them—the Manual provides the day-to-day guid- to provide direct notice in the disclaimer letter it had already issued to the ance necessary to allow the physician’s office to respond to insured”). routine, everyday inquiries about protected health informa- 32. 31 A.D.3d 343, 819 N.Y.S.2d 264 (1st Dep’t 2006). tion. It also provides the framework to enable the privacy officer and the health care provider’s counsel to respond 33. 25 A.D.3d 388, 807 N.Y.S.2d 351 (1st Dep’t 2006). properly to even non-routine issues. 34. 27 A.D.3d 462, 811 N.Y.S.2d 108 (2d Dep’t 2006). The Manual is organized in a way that parallels the various 35. 30 A.D.3d 523, 817 N.Y.S.2d 120 (2d Dep’t 2006). aspects of the HIPAA Privacy Rule, and incorporates pertinent 36. 32 A.D.3d 1228, 821 N.Y.S.2d 318 (4th Dep’t 2006). New York State law considerations as well. 37. 31 A.D.3d 443, 818 N.Y.S.2d 541 (2d Dep’t 2006). This invaluable book is a useful tool for both the health care 38. Id. at 444 (citation omitted). and legal practitioner alike. 39. 28 A.D.3d 375, 813 N.Y.S.2d 714 (1st Dep’t 2006). Product Info and Prices 40. 35 A.D.3d 188, 827 N.Y.S.2d 110 (1st Dep’t 2006). 2007 • 288 pp., loose-leaf • PN: 4167 41. 13 Misc. 3d 790, 827 N.Y.S.2d 513 (Sup. Ct., Queens Co. 2006). NYSBA Members $80 / Non-members $95 42. See Joseph D. Novahicka, Federal Preemption of Vehicle and Traffic Law § 388, ** Free shipping and handling within the continental U.S. The cost for N.Y.L.J., Dec. 14, 2006, p. 4, col. 4. shipping and handling outside the continental U.S. will be added to your 43. 6 N.Y.3d 172, 811 N.Y.S.2d 302 (2006). order. Prices do not include applicable sales tax. 44. See also Eagle Ins. Co. v. Lucia, 33 A.D.3d 552, 824 N.Y.S.2d 9 (1st Dep’t Co-sponsored by the New York State Bar Association’s Health Law 2006). Section and the Committee on Continuing Legal Education 45. 27 A.D.3d 567, 810 N.Y.S.2d 356 (2d Dep’t 2006). 46. 22 A.D.3d 186, 188, 802 N.Y.S.2d 1 (1st Dep’t 2005), aff’d, 6 N.Y.3d 881, 817 Get the Information Edge N.Y.S.2d 210 (2006) (citations omitted). 47. 35 A.D.3d 1284, 826 N.Y.S.2d 869 (4th Dep’t 2006). NEW YORK STATE BAR ASSOCIATION 48. 11 Misc. 3d 1079(A), 819 N.Y.S.2d 850 (Sup. Ct., Queens Co. 2006). 1.800.582.2452 www.nysba.org/pubs 49. 32 A.D.3d 854, 821 N.Y.S.2d 115 (2d Dep’t 2006). Mention Code: PUB0093
NYSBA Journal | July/August 2007 | 43 Preparing for Your First Oral Argument
By Steven C. Bennett
ooner or later, as a junior litigator, you get your Know How Much Time You Have chance to make your first oral argument in court. In appellate settings, the court will typically allocate a SThe argument may be on a routine discovery specific amount of time to each side for argument. In motion, or perhaps something more substantive, like a lower courts, the ground rules may be much more fluid, motion to dismiss or a motion for summary judgment. and not transparent. If you do not have experience with The motion may be part of an evidentiary hearing or trial, the particular judge, you should inquire. Ask colleagues or even an appellate argument. No matter the size and at your firm. Call the judge’s chambers. Consult the cal- importance of the matter, and no matter the context and endar of events on the court’s docket for the session, and format, your heart may skip a beat or two as you realize figure your time from the number of matters the court you are about to be tested by a new and challenging expe- must handle in the session. rience that your one law school moot court experience If none of these methods are satisfactory, consider may not have sufficiently prepared you to encounter. agreeing with your adversary, in advance of the argu- This article aims to identify some of the most basic ment, on how much time the parties will request at the considerations that should go into preparing for your outset of the argument. At very least, when you begin to first oral argument. The substance of what you say will speak, tell the court how long you plan to take and con- depend on the individual case, and your client’s position. firm that the timing is acceptable. If you wish to reserve But the basic elements of preparation for oral argument rebuttal time, say so at the outset of your argument. are fairly standard. A good grounding in these basics will As you prepare, time your practice presentations, help you prepare for even the most unusual arguments. and work to eliminate points that may not be useful to develop, given limited time. Build into your schedule Know What You Want time for questions from the court (indeed, questions are Courts do not exist to decide hypothetical questions. often the focus of oral argument). Have ready a “short Most judges, moreover, are very practical, “bottom line” form” of your argument, which you can use if the court people. Expect to be asked, early, and perhaps in several gives you less time than you had expected, or if the court different ways, exactly what you want the court to do. overwhelms your argument time with questions. You may have stated in your motion papers (or oppo- sition) the relief you seek. If so, be prepared to explain Develop a Theme why you seek that specific relief. If your position has The psychological principle of “recency and primacy” is a been only generally stated in writing, moreover, expect key aspect of persuasion. The first things that an audience the court to ask for more details (and be prepared to give them, even if not asked). Consider providing the court with a form of order to sign, or offering to prepare such an order. If the court is STEVEN C. BENNETT ([email protected]) is a partner in the New not inclined to grant all the relief you request, consider York City offices of Jones Day and a member of the firm’s Training what “bare minimum” relief you might accept. If the Committee. The views expressed are solely those of the author, and court may rule against you, consider whether there are should not be attributed to the author’s firm or its clients. worst-case scenarios that you may wish to avoid.
44 | July/August 2007 | NYSBA Journal (judge) hears, and the last things, may be the things that Prepare to Answer Questions have the most impact. A short, simple, potent central The best oral advocates welcome questions from a court. theme, which can be articulated early in the argument, Such questions help reveal the court’s tentative reac- and repeated (at least) at the close of the argument, tion to the case, and help illuminate any problem areas is key. that require the advocate’s attention. The question-and- A good theme should focus on the reasonableness and answer interaction, moreover, establishes credibility and fairness of your position. It should, if possible, provide rapport. Thus, the general attitude in response to ques- a common thread throughout your arguments. It should tions from the bench should be “I’m glad you asked me frame the issue in such a way that, if the court agrees that question,” never anything that sounds even remotely with your theme, you will win most, or all, of the relief like “don’t bother me with such an irrelevant question.” you request. Your theme also should frame the issues in Answer questions directly. Few judges have patience a way that will require the other side to respond, on the for long-winded explanations, especially those that hide terms that you dictate. the answer to the judge’s question. If you must concede a point, do so forthrightly, and then provide your (brief) Develop a Structure explanation for why the concession is not critical. No judge can absorb all your argument, much less agree Do not ignore questions put to your adversary. Often, with it, if the logic of the argument is not transparent. the questions, and especially the answers, can be par- Indeed, most judges will interrupt an advocate if the ticularly useful in highlighting strong points in your argu- judge is not sure “where this is going.” Thus, some form ment. of road map is often essential, to help guide the court through your points. Prepare to Respond to Your Opponent You should, if possible, briefly outline the structure Oral argument is a multi-party game. Questions and of your points at the outset of your argument as part arguments from your adversary may be as important to of, or shortly after, stating your theme. With some “hot” your persuasiveness as questions from the court. Think benches, this may be your one and only opportunity to through such questions in advance of the argument. Read summarize your central points. If the bench is less active, your adversary’s submissions to the court carefully. this will be your opportunity to remind the court of how Make a list of the essential points for the other side, to your entire argument hangs together. During the argu- which you may need to respond. In outlining your argu- ment, moreover, reference to your structure will help ease ment, consider how best to incorporate those responses you through transitions. into the other points you hope to make. Consider wheth- er there are some points that you need not address, unless Memorize an Opening the court, or your adversary, emphasizes them in the For most novice advocates, the first words spoken are course of the argument. the toughest. Once the words start to flow, nervousness fades, and focus on the activity takes hold. Memorize the Practice Your Language and Non-Verbal first few sentences of your opening to “jump start” the Communication process and to ensure that your theme, at least, is stated What’s written on paper is not always what comes out in exactly as you prefer. oral argument. Difficult words, case names, acronyms and other phraseology can come out poorly in the heat and Prepare an Outline nervousness of battle. Oral argument practice can help. Do not simply read your argument. Nothing could be Be especially cognizant of how you call the parties in more boring – for you and for the court – and nothing the action. If there are multiple parties, and multiple posi- could be less likely to respond to unplanned issues and tions, such as “plaintiff-appellant – cross-appellee,” make questions as they arise during the argument. Instead, sure that you can clearly and efficiently refer to your cli- prepare an outline of your main points, and sub-points. ents and your adversaries during the argument. Use the outline as a reference during your argument, to make sure that you cover all of the essential elements of Relax your position. If the court raises a question that relates to Most good oral advocates are not born; they’re made from a point on your outline, skip ahead to answer that ques- experience and perseverance. Your first oral argument will tion, and then try to get back to the logical flow of your not be perfect, but you will get through it, and you will outline. If you are the second speaker, and there is a vital learn from the experience. Indeed, the more you plan for point that your adversary has raised in the initial argu- your first argument the more you will learn, as you come ment, consider doing the same, jumping ahead on your to see that no matter how well you prepare, something outline to address that point first, and then returning to unpredictable may, and probably will, occur. That is part of the remainder of your outline. the challenge, and the fun, of oral advocacy. ■
NYSBA Journal | July/August 2007 | 45 COMPUTERS & THE LAW BY DAVID P. MIRANDA
DAVID P. M IRANDA ([email protected]) is a partner with the law firm of Heslin Rothenberg Farley & Mesiti P.C., in Albany, which focuses exclusively on intellectual property law and related litigation. He graduated from the State University of New York at Buffalo and earned his law degree from Albany Law School.
Copyright Infringement Lawsuit Against YouTube
he availability of digital video anyone to copy code from its Web site of infringement. Under the doctrine of recordings, and the ease with and incorporate video clips emanating vicarious liability, one may be found Twhich they can be posted on the from YouTube’s site onto other Web liable without specific knowledge of Internet, has raised a host of copyright sites. Even though YouTube is only the infringing act. and public policy issues. Video clips two years old, it has become one of the Viacom contends that the defendant of television programs and sporting most popular Internet sites, with over YouTube encourages individuals to events, as well as full-length mov- 100 million videos shown daily; it was upload videos to its site and has filled ies, can be found on video-sharing recently purchased by Google for $1.65 its library with thousands of episodes Web sites within minutes of public billion. Although YouTube is intend- and significant segments of Viacom’s release. Enforcement of copyright pro- ed to provide a means for individu- popular copyrighted programming. tections by the creators of the underly- als to download their own personal Viacom asserts that although the vid- ing works is particularly difficult as a videos for viewing on the Internet, eos available on YouTube are uploaded result of the ease with which virtually it has rapidly developed a volumi- by users in the first instance, they any digital recordings may be searched nous library of copyrighted materials are part of YouTube’s library, are dis- and retrieved on the Internet. placed on the site by unauthorized played on YouTube’s Web site, which Earlier this year entertainment third parties. As YouTube’s popular- the defendants control and from which company Viacom International, Inc., ity has grown, it has struck licensing they directly profit. Viacom further and its related companies began a deals with CBS, NBC, SONY, BMG contends that when a user uploads a lawsuit against YouTube, Inc., and and Warner to air video and music video, YouTube copies the video into its parent company, Google, Inc.1 clips and to share advertising revenue its own software format, making it Viacom’s motion picture labels include generated via those clips. Although available for viewing on its own Web Paramount Pictures and DreamWorks. attempts were made to negotiate a site. The defendants’ use of infring- Its television channels include TV license with Viacom and its subsidiar- ing works, including those of Viacom, Land, Nickelodeon, VH1 and Comedy ies, those efforts were unsuccessful has made an enormous contribution Central. The lawsuit, commenced in and the lawsuit was commenced. to the explosive growth and value of the United States District Court for the Copyright owners have the exclu- YouTube, says Viacom. Southern District of New York, asserts sive right to reproduce, distribute, pub- Pursuant to the Digital Millennium multiple causes of action for direct, licly perform and display their copy- Copyright Act, certain safe harbor contributory and vicarious copyright righted works.2 In order to success- defenses may be available to YouTube infringement arising out of YouTube’s fully bring a claim for direct copyright if it has in place certain policies and unauthorized use of Viacom’s copy- infringement, Viacom must establish takes reasonable measures to remove righted entertainment materials. that the defendant copied, reproduced the allegedly infringing works upon The YouTube Web site, located at or distributed Viacom’s copyrighted notification by the copyright owner.3 www.youtube.com, allows visitors to works. In order to establish contribu- Viacom argues, however, that the mea- upload their own videos, permitting tory copyright infringement, Viacom sures taken by YouTube to remove millions of Internet users to search for must prove YouTube’s knowledge of the copyrighted works are ineffectual, and watch them. Most videos on the the infringing activity and actual assis- alleging that more than 150,000 unau- site are short video clips ranging from tance in or inducement of the infringe- thorized clips of their copyrighted 15 seconds to five minutes in length. In ment. Vicarious liability is found where programming have been viewed 1.5 addition to permitting users to register an operator has the right and ability billion times. Viacom contends that with the site and upload videos in a to control users and obtains a direct YouTube removes only the specific variety of formats, YouTube also allows financial benefit from allowing the acts infringing clips identified, rather than
46 | July/August 2007 | NYSBA Journal all infringing works that can reason- refuses to do the same for videos that upon the copyright owner, Viacom, to ably be located, and that because of the infringe Viacom’s copyrights. identify each and every item of copy- nature of YouTube’s service, there are Although the case is in its early righted material and ensure that it is often multiple postings of the same or stages and there has been no indica- removed. ■ nearly identical infringing works, one tion of the court’s inclinations on the or more of which remain on the Web matter, the case is significant because it 1. Viacom Int’l, Inc. v. YouTube, Inc., No. 07 Civ- 2103 (S.D.N.Y.). site even after notification. Further, is one of the first to address the unique 2. 17 U.S.C. § 106. Viacom states that because YouTube issues affecting YouTube, and similar 3. 17 U.S.C. § 512. offers features that allow users to des- services. The fundamental question ignate certain “friends” as the only for the courts is not persons allowed to see the videos they whether companies like upload, it prevents copyright owners Viacom have the right to from finding all infringing videos. control the use, repro- Viacom contends that YouTube has duction and distribu- the ability to invoke further protec- tion of their copyrighted tion for the copyrighted works of oth- works on the Internet, ers, but fails to do so. For example, because most certainly YouTube takes additional measures for they do; but rather, content to which it has acquired licens- whether a service like es through its various business part- YouTube is obligated to nerships with other copyright holders, review every clip that’s using filtering technology to identify downloaded onto its and remove copyrighted works for site for possible copy- companies with which it has licensing righted content. If the deals. Furthermore, YouTube is able to court finds YouTube proactively review and remove por- does not have that nographic videos from its library, but obligation, then it falls
NEW YORK STATE BAR ASSOCIATION
Announcing—2007 Revision to the “Pedowitz book” Real Estate Titles Third Edition
Editor-in-Chief: revised, including the chapter on title insurance James M. Pedowitz, Esq. which now includes copies of the new 2006 Of Counsel American Land Title Association policies and the Berkman, Henoch, Peterson & Peddy updated Title Insurance Rate Service Association Garden City, NY (TIRSA) endorsements. This revised Third Edition includes new decisions, statutes and regulations; Product Info and Prices Edited by a nationally renowned expert on index has also been substantially revised and 2007 • 1,632 pp. • loose-leaf • 2 vols. real estate law and title insurance, James M. expanded. PN: 521007 Pedowitz, this revised Third Edition of Real New attorneys will benefi t from the comprehen- NYSBA Member $150 / Non-member $180 Estate Titles is a thorough update of the sive coverage by leading practitioners from original text and is authored by some of the throughout New York State, and real estate Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. most distinguished practitioners in the fi eld. experts will be able to turn to this book will be added to your order. Prices do not include applicable Many chapters have been substantially whenever a novel question arises. sales tax. Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB094
NYSBA Journal | July/August 2007 | 47 ATTORNEY PROFESSIONALISM FORUM
To the Forum: Consideration also provides that if, (f) deliberately disregards an agree- Two years ago, I took on a negligence after careful consideration, you choose ment or obligation to the lawyer case on a contingent fee basis. At the to withdraw, you must do so in a way as to expenses or fees; or time, I believed that the claim pos- that minimizes the possible adverse (g) uses the lawyer’s services to per- sessed merit and had real monetary effect on, and prejudice to, the rights petrate a crime or fraud. value. However, the more work I do on of your client. To that end, you should If you have concluded that your the case, the lower the chance of suc- (a) give due notice of withdrawal, client has a meritless claim, and your cess seems. More to the point, it now (b) suggest other counsel, (c) deliver client refuses to heed your judgment appears that the cost of the time I have to the client the papers to which he or advice that the claim is in fact merit- spent on this matter grossly exceeds or she is entitled, (d) cooperate with less, the continued representation may the possible recovery, assuming that subsequent counsel, and (e) gener- violate the DR 7-102(A)(2) prohibition there is a recovery at all. Am I allowed ally minimize the possibility of harm, against the assertion of an unwarranted to withdraw after putting in so much including refunding any compensation claim. Thus, DR 2-110(B)(2) may make work? If so, what is the best withdraw- not earned. withdrawal mandatory because press- al procedure? Is there an approach I In short, you must assess whether ing the claim would amount to a viola- can take to mitigate the consequences terminating the employment after the tion of a Disciplinary Rule. Similarly, of a withdrawal? work you have already put in will such a determination on your part Sincerely, prejudice your client, and whether you would also allow permissive with- Wanting Out could successfully help the client find drawal under DR 2-110(C)(1)(a) and new counsel to adequately handle the DR 2-110(C)(2). The Code quite clearly Dear Wanting Out: matter if the client decides to proceed. forbids advocating meritless and frivo- Your question raises important issues If you can find another lawyer to assist lous claims. regarding an attorney’s right to ter- the client, you can suggest an agreement Additional reasons for permissive minate his or her employment, and to new counsel under which you are withdrawal include instances where: related duties to the client. compensated for your time, to be paid (a) the lawyer’s continued employ- Initially, you should review the exe- from any future proceeds of the suit. ment is likely to result in a viola- cuted retainer letter to determine if Of course, not all partings are tion of a Disciplinary Rule, a withdrawal provision or procedure smooth. If the client does not agree had already been agreed upon. to terminate the employment, certain A meeting with the client should actions taken by the client allow for per- The Attorney Professionalism Committee be the next step. If it goes well, you missive withdrawal. DR 2-110(C) sets invites our readers to send in comments might be able to eliminate frustration forth the circumstances under which or alternate views to the responses on both sides and come to an amicable a lawyer is permitted to withdraw printed below, as well as additional parting. You can explain that when you where the lawyer does not need the hypothetical fact patterns or scenarios to accepted the matter, your assessment permission of a tribunal. Withdrawal be considered for future columns. Send of the facts led you to believe that there may occur if the client: your comments or questions to: NYSBA, would be a favorable and lucrative (a) insists on presenting a claim with- One Elk Street, Albany, NY 12207, Attn: outcome. However, as the case has out merit or that cannot be sup- Attorney Professionalism Forum, or by developed you have determined that ported by a good faith argument; e-mail to [email protected]. going forward would likely not result (b) persists in using the lawyer’s ser- This column is made possible through in success. If your client then know- vices in a course of action that the the efforts of the NYSBA’s Committee on ingly and freely assents to the termina- lawyer knows to be criminal or Attorney Professionalism. Fact patterns, tion of employment, you are permitted fraudulent; names, characters and locations presented to withdraw under DR 2-110(C)(5), (c) insists that the lawyer take action in this column are fictitious, and any resem- provided you have not yet taken the that is illegal or prohibited by the blance to actual events or to actual persons, matter to a tribunal. Disciplinary Rules; living or dead, is entirely coincidental. These However, you should consider with- (d) by other conduct renders it unrea- columns are intended to stimulate thought drawal very cautiously and carefully. sonably difficult for the lawyer to and discussion on the subject of attorney According to EC 2-32, “[a] decision by carry out employment effectively; professionalism. The views expressed are a lawyer to withdraw should be made (e) insists, in a matter not pending those of the authors, and not those of the only on the basis of compelling circum- before tribunal, that the lawyer Attorney Professionalism Committee or stances and, in a matter pending before engage in conduct contrary to his the NYSBA. They are not official opinions a tribunal, the lawyer must comply or her own judgment and advice, on ethical or professional matters, nor with the rules of the tribunal regard- that may or may not be prohibited should they be cited as such. ing withdrawal.” The same Ethical under the Disciplinary Rules;
48 | July/August 2007 | NYSBA Journal (b) the lawyer cannot work with co- assumption of a financial burden, counsel, which is part of the knowing risk that QUESTION FOR THE (c) the lawyer’s mental or physical is taken in exchange for a chance to NEXT ATTORNEY condition renders it difficult to realize a fixed portion of a settlement PROFESSIONALISM FORUM: carry out effective employment, or verdict. (d) the lawyer’s client knowingly and Finally, keep in mind that there are freely assents to the termination instances where a lawyer must with- I am a real property lawyer who of employment, or draw, which occur when: has never handled a negligence case. (e) the lawyer believes in good faith (a) the rules of a tribunal require A close friend of mine, Buddy, was that in a proceeding before a tri- such withdrawal, recently injured in a slip and fall while bunal, the tribunal will find the (b) the lawyer knows the client is he was shopping in a local retail store. existence of other good cause for bringing the legal action for the The store owner’s insurance compa- withdrawal (DR 2-110(C)). purpose of harassment or mali- ny has offered a nominal amount to It should be noted that Model Rule cious injury, Buddy for his injuries. 1.16(b)(6) lists an unreasonable finan- (c) the lawyer knows that if he or she I have agreed to represent Buddy cial burden on the lawyer as a ground continues with the employment, on his claim against the store owner. for permissive withdrawal. Though there will be a violation of a Buddy has limited funds. He and I the Disciplinary Rules do not contain Disciplinary Rule, have agreed that I would take care of this provision, it can lead to ineffective (d) the lawyer’s mental or physical all the expenses connected to the repre- representation pursuant to DR 2- condition prevents him or her sentation, and that we would split the 110(C)(1)(d), or may constitute “other from carrying out the employ- recovery equally. Since our friendship good cause for withdrawal.” DR 2- ment effectively or goes back many years, I have not put 110(C)(6); N.Y. Ethics Op. State 653 (e) the lawyer is discharged by the our agreement in writing. (1993); DR 2-110(B). However, it is client (DR 2-110(B)). Is there anything I have over- important to look at this Model Rule looked? cautiously and not to give it an overly The Forum, by expansive reading; one of the inherent Anastasia B. Byrnes, Esq. Sincerely, qualities of contingency fee cases is the New York, New York Buddy’s Friend ATTENTION NEW NYSBA MEMBERS! Your New Member Orientation Program is HERE!
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NYSBA Journal | July/August 2007 | 49 THE LEGAL WRITER CONTINUED FROM PAGE 64 sequent to.” Legalese makes for bad nouns like “myself,” “yourself,” lawyering: I am, inter alia, an attorney, “yourselves,” “ourselves,” “herself,” party? Anyone he could dig up!”3 hereinafter a per se bad attorney, for “himself,” “themselves,” and “itself.” “Families are like fudge. Mostly sweet utilizing said aforementioned legalese. Consider this dialogue between A and with a few nuts.”4 “Madness takes 7. Hate Pomposity. Be formal but B. Incorrect: A: “How are you? B: “Fine. its toll; please have exact change.”5 not over the top. Stay away from IQ And yourself?” Correct: A: “How are “Some people are wise, and some, or SAT words. No one will be im- you?” B: “Fine. And you?” Why would otherwise.”6 Are rhetorical questions pressed. You’ll look bovine, fatuous, anyone say “How are yourself?” effective? What do you think? Readers and stolid, not erudite, perspicacious, 8. Hate Abbreviations, Contractions, want answers, not questions. Some and sagacious. The fewer syllables in a and Excessive or Undefined Acronyms. writers use rhetorical questions to word, the better. Prefer simple and short Don’t use these abbreviations: “i.e.,” make readers think or to involve them. words to complex and long words: “e.g.,” “re,” “etc.,” and “N.B.” Be for- Do you agree? Rhetorical questions “Adjudicate” becomes “decide.” “Aggre- mal: use “facsimile,” not “fax.” Leave fail because you don’t know how the gate” becomes “total.” “Ameliorate” contractions, which are friendly and reader will answer the question or how becomes “improve” or “get better.” “As sincere, for informal writing, e-mails, involved the reader wants to be. False to” becomes “about” or “according to.” and Legal Writer columns. Eliminate ethical appeals are attempts to con- “At no time” becomes “never.” “Attain” “aren’t, “couldn’t,” “don’t,” “haven’t,” vince a reader that you’re credible, eth- becomes “reach.” “Commence” becomes “it’s,” “isn’t,” “shouldn’t,” “wouldn’t,” ical, honest, or meticulous because you “begin” or “start.” “Complete” becomes and “you’re.” An acronym is an
Legalese makes for bad lawyering. say so. Instead of telling the reader that “end” or “finish.” “Component” becomes abbreviation formed from the first you exhaustively researched the law, “part.” “Conceal” becomes “hide.” letter of each word of a title. Define discuss your research exhaustively. Let “Demonstrate” becomes “show.” terms and nouns you’ll frequently your writing speak for itself. Some “Donate” becomes “give.” “Effectuate” use in your legal document: Depart- false, unnecessary appeals: “It is well becomes “bring about.” “Elucidate” ment of Housing Preservation and settled that”; “it is hornbook law that”; becomes “explain.” “Implement” becomes Development (DHPD); New York “this author has carefully considered “carry out” or “do.” “In case” or “in the Stock Exchange (NYSE). Don’t use the facts and concludes that . . . .” event that” becomes “if.” “Incumbent quotation marks or “hereinafter 6. Hate Legalese. Use simple and upon” becomes “must” or “should.” “Is referred to as” to set out the acronym: common words that readers under- able to” becomes “can.” “Necessitate” Judge Me Not Corporation (“JMNC”) stand. Legalese is the antithesis of becomes “require.” “Per annum” becomes becomes Judge Me Not Corporation plain English. All legalisms can be “a year.” “Possess” becomes “own” or (JMNC). Common legal acronyms eliminated. The only loss will be the “have.” “Proceed” becomes “go.” “Pro- need not be defined: CPLR, not Civil legalese, and the gain will be fewer cure” becomes “get.” “Relate” becomes Practice Law & Rules (CPLR). If you words and greater understanding. “tell.” “Retain” becomes “keep.” “Suffi- use acronyms, use articles that modify Incorrect: “Enclosed herewith is my cient” becomes “enough.” “Terminate” the acronym, not the word. Example: brief.” Correct: “Enclosed is my brief.” becomes “end,” “fire,” or “finish.” “Uti- “An NYPD officer,” not “A NYPD Incorrect: “The defendant has a prior lize” becomes “use.” officer.” A person’s name or title need conviction.” Correct: “The defendant Pomposity arises when writers go not be defined. Incorrect: “John Smith has a conviction.” Eliminate these out of their way to sound intelligent (Smith)” or “John Smith, the architect words: “aforementioned,” “aforesaid,” but then err. For example, you’ll sound (the Architect).” “foregoing,” “forthwith,” “hereinaf- foolish if you try to use “whom” and 9. Hate Mystery and History. Legal ter,” “henceforth,” “herein,” “herein- then use it incorrectly. Incorrect: “Jane is documents aren’t mystery novels. above,” “hereinbefore,” “per” (and “as the person who defendant shot.” Better: Don’t wait to surprise your readers per”), “said,” “same,” “such,” “there- “Jane is the person whom defendant until the end. Don’t bury essential in,” “thereby,” “thenceforth,” “there- shot.” Best: “Jane is the person defen- issues in the middle, either, or give after,” “to wit,” “whatsoever,” “where- dant shot.” Incorrect: “Whom shall I say your readers clues along the way, hop- as,” “wherein,” and “whereby.” Legal is calling?” The answer is, “He [or she] ing they’ll catch them on time. Few will writing is planned, formal speech. If is calling.” Better: “Who shall I say is try to decipher what you have to say. you wouldn’t say it, don’t write it. calling?” Best: “Who’s calling?” Also, don’t inundate your readers with Write “earlier” or “before,” not “prior You’ll also sound pompous if you the history of the case law or statute. to.” Write “after” or “later,” not “sub- misuse reflexive and intensive pro- Readers don’t want a history lesson.
50 | July/August 2007 | NYSBA Journal Stay away from IQ or SAT words. becomes “perform.” “Preference” ior, possibly sanctionable, distracts becomes “prefer.” “Reference” becomes readers and leaves them wondering They want current law and how it “refer.” “Registration” becomes “reg- whether your substantive arguments applies. ister.” “Reliance” becomes “rely.” are weak. Wounding your adversary, 10. Hate Inconsistency. Be consis- “Review” becomes “reviewed.” “Ruling” your adversary’s client, or the judge is tent in tone: Don’t be formal in one becomes “rule.” “Settlement” becomes ineffective. Instead, be courteous and place and informal in another. Be con- “settle.” “Similarity” becomes “simi- professional. Never be petty. But if you sistent in point of view: Don’t use your lar.” “Statement” becomes “state.” must attack, aim to kill, metaphorically point of view in one place and the “Technicality” becomes “technical.” speaking. reader’s in another. Example: “Writers 12. Hate Negatives. Watch out for In the next column, the Legal Writer must not shift your point of view.” negative words: “barely,” “except,” will continue with the next baker’s Be consistent in reference: Don’t write “hardly,” “neither,” “not,” “never,” dozen of don’ts. Following that col- “my client” in one place, “this writer” “nor,” “provided that,” and “unless.” umn will be three columns on gram- in another, and “plaintiff” in a third. Be Example: “Good lawyers don’t write mar errors, punctuation issues, and consistent in voice: Don’t write “you” in the negative.” Becomes: “Good law- legal-writing controversies. Together in one place and “I” in another. Be yers write in the positive.” Eliminate with the two preceding columns on consistent in style. Examples: If you use negative combinations: “never unless,” legal writing’s do’s, this series repre- serial commas in one place, use them “none unless,” “not ever,” and “rarely sents legal writing’s do’s, don’ts, and everywhere. If you write “3d Dep’t” ever.” Don’t use “but,” “hardly,” or maybes. ■ in one citation, don’t write “3rd Dept.” “scarcely” with “not.” Use “but” instead in another. of “but however,” “but nevertheless,” 1. Ecclesiastes 3:1. 11. Hate Nominalizations. A nom- “but that,” “but yet,” and “not but.” 2. William Shakespeare, As You Like It, act 2, scene 7, available at http://www.shakespeare-literature. inalization is a verb turned into a Eliminate negative prefixes and suffixes: com/As_You_Like_It/10.html (last visited Feb. 22, noun. Nominalizations are wordy. “dis-,” “ex-,” “il-,” “im-,” “ir-,” “-less,” 2007). They hide. They’re abstract. Example: “mis-,” “non-,” “-out,” and “un-.” Use 3. My Favourite Punsters: Stan Kegel, available at http://workinghumor.com/puns/stan_kegel. “The defendant committed a viola- negatives only for negative emphasis: A: shtml (last visited Feb. 22, 2007). tion of the law.” Becomes: “The defen- “How are you?” B: “Not bad.” 4. Pun ny Oneliners, available at http://working dant violated the law.” Don’t bury 13. Hate Attacks or Rudeness. humor.com/puns/oneliners.shtml (last visited Feb. your verbs. Most buried verbs end Condescending language, personal 22, 2007) (attributed to Theresa Corrigan). with these suffixes: “-tion,” “-sion,” attacks, and sarcasm have no place in 5. Id. (attributed to Goeff Tibballs). “-ment,” “-ence,” “-ance,” and “- legal writing. Attacking others won’t 6. Id. (attributed to Phylbert). ity.” Use strong verbs: “Allegation” advance your reasoning. This behav- becomes “allege.” “Approval” becomes “approve.” “Assistance” becomes “assist.” “Complaint” becomes “com- NEW YORK STATE BAR ASSOCIATION plain.” “Conclusion” becomes “con- clude.” “Conformity” becomes “con- form.” “Consideration” becomes “con- GET A JOB. sider.” “Decision” becomes “decide.” “Description” becomes “describe.” (OR SOMEONE TO FILL IT.) “Dissatisfaction” becomes “dissat- Sign up today at www.nysba.org/lawjobs isfied.” “Documentation” becomes “documents.” “Enforcement” becomes Find both through the New York State Bar Association. Our new “enforce.” “Evaluation” becomes “eval- partnership with American Lawyer Media’s lawjobs.com website uate.” “Examination” becomes “exam- connects attorneys seeking new jobs with the firms that have ine.” “Finding” becomes “found.” them. Thousands of up-to-date job openings – and more than “Holding” becomes “held” or “holds.” 50,000 qualified resumes in one place. “Identification” becomes “identify.” “Indemnification” becomes “indem- Together with career advice, a resume/cover letter builder, e-mail nify.” “Knowledge” becomes “know.” job alerts, salary information and the most streamlined search “Litigation” becomes “litigate.” anywhere. All from the legal market’s complete career solution. “Motion” becomes “moved.” “Notation” becomes “noted.” “Obligation” becomes NYSBA Member Benefit “obligate” or “oblige.” “Opposition” Sign up today at www.nysba.org/lawjobs becomes “oppose.” “Performance”
NYSBA Journal | July/August 2007 | 51 LANGUAGE TIPS BY GERTRUDE BLOCK
uestion: Is there a chance you previous clause. Had the word one When words change into new cat- could do something in your been replaced by none, there would egories, readers send indignant e-mail. Qcolumn about the correct use have been two negatives in that clause Sometime ago I quoted a university of nor? Is it proper only when preceded so it would have been ungrammatical administrator who complained that a by neither, or is it all right to use it alone, (and confusing): “She has committed fellow-administrator was “just desking as in, “There was no candy in the jar, no misdemeanor, nor has she been in his office.” Readers protested. One nor was there any in the cupboard”? accused of none.” wrote, “If desking is okay, why not, ‘I Answer: Senior Deputy County Therefore, if you do use a negative office here and administrate next door’?” Counsel Judy Luby, of Monterey Park, (like no, none, nothing, or never), in a On checking, I found that in fact, the California, asked this question, which I clause, be sure that all other verbs and verb office is not new, having appeared cannot recall having been asked before, expressions in that clause are positive: in The Nation magazine in 1892 in the although I’ve frequently seen both nor No injury occurred to either pas- locution, “An attorney officing in the and neither/nor used incorrectly. senger. same building . . . ” (But my spell First, if you use the words neither He has never attended any meetings. checker still protests that word.) . . . nor to connect two singular subjects, None of the participants requested The verb administrate, a backfor- the verb you use must be singular: further help. mation, is newer. First came the verb “Neither a bluebird nor a robin is Question: A word that was once administer. From the verb we got the commonly seen here in the winter.” only a noun, but that I now often see noun administration. Then from that If neither . . . nor connects two plural as a verb, is disrespect. When did it noun came the backformation, the verb subjects, the verb must be plural: become a verb and is it currently con- to administrate. That new verb is unnec- “Neither rumors nor people’s memo- sidered correct? essary, and it now often replaces the ries are found to be reliable.” (This Answer: I don’t know exactly when perfectly good original verb administer. rule applies also to other pairs: either it became a verb, but disrespect is not The process of backformation has . . . or, and not only . . . but also.) listed as a verb in the American Heritage created other unnecessary verbs like ori- But suppose one of the pairs is Dictionary’s 1985 edition (AHD). It is entate (from the original verb orient to singular and the other is plural, what listed as a verb, however, in Webster’s the noun orientation and back to orien- do you do? For example, what is the Third, 1993 edition. The reader is right tate. The verb to obligate is a backforma- correct verb in the following sentence? that it is now widely used. It is so tion that began with the verb to oblige. “Neither rumor nor people’s memories common that it is often abbreviated Backformation has also given us the silly is/are found to be reliable.” In that situ- (in the past tense) to dissed, as in “He verb to notate, from notation, the noun ation the rule is that the subject closer dissed me.” The abbreviation dissed is form of the original verb to note. But such to the verb decides the number of the not listed in Webster’s Third, but it may is the way of words – or perhaps, more verb, so in the cited sentence, you soon be, as either slang or colloquial accurately, those who speak them. would choose are. Grammarians often usage. Remember Emily Dickinson’s lines: dub this the rule of “attraction,” the The abbreviation dis parallels the A word is dead when it is said, number of the closer noun “attracting” similar shortening of other words that some say. the number of the verb. have become popular. The noun meta- I say it just begins to live that day. However, if applying the rule of morphosis became a respectable verb, attraction results in a sentence that to metamorphose, and then was short- Potpourri sounds awkward, I would merely ened to morph, which is colloquial. The Don’t attempt to use the idioms of change the order of the subjects to noun pornography became an adjective, a foreign language. Case in point: avoid that result. Applying the rule to pornographic, and then, in an abbrevia- Recently, when an American corre- the same sentence when the subjects tion of the original noun, it was listed spondent commented on television, are reversed would result in what I con- as porno in the 1985 AHD. Since then “You can rest assured that . . . ,” sider an awkward statement: “Neither it has dropped the second o and has the Iraqi Security Adviser responded, people’s memories nor rumor is found become porn. “You can be rest assured . . . ” ■ to be reliable.” That’s the way of language; its The word nor may be used alone, speakers change it to suit their whims. GERTRUDE BLOCK is lecturer emerita at the as long as the clause containing nor Before 2002, we used embed only when University of Florida College of Law. She is the contains no other negative. “She has referring to objects. During the Iraqi author of Effective Legal Writing (Foundation Press) and co-author of Judicial Opinion Writing committed no misdemeanor, nor has war the military began to embed human (American Bar Association). Her most recent she been accused of one.” The word beings into operations abroad. Finally book is Legal Writing Advice: Questions and nor is the only negative in its clause, we created the noun embed from the Answers (W. S. Hein & Co., 2004). although there is a negative in the verb, so we now have human embeds.
52 | July/August 2007 | NYSBA Journal The latest NYSBA Monograph Series © 2006
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FIRST DISTRICT Keith Joseph Billotti Chehrazade Chemcham William E. Dornbos Jessica Mazzaro Friedhoff Alicia Abelli Ewa Patrycja Bindek Daphne C. Chen Eric Patrick Drake Peter Mitchell Friedman Daphna Abrams Duane G. Blackman Ting Shao Chen Elizabeth Marie Drew Avram Eliezer Frisch Stephen M. Aczel Allen Blount Gregory Scott Chiarello Jaime Duguay Michael Joseph Fritz Benjamin Carlton Adams Jessica Marci Bodack Daniel Chirlin Heather Lynn Dumont Joshua Adam Fruchtman Diane Marie Adams Heidi Elizabeth Sarah Miryam Chopp Angus White Dwyer Ellen Louise Frye Otis Bert Adams Boghosian Gary Kar-chuen Chow Sabra Martha Easterday Tzung-lin Fu Jana Lorin Adelman Susan Bolduc Melinda Hui-ming Chow Elizabeth Kayla Ehrlich Maksim Fuchs Jon Elliot Adler Robert James Boller Jean-Paul Ciardullo Zamirah El-amin Igor Fuks Nisha Suresh Agarwal Peter Victor Bonanno Alexandra Cira Shelly Elimelekh Shinnosuke Fukuoka David Aiello Karla R. Bookman Naeemah Clark Jessica Elise Elliott Cathy Fung Amina Jawad Akram Elizabeth Mullins Borkin David Hampton Clemens Alicia Ann Ellis Sujata Gadkar Hassan Albakri Lynelle Kathleen Tristram Alexander Michael Evan Ellis Nicholas Gaffney Joel Alfonso Bosworth Cleminson Sarah E. Emerson Andrew Bennett Gaies Deola Ali Abigail Bowen Roxane Coffi Justin Luke Engel David James Galluzzo Hilary Jane Allen James C. Bowers Devin A. Cohen Terence Kenneth Enright Parveet Singh Gandoak Veronica Abiola Allen Jessica Jane Boxer Erin Rebecca Collins Ari Alexander Erdfarb Ambika D. Ganesh Theocharis Almpanidis Kevin Braker James F. Collins Julia Brooke Errea Joel Aron Ganz Zachary Zoll Altschuler Ryan Briskin David Daniel Conklin Jason Brett Eson Liang Gao Luis Arthur Terra Alves Caitlin L. Bronner Kathleen Ann Conlon- Liliana Maria Esposito John David Gardiner Susan Louise Amble Jeffrey Brooks Lamberto Alicia Etre Christina L. Gardner Judith Anna Amorosa Anne Ashley Brooksher Elizabeth Finan Connelly Jason David Evans Kelly Donetta Gardner Anthony Antonelli Brian L. Brown Caroline Conway Rashad William Evans Michael Edward James Rigodis Tiffany Appling Crystal Lynne Brown Andrew David Cooper Thomas Michael Feeley Gates Sebastian Arango Heather D. Buchanan Andrew Colin Costello Alex Feinstein Steven Barry Gauthier Joshua Arisohn Radmila Bulat Susanna Eleanor Cowen Lisa Bari Feinstein Betty Weilan Gee Nelcida M. Armand Elizabeth Ellen Bullington Anne Maureen Coyle Cindy Hsin-i Feng Oren Gelber Isaac Samuel Ashkenazi Donna Millicent Bunbury Susan Karolena Crumiller Steven Michael Fenton Noah John Gellner Philippe Assouline Gillian Mecum Burgess Mark Cuccaro Alison Ferrara Julia Geykhman Isha Atassi Shauna Kathleen Burgess Martina Ines Cucullu Eugene J. Fialkovskiy Amir Reza Ghavi Julio Cesar Avalos Paul J. Burgo Janet Leslie Cullum Chantale Fiebig Aileen Tran Gien Valeriya Avdeev Heather Marie Burke Harry A. Cummins Lisa J. Fieldston Adam Gilbert Boris E. Ayala Brian Marc Burnovski Stefano Zaccaria Seth David Fier Ruvym Gilman Craig Douglas Bailey Jason E. Burritt D’Aniello Edward Arthur Fierro Matthew Ryan Gilmartin Paul Anthony Banks Brian Burton Stephen D’Elia Elizabeth Anne Figueira Terence Patrick Gilroy Roxana I. Bargoz Mark Conrad Bussey Jennifer Theresa Daddio Jennifer Kim Fink Laura Ginns Frank C. Barile Diana Hewitt Butler Todd Dale William Fink Michael G. Glanzberg Kami Zumbach Barker Quincy Aaron Byrd Takahiko Date James Daniel Finn Andrew Earl Glover Sara Nicole Barker Melissa Errine Byroade Casey Mee Lee Daum Daniel Saul Finnegan Sharon Heather Gnessin Jamie Lynn Bartholomew Xiang Cai Abraham David Diane Fischer Jonathan Maxwell- Chris Bartkowski Katie M. Calabrese Anabela De Oliveira Ilya Fishkin Sterling Goch David B. Bassett Nicholas John Calamari Megan De Pasquale Janna Kimberly Fishman Melissa Jane Godwin Rosa M. Batista Jennifer Beth Callinan Carolina Hungria De San Christopher Paul Jacob Paul Goldstein Janine Gail Bauer Camille Calman Juan Paschoal Fitzgerald Lindsay Goldstein Michael Patrick Bauer Gregory Cangiano Lauren Evans Dean Meghan Patrice Flaherty Andrew A. Goldstone Rachel Jane Beardsley Sarah Murphy Carley Jon Mathew Debord David Michael Flanz Melissa Lee Gonzalez- W. Peter Beardsley Siobhan Kenny Carty Christine Delince Shane Michael Fleenor Padron Peter Beattie Amanda Robyn Joseph V. DeMarco David Scott Flugman Catherine Leigh Goodall John Patrick Beatty Castellanos Carey Lynne DeMoss Martha Lynn Brett David Goodman Carson April Beker Joseph Albert Castelluccio Patrick Joseph Dempsey Flumenbaum William Heyward Gorrod Christopher Daniel Matthew John Catania Deanna S. Dennis Michael S. Fogel Bryn Gareth Gostin Belelieu Damian Raphael Cavaleri Robert John Devlin Anna Marie Fontana Kavi Chaitanya Grace Elizabeth Ogden Bellis Amy Findlay Cerciello Suzanne Marie DeVries Heather Jeanne Ford Elizabeth R. Grant Seth Bender Victor N. Chai Kruti Dharia John Lewis Ford David Dixon Green Sarah Bender-Nash Wendy W. Chan Danielle Marie DiCerbo Michael Alan Forero Erin L. Greenfield Elisabeth Ryden Ashok Chandra Trisha Ann DiGiore Meghan Carney Forgione Sara Greenspan Benjamin Bee-shyuan Chang Isorys Altagracia Dilone Diedra I. Fox Corey R. Greenwald Scott Benjamin Helen Jean Chang Angela Dimos Rosanna Michelle Fox Jason Russell Gregory Jessica Lynn Berenbroick Jonathan Chang Arthur Nachman Dobelis Lindsey Frank Aviva Grinbaum Alexander K. Berley Allison Charney Kanae Doi Jonathan Frappier Gillian Patricia Groarke Daniel Ross Berman Bronwen Forbes Charters Darya Dominova Marie Frawley Kristina Suzanne David Harry Bernstein Daniel Chau Francesca Donangelo Bethany Erin Freedman Groennings Milan Anil Bhatt Winnie Yee Chau Amory Winslow Donelly Michael G. Freedman Jodie M. Gross Samir Bhatt Arastu Kabeer Jaime Ellen Doninger Samantha Freedman Benjamin Morgan Sayan Bhattacharyya Chaudhury Gail Donoghue Caroline Maggie Freilich Grossman Lisa A. Biersay Mayankita Chawla Angela Theresa Doolan Jason Allen Friedhoff Brooke Ashley Grossman
54 | July/August 2007 | NYSBA Journal Thomas Klaus Gump Didier Patrice Jean- Craig Robert Koster Benjamin Natan Leftin Ryan Malkin Rishi Gupta Baptiste Ewa Kozlowska Amy Adrienne Lehman Liza Mamtani Vishal Chandra Gupta Eusun James Ji Georg Krause-Vilmar Zoe Devin Leibowitz Ilea Anne Maniscalco Jamie Elizabeth Ruf Gurt Dora Jimenez Vivien Rachel Krieger Justin R. Leitner Carolyn A. Mann Mahati Guttikonda Hyunsoo Jin Jonathan Philip Krisbergh Sarah Gibbs Leivick Kara Patrice Mannix Diana M. Haladey Jing Jin Loreto Suarez Kudera Megan Yolanda Lennon Michael Maragoudakis Joshua D. Halpern Suzan Jo Daniela Bernadine Adam Lerman Patrick Marc Haroon H. Hamid Brandon R. Johnson Kulikov Caren Elizabaeth Lerner Jonathan Corey Marden Soojung Han Bryan Johnson Jessica Marie Kumm Jeffrey W. Lesovitz Jeffrey Alan Margolies Nicola J. Hannan Jacqueline Lavonne Ben J. Kusmin Christina Victoria Leto Michael Eric Markowitz Conor Scott Harris Johnson Leor E. Kweller Gabrielle Levin Kelly E. Marks Emily O’Reilly Harris Kristin Alexandra Jang Hwan Kwon Brooke Jae Levy Melissa Beth Marks Daniel Elan Hartstein Johnson Jonathon Richard La David Lew Sarah Ilyse Marks Peter Robert Hauenstein John Patrick Johnston Chapelle Cari A. Lewis David Jan Marshall Kathryn Bracken Silvia Jordan Alison Ruth Ladd Mie Lewis Meera Malhotra Marti Hazelrig Mugambi Jouet- Melissa Marie Laferriere Chun F. Li Miriam Helene Marton Joseph Andrew Hearn Nikinyangi Ryan Yates Lagieski Liang Li Apryl Mathes Ronald J. Hedges Lisa Nam Mi Ju Sara Kristen Lajoie Huawei Lin Glen David Mattingly Douglas Scott Heffer Rebecca Sarah Kahan John Pak Wai Lam Evan Marc Lison Alyssa Joelle Mayer Mark L. Heffter Miki Okabe Kamijyo Elizabeth Gannett Land Alicia Cecilia Llosa Maxim Oscar Mayer- Kent Beverley Heggerud Elida Kamine Aaron Charles Lang David Roger Lobe Cesiano Douglas William Heim Christopher M. Kamnik Daniel Aron Lang Rodrigo Lopez Christina Marie Mazza Kathryn Michelle Heim Yvonne Ruby Kao Kristin M. Lasher Jennifer Marie LoTurco Stephen Patrick McBride Nowles Hayden Heinrich Anton Yordanov Karlov Henry Han Xi Lau Rebecca Nicole Loubriel Kevin Robert McConnell Suzanne M. Hengl Rielly A. Karsh Kimberly C. Lau Harris Marc Love Katherine McCracken Natalie Laraine Hennessy Jeffrey David Katz Abigail Lauer Donny S. Low Camden J. McDaris Johan Alejandro Stephanie Hope Katz Daniel Lavon-Krein Rachel Eve Lubert Jennifer Eileen Hernandez Tamara C. Katz Susan Lorraine Lawless Evan Lupion McDonnell Katherine Janet Tchienyonnoh Kaye Lynnore Sharise Lawton- Lorie Ellen Lupkin Joanna Gibson McFadden Herrmann Norman Lau Kee Thames Quyen Vu Ha Luu Ian Patrick McGinley Elisabeth Amy Hershman Evan Joseph Kelley Donna Kate Lazarus Marisa Ma Laurie McGuire Geoffrey Scott Hersko Seth Kerschner J. David Leamon Kyle W. Mach Laura Ann McKinney Monica Heslington Julie Beth Kessel Andrew Leaser James Crawford MacLean Susan Anne McMahon Franklin Edward Hess Agatha Khishchenko Lisa Verna Lecointe Jennifer Maimone Brendan Michael Erin Mary Hickey Nazar Khodorovsky Emily Hyun Young Lee Medwick McNallen Sarah Lynn Hinchliff Takayuki Kihira Janet O. Lee Augustus Nicholaos Jeannine Marie Lara Hirsh Christine Boyoung Kim Serena Kwan Mei Lee Makris McSweeney Laila Laurice Hlass Dae Hoon Kim Simon Lee Hazel Thetis Malcolmson Miguel Medina Bridget Daly Hoey Gee Hong Kim Melissa Margaret Hogg Grace Ye Jin Kim Nigel H. Holder Richard C. Kim In Memoriam Adam Hollander Young Ki Kim Michael D. Horn Tuvia Lawrence Kimmel Dana Michael King Meir S. Hornung Philip D. Amins Leonard S. Gordon Robert S. Raum Cedric R.L.S. Kinschots Constantinos Hotis Nanuet, NY Valley Stream, NY Longboat Key, FL Geoffrey Gezhi Hu Charles Kitcher Jessica Jean Hu Michael F. Klag Dirk K. Barrett Bernard Hall Frederick W. Read Betty Huang Melissa Leah Klein Ossining, NY Great Neck, NY South Deerfield, MA Sevan Hugasyan Menachem C. Klein Roy R. Bejsovec Jacob Jacobson William J. Regan Stephen Christopher Brian Wolf Kleinhaus New York, NY Henderson, NV Naples, FL Huggs Seth J. Kleinman David R. Blossom Richard S. Lee Joseph H. Reingold Li Hui Gregg Marshall Kligman Jamestown, NY Bronx, NY Buffalo, NY Gates Salyers Hurand Alan James Kluegel Akbar Hussain Jonah Moses Knobler Kenneth E. Bruce William E. Miele Peter H. Ruvolo James S. Hutchinson Judith Margulies Knopf Scarsdale, NY Suffern, NY Potomac, MD Oleg S. Kobelev James Daniel Huyoung John F. Egan Paul N. Ornstein Julia L. Seider Sidne Lillian Frede Carolyn Yonkyu Im South Orange, NJ Central Valley, NY Boca Raton, FL Leslie Kikuno Inamasu Koenigsberg Robyn Inderwies Harajeshwar Singh Kohli John Paul Giacalone Walter B. Peyton Benjamin H. Skor Michael Richard Ingrassia Sachin Kohli New York, NY Endicott, NY Manalapan, NJ Breanne Elizabeth Injeski Sayo Kondo Sidney H. Gittelson Raymond M. Pezzo Bryan F. Smith Marc E. Isserles Robert Harold Koplar Long Beach, NY Poughkeepsie, NY Dallas, TX Mary Jacob William Anthony Morris P. Glushien Howard A. Pratt David M. White Tovia Jakubowitz Korahais Los Angeles, CA Northridge, CA White Plains, NY Kerry K. Jardine Todd Koretzky W. Brad Jarman David Ross Koshers
NYSBA Journal | July/August 2007 | 55 David Mehretu Adam Duane Orford Peter William Rech Courtney Lee Schneider Kiran V. Somashekara Swati Devendra Mehta Jill Rae Ortelt Verity Sharan Rees Heather Marie Schneider Edward Sonnenschein Nicholas P. Melillo Nancy V. Owen Carl Frederick Miriam Beth Schneider Jessica D. Soojian Alec Julian Melman Matthew Craig Oxman Regelmann Alan Evan Schoenfeld Ksenia Sourina Linda B. Meltzer Jeffrey Paik David Reichenberg Rebecca Schwalb Erica Jill Speier Nicholas Maurice Jennifer Bartels Pak Remmelt Andre David Schwartz Dana M. Spencer Menasche William Eui Won Pak Reigersman Sharon Dina Schwartz Avi Abraham Spira Lalaine Mercado Jean-Philippe Auguste Greg Jay Resnick Edward Schwarzman Leslie Spitalnick Courtney Melissa Pakter Rebecca Rettig Matthew James Scott Todd Andrew Spodek Merriman Michelle Lynn Pakula Carmen Maria Rey Andrew Christopher Jem Colleen Sponzo Benjamin Jonah Miles Marc A. Palladino Kelly Jean Rezny Searle David Grove Stafford Joann Militano David C. Palmer Andrew Evan Rice Alexis K. Segal Solomon Steiman Paul Foster Millen Raluca Papadima Ronique Caprice Philip Segal Andrew Stein Andrea Marie Miller Zhubin Parang Richburg Pia Monica Sen Joshua Adam Stein Jed Benjamin Miller Jonathan Scott Pardo April Rae Rieger Oren Sendowski Kalyn T. Stephens Tiffany Celia Millioen Laurie Anne Parise Ronnie M. Rifai Phara Amy Serle Philip Charles Sternhell Daniel John Minion Joo Young Park Jennifer Rinaldi Ida Carmen Serrano Juan Carlos Stolberg Anjan Mishra Si Won Park Luisa Rinaldi Daniel Stern Serviansky Scott Wayne Stram George J. Mitchell Julia Lynn Parker Clara Maria Rivera Christopher Albane Brandon Hugh Stroy Karen Mo Alexandra Paula Parra Ashley Brett Roberts Service Joshua Y. Sturm Charles Anthony Thomas Lisa Ann Parrington Silvia Robles Malcolm Seymour Kentaro Sugimoto Molluzzo Christine Lana Darlyn Odette Rodriguez Tajal Shah Alyson M. Sullivan M. Christopher Moon Parsadaian Joseph Ryan Rodriguez Stephanie Eve Shapiro Joanne Sum-Ping Ashley McCarthy Moore Jennifer Pasquarella Michael Anthony Aleksandr Nikolayevich Fara S. Sunderji John Dirk Morley Ankan S. Patel Rodriguez Shapovalov Naomi Briana Sunshine Andrew Lee Morris Ketul Patel Nicole Marie Rodriguez Rachita Sharma Akemi Suzuki Etan Moskovic Yogendra Patel Kirsty Joanne Rogers Dana Jill Shechter Rebecca Lenox Symes Harris Mufson James Paugh Elad Leon Roisman Noah Ephraim Shelanski Sharona Mindy Tabacznik Joseph Edmund Mulvihill James William Paul Jessica Joan Romero Bede Morris Sheppard Atsushi Takahashi Stefanie Robin Munsky Yurij Oleh Pawluk Adam Jay Rosen Dermot Michael Sheridan Kenichi Takahashi Candice Patricia Kathleen Virginia Pellicci Janna Rosenberg William Won Shik Kim Julia Rebecca Talke Murdock Jessica Lauren Perazzelli Joshua Daniel Rosenberg Roy Shimon Craig Akira Tamamoto Jamal Everett Murphy Adam Alexander Perlin Sacha Ross Hyun Sik Shin Mark Hai Nern Tan Matthew P. Murphy Julian David Perlman Tuvia Rotberg Robyn Lynn Shindler- Hyosung Tang Andrew Sean Murry Andrew Peterson Jared Herbert Rothman Rashid Dominika Tanianis Melissa Jennifer Muscat Angelina Maddalena Joshua Seth Rothstein Dave Satoshi Shong Danielle Feldman Jessica Susan Mussallem Petti Terence Laurence Rozier- Mikaiel Samantha Tarantolo Felicia Anne Nadborny Tricia L. Phillips Byrd Shtaerman Sarah J. Tarczynski Genevieve Clair Nadeau Brian Richard Pick Erika Dawn Rubin Rebecca Rachel Silber Risa D. Tarkoff John Stephen Nagy Noelle Irwin Picone Jeannie Rose Rubin Jessica Ann Silbering- David Michael Tarr Hoyoon Nam Cynthia Pierce Samuel Joseph Rubin Meyer Catherine Jane Taylor Syed Hussain Naqi Jared M. Pittman Nicole Merissa Patricia Silberman Christopher Drayton Keren Naveh Charles Reiner Platt Rubinstein Stuart Silfen Taylor Ana Maria Navia Joshua Conrad Pohl Olga N. Ruzaeva Joseph Silver Philip Thabo Taylor Jeremy Michael Naylor Jessica Alice Poli Nicholas Robert Ryan- Shelby Anne Silverman Mary Margaret Teague Farley Glen Nelson Paul Polios Lang Sue Erika Silverman Gregory Tears Melissa June Nephew Thanya Antonia Polonio Janet E. Sabel Zachary Philip Silverman Ashkan Tehrani Rachael Newman Jones Emily Sabo Alexander Simkin Pernell Michael Telfort Margaret H. Nicholls Christine Alexis Pope Rachna Kaur Sachdev Kim April Simmonds Jeanne Elizabeth Teng Rachel Nicotra Jessica Ann Poropat Heidi Nelson Sachs Emilie Simone Anne M. Ternes Charles Richard Norris David L. Portilla Eli Salomon Jessica Elizabeth Singer Raquel Terrigno Jenay Aretha Nurse Daniel Meyer Portnov Aaron E. Salsberg Vanessa Christine Singh Krista Thomas Keith Michael O’Connor David Joseph Porzio Nora Sullivan Salvatore Stephanie Sklar Michael Jason Thomas Anthony Paul O’Rourke Michelle Marie Poulos Adam Paul Samarillo Brianne Leigh Slider Heather Thompson Timothy D. Oberweger Brandon Curtis Price Damion M. Sanders Josiah Mackenzie Slotnick Clyde Tinnen Catherine Christoph Jonah Lee Price Miguel Santos Adam Slutsky Peter Kenneth Tomecki Oetgen Jorge Pruneda Gonzalez Jacob Sasson Elena Smirnova Jonathan Toren Alexis B. Offen Salas Daniel Joseph Saval Bradi Lynn Smith Michelle Susan Torres Patrick Dongjune Oh Ali Hasan Rahman Francisco DeJesus Charlotte Warren Smith Jennifer Traystman Sarah Oh Samir Kher Ranade Savinon David Michael Smith Nadine Thu Van Trinh Amy Nkemka Okereke Kumar Rao Marissa J. Savit Elizabeth Lazzara Smith Sarah Elizabeth Trombley John Erik Olsson Justin Logan Rappaport Alissa Schecter M. Brendan Smith Edward Louis Tulin Michelle Busayo Olupona Eliabeth Merritt Michael Scheinkman Peter Douglas Smith Joseph G. Tully Gina Marie Omage Rasmussen Bonnie Ann Scherer Todd Thomas Smith Ilona Margaret Turner Chukwuemeka Nnamdi Christos Ravanides Michael Christopher Peter F. Snell Juno E. Turner Onyejekwe Gina Lisa Rizzo Rebollar Schindhelm Crissy Mouna Solh Robert Turner
56 | July/August 2007 | NYSBA Journal Antonio Urbina Cheryl Zabala Andrew Michael Jensen Hilary D. Stanley Michael Daniel Litman Gerardo Martin Ari Meir Zak Talat Kayar Gregory Paul Storie Sarah Lynne Maida Concepcion Valero Katharine Marie Zandy Dena Kesselman Jon Philip Thayer Margaret Malone Lisenka Van Holewinckel Erik Zaratin Sam Khantsis Christopher John Torelli Ralph Mamiya Erica Barrie Zeichner Morae Kim Lauren Jean McCallion Carter Vance FIFTH DISTRICT Jeanne Zelnick Philippe Abner Knab Michael Brendan Lesley Foster Vars Melinda B. Bowe Jessica Ann Zemsky Elton Kohila McLaughlin Lori V. Vaughan Casey Alex Johnson James Zhong Yan Zha Margarita Komasovsky Scheree Miller Kevin Edward Verge Marilyn Suchecki Mense Yan Zhang Dara Suzanne Kristt Aaron Aubrey Mitchell Adam Scott Verstandig Deana Domenica Previte Pamela Beth Zimmerman Allan Lebovits Nicole Germaine Lindsey Raquel Victor Robert James Spencer Joshua Cory Lieberson Moncayo Cheryl Thomae Viirand SECOND DISTRICT Resham Mantri SIXTH DISTRICT Cindy B. Posner Dominique Elizabeth Naomi S. Abend Flavia Mascolo Megan Elizabeth Crowley Steven Poulin Vincent Zachary Fenicchia Bergen Meredith McCloskey Alyssa Hochberg Kirsten Elizabeth Prevete Christoph Vonlanthen Michael Berger Aisha McCluer-Fakhari Fontaine Brian David Richardson Christine Waer Joel Borenstein Karen Elizabeth Milano William P. Sellers Joseph A. Rossi Katherine Anne Wagner- Irene Brinzensky Michele Rose Molfetta Gloria A. Varghese Kory James Salomone McCoy Jennifer Ann Burkavage Jee Hye Moon Christopher George Alexander James Wall Yanique Latoya Burke SEVENTH DISTRICT Danielle Marguerite Samios Megan Wang Matthew M. Caretto John Lockwood Muscatello Christine Ann Stea Jennifer Ward Robert Z. Cashman John Manning Regan Erick Myssura Jennifer Rachel Stivrins Benjamin Julius Warlick Andrea May Chan Andrew William Palmer EIGHTH DISTRICT Lesley N. Stone Richard Javon Corinna Hsiao Mei Chou Charles L. Pietrofesa Steven Anthony Lanza Stephanie Morin Taylor Washington Howard Chyung Eliyahu Poltorak Jeffrey James Leibeck Alyse Diane Terhune Marc Wasserman Jennifer Cipolla Joseph Potashnik John Spencer Tomlin Jaime L. Wasserstrom Lacey C. Clarke NINTH DISTRICT Lara Rabiee Devon D. Towner Kathryn Ramey Watkins David Charles Antony M. Anisman Yelena Radulov Matthew Paul Trask Veronica Maria Wayner Cooperstein Ester Aronova Paul Baraban Reinitz Patrick Turner Justin Kane Wechsler Vincent D. Coriale Raha Sarah Bahmani Brendan Michael Relyea Pamela Walitt Matthew R. Weilgus Ashlee Ya’el Crawford Diane Elizabeth Baylor Renee Russell Max Viscardi Weisman Courtney Lauren Weiner Nora Marie Cronin Louise Kellie Beach Salvatore Scibetta Angela Zagreda Philip Andrew Weintraub Alina Das Phillip Matthew Beyer Arielle Vida Simon Kevin Zimmerman Jeffrey Michael Weiskopf Joshua Adam Deutsch Jeffrey Alan Blank Christopher M. Slowik Joanna Cohn Weiss Aaron Joshua Dobish Michelle H. Browdy TENTH DISTRICT Sarah Smith Tamara D. Weiss Cameron Ross Dorman Anna Bucher Sarah Ali Oksana Sokolova Toby E. Werdyger Katie Joy Duke Diana Lynn Caccioppoli Matthew Kirsch Arad Kyle Jordan Sosebee Hannah Rachel West Emilie Anne Eagan Jeffrey Lamont Derrick Jeffrey Vincent Basso Yakov Spektor Leah Wiederhorn Andan Eddy Cutler Brynde Rivkah Berkowitz Sarina Victoria Spence Daniel K. Wiig Michael Evan Eskenazi Tracy A. Doka Daniel F. Blackert Matthew C. Stabile Scott Jay Williams Felicia M. Falcetti Adam M. Dratch Michael Dennis Bosso Suzanne Stadler Jessica A. Wilson Meghan Faux Marcia Monique Daniel Hillel Broady Tzipora Esther Teichman Kelly Lynn Wines Jennifer L. Feldman Escobedo Marva Claudette Brown Mark Galen Toews Michael Claude Winfield Robert Kenneth Samuel Robert Etre Jed Van Cabangon Alina Tsirkin Clark Alan Wohlferd Fitzpatrick Michael Fanelli Regina Marie Cafarella Vincent R. Vigueras Timothy Harris Wolf Anthony A. Flecker Cheryl Schechter Farkas Cristina Carlucci Jada West Jordan Wolff Roxanne Elaine Formey Dominique Nancy Hema Chatlani Ralph L. Wolf Jordan Danforth Wolff Gregory Warren Fox Ferrera Julie M. Chelico Abigail L. Zigman Adam Wolfson Nicole M. Furrer Sandra M. Fusco Selina Yi-mei Chin Elise Cara Wolinsky Christine King Gau THIRD DISTRICT Toni Ann Gagliardi Michelle Lynn Chiuchiolo Shirley Woo Zoya Gekman Barbara Ann Bailey Leicia Grant Elyssa Weatherly Cohen Andrew Raider Wood Nicola Joanne Gibson Jacqueline Ann Borock Amanda Gail Gruber Kristen Michelle Colletta Mark Raymond Wood Jessica Lee Gonzales Anna Katherine Christian Julie Cheri Hellberg Amy Marie Compagno Raymond Charles Emma Gottlieb Jennifer Lynn Cifarelli Paul Im Roberto Colon Cortes Woodring Diana Lynn Graham- Michael Roy Duran Courtney Leigh Johnson Erin Marie Crowley Samuel Wordie Brogan Joshua Paul Fleury Dennis Dean Johnson Jaclene D’Agostino Glenn Alan Wortman Danielle A. Grant Mindy Ellen McDermott Erin Ann Johnson James Daloia Barak Wrobel Robert Laurence Joseph John Meany Jessica Lynn Kiely Rose-Carline Delicieux Dennis K. Yai Greenberg Darrell Lawrence Pogue Si Jung Kim Amanda Dickens Robert Adam Yezerski Abbie Greenberger Jeffrey John Provenzano Matthew Jordan Klieger Alissa Dien Elizabeth Jane Young Aaron Greenblatt Ian Hugh Silverman Janine Marie Kovacs Michael Joseph Dimaggio Eva Margeaux Young Diana Colella Haines Sydney Jolie Taylor Timothy Kramer Chantel Nikia Edwards Geoffrey Garrett Young Jennifer Joyce Hill Edmund A. Kulakowski Deanna Gwendolyn FOURTH DISTRICT John Francis Young Kelly Horan Naftali Kunstlinger Everett-Johnson Genelle Johnson Bayer Robert Cooper Young Annie Liang Hsu Edward T. La Barr Damian F. Fischer Patrick Robert Cummings Joshua Ross Youngman Lori-Ann Hymowitz Jade George Laktineh Maureen Ann Fitzgerald Ral James Mazza Bate Yu Betsey Jean-Jacques Matthew J. Lambert Michael James Florio Denise Marie Resta-Tobin
NYSBA Journal | July/August 2007 | 57 Giuseppe Franzella Lonneke Elizabeth Van TWELFTH DISTRICT Michael Francis Bevacqua Matthew Joseph Kerry Ann Galvin Heyst Mayerlin Almonte Peter Nicholas Billis Chubinsky Prem Parasuram Julia Vassalotti Anthony Alton Shreem Bindra Christina L. Cialone Ganshani Ellen A. Victor Christina Andrea Barba Cheryl Anne Binosa Albert John Cimini Musa M. Ghanayem Marissa Julia Welner Benjamin Robert Bernard Justin Sandford Black Benjamin Stephen Clark Edward Love Glenn Scott Wertheimer Erin Elizabeth Browne Michael Edmund Blaine Cathleen Bridget Clark Evan Michael Goldberg Robert C. Willis Heather E. Cook Danielle Marie Blanco Nicole Elise Cleenput Jeffrey Ross Greenblatt John Wright Zachary K. Giampa Michael James Blum Jay Marshall Coggan Scott Evan Gross James Xikis Bernard Chang Hoon Brandon Laut Borkowicz Mary Elizabeth Coll Sheila S. Hatami Julie Lyn Yodice Han Allyson Eileen Bosley Eric Daniel Combs Eve Frances Helitzer Jennifer Leigh Zeidner Julia Nam Le Joshua Marc Bowman Joseph Michael Susan S. Lee Kirsten Tiffany Bowman Competello Joanna Hershey ELEVENTH DISTRICT Michael Scott Herskowitz Risa T. Levi Namosha Boykin Matthew Thomas Conger Samantha Aiello Thomas Michael Hogan Kuuku Angate Minnah- Kathleen Ward Bradish Eric Andrew Contre Katerina Arvanitakis John Katsougrakis Donkoh Jay Matthew Bragga Carolyn Rosemary Patrick Roland Barnhart Elias Michael Khalife Kathryn Neilson Jessica Ruth Brand Conway Michael Jonathan Berger Michele Illisa Klatch Jonathan Jacob Palefski Sharon Elaine Bray Damon Grant Cook Anokye Soyini Blissett Richard David Klein Paul Chester Parisi Paul Joseph Breloff David William Corcoran Claudia Bob Adam H. Koblenz Jee Yeong Park Haja Rahma Brimah Lacy Marlene Corcoran Ledan C. Chen Pinhas David Korngold David C. Pilato Colleen Broderick Stacey Amber Cozewith Kyriaki Chrisomallides Debra A. Kruper Erin Rogal Tyler Brody Brenda Moser Creasey Jeanine Renee Diehl Farah Claire Lamarre Alejandra Rosario Derek Matthew Brondou John Francis Curry Richard Levi Elem Jamie Lauren Lee Stephanie Ahyemah Siaw Sandra Lorraine Brown Maria Virginia D’Jesus Daniella Fine Michael John Lynch Adam Tyler Starritt Danielle Anastasia Reza Dadbakhsh Elizabeth Marie Glynn Michael Maceira Graham Georffrey Van Brucchiere Elizabeth Gillingham Jeffrey Guerra James Wilson Malone Epps Dylan Llyn Budd Daily Wendy Hernandez Michael Manning Philippe Bugnazet Aseet Vasudev Dalvi Jeremy Ian Huntone OUT OF STATE Shahin Y. Mashhadian April Genevieve Bullard Christopher Charles Zoe S. Jouvin Gregory Lawrence Brian Peder McDonough Maria Carolina Bustos Dana George Kanellopoulos Acquaviva Elke Elizabeth Mirabella Ekaterina Lvovna Butler Joseph James Daniels Benjamin Seth Kaplan Rahul Agarwal Peter J. Molesso Jeeyoung Byun Maria Georgia Daraban Cindy R. Katz Rajiv Ahuja Georgia Moshopoulos Shawneequa Lauren Aimee Jessica Davis Yuliya Khaldarova Theolyn L.l. Aimunsun Reginald A. Mulgrave Callier Amy Elisabeth Day Daphne Konstantinides George S. Alevras Elizabeth Murphy Walter Gordon Campbell Peter Morlu Brima Sao Lucinda B. Latimer Virginia Vaughan Allen Hilary Iris Nat Alexander Orlando Dennis Esther Lee Roncevert David Almond Edward Andrew Paltzik Canizares Sherri Therese Dente Mord M. Lewis Marilyn Sue Altamire Lauren Michelle Pennini Vincent Stanley Capone Marco DeLiguoro Daniel B. Lundy Paul Gerard Alvarez Alissa Marie Picardi Patrick F. Carrigg DePresicce Venus D. Marinescu John Karl Alvin Patti Piccininni Sunilda Esperanza Casilla Avana Mahendra Desai Ann Hillam McGraw Wayne Anthony Anirud Rebecca Provder Francisco Jose Castillo Christine Renee DiMarzio Gregory Morison Michelle Arellano Emily Shaw Record David Allen Castleman Joseph Jonathan Yevgeniya Musheyeva Kevin Philip Arias Catherine Lorraine Reilly John William Cerretta Dipasquale Jaeyoung Oh Gregg Harris Aronson Bianca Lee Resmini Jungwoo Chai Kristen E. Dirschel Valentine Stoyanov Conrado Arroyo Hoorya Riaz Samantha Lee Chaifetz Michele Marino Manov Pitheckoff Adam Cirilo Aseron Michael Joseph Rocco Hui-fen Chan Discepola Richard Postiglione Konstantina K. Dariely Rodriguez Hui Ting Chang Malcolm Paul Dixon Sreeamshi C. Reddy Athanasakou Alexis Faye Rudman Sabahat Chaudhary Ann Marie Dolezal Irina C. Rodriguez Mitchell Ayes Punit K. Sabharwal Angelica Chazaro Bridget Kathleen Dorney Danielle Salcau Manka Azinwe Azefor Sally Jane Sancimino Christine Helen Nicole Bianca Dory Sarah Marie Schlagter Marissa Jennifer Bach Warren Matthew Chehanske Russell Jackson Drake Huan-Lin Su Evarist Felician Baimu Sheinwald Bo-ru Chen Ryan Patrick Driscoll Edward Kyung Suh Samyukt Bajaj Sheetal Shetty Tina Hsioa-ting Chen Stephanie Alesia Tami Kim Suh Salvatore Anthony David Lawrence Shields Xiumin Chen Dubanowitz Antoaneta Velitchkova Barbatano David E. Shifren Yi-wen Chen Karen Leah Dunn Tarpanova Juliana Mary Barno Mary Frances Skiber Chun-wen Cheng Rishi Dutta Denetra M. Thompson Richard Wayne Bass Kimberley Smith Soper Ki Sung Cheon Kelly Mayo Dybala Daniel Vakili Daniel Phillip Baxter Tagiana Salete Souza- Kenneth John Chesebro Joseph D’artagnan Early Juancarlos M. Vargas Michael Robert Beck Tortorella Rocco A. Chiarenza Alexandra M. Echandi Chanthrika Geoffrey Maxwell Charissa A. Squicciarini Hyun Bin Cho Dimitrios Efstathiou Vidhyananthan Beckman Shari Lauren Stein Sooyeon Cho Alison Frances Egan Daniel Edward Vinish Keren Ben-Shahar Lauren Elizabeth Stiles Won Jun Cho Kent A. Eiler Fan Wei Adam Forrest Benforado Krista Michel Tedaldi Stephanie Ho-Ray Chow David Marc Eisen Andrew Patrick Wenzel Veronica Nicole Berger Cyril Joseph Thomas Alistair David Carolyn Edith Ennis Christopher Michael Eric Allen Berkowitz Eric Scott Tilton Christopher Anthony Joseph Enright Woltering Austin Maxwell Berry Kathryn Chapman Shih-yu Chu Walead Esmail Marco J. Wright Donald Arthur Berube Tondel
58 | July/August 2007 | NYSBA Journal Ette David Ette Moira Eileen Hollywood Patricia Larios Daniel Ian Mee Heather Ann Ogden David John Evans Esther Hong Stephen Albert Laucella Justin George Meeks Michelle Ognibene Anthony Edward Farah Lee Dominic Horan Catherine Valbuena Hemali Divyakant Mehta Koji Ohe Hannah Ruth Farber Gerard Andrew Hughes Laurel-Carpio Aaron Hirsch Selen J. Okcuoglu Henry James Fasthoff Elsa Isabelle Huisman Bradley Robert Lawrence Mendelsohn Maia Okruashvili Glenn Joseph Favreau Diego Alberto Ibarguen Jennifer Ann Lee Sara Frances Merin Naoto Okura Justin Lawrence Feldman Kazuyuki Ichiba Kisuk Lee Marc Zaki Michael Jessica Liz Oliva Bridget Fernquist Tal Ikar Patricia Ann Lee John P. Michalski Andrew Jacob Oliveria David Edward Fialkow Gia Gabrielle Incardone Seung Ho Lee Geoffroy Pierre Michaux Andrea Elizabeth Olness Andre Henrique Moscal Vincent Wang Chi Ip Wayne Stephen Lee Allison T.C. Milne James Winslow Olsen Fiorotto David Oakley Irving Yoon-ho Alex Lee Branko Milosevic Daniel McCandless Olson Genesis R.A.C. Fisher Hiroshi Ishihara Michael Brian Lestino Makoto Minohoshi Emi Omura Daniel Patrick Fitzgerald Seiko Ishihara Eva Leung Oliver C. Mitchell Gregory F. Orci Gregory Jon Fleming Xenia Iwaszko Malika Levarlet Katsuyuki Miyashita Jennifer Ann Osborne Mark Michael Fleming Jessica Ann Jablon Jonathan Jung-hsi Li Manas Mohapatra Gladys Nathalia Osorio Kevin Douglas Florin Robert Joseph Jackson Jun Li Mineko Mohri Alison Brooke Overby Francesca Fonte Daniel Paul Jaffe Ruomu Li Anthony Molloy Arthur M. Owens Mellissa Beth Francis Ruchi Jain Jonty Kang Young Lim Ainsley Gordon Moloney Marilee Annelle Owens Diana Nicole Fredericks David Matthew Jaquette Chia-yin Lin Shawn Michael Aaron Katherine Aiko Oyama Jason W. Friedman Florencia Jaraj Yichen Audrey Lin Mongin Veronica Rita Pagenel Yu Fu Michael David Jardim John Stephen Linehan Brady Lanz Montalbano Fabian Alberto Pal Gustavo Nicolas Fuentes Jane Jhun Tanya M. Linetsky Juan Carlos Monteza Adam Jeffrey Pan Todd Eric Gallinger Zhao Jin Taotao Ling Thomas Holt Anupama Martha Margaret Gannon Randy Walter Johnson Julia Martha Lipez Montgomery Parameshwaran Michael Joseph Garofola Byron Todd Jones Sarah Lipton-Lubet Mark Yung-chan Moon Mathilde Pardoux Lisa Mae Gasbarre Shermineh Camelia Jones Aloysius Piczon Llamzon Frank Joseph Morano Toral S. Parekh Dennis Michael Geier Robert Lionel Joseph Jason Anthony Llorenz Josie Connie Morello Sejal Kirit Kumas Parikh David Sébastien Gervais Florida Kabasinga Dana B. Lomm Elizabeth Anne Moreno Michelle Eunah Park Victoria Helen Ghost Alok Ashok Kale Cecilia Trinh Lu Pauline Katherine Aurora Francesca Parrilla Lisa Marie Gibson Khejung Kang Rocco Luisi Morgan Rajal B. Patel Alexander Brewer Richard Adam Kaplan Holly Sing Yu Lung Timothy Conor Moriarty Tayan Bipinchandra Patel Ginsberg Lindsay Kassof Amy Danielle Luria Shigeru Morikawa Peter Patrikios Sheri Robyn Glaser Eleni Katsari Tiffany Lyttle Seamus M. Morley Mercinth C. Pearce Adina Tzipora Glass Stefka Iordanova Megan Marie MacDonald Robert Jeffrey Moses Vincent Edward Abigail Christine Goff Kavaldjieva Jill Christine Maguire Joseph M. Moskovits Pellecchia Brian Scott Goldman Taiichi Kawamura Sonali Mahapatra Eri Motoshita Christopher Charles Nathan Paul Goldstein Melissa A. Keeffe Elizabeth Ellen Mahon Orion Mountainspring Pennington Kristy Leigh Grazioso Sean Christopher Sheila Malhotra Hoda Atia Moustafa Keriann Pepitone Maria Gritsenko Kellman Travis Hugh Mallen Geoffrey David Mueller Jeffrey Michael Perlman Michael Gronstein Marc E. Kenny Kevin K. Manara Seukki Mun Lisa Marie Pettinati David Morse Guilford Gregory Alan Kilburn Jeffrey Alan Mandelbaum Nicole Newcomb Murley Geoffrey Tyler Phelan Laure Ines Hadas-Lebel Meenah Yoon Kim Piero V. Maniaci Mikhail Murshak Megan Philbin Liang Han Susan Chong Kim Carolyn Kane Manning Daniel Louis Nadel Grant Phillips Lijie Han Kristen Ann Klics Joseph Anthony Manzo Tomaoaki Nakanishi Jill Irene Pilkenton Jonathan Dale Handyside Devon Carroll Knowles Isaac Meyer Tetsuya Nakano Ian James Pinta Jonathan David Hanks Shinsuke Kobayaski Marcushamer Matthew S. Necci Matthew Thomas Pisano Joseph John Hanna Kevin Michael Kocun Jason Edward Marett Noel A. Neeman Judy Pisnanont Petra Hansmersmann Hiroyasu Konno Simona Anca Marin Steven Leonard Nemetz Todd Randall Plotner Etsuko Hara Paola D.M. Konopik Henri J.C. Marquenie Peter Newberry Stephen Pogany Adam Daniel Harber John Ioannis Emilios Ana Paula Martinez Richard Brian Newman Alfredo Porretti Jochen Alexander Haug Kontoulas Sa’adiyah Kanvel Sandra Schultz Newman Samuel I. Portnoy Stephen M. Hauptman Eric Evans Kosinski Masoud Juliette Markham Niehuss Neil Christopher Potts Rebekah Eve Heilman Peter James Kreher Lisa Marie Massimi Luke William Nikas Renita Susie Powell James Michael Heiser Kasper Jan Krzeminski Masakazu Masujima Raymond Neville Matthew Farrish Prewitt Tammy E.E. Henderson Michael Joseph Kei Matsumoto Nimrod Michelle Marie Proia Melissa Anne Herbert Kuckelman Satoshi Matsuo Jared Patrick Nixon Tatiana Raitsina Brady James Hermann Tetsuharu Kuno Andrew Stuart McColl Regina Wanjiru Njogu Darshan Ramdhani Isael Hermosillo Benjamin H. Kwak Ian David McDonald Sora Noh Paul Rudolph Reichert Paige Lynn Herwig Kathy Kwak Gordon H. McGrath Taku Nomiya Jennie Eleanor Reid Philip Timm Hinkle Tae Woong Kwon Marshall Beyea McLean Toshiyuki Nonaka Keri Lyn Reid Maryann Theresa Hirsch Helesa Kristina Lahey Brett Michael McMahon Daniele Novello David Marshall Reiner Eiji Hizume Kamalprit Lally Patricia Cecelia McManus Benjamin Zvi Novick Kenneth Stephen Reinker Nathan Andrew Holcomb Caroline Lan-pelissier Andrew James McNally Jennifer Marie O’Brien Scott Lawrence Rempell Caroline Nonna Holland Kenneth Grant Lanford Michael George McNally Natalie C. O’Sullivan- Jeannie M. Rhinehart Pamela Smith Holleman Jennifer Rita Laraia Marlon Gerald Meade Gallagher Lisa Mary Richard
NYSBA Journal | July/August 2007 | 59 Jillie Brontie Richards Zachary Ian Schram Kelly Sue Shoop Miriam Josefina Soto- Jorge Enrique Vinuales Melanie Jill Rifkin Helen Aertker Schultz Joel Silberman Contreras William Joseph Votta Robert Warren Rodriguez Daniel Saul Schuman Carla Maria Silva Jessica Turner Sperath Cara Jean Wachsman Gerald Francis Roger Jeffrey Marshall Schwartz Peter B. Silverman Sara Victoria Spodick Cara Anne Waldman Francesco Romeo Zoe Lauren Segal- Kevin John Simard Jesse David Stalnaker Elizabeth Lee Walker Mark Eugene Rooney Reichlin Brian Marshall Simmonds Andrew Philip Stanner Angela Kate Wang Guilherme Roschke Jennifer Aliza Seiderman Frank R. Simon Michael Douglas Steger Cheng-shun Wang Barbara Goldberg Rosman Eric Seinsheimer Martina Simpkins Christian A. Sterling Allison Ward Charles Anthony Kathryn M. Sellars Annalisa Siracusa Tiffany Lynn Stevens Carla Crosby Ward Ruggerio Yeon Jin Seong Susan Agatha Siwek Jean-Yves P. Steyt Jeffrey Harris Ward Robert Francis Ruyak Nancy Beth Sever Brett Nicholas Jennifer Lynn Stiefvater Lita M. Ward Hyunju Ryu Meghana D. Shah Skoropowski Ann Marie Stinnett Brett Nelson Watkins Kristina Aniela Sadlak Alexander R. Shalom Gina Anne Smalley Marah Carter Stith Jennifer Ann Watson Takushi Saito Charles Gregory Shamoun Amy Kate Smith Benjamin Stockman Michelle Grace Weaver Robert C. Salo Elizabeth Mary Shanahan Eric John Smith Kaycee Sullivan Mark W. Wege Bradford Jay Sandler Adam J. Shapiro Jason James Smith Marbree Dale Sullivan Matthew Aaron Weiner Anna Santeramo Joshua Lane Shapiro Mary-Kate Georgette Theodor Arthur Swansen Robert James Weinschenk Eric Paul Sarabia Matthew Patrick Shaw Smith Orsolya E. Szotyory- Micci Jordon Weiss Mark George Saric Michael Lloyd Sheesley David Alexander Smolin Grove Erin Theresa Welsh James Charles Scalzo Amanda Beth Sherman Serena Louise Smulansky Terris Chik Chee Tang Debra Alligood White Katie Innis Schaaf Kosuke Shibukawa Shane Morrison Smyth Fangzhou Tao A. James Whitney Marc Oliver Schiefer Woei-tyng Daniel Shieh Nicholas Isaiah Snow Marc Gary Tarlow Jennifer A. Widmann David M. Schlachter Myung Hoon Shin Sandra Y. Snyder Joel Savik Tashjian Barton J. Winokur William Richard Meredith Leigh Shirley Adam David Solomon Sandra Tchatchoua Oliver Wolf Schmidt Steven Gregory Bryan Joseph Sommese Hanishi Kirit Thanawalla Greg Ping-kuei Wu Susan Jo Schneider Shoemaker Ibrahim Sorie Erin C. Thayer Jianhui Xu Sevasti Theodosiou Zezhou Xu James M. Toohey Ling Yun Yang Luisa Fernanda Torres Clark Yao Michael Christopher Toth Richard Stephen Yemm Tara Lyn Trammell Amy Yoshimi Yeung Kazuo Tsuiki Jae Wook Yoo Foundation Memorials Rachel S.W. Turow Rockey Yoo Mitsutoshi Uchida Ji Huyn Yoon fitting and lasting tribute to a deceased lawyer can be Tomihisa Ueda Tun-kai Young Melissa Nicole Vainik Robin Amanda Yudkovitz A made through a memor ial contribution to The New Alaina Leigh Van Horn Jeffrey Zabalet York Bar Foundation. This highly appropriate and meaningful Yvonne Francisca Van Patrick Ji Zhang Leiden-Thrasher Jian Zhou gesture on the part of friends and associates will be felt and James Francis Van Orden Christine Elizabeth appreciated by the family of the deceased. Marion Anne Vannier Zielinski Alykhan Velshi Robert Maxwell Ziff Contributions may be made to The New York Bar Carole Vidal-Naquet Lejla Zvizdic Foundation, One Elk Street, Albany, New York 12207, stating in whose memory it is made. An officer of the Foundation will notify the family that a contribution has been made and by whom, although the amount of the contribution will not be MEMBERSHIP TOTALS specified. NEW REGULAR MEMBERS All lawyers in whose name contributions are made will 1/1/07 - 6/1/07 ______4,629 be listed in a Foundation Memorial Book maintained at the NEW LAW STUDENT MEMBERS New York State Bar Center in Albany. In addition, the names 1/1/07 - 6/1/07 ______276 of deceased members in whose memory TOTAL REGULAR MEMBERS bequests or contributions in the sum of AS OF 6/1/07 ______64,535 $1,000 or more are made will be per- manently inscribed on a bronze plaque TOTAL LAW STUDENT MEMBERS AS OF 6/1/07 ______1,951 mounted in the Memorial Hall facing the handsome courtyard at the Bar Center. TOTAL MEMBERSHIP AS OF 6/1/07 ______66,486
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62 | July/August 2007 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
KATHRYN GRANT MADIGAN FIRST DISTRICT Longo, Mark A. Edmunds, David L., Jr. Aaron, Stewart D. Romero, Manuel A. Embser, James T. President † * Alcott, Mark Slavin, Barton L. Evans, Lydia V. Binghamton Alden, Steven M. Sunshine, Hon. Jeffrey S. Fisher, Cheryl Smith Anello, Robert J. Sunshine, Hon. Nancy T. * Freedman, Maryann Saccomando BERNICE K. LEBER Badner, Lisa Ray Szochet, Diana J. Gerstman, Sharon Stern President-Elect Badway, Ernest Edward THIRD DISTRICT †* Hassett, Paul Michael Barson, Alan D. Lamantia, Stephen R. New York Ayers, James B. Bartlett, Linda G. Breen, Michael L. McCarthy, Jeremiah J. Bienstock, Peter McCarthy, Joseph V. AMES YERS Casserly, Timothy E. J B. A Blanchard, Kimberly S. Cloonan, William N. Meyer, Harry G. Treasurer Borsody, Robert P. Copps, Anne Reynolds O’Donnell, Thomas M. Albany Boyers, Hon. Seymour Davidoff, Michael Porcellio, Sharon M. Brett, Barry J. Doyle, Hon. Cathryn M. Sconiers, Hon. Rose H. Brown Spitzmueller, Janiece Subjack, James P. MICHAEL E. GETNICK Farley, Susan E. Brown, Geraldine Reed Fernandez, Hermes Young, Oliver C. Secretary Burns, Howard W., Jr. Gold, Majer H. NINTH DISTRICT Utica Caraballo, Dolly Greenberg, Henry M. Burke, Patrick T. Chambers, Hon. Cheryl E. Greenthal, John L. Byrne, Robert Lantry MARK H. ALCOTT Cheng, Pui Chi Higgins, John Eric Campanaro, Patricia L. Chin, Sylvia Fung Immediate Past President Higgins, Patrick J. Casey, Bridget M. Christian, Catherine A. Kelly, Matthew J. Dohn, Robert P. New York Cohen, Carrie H. Kretser, Hon. Rachel Enea, Anthony J. Collazo, Ernest J. Lynch, Margaret Comard Fontana, Lucille A. * Cometa, Angelo T. Martinelli, Patricia Gordon Oliver, Arlene Antoinette VICE-PRESIDENTS Crespo, Louis Meislahn, Harry P. Gouz, Ronnie P. Davis, Tracee E. Miranda, David P. Kranis, Michael D. Donoghue, Gail FIRST DISTRICT Moy, Lillian M. Lagonia, Salvatore A. Draper, Thomas G., Jr. Netter, Miriam M. Markhoff, Michael S. Claire P. Gutekunst, New York Drayton, Joseph Michael Perino, Justina Cintron Marwell, John S. Eppler, Klaus Susan B. Lindenauer, New York Potter, James T. * Miller, Henry G. Finerty, Hon. Margaret J. Powers, John K. Murray, Conal E. Fink, Rosalind S. Sandner, James R. †* Ostertag, Robert L. SECOND DISTRICT * Forger, Alexander D. Schofield, Robert T., IV Sciortino, Sandra B. Barry Kamins, Brooklyn Frank, Paul M. †* Tharp, Lorraine Power Selinger, John Fries, Richard S. * Williams, David S. †* Standard, Kenneth G. Gesinsky, Loren M. THIRD DISTRICT * Yanas, John J. Thornhill, Herbert L., Jr. * Gillespie, S. Hazard Townley, Rosemary A. Grays, Taa R. FOURTH DISTRICT Hon. Rachel Kretser, Albany Breedlove, Brian H. Van Scoyoc, Carol L. Gredd, Helen A. Wallach, Sherry Levin Gross, Marjorie E. Burke, J. David FOURTH DISTRICT Caffry, John W. Welby, Thomas H. Gutekunst, Claire P. Wilson, Leroy, Jr. Nicholas E. Tishler, Niskayuna Haig, Robert L. Coffey, Peter V. TENTH DISTRICT Hariton, David P. Cullum, James E. Ferradino, Stephanie W. * Bracken, John P. FIFTH DISTRICT Harris, Joel B. Hoffman, Stephen D. Haelen, Joanne B. Buonora, John L. David M. Hayes, Syracuse * King, Henry L. Rider, Mark M. Cartright, Valerie M. Kobak, James B., Jr. Rodriguez, Patricia L.R. Castillo, Nelson A. SIXTH DISTRICT Kougasian, Peter M. Sterrett, Grace Chase, Dennis R. Tishler, Nicholas E. Clarke, Lance D. David A. Tyler, Ithaca †* Krane, Steven C. Kuntz, Dr. William F., II FIFTH DISTRICT Duffy, James P., III Larson, Wallace L., Jr. Gall, Erin P. Elder-Howell, Andrea M. SEVENTH DISTRICT Leber, Bernice K. Getnick, Michael E. Fishberg, Gerard David M. Schraver, Rochester Lieberman, Ellen Greeley, Kristin B. Franchina, Emily F. Lindenauer, Susan B. Hayes, David M. Gann, Marc Larose, Stuart J. Giorgio, Frank, Jr. EIGHTH DISTRICT * MacCrate, Robert Martin, Edwina Frances Longstreet, Ami S. Gross, John H. Sharon Stern Gerstman, Buffalo Mazzarelli, Hon. Angela M. Marris, Karin Huntley †* Levin, A. Thomas McEnroe, Diane Crosson McClusky, James P. Levy, Peter H. Luskin, Andrew J. NINTH DISTRICT Miller, Michael Mitchell, Richard C. Millett, Eileen D. Pellow, David M. Makofsky, Ellen G. John S. Marwell, Mount Kisco Minkowitz, Martin Peterson, Margaret Murphy Margolin, Linda U. Moreland, Thomas H. Priore, Nicholas S. Mihalick, Andrew J. TENTH DISTRICT Morril, Mark C. * Richardson, M. Catherine * Pruzansky, Joshua M. Nathanson, Eugene Stanislaus-Fung, Karen5 Purcell, A. Craig John H. Gross, Hauppauge * Rice, Thomas O. O’Neill, Paul J., Jr. SIXTH DISTRICT * Patterson, Hon. Robert P., Jr. Robinson, Derrick J. LEVENTH ISTRICT Cummings, Patricia A. E D Paul, Gerald G. Smolowitz, Barry M. Denton, Christopher Steinberg, Harriette M. Seymour W. James, Jr., Kew Gardens Reed, Thomas A. Egan, Shirley K. Rifkin, Richard Stempel, Vincent F., Jr. Gorgos, Mark S. Thompson, Charlene R. TWELFTH DISTRICT Robertson, Edwin David † Madigan, Kathryn Grant Rosenthal, Lesley Friedman Walsh, Owen B. May, Michael R. Winkler, James R. Steven E. Millon, Bronx Rosner, Seth Sheehan, Dennis P. Rothstein, Alan Smyk, Stephen D. ELEVENTH DISTRICT Runes, Richard N. Tyler, David A. Cohen, David Louis Russell, William T. Dietz, John R. MEMBERS-AT-LARGE OF THE SEVENTH DISTRICT Goldblum, A. Paul * Seymour, Whitney North, Jr. Barney, Brian J. EXECUTIVE COMMITTEE Sherman, Carol R. James, Seymour W., Jr. Brown, T. Andrew Lomuscio, Catherine Sherwin, Peter J.W. Buholtz, Eileen E. Vincent E. Doyle, III Sigmond, Carol Ann Lonuzzi, John A. †* Buzard, A. Vincent Nashak, George J., Jr. David L. Edmunds, Jr. Silkenat, James R. Castellano, June M. Smith, Hon. George Bundy Terranova, Arthur N. Doyle, Hon. John D. Wimpfheimer, Steven Hermes Fernandez Sonberg, Hon. Michael R. Lawrence, C. Bruce Michael Miller Steinberg, Lewis R. Lightsey, Mary W. TWELFTH DISTRICT Stenson, Lisa M. †* Moore, James C. Chavez, Daniel M. David P. Miranda Tesser, Lewis * Palermo, Anthony R. Friedberg, Alan B. Wachtler, Lauren J. Peter J.W. Sherwin Reynolds, J. Thomas Millon, Steven E. Williams, Bryan R. Schraver, David M. * Pfeifer, Maxwell S. Lauren J. Wachtler Younger, Stephen P. Schultz, Jill K. Schwartz, Roy J. Zulack, John F. Smith, Thomas G. Stansel, Lynn Stephen P. Younger SECOND DISTRICT Tilton, Samuel O.7 Summer, Robert S. Adler, Roger B. * Vigdor, Justin L. Weinberger, Richard Branda, Rose Ann C. * Witmer, G. Robert, Jr. OUT OF STATE Cohn, Steven D. EIGHTH DISTRICT Cahn, Jeffrey Barton Golinski, Paul A. Brady, Thomas C. * Fales, Haliburton, II Kamins, Barry Doyle, Vincent E., III * Walsh, Lawrence E.
† Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | July/August 2007 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
GERALD LEBOVITS is a judge of the New York City Civil Court, Housing Part, in Manhattan. He thanks court attorney Alexandra Standish for assisting in researching this column. His e-mail address is [email protected].
Do’s, Don’ts, and Maybes: Legal Writing Don’ts — Part I
n the last two columns, the Legal cite fact and law accurately, using the “It was Judge Beta who wrote the Writer discussed 26 things you record for facts and original sources for opinion.” Here, the author emphasizes Ishould do in legal writing. We con- law. But don’t obsess. Obsessing over Judge Beta’s authorship even though tinue with a baker’s dozen of things accuracy leads to including irrelevant it would have been more concise to you shouldn’t do: 13 things writers details. Obsessing will make you over- write “Judge Beta wrote the opinion.” should hate. ly cautious, force you to over-explain, Rhythm example: “To everything there is 1. Hate Boilerplate. Boilerplate is cause you to submit a document late, a season.”1 This example would have laziness. It’s boring and intimidating and lead you to hate being a lawyer. been different had the author written at the same time. Readers know when Exaggerating is a form of misrepre- “To everything is a season.” Climax you do a cut-and-paste job. They won’t senting. Understate not only to show example: “There is a prejudice against read boilerplate. Don’t recycle your integrity but also because understating sentences that begin with expletives” legal arguments. If you or the person persuades. Understating calls atten- is better than “A prejudice against from whom you’ve copied your boil- tion to content, not the writing or the sentences that begin with expletives erplate made errors in the original writer. Also, concede what you must to exists.” The climax should not be on document, you’ll repeat them in your make you honest and reasonable. “exists.” boilerplate. Each client and case is 4. Hate Expletives. “Expletive” 5. Hate Mixed Metaphors, Puns, unique. Boilerplate won’t be specific means “filled out” in Latin. Avoid Rhetorical Questions, and False to your case. Boilerplate is fine for con- expletives: “there are,” “there is,” Ethical Appeals. Metaphors com- tracts or forms. It’s unacceptable in a “there were,” “there was,” “there to pare two or more seemingly unre- legal argument. be,” “it is,” and “it was.” Examples: lated subjects. Metaphors make the 2. Hate Clichés. Avoid clichés like “There are three issues in this case.” first subject equal to the second: “All the plague. Clichés make writers look Becomes: “This case has three issues.” the world’s a stage/ And all the men as if they lack independent thought. They’re banal. Eliminate the following: “all things considered,” “at first blush,” Readers know when you do a cut-and-paste “clean slate,” “exercise in futility,” “fall job. Don’t recycle your legal arguments. on deaf ears,” “foregone conclusion,” “it goes without saying,” “last-ditch “There is no fact that is more damag- and women merely players.”2 In this effort,” “leave no stone unturned,” ing.” Becomes: “No fact is more dam- example, Shakespeare compared the “lock, stock, and barrel,” “making a aging.” “The court found there to be world to a stage, and men and women mountain out of a molehill,” “nip in prosecutorial misconduct.” Becomes: to actors. Mixed metaphors combine the bud,” “none the wiser,” “pros and “The court found prosecutorial mis- two commonly used metaphors to cre- cons,” “search far and wide,” “step up conduct.” Also eliminate double exple- ate a nonsensical image: “He tried to to the plate,” “tip of the iceberg,” “wait tives: “It is obvious that it will be nip it in the bud but made a mountain and see,” “wheels of justice,” “when my downfall.” Becomes: “My mistake out of a molehill.” Puns fail because the going gets tough,” and “writing on will be my downfall.” Exceptions: Use they transform formal legal writing to a clean slate.” expletives for emphasis; for rhythm; to informal writing. Puns are for children, 3. Hate Misrepresentations and climax (end with emphasis); or to go not groan readers. A pun is a figure of Exaggerations. Be honest. Mistakes are from short to long or from old to new. speech that uses homonyms as syn- excused. Purposeful misstatements and Emphasis examples: “It was a full metal onyms for rhetorical effect. Examples: negligent misquoting aren’t. Honesty jacket bullet that killed John.” Here, “Whom did the mortician invite to his is the best policy. It’s also the only the author emphasizes the object that policy. To prevent misrepresentations, killed John, not that John was killed. CONTINUED ON PAGE 50
64 | July/August 2007 | NYSBA Journal