Problem-Solving Courts Provide New Approaches

NEW YORK STATE BAR ASSOCIATION JournalJUNE 2000 | VOL. 72 | NO. 5 PROBLEM-SOLVING COURTS PROVIDE NEW APPROACHES

Inside: Custody Settlements Future Planning by Law Firms Mergers with Foreign Firms Project Exile Seat Belt Use in School Buses BOARD OF EDITORS C ONTENTS Howard F. Angione Editor-in-Chief New York’s Problem-Solving Courts Provide Queens e-mail: [email protected] Meaningful Alternatives to Traditional Remedies Susan K. Knipps and Greg Berman Rose Mary Bailly 8 Albany Judicial Roundtable—Reflections of Problem- Louis P. DiLorenzo Court Justices Syracuse Paul S. Hoffman 9 Croton-on-Hudson “Team Red Hook” Addresses Wide Range Judith S. Kaye of Community Needs New York City Alex Calabrese 14 Kenneth P. Nolan New York City View From the Bench—One More Time: Eugene E. Peckham Custody Litigation Hurts Children Binghamton Marjory D. Fields 20 Albert M. Rosenblatt Poughkeepsie Law Office Management—How Should Law Firms Sanford J. Schlesinger Respond to New Forms of Competition? New York City Stephen P. Gallagher 24 Richard N. Winfield New York City Roundtable Discussion—U.S., British and German Attorneys Reflect on Multijurisdictional Work Daniel J. McMahon Managing Editor 31 Albany e-mail: [email protected] “Project Exile” Effort on Gun Crimes Increases Need for Eugene C. Gerhart Attorneys to Give Clear Advice on Possible Sentences Editor Emeritus William Clauss and Jay S. Ovsiovitch 35 Binghamton

EDITORIAL OFFICES Normal Rules on Liability for Failure to Use Seat One Elk Street Belts May Not Apply in School Bus Accidents Albany, NY 12207 Montgomery Lee Effinger 41 (518) 463-3200 FAX (518) 463-8844

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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 for publication becomes the property of the Association. Copyright © 2000 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | June 2000 3 was sitting in the window at the members of the Cuban-American Bar Center in Albany on February PRESIDENT’S community threatened to shut down I25th, the day that four New York the Port of Miami and to cause such City Police Officers were acquitted in ESSAGE congestion on the streets of the city what has come to be known as the M that its commercial life would be “Amadou Diallo Case.” We had halted. The news media reported watched throughout the day while that a sign carried in a convoy of security precautions were heightened supporters of the young boy’s Miami as a verdict grew near. When it was relatives bore the legend: “Are you apparent that the jurors had reached ready for another Waco? We are.” a verdict, their return to the court- And to what end? Although their room was delayed to give the police feelings are obviously strongly held sufficient time to prepare for the ex- and emotionally charged, do those pected reaction in the streets of Mr. who lead and participate in these Diallo’s Bronx neighborhood. public demonstrations really believe As I reflected further in preparing that the processes in question, the this message, young Elian Gonzalez deliberations of the jury in the crimi- was forcibly removed from the cus- nal trial in Albany and the judgment tody of his mother’s relatives and re- of the U.S. attorney general and returned to the arms of his father in view of that judgment by the courts Washington. in the Gonzalez matter, can be, or Both of these events have gener- more importantly should be, influ- ated considerable reaction. There are enced by their actions? Do they re- those who believe that the Amadou ally believe that the number of the Diallo killing was the result of sys- PAUL MICHAEL HASSETT demonstrators and the volume of temic racism in the New York City their chants can cause a jury to con- Police Department on the one hand, vict an accused of a crime when the and those who believe that the police Justice: Not a Matter evidence suggests otherwise? Do officers were justified in their reac- they believe that their number and tion to what they believed was hap- of Opinion their volume should influence a pub- pening that evening on the other. The lic official or a court to reach conclu- Cuban-American community in Miami and its support- sions contrary to established law and precedent? Sadly, ers elsewhere saw serious political overtones to the unit seems that they do. There seems to be support for fortunate saga of this young boy when others believed their expectation in the national news media, which that his return to the custody of his father could not jus- publish daily polls reporting the number of Americans tifiably be delayed any longer. who support one side or other of these very public con- That large numbers of people should have strongly troversies. Leaving aside for the moment the issue of held positions on either side of very publicized legal whether those being polled have sufficient knowledge problems is neither surprising nor disturbing. What is of the actual facts on which to base an opinion, are we disturbing, however, is the length to which many of our suggesting that these important decisions affecting the citizens were willing to go to insure that the result of very lives of those involved should somehow be influ- each of these events coincided with their version of jus- enced by the numbers of those who line up on either tice. Civil rights leaders and others so incited the emo- side of the issue? tions of Bronx residents that the Appellate Division Lawyers believe fervently in the rule of law, the ex- found it necessary to change venue of the trial to Albany pectation that 200 years of statutory and decisional law County. There were repeated suggestions, some by very will provide a framework for decisionmaking not sub- public figures, that Mr. Diallo was “murdered” many ject to the vagaries of a particular case. We believe that months before the trial even began. Others suggested the principle of stare decisis will allow all of our citizens that all police officers were at risk if these four were not to have confidence that our government is truly a gov- acquitted, again before the jury heard all of the evi- ernment of law and that results are predictable, regard- dence. Throughout the trial itself, demonstrators pa- less of their popularity. In her report to the House of raded and chanted in Albany, so loudly at times that the trial judge restricted them to positions away from the Paul Michael Hassett can be reached at 1500 Liberty Build- immediate area of the courthouse. In Miami, prominent ing, Buffalo, N.Y. 14202.

Journal | June 2000 5 PRESIDENT’S MESSAGE Is the conflict resolvable? And if it is, what can we as lawyers do to help resolve it? In his Law Day speech at Delegates in April, Ellen Lieberman, chair of the Special the Court of Appeals, Attorney General Eliot Spitzer ex- Committee on Public Trust and Confidence in the Legal pressed the sentiment that courts should not “temper System, said: “Our legal system underlies the operation the zeal” with which they address controversial issues of our democratic government, the protection of our for fear of eroding public support. He said: “As con- civil rights and liberties, and the effective functioning of tentious issues are resolved in court, there are bound to our entire economic system.” be times where court action sparks controversy, protest But the very existence of a committee on public trust and dissent. It is my firm belief, however, that when and confidence, an outgrowth of a national symposium courts display their ability to adjudicate in a decisive, ef- on the subject last year, suggests that not all believe so ficient and thoughtful manner, public confidence in the confidently in the rule of law. In a recent article in the judiciary will only grow.” If we as lawyers spoke out Albany Times Union, columnist Fred LeBrun quoted the frequently and consistently on the essential necessity for response of the head of Albany’s Law & Justice Center a predictable system of justice, one which cannot and when he asked her if she thought the four accused offi- should not be influenced by the voices of those who cers in the Diallo case could get a fair trial. “Of course demonstrate, would it have any effect? Can we reinforce they’ll get a fair trial,” she said. “I have no doubt that Attorney General Spitzer’s conclusion that by the skill- will happen. The real question is, though, will there be ful exercise of judicial power “people are assured that justice?”1 Most lawyers believe that a fair trial guaran- the rule of law is not created haphazardly, or in an ivory tees that justice will be done and that the process that tower, but by citizen judges who understand the human has developed throughout our history is the essential condition and the important issues in our lives.” We, as foundation of a just government, even when the result members of the legal profession, are the repository of may appear erroneous—unjust—to large numbers of the rule of law and its most eloquent advocates. It is our people. responsibility to ourselves and to the nation to do all we As Fred LeBrun concluded in his thoughtful article: can to convince all Americans that it deserves their con- “There in a nutshell is the dilemma that faces us. . . . fidence. For some—perhaps many—the fundamental fairness of 1. Fred LeBrun, Diallo Jury Can Reflect Our Divisions, Times the process . . . will all be forgotten or trivialized if the Union (Albany, NY), Feb. 21, 2000, at B1. verdict isn’t what they want. Justice is in the eye of the 2. Id. beholder.”2 And Ellen Lieberman expressed her concern as well: “But if those who should be using the legal system lack confidence in its fairness, in its ability to deliver justice in a timely way, in their ability to have access to that system, the appropriate and effective Moving? operation of the system is clearly impaired.” These two very publicized and very polarized cases Let Us Know . . . have crystallized the conflict between these two views. Those who believe in the rule of law are presumably comfortable with the result in a particular case if the If you change the address where you process has been fair. And those who lack confidence in receive your NYSBA mailings, be sure the role of the judicial system in American society judge to let us know so you can stay in- the fairness of the system by the result. The problem, of formed. Send change of address course, is that regardless of whether the result in a par- and/or phone number to: ticular case is a just one is a purely subjective inquiry. On the other hand, those who rely on the fairness of the process can evaluate it with some objectivity. Records Department Our continuing analysis of the problem of trust and New York State Bar Association One Elk Street confidence in the judicial system is not purely an acad- Albany, NY 12207 emic one. For any system of law to survive, at least in a democratic society, it must enjoy the voluntary compliance of an overwhelming number of its citizens. Only in 518-463-3200 a totalitarian society can the government insure en- e-mail: [email protected] forcement of the law by police power and then only by risking the loss of liberty of its citizens.

6 Journal | June 2000 New York’s Problem-Solving Courts Provide Meaningful Alternatives To Traditional Remedies

BY SUSAN K. KNIPPS AND GREG BERMAN

cross New York State, a new crop of specialized In an overburdened criminal justice system, minor courts—community courts, drug treatment offenses always compete with more serious matters for Acourts and domestic violence courts—are testing resources and attention. In New York City, severe case- innovative ways to deliver justice. Their objective is to load pressures meant that nearly half of all misde- provide more lasting and meaningful resolutions for meanor cases were resolved without any formal sanc- thousands of difficult cases that pass each year through tion beyond “time served.” While such outcomes may the courthouses in New York State. be administratively understandable, they can have dev- The conditions that have given rise to these new tri- astating social side effects. If the justice system is bunals—often generically called “problem-solving viewed as a revolving door for petty offenders, citizens courts”—are not hard to identify. In recent decades, the may see little point to reporting low-level crime, police state courts have increasingly become the public institu- may view enforcement efforts as futile, and offenders tion of choice for dealing with numerous social prob- themselves may perceive little downside to repeat of- lems: drug-fueled crime, family dysfunction, repeated fending. Over time, the downward spiral accelerates. petty assaults against property and social order in urban The Midtown initiative set as its goal the develop- communities. Not surprisingly, traditional litigation ap- ment of a court that would respond to low-level crime proaches can yield distinctly unsatisfactory outcomes fairly, visibly, and in a manner that was meaningful to when applied to these non-traditional issues. The signs victims, defendants and the community. Rather than of systemic failure are all too familiar: drug abusers who just process cases, the Midtown court would use its cycle through the criminal justice system again and legal authority to help restore distressed neighborhoods again, batterers who resume their domestic abuse and promote lawful behavior. shortly after leaving the courthouse, minor offenders Sanctions at the Midtown Court tend to combine who repeatedly erode the quality of life in distressed punishment and help. Offenders are sentenced to per- urban neighborhoods. form public restitution projects—cleaning up local Rather than lamenting that these cases don’t fit the parks, painting over graffiti, sweeping neighborhood mold, problem-solving courts seek to change the mold. streets. In an effort to help solve the problems that often By taking a step back, examining the results that courts lead to criminal behavior, the Midtown judge may also are actually achieving, and asking, “Isn’t there a better link offenders to drug treatment, job training, health way to do this?” the problem-solving courts seek to im- care and other social services. At many courts, a referral prove case outcomes for parties and systemic outcomes to services is a name on a slip of paper or an appoint- for the community at large. ment with an agency across town. At Midtown, services An overview of the three types of problem-solving are offered on-site, just a few floors above the court- courts currently in operation in New York State follows. room. On an average day, the court’s social service center bustles with defendants participating in GED Community Courts classes, AA groups and individual counseling sessions. The Unified Court System’s first foray into problem- solving jurisprudence was the Midtown Community SUSAN K. KNIPPS is deputy counsel for Chief Judge Ju- Court, located on West 54th Street in the heart of Manhat- dith S. Kaye. She is a graduate of UCLA and received her tan. Opened in October 1993, the Midtown Court was de- J.D. degree from Yale Law School. signed to address the high volume of low-level crime— GREG BERMAN is deputy director of the Center of Court prostitution, shoplifting, minor drug possession and other Innovation. He is a graduate of Wesleyan University and petty offenses—that was degrading the quality of life for a former Coro fellow in public affairs. residents and businesses in midtown Manhattan.

8 Journal | June 2000 The uniqueness of the Midtown model goes beyond what the judge does on the bench. The court has become the hub for an array of programs that address quality- of-life issues in the community—everything from mediation of neighborhood disputes to street outreach programs for the homeless. The court has also pioneered new ways to get citizens involved in the court process, convening advisory boards, town hall meetings and “impact panels” that allow residents to confront offenders in facilitated conversations and bring home the community consequences of petty crime. The results of the Midtown experiment have been promising. According to independent evaluators at the National Center for State Courts, the Midtown Commu- nity Court has helped reduce local crime, improve compliance with alternative sanctions and enhance public Members of the Red Hook Public Safety Corps and community confidence in courts. members painted over graffiti on the side of a supermarket in Results like these have not gone unnoticed. Across Brooklyn during Red Hook Graffiti Removal Day. the country, more than two dozen replications of Mid- New York’s drug treatment courts are a response to town are currently planned or in operation. And closer these statistics. Modeled on the groundbreaking drug to home, three new community courts—in Harlem, court developed in Dade County, Florida, in the late Hempstead, Long Island and Red Hook, Brooklyn—are 1980s, New York’s treatment courts offer non-violent, in various stages of development, each testing new drug-addicted offenders the opportunity to earn dis- ways to bring courts and communities closer together. missal of their charges through completion of a court- ordered program of drug treatment. From a handful of Drug Treatment Courts experiments established in the mid-1990s in Brooklyn, The impact of drugs on the criminal justice system is Buffalo and Rochester, New York’s drug treatment court staggering. Three-quarters of the defendants in urban network has steadily expanded, with more than 30 areas test positive for drugs at the time of arrest. Nearly treatment courts expected to be up and running across half of all prison commitments in New York State are for the state by the end of next year. drug offenses. More than half of drug offenders placed on probation or parole recidivate within three years. CONTINUED ON PAGE 10 Judicial Roundtable Reflections of Problem-Court Justices

uring its annual judicial seminar at the end of Contrast With Traditional Courts 1999, the Unified Court System convened a JOHN FEINBLATT: Each of you has presided over both Droundtable of problem-solving judges to discuss traditional courts and problem-solving courts. What’s how their courts operate and how they affect the roles the difference? that judges play inside and outside the courtroom. JUDGE FERDINAND: Problem-solving courts broaden John Feinblatt, director of the Center for Court Inno- their scope and deal with the larger issues—for exam- vation, moderated the panel. The participants were Jo ple, the problem of addiction that often leads to crime. Ann Ferdinand, presiding judge of the Brooklyn Treat- They take the approach that courts should address peo- ment Court; Judy Harris Kluger, administrative judge ple’s underlying problems and that judges have an im- for the New York City Criminal Court and a former portant role to play in that. And problem-solving courts judge of the Midtown Community Court; John Leven- allow judges to develop a substantive expertise in a par- thal, presiding judge of the Brooklyn Domestic Violence ticular area. When I was in Criminal Court, I used to Court; Rosalyn Richter, an acting Supreme Court justice give defendants one chance at drug treatment, and if and a former judge of the Midtown Community Court; they messed up, I would give them a harsher sentence and Joseph Valentino, presiding judge of the Rochester or disposition. But since presiding at the Brooklyn Treat- Drug Court. CONTINUED ON PAGE 11

Journal | June 2000 9 Problem-Solving Courts many victims—whether because of fear, or love, or eco- CONTINUED FROM PAGE 9 nomic dependence—may be reluctant to pursue legal Unlike traditional courts, the drug treatment courts remedies, making it difficult for the courts to provide a shift the focus of proceedings from adjudicating past meaningful intervention. facts to changing future behavior—specifically, to the Given these realities, the New York court system has promotion of defendant sobriety through rigorous judi- begun to re-think how it handles cases involving do- cial monitoring of drug treatment. Treatment court mestic violence. One result of this effort is a growing judges play an active role in defendants’ recovery network of specialized domestic violence courts. There process, imposing sanctions when program require- are currently five such courts in New York, with another ments are violated, dispensing rewards when treatment half dozen in the planning stages. They can be found in goals are reached. Because of the reduced emphasis on urban, suburban and rural jurisdictions. Some are de- litigation, many practitioners describe proceedings in signed to handle only misdemeanor cases, others only these courts as distinctly less adversarial, with the pros- felonies, and some handle both. ecution and defense both working toward the same goal For all of their diversity, New York’s domestic vio- of defendant sobriety. lence courts all follow a common set of principles that When that goal is achieved, everybody wins: the were first developed at the Brooklyn Domestic Violence community is safer, the defendant has improved life Court in 1996. Key among them is an emphasis on vic- prospects and the justice system has one fewer future re- tim safety. Complainants are linked to an on-site victim cidivist to process. All this, at a fraction of the cost of in- advocate, who helps them locate needed services such carceration. National research has shown that drug as shelter and counseling. The advocate also serves as a court participants have much lower drug use rates, drug liaison between the court and victims, assuring that court graduates have much lower re-arrest rates, and complainants are aware of new court dates, court orders the long-term savings to the system are substantial. and case outcomes—and that the court knows immedi- But the numbers tell only part of the story. New ately if any further abuse occurs. York’s drug treatment courts actually change lives. One Defendant accountability is another key element for visit to a treatment court “graduation”—a courtroom promoting victim safety. Domestic violence courts rigor- ceremony to celebrate defendants’ successful comple- ously monitor the behavior of defendants, requiring tion of treatment—provides a powerful insight into the them to return to court regularly while their cases are human dimension of these programs. pending—whether they are in custody, on probation or Although the assembled graduates may lack caps released on bail. The goal here is to send the message and gowns, the sense of hard-earned achievement is no that the court takes domestic violence seriously and that different from any other commencement exercise. “I had any violation of a protective order will be dealt with spent every day stealing for the money to buy drugs, swiftly and decisively. and every free minute getting high,” one Rochester Victim safety requires more than just the best efforts graduate recounted at a recent graduation event. “I got of the judiciary, however. It also requires the coopera- caught numerous times, but still I couldn’t stop. I had tion of outside partners such as the police, probation of- no support system, and no incentive to stop. Drug court fices, victims organizations and social service providers. finally provided me with both.” Or as another graduate All of these agencies have always played a role in re- put it, “I didn’t just get arrested—I got saved.” sponding to domestic violence, of course, but domestic Domestic Violence Courts violence courts affirmatively seek to bring all the pieces For many years, courts, prosecutors and the police of this traditionally fragmented system together, assur- viewed domestic violence as essentially a private mat- ing that all stakeholders are working together to offer a ter—a family problem best left to the parties to work out coordinated response. on their own. Today, more and more policymakers agree Technology plays an important role in this effort. A that domestic violence is a serious public issue—a social state-of-the-art computer application allows New York’s problem that requires an immediate and effective re- domestic violence courts to keep track of the status of sponse from the criminal justice system. each case, minimizing the risk that any matter will trag- The urgency of the problem is reflected in the rising ically “slip between the cracks.” volume of domestic violence cases in New York’s courts. Early signs suggest that the new courts are making a In New York City alone, more than 25,000 criminal cases difference. For example, the flagship Brooklyn court has alleging domestic violence were filed in 1998. These are seen dramatically reduced dismissals, warrants and complicated cases. By definition, victims and defen- probation violations—common problems that often dants have ongoing relationships, which raises the risk plague traditional judicial responses to domestic vio- of additional violence. Further complicating matters, lence. ◆

10 Journal | June 2000 Judicial Roundtable split sentence come back to my court every two to three months for the first year and a half of their probation. CONTINUED FROM PAGE 9 JUDGE FERDINAND: It’s funny, I get asked a lot, “When ment Court, I’ve learned that recovery is not an event; are you going to go back to being a real judge?” I really it’s a process. It’s not all or nothing. Giving them just believe that what I’m doing now is the “realest” bit of one shot at rehabilitation is not helpful. At the Treat- judging that I’ve ever done. I don’t simply sentence peo- ment Court, I follow defendants’ progress in treatment ple; I make sure that the sentence makes sense, that it is and try to maximize their chances for success. something they can do. I work with them and provide JUDGE VALENTINO: There’s accountability and imme- the tools they need to complete the process. diacy. I was really skeptical about drug courts at first, JUDGE RICHTER: I’ve found that we as judges have thinking that they were one of those liberal touchy-feely enormous psychological power over the people in front programs where you just pat somebody on the back, get of us. It’s not even coercive power. It’s really the power them on probation and get them out of the courtroom. of an authority figure and a role model. You have power But after watching the drug treatment court in not only over that person, but over their family in the Rochester a couple of times, I realized that it was not a audience, over all of the people sitting in that court- social worker type of court. It was the first time that I room. saw defendants having to take responsibility for their JUDGE KLUGER: I think that’s definitely true. One of actions. Defendants were immediately accountable. The the lessons that I have learned is that you can’t just place judge knew whether they were following their program a defendant in treatment and expect the process alone to within a couple of days, not months later. work. You need the oversight of the court. I once at- JUDGE RICHTER: Rather than just focusing on what’s tended a meeting at the Midtown Community Court the minimum sentence and the maximum sentence, where defendants said that having a judge monitor problem-solving courts have broadened the judicial what they were doing affected them almost as much as horizon and really asked the question, “What’s the so- having a sentence over their heads. lution? What’s the right remedy?” Judges have been doing this all along, and problem-solving courts are al- Cultural Change lowing us to have that discussion, not back in our offices JOHN FEINBLATT: It seems to me that one of the princi- and not on the phone, but in the courtroom with infor- pal themes that unites drug courts, domestic violence mation and resources. Problem-solving courts are just courts and community courts is partnership. They all giving judges more choices than we have ever had. rely on outside agencies—to provide social services, to JUDGE FERDINAND: Another major difference is the role monitor offenders, to supervise community service sen- of attorneys. In the Brooklyn Treatment Court, the tradi- tences. How do you make inter-agency partnership tional adversarial process is very much intact when it work? comes to working out the disposition of the case. But once a defendant pleads guilty, everybody shares the same goal: to help the defendant stop using drugs and I don’t simply sentence people; have the case dismissed. My D.A. stands up in dismissal I make sure that the sentence ceremonies and says that she feels terrific as the prosecutor dismissing 20 felonies. There aren’t too many makes sense, that it is something prosecutors who could say that. The D.A. is successful they can do. because Treatment Court graduates have become law- abiding and responsible for their own behavior. JUDGE FERDINAND: The foundation of the Brooklyn “Real” Judging Treatment Court is the partnership between service JOHN FEINBLATT: Have these courts changed your role providers and the courts. Treatment providers are often in the courtroom? distrustful of courts because they fear that judges will JUDGE LEVENTHAL: There is a whole set of basically make irrational judgments about their clients. We had to common sense things that I didn’t do before but I now articulate the advantages of partnership for them. By do as a matter of routine. For example, I bring the de- working together, the treatment providers can tell fendants back regularly for observation, supervision judges what’s happening in treatment and courts can and monitoring. I let them know that the same judge assist providers in keeping a defendant on track. It al- who arraigns them is the same judge who is going to lows both to do their jobs better. We’ve also formed an watch them. All defendants who are out on bail come unexpected partnership with the Police Department’s back before my court every two to three weeks, even if nothing is going on. The ones on probation or with a CONTINUED ON PAGE 12

Journal | June 2000 11 CONTINUED FROM PAGE 11 JUDGE LEVENTHAL: At the Domestic Violence Court, warrant squad. In the early days of the Treatment Court, Judge Matthew D’Emic and I convene monthly meet- warrant officers discovered that they could find our de- ings with police, probation, prosecutors, defense coun- fendants relatively easily because they tended to return sel and others to look at how the project is doing. It has to the same street corner or drug location. So the officers been a wonderful tool. It keeps everyone’s eye on the started coming to court day after day and asking the ball. We can anticipate problems before they come up. D.A. to give them a list of people on warrants. To give As a result, we’ve resolved some very crucial issues. For you a sense of context, this is New York City where example, we found out offhand from the Police Depart- there are literally hundreds of thousands of warrants is- ment that if a defendant wants to get his belongings sued each year. At the Treatment Court, warrant officers from the house, he can’t just go to the precinct any more. would actually come into court and say, “I brought back The judge has to put it in the order of protection that on so-and-so last week. How’s she doing?” And we’d say, a specific date and time he is to go to the house with the “Oh, she’s out on a warrant again.” And sure enough, police and pick up his belongings. At another meeting, they’d go out, they’d pick her up, they’d be back that af- we looked at immigration issues. If the complainant has ternoon. It’s a partnership that we really wouldn’t have a status derivative of the defendant, then she might not thought about forming but it has made their job better want to prosecute because she’s worried about getting and our job more effective. deported. So we had immigration lawyers come in to talk about the issue. We’ve had similar meetings on dealing with mentally ill defendants. It has made me look at everybody JUDGE KLUGER: Service providers and the police are obviously two important partners, but I don’t think we on the other side of the bench— should lose sight of the community. Community courts both defendants and lawyers— in particular rely on partnerships with local residents, merchants and community groups. In the early days of not as adversaries but as people the Midtown Community Court, there were many judges—and I must say that I was one of them—who who bring their own life worried that by meeting with the community we would experiences to the table. be opening the court up to criticism. It was something I was very concerned about initially. But I realized that we are public officials and there is nothing improper or JUDGE RICHTER: I think that the kind of collaboration incorrect with us speaking to members of the public. I that Judge Ferdinand is describing amounts to a real had been afraid that people would talk about particular cultural change within the criminal justice system. To cases and would try to influence me in some way, but I give another example, a couple of months ago I was at a realized after the first advisory board meeting that I at- panel organized by a social service agency on domestic tended that they just wanted to express their apprecia- violence when a police officer, just a regular precinct of- tion for the court and have an interaction with the judge. ficer, came up to me and said, “I was at a meeting in my The meetings created a spirit of partnership and collab- precinct and they’re all over us about recording the in- oration that allowed community members to embrace juries in police reports. Are you getting them? Are they ideas such as having defendants perform community helpful? Because if they’re not helpful, what would be service in their neighborhoods. They even volunteered helpful?” I was really surprised that he cared if his pa- ideas for where to send defendants and what they perwork was actually being used. The change from the should do. The meetings resolved any distrust between police not caring to this officer asking about his paper- the court and the community and were beneficial in work was really quite significant. helping the court grow. JUDGE VALENTINO: I remember the police thinking that Making a Difference the Drug Court was one of those goofy programs that JOHN FEINBLATT: What has happened on a more per- spring up every once in a while, but now we’ve got a sonal level? What has it meant to be presiding at one of policeman in court every day. A sergeant assists us with these courts? warrants, new arrests, things of that nature, and we in- JUDGE RICHTER: I think it has changed my view of vite the police officers to come to the graduations. They what a court can do. It has made me look at everybody are highly impressed when they see that a defendant is on the other side of the bench—both defendants and a year clean with a GED and a job. They clap; they hug lawyers—not as adversaries but as people who bring him. I was in the D.A.’s office for eight and a half years and I never thought I’d ever see that. CONTINUED ON PAGE 14

12 Journal | June 2000 CONTINUED FROM PAGE 12 Here is an example of what I find most rewarding. This their own life experiences to the table. In a world where guy graduates from Drug Court who had been a thief in caseload volume demands that judges move cases our community for about 20 years. He came up to me quickly, it is incredibly rewarding to have an opportu- the other day and introduced me to his fiancee, who nity to step back and ask how can we work together as herself had been an addict but now has a drug-free baby. a team to achieve better outcomes. He asked me to marry the two of them. That was probably the most gratifying thing. JUDGE LEVENTHAL: A lot of judges and lawyers want to help people and the society at large, but it’s rare to get a JUDGE FERDINAND: It’s an incredible feeling to know case that actually means something to humanity. At the that I played a part in the success of these people com- Domestic Violence Court, I feel like I’m doing meaning- ing out of the Treatment Court—people that probably ful work every day. But there’s a down side, too. I live would never have achieved this if it weren’t for the with my cases all the time, which can interfere with my court’s intervention. I have watched people go through time outside of the court. On weekends and when I’m the process of recovery. I have watched them become on vacation, I watch the news and I want to see if there drug-free and come to court dressed beautifully, bring is a homicide. I want to know if it’s in Brooklyn and I their children, bring their mothers, bring their wives. It want to know if it involves my court. really is an incredible experience. JUDGE KLUGER: The bottom line is that judges can ex- JUDGE VALENTINO: Judges see a lot of failure and not many successes, but since I’ve been at the Drug Court, periment with something new. And if we’re given the I’ve seen quite a few successes and that spurs me on. right tools, it can work. We can make a difference. “Team Red Hook” Addresses Wide Range of Community Needs Alex Calabrese is the presiding justice at the Red Hook Community Justice Center, a multi-jurisdictional community court that opened this year in a renovated parochial school in southwest Brooklyn. Red Hook is a waterfront neighborhood that has long been plagued by drugs and crime. Home to one of New York’s oldest and largest public housing developments, Red Hook is notorious for the 1992 slaying of Patrick Daly, an elementary school principal who was accidentally killed in a drug-related shoot-out. The following reflects Alex Calabrese’s experiences with the project as told to Pamela Young of the Center of Court Innovation.

t’s no secret that the residents of Red Hook face a A typical sentence can include mandatory drug treat- wide range of problems that don’t conform to the ju- ment, job training, GED classes, community service or a Irisdictional boundaries of our court system. A single combination. The community benefits directly, not only family could find itself in Criminal Court, Housing from the mandated community service—such as paint- Court and Family Court under the traditional court sys- ing over neighborhood graffiti and cleaning local tem. At the Red Hook Community Justice Center, we parks—but, more important, from having a member of are combining these jurisdictions, bringing all of these the community who has gotten to the cause of his or her cases into one courtroom with one judge. The goal is to criminal activity and addressed it. offer, as much as possible, a coordinated approach to

people’s problems. CONTINUED ON PAGE 16 We began in April by hearing criminal cases, including misdemeanors and Class D and E felonies, desk ap- Alex Calabrese moved to the Red Hook Community Jus- pearance tickets and summonses. Like the Midtown tice Center after three years in Brooklyn Criminal Court. Community Court before it, the Red Hook Community Before becoming a judge, he served as a lawyer for the Justice Center tries to determine the underlying prob- Legal Aid Society and as a law assistant to Judge Leslie lem that led to the defendant’s criminal behavior, Crocker Snyder in Manhattan Supreme Court. A native whether it is addiction, homelessness, lack of education of the Bronx, he has lived in Brooklyn for 20 years. He is or something else. We require defendants to address a graduate of Notre Dame University and received his their problems, while at the same time repaying the J.D. degree from Fordham Law School. community harmed by their crime.

14 Journal | June 2000 director put together an anger management curriculum. A court officer who grew up in the neighborhood offered to talk to the kids about his perspective as a member of the community. And the Brooklyn district attorney’s office brought in a former gang member who runs anti-violence programs across the country. Team Red Hook The real power of the Justice Center is the people who work here. I am proud to be just one of the members of what we call “Team Red Hook.” Sandra Martin- Smith has put together a team of clerks, cross-trained to handle criminal, family and housing issues. Lieutenant Sean Egan and the other court officers set the tone for the Justice Center at the entrance to the building. The clerks and the court officers—along with attorneys from the Brooklyn D.A.’s Office and the Legal Aid Society—have helped sponsor a local youth baseball league run by the Justice Center. And a few have volunteered to manage teams and mentor some little leaguers during the week. But the people who work at the Justice Center are just part of the Red Hook story. This project would not be possible without the support of hundreds of community residents. In fact, it was a group of local residents who actually selected the site for the Justice Center. A task force from the local community board toured a number of potential locations before settling on the old Visita- tion School as the right choice. I think they were inter- Entrance to the Red Hook Community Justice Center in ested in seeing a valuable community resource brought Brooklyn. back to life after being vacant for a number of years. CONTINUED FROM PAGE 14 The Urban Red Cross One-Stop Shopping We have only recently opened our doors to hear On-site services at the Justice Center include alcohol court cases, but the Justice Center has been a presence in and drug treatment, job training, GED classes, computer Red Hook for years. The first piece of the Justice Center labs, medical examinations and mental health counsel- actually started in 1995, well before construction of the ing. To help families with small children, we even have courthouse was completed. The Red Hook Public Safety on-site day care so that they can drop off their children Corps is an AmeriCorps community service program while they are taking advantage of the services we offer. that consists of 50 members from Red Hook and surrounding neighborhoods. In return for an educational Needless to say, courts can’t provide all of these ser- award, they perform one year of community service— vices on their own. We need partners. The Justice Cen- fixing broken windows in the Red Hook Houses, help- ter has brought together some of the city’s best service ing out in our child care center, and escorting domestic providers, including Phoenix House, Victim Services, violence victims. Essentially, it’s a program that pro- the Community Health Care Network and the Board of vides civic-minded residents with a chance to do posi- Education. They are all on-site and working side by tive things for their own community. side. The bottom line is that we can offer “one-stop shopping” for people in need, whether they are defen- The Public Safety Corps has become a big part of the dants or walk-ins from the community. Justice Center team—they do whatever it takes to get the job done. For example, last August a tremendous Having these services at our fingertips allows us to rainstorm in Brooklyn left some houses in the neighbor- respond to problems in the neighborhood quickly and hood flooded. During the storm, I came out to Red effectively. For example, a local school called us recently Hook to check on our neighbors. Sure enough, several to say that a group of kids were starting to form a gang. I went to the school to talk to the students. Our clinical CONTINUED ON PAGE 18

16 Journal | June 2000 CONTINUED FROM PAGE 16

of them had flooded basements. So, I called the Pub- lic Safety Corps at about 7:30 in the evening. The next Center for Court Innovation morning, when I visited them again, I saw that the Public Safety Corps was already on the job. That is Provides Research and how committed they are to helping the community. Development They are like an urban version of the Red Cross. A Jury of Peers Much of New York’s experimentation with problem-solving jurisprudence has grown out of Another important component of “Team Red the Center for Court Innovation, an innovative Hook” is the Red Hook Youth Court, which focuses public-private partnership that serves as the court on low-level youth offenders. Youth Court is com- system’s independent research and development posed of local teenagers who are trained to be the arm. judge, jury and advocates. The court uses positive peer pressure to ensure that young people who have Under the direction of John Feinblatt, the center committed offenses such as truancy, fare beating and is responsible for investigating problems within shoplifting understand that their behavior has an im- the courts, devising new solutions and field-testing pact on not just themselves but also their families their effectiveness. Starting with the Midtown and the community. As sanctions, they are required Community Court, the center has helped to create to perform community service, write a letter of apol- a wide range of problem-solving courts in New ogy or attend a session of life-mapping skills where York City, including drug courts, domestic vio- they are shown what is necessary to attain their per- lence courts and family drug treatment courts. It sonal goals. has also provided technical assistance to problem- solving courts throughout the state, serving as the I attended one hearing where a youth offender host for site visits, writing how-to manuals and was caught with a box cutter in school. At first he helping planners figure out what will work best in said he was holding it for a friend and the teacher their community. just happened to catch him “at a bad time.” Once the members of Youth Court started questioning him— In recognition of its pioneering efforts to foster the jury is allowed to ask questions—it became clear ongoing court innovation, the Center for Court In- that he had indeed taken the box cutter to school. novation received an Innovations in American Then the jury asked, “Does your little brother look Government Award, an honor annually bestowed up to you?” The client answered, “Yes.” The jury upon 10 of the nation’s most groundbreaking pub- asked, “Would you want him carrying a box cutter to lic programs by the Ford Foundation, Harvard’s school?” The client answered, “Of course not!” The John F. Kennedy School of Government and the young judge asked the clinching question, “If your Council for Excellence in Government. younger brother sees you take a box cutter to school More information about the center and its pro- and he looks up to you, why isn’t he going to do the grams from the following, or from the web site, same thing?” You could almost see the offender start www.communitycourts.org. to think about being a role model and the message his behavior sent to his family and the community. Center for Court Innovation: We have found that young people are more effec- John Feinblatt at (212) 373-8080 tive in delivering these kinds of messages to their Domestic Violence Courts: peers than adults. I’ve seen a lot of Youth Court ses- Emily Sack at (212) 373-8085 sions and I know that an adult could talk to the of- Drug Treatment Courts: fenders for two weeks straight and not get the same Valerie Raine at (718) 643-7626 results as one Youth Court session. Most important, Community Courts: an effective intervention at a young age may save a Alfred Siegel at (212) 373-1699 kid from coming before me in criminal court when Technical Assistance: he or she is older and their problems have grown Michael Magnani at (212) 428-2109 bigger.

18 Journal | June 2000 View From the Bench One More Time: Custody Litigation Hurts Children

BY MARJORY D. FIELDS

ost lawyers and judges dislike custody and agenda, such as revenge, spite, power or control. Ple- visitation litigation because they find it emo- nary trials under these conditions place unnecessary Mtionally distressing. Yet these are some of our stress on children and waste family income that could most important and challenging cases. The court must benefit the children. For these reasons, we should use predict the future welfare of children based on evidence the resources at our disposal to encourage parents to of the parents’ past behavior. Counsel have the duty to settle custody cases that are based on inflated or fabri- represent a parent zealously,1 while being concerned for cated allegations. the well-being of the children. Set the Tone Another element of difficulty in these cases is the Judges and lawyers should set a tone that encourages need for speedy resolution, which is essential to provide settlement. Pretrial conferences should address issues children with security and stability. concerning the best interests of the child, and not be Custody and visitation determinations affect the used as a forum to further a parent’s vindictive or pecu- rights of privacy, liberty and association. Often, deci- niary agenda. One should discourage the notion that a sions must be made on complex issues involving child parent’s “rights” will be vindicated in a custody hearing development and mental and physical health. Thus, we or trial. We should inform parents that custody and vis- are faced with philosophical, intellectual and emotional itation determinations are based on the best interests of components in addition to the factual and legal issues the child, not the “rights” of the parents only.3 The Court that arise in any type of litigation. of Appeals articulated the standard: the child’s needs Despite the obvious advantages that a settlement are paramount: agreement can have for the parents, children, counsel While the respective rights of the custodial and noncus- and the court, a settlement may not be appropriate in all todial parents are unquestionably significant factors these cases. The cases that obviously require judicial de- that must be considered, it is the rights and needs of the termination are those in which it is alleged that one par- children that must be accorded the greatest weight, ent is a threat to the emotional or physical well-being of since they are innocent victims of their parents’ decision to divorce and are the least equipped to handle the a child, is unable to provide adequate care and supervi- 4 sion, is unable to protect a child from harm by others, or stresses of the changing family situation. 2 is a threat to the health and safety of the other parent. We might remind difficult parents that being parents Other cases that require a trial may involve two parents impairs personal freedom and creates financial obliga- with serious parental deficits, in which the court must tions that cannot be avoided except through the termi- determine who poses the lesser risk to the children or nation of parental rights. We should tell them that “win- whether a third party should have custody. ning” does not bar the “unsuccessful” parent from We need to keep an open mind, because any custody CONTINUED ON PAGE 22 case may involve genuine safety issues. These cases place the trial judge in the position of attempting to assure that children are protected and in the care of a pro- MARJORY D. FIELDS was appointed to New York City Family Court in 1986 and has been assigned to the matri- tective parent. A trial or hearing provides the court with monial complex in Supreme Court, New York County, the information to order sole custody, with supervised since June 1999. Before being appointed to the bench, visits, or no visits, as the facts require. Thus, children Justice Fields practiced matrimonial law for 15 years at benefit when these difficult cases are tried to judgment Brooklyn Legal Services Corp. She is a graduate of City promptly. College of New York and received her J.D. degree from By contrast, children are harmed when custody or New York University Law School. visitation issues are contrived to advance another

20 Journal | June 2000 CONTINUED FROM PAGE 20 parents. This information helps parents to diffuse their hostility, and to solve their disagreements for the bene- liberal access to the child, unless that parent is demon- fit of their children. strated to be a risk to the child. The child is a third-party beneficiary: entitled to physical protection, emotional Today, the Family Courts have several collateral ser- care and financial support from both parents. vices such as children’s centers, parental education pro- Usually, when a case is to be tried, the court will ap- grams and specialized parts, which make New York point a law guardian or a courts better able to respond expeditiously to custody guardian ad litem for the chil- cases. Counsel and the court dren to ascertain their wishes can use these services to pro- or needs. As shown in the ap- Settlements usually produce duce better resolutions for pellate decisions, there is a enduring solutions, because the parents and children. strong policy in favor of law Once such program is guardians in contested cus- terms are based on the needs and PEACE (Parent Education tody cases.5 When Chief wishes of the parents and child- and Custody Effectiveness).6 Judge Judith S. Kaye an- It has several components. In nounced new Family Court ren. They create an environment the first session, a judge or initiatives for custody cases in which future cooperation lawyer describes the legal in April 1996, a law guardian process for resolving dis- for every child who is the between parents is more likely. putes that the parents do not subject of a custody hearing settle. The lawyer-client rela- was first on the list. tionship is explained, and the Children of sufficient maturity may express their function of a law guardian and a forensic evaluator is views and wishes through their counsel. Frequently, in- described. Litigation, arbitration and mediation are formation from children provides a check on the par- compared as methods for resolving disagreements. ents’ unrealistic claims, and reveals their bad behavior. In other sessions, mental health professionals explain It also gives the court vital information for evaluating proposed settlements or the terms of any order. how adults and children experience divorce and separation. They describe the common progression of divorc- Parents should be told that when custody is tried, the ing parents’ feelings. They explain how children of dif- court makes the decision. The parents are disenfran- chised and lose control over the process, the outcome ferent ages perceive their parents’ separation, and how and the costs. They also lose control of their time: the children respond to conflict between their parents. Men- court sets the dates and times for hearings at the conve- tal health professionals offer suggestions regarding ef- nience of the court. The parents’ schedules must be ad- fective ways for parents to help their children through justed around the court proceedings. this difficult time. Often, the parents become further alienated from There is group discussion, and individual questions each other and their children as a result of rehearsing are answered. Each parent attends sessions at different their grievances in open court. Future events in the times from the other parent. The program is five hours child’s life such as birthdays and graduations become in total, usually divided into one two-hour session and unpleasant for the children whose parents remain hos- one three-hour session. Sessions are available at night tile after a bitter custody trial. These children may be and on weekends to accommodate working parents. faced with continuing fear of major life events attended PEACE is free of charge. Other educational programs by both parents. for parents are available in some counties with different Settlements, on the other hand, allow the parents to formats but similar content. retain control over their lives. Settlements usually pro- An innovative program established by Administra- duce enduring solutions, because the terms are based on tive Judge Vincent E. Doyle in Erie County is for the the needs and wishes of the parents and children. They children themselves. They receive emotional support create an environment in which future cooperation be- from the adult group leaders and from the other chil- tween parents is more likely. dren. Children are taught skills to cope with their The Use of Resources changing family structure. They are given accurate in- This educational effort is advanced by urging parents formation about the divorce process. Children aged 9 to attend a parental education program. Parental educa- through 12 years may attend the two sessions of 2 1/2 tion courses show parents how to focus on global legal, hours each. Both parents are encouraged to attend a social and psychological issues affecting all divorcing group meeting while the children attend their program.

22 Journal | June 2000 The Use of Sanctions Using these resources and procedures, we can shape Misuse of the custody or visitation issue is ineffective the divorce process to limit the harm it causes to chil- and costly for the parent who acts inappropriately. dren. The court system has made significant improve- Obviously, a parent’s counsel fees increase whenever ments to advance this effort. It falls to judges and a case is tried instead of settled. In addition, the court lawyers, collaborating, to produce better results. may assess all the costs of a custody litigation against the losing party. The court may appoint a law guardian 1. The Lawyer’s Code of Professional Responsibility, DR 7-101. or a guardian ad litem for the child (depending on the 2. N.Y. Domestic Relations Law § 240 (hereinafter “DRL”); child’s age) and a forensic mental health professional, A.F. v. N.F., 156 A.D.2d 750, 549 N.Y.S.2d 511 (2d Dep’t 1989); Irwin v. Schmidt, 236 A.D.2d 401, 653 N.Y.S.2d 627 and it may direct one parent to pay all their fees. (2d Dep’t 1997); Lukaszewicz v. Lukaszewicz, 256 A.D.2d The parent found to have brought a baseless custody 1031, 682 N.Y.S.2d 696 (3d Dep’t 1998); Smith v. Purnell, or visitation proceeding also may be ordered to pay the 256 A.D.2d 619, 682 N.Y.S.2d 889 (2d Dep’t 1998); Keating v. Keating, 147 A.D.2d 675, 538 N.Y.S.2d 286 (2d Dep’t), fees of the counsel for the other parent. appeal dismissed, 74 N.Y.2d 791, 545 N.Y.S.2d 106 (1989); Judges have the primary duty to protect the safety S.Z. v. S.Z., N.Y.L.J., Sep. 28, 1999, p. 26, col. 6 (Sup. Ct., and well-being of children, and to discourage abusive N.Y. Co.); R.K. v. V.K., N.Y.L.J., Jan. 18, 2000, p. 29, col. 4 litigation. If counsel do not request that penalties be im- (Sup. Ct., N.Y. Co.); Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in Custody and posed on a parent who brings a meritless custody or vis- Visitation Decisions in New York State, 3 Cornell J. L. & itation proceeding, the court may do so on its own mo- Pub. Policy 221, 241 (1994). tion. Thus, there are direct financial disincentives to 3. DRL § 240; Tropea v. Tropea, 87 N.Y.2d 727, 642 N.Y.S.2d custody litigation that is without merit. 575 (1996). 4. Tropea, 87 N.Y.2d at 739 (citations omitted). Statewide Procedures 5. The appellate decisions show that the courts assume that a Chief Judge Judith S. Kaye and Chief Administrative law guardian or guardian ad litem was appointed for the Judge Jonathan Lippman, responding to the disparity in children. matrimonial procedures among the counties, created 6. PEACE programs exist in all five counties in New York the statewide position of deputy chief administrative City; the Fourth Judicial District counties of Saratoga, Schenectady, Warren, Washington and Fulton; Onondaga judge for matrimonial matters and appointed Justice County (Syracuse) in the Fifth Judicial District; the Sixth Jacqueline Winter Silbermann to that position. Justice Judicial District counties of Broome, Tioga, Chemung, Silbermann works with judges to establish consistent Schuyler and Tompkins; the Seventh Judicial District procedures throughout the state. The Administrative counties of Monroe (Rochester) and Steuben; the Eighth Judicial District counties of Erie (Buffalo), Genesee and Board has promulgated uniform rules for trial courts Chautauqua; the Ninth Judicial District counties of Rock- and attorneys in matrimonial cases.7 Thus, the proce- land, Dutchess and Orange; and the Tenth Judicial Dis- dures and remedies discussed are available throughout trict Counties of Nassau and Suffolk. the state. 7. N.Y. Comp. Code R. & Regs. tit. 22, §§ 202.16, 1400.1-1400.7.

Journal | June 2000 23 Law Office Management How Should Law Firms Respond To New Forms of Competition?

BY STEPHEN P. G ALLAGHER

oday we are witnessing the early, turbulent days of and efficiency of legal services. Quality or value in the a revolution as significant as any other in human mind of the customer or client is different—sometimes Thistory. As these new mediums of human commu- radically so—from the way the supplier perceives nication reach the lives of more and more individuals, “quality” or “value” with respect to the same product or 5 law firms and all professional service providers face un- services, and unfortunately, there is no sure way of ac- charted challenges in trying to shape the direction of fu- curately estimating whether the market will favor a par- ture services. ticular type of new service until it is actually available. The competitiveness problem being faced by law The supplier’s perception, let alone the perception of firms today is not a problem of “foreign” competition, the governmental regulators of the legal profession, but rather one of “nontraditional” competition.1 This counts for little in this point. The jury is out until con- 6 competition among and between all professional service sumers have a chance to vote with their pocketbooks. providers has given the consumer the opportunity to Until recently, each of the professional service indus- shop among various professions for many of the ser- tries thought of itself as distinct from others, and so vices that have been traditionally provided by attor- looked primarily to its direct peers and competitors in neys. learning how to confront key business challenges. Each Ross Dawson in his powerful book, Developing professional service industry has a tremendous oppor- Knowledge-Based Client Relationships: The Future of Profes- tunity to learn from the methods of all other professional Services, states, most professional service organi- sional fields. Confronted with new competitive and zations already recognize that “the value added to market challenges, lawyers across the country face a clients will increasingly be in sharing knowledge with critical choice: either wait and see what happens to de- them—making them more knowledgeable—and that mand for traditional legal services, or anticipate the this approach is also central to developing the closer changes certain to affect their future and act now to and richer relationships on which sustainable competi- shape the direction of these new services. tive advantage is based.”2 “Those who attempt to hang Because scenario planning is a creative, forward- on to their expertise will soon find themselves sup- looking, open-ended search for patterns that might planted by competitors who are willing and able to emerge in a profession, the process should help readers make their clients more knowledgeable.”3 better anticipate opportunities and avoid disasters. This Many business leaders are beginning to believe that article will explore the dynamics of offering integrated competition for the future of legal services will actually services to individual consumers and to business clients be competition to create and dominate emerging opportunities—to stake out new competitive space. Where the traditional law firm business model allowed practition- STEPHEN P. G ALLAGHER is the director ers to focus on the problem of getting and keeping mar- of the Law Office Economics and ket share, competition for the future is competition for Management Department of the New opportunity share rather than market share, which will York State Bar Association. Before join- challenge law firms to provide new products or services ing the Association, he worked as director of administration for Temple that are still underdefined, and where client preferences University School of Law and as a are still poorly understood. Only those who can imagine legal administrator for several law and preemptively create the future will be around to firms and for First Fidelity Bancorpo- 4 enjoy it. ration. He is a graduate of LaSalle University and re- It seems apparent that market conditions now dictate ceived a master’s degree in counseling from West the need for a new paradigm for the practice of law, a Chester University. paradigm in which the client drives the price, delivery

24 Journal | June 2000 in today’s networked economy. The focus will be on Rather than building the new model for legal services looking at each situation from the client’s perspective. based on Multidisciplinary Practice (MDP)7 / unautho- rized practice of law (UPL) standards left over from a Crafting the Future of Legal Services different age, a new and more promising legal services Through an examination of current business litera- model can be based on future opportunities. In a new ture, we will attempt to scan the current business envi- book, Blown to Bits: How the New Economics of Information ronment to provide readers with a framework for think- Transforms Strategy, lawyers can learn a great deal from ing creatively and making informed choices about what Philip Evans and Thomas S. Wurster, leaders of The may be, rather than what already is. We will make every Boston Consulting Group’s Media and Convergence effort to expose readers to significant issues, including Practice, when they describe how managers must put but not limited to global network forces that may pro- aside the presuppositions of the old competitive world vide opportunities and challenges for readers to create a and compete according to totally new rules of engage- viable, long-term future for themselves within this tur- ment. Lawyers, like the managers discussed in Blown to bulent business environment. Bits, must make decisions at a different speed, long be- The core values of the legal profession are the essen- fore the numbers are in place and plans formalized. tial and enduring beliefs that lawyers have upheld over They must acquire totally new technical and entrepre- time, notably the independence of the profession and neurial skills, quite different from what made their or- the commitment to work in the client’s best interests ganization so successful. without any conflicting allegiance. In exploring the fu- It has been known for some time that traditional aca- ture of legal services, the assumption is that these core demic aptitude, school grades, and advanced creden- values will remain intact, enabling lawyers to retain tials simply did not predict how well people would per- their unique character and value as the profession em- form on the job or whether they would succeed in life.8 braces the changing dynamics of the global economy. However, many law firms continue to restrict their People throughout the legal community are begin- search for talent to what they consider to be the top 2% ning to realize that success takes more than intellectual of graduates from the nation’s premier law schools. excellence or technical prowess, and that lawyers will From the corporate sector, data tracking the talents of need another sort of skill just to survive—and certainly star performers over several decades show that two to thrive—in the increasingly turbulent business envi- abilities considered relatively unimportant for success ronment of the future. in the 1970s have become crucially important in the 9 Law firms, as currently structured, are organizations 1990s—team building and adapting to change. These designed to deliver competent legal services to clients skills or talents have never been a primary considera- who contract for those services. Legal services in this tion in traditional law school training, but there is no context include all those services that are usually and reason to believe that these talents should not be in customarily performed by a licensed attorney. Where equally high demand in today’s law firms. formerly law firms were able to control most of the re- Daniel Goleman, co-chair of the Consortium for Re- sources needed to provide new products and services, search on Emotional Intelligence in Organizations at the most exciting new opportunities will require the in- Rutgers University, has found in his research that emo- 10 tegration of complex systems rather than innovation tional intelligence is the sine qua non of leadership. around a stand-alone product. There is no reason that When Professor Goleman calculated the ratio of techni- law firms in the future should need to restrict their ser- cal skills, IQ, and emotional intelligence as ingredients 11 vices and practices to the contracting of legal services. of excellent performance, emotional intelligence In mid-1995, the New York State Bar Association con- proved to be twice as important as the others for jobs at ducted a telephone survey of middle income New York- all levels; in fact, research showed that emotional intel- ers on Access to Legal Services and Use of Legal Ser- ligence played an increasingly important role at the vices. Six hundred New Yorkers with incomes between highest levels of the company, where differences in tech- $25,000 and $95,000 were contacted to test respondents’ nical skills are of negligible importance. attitudes towards attorneys and their familiarity with It is important for all lawyers to think creatively in attorneys’ services. The survey showed that middle in- order to begin to make informed choices about what come New Yorkers had little difficulty finding an attor- may be, rather than what already is. To help lawyers ney when they wanted one, but did not turn to lawyers identify the new rules of engagement, it is necessary to in every situation where legal assistance was needed. explore how consumer expectations are changing. It is There appeared to be many opportunities for lawyers to also necessary to demonstrate how law firms can re- provide significant new services to New York con- shape service portfolios by providing fundamentally sumers. new types of client benefits. If the new practice of law

Journal | June 2000 25 must be crafted to anticipate and address what the con- fession.” Legal services are no longer designed, priced sumer considers of value or quality, there is no reason and offered to the public based on what the profession that it should not enable law firms to extend the bound- deems suitable or appropriate. Many current substan- aries of their influence beyond the inner circle of tradi- tive practice areas are under attack from a variety of tional “legal self.”12 forces. Insurance defense practice, family law, estate Let’s begin to explore a new paradigm for legal ser- planning and tax work are literally changing overnight vices by starting with a fundamental understanding or as new Internet-based products and services hit the belief, namely that “we have reached the limits of incre- market. Demands for new legal services are based pre- mentalism,” which can be drawn from the writings of dominately on market-driven forces, that is, on what Gary Hamel and C.K. Prahalad in their bestseller, Com- the consumer of legal services wants and is willing to peting for the Future. Squeezing another penny out of pay for. costs, getting a product to market a few weeks earlier, Law firms are beginning to realize that what got responding to customer inquiries a little bit faster, ratch- them here isn’t going to support them in the future. eting quality up one more notch, capturing another Business as usual is just not sustainable. The changes point of market share, tweaking the organization one from a product-driven economy to a consumer-driven additional time—these are the obsessions of managers economy are having a dramatic impact on all profes- today. But pursuing incremental advantage while rivals sional services, and law firms will need to bring about a are fundamentally reinventing the industrial landscape revolution in the marketplace if they hope to provide ex- is akin to “fiddling while Rome burns.”13 panded services in this consumer-driven economy. As a Another important belief or theory in legal circles, as result, one of the most important challenges facing the expressed by Ross Dawson in his book Developing legal profession is identifying the new range of legal ser- Knowledge-Based Client Relationships, is the belief that vices and client benefits that will be regarded as offering much of the basic legal services are becoming “a com- the greatest value in tomorrow’s products and services. moditized market in which clients perceive little or no The next most pressing challenge will be to determine differences between products and service offerings— how lawyers can best deliver these services in the ever- they have become indistinguishable commodities. In changing marketplace. this case the market becomes price and cost-driven— The Internet and the emerging network economy is price is the only way clients differentiate between offer- changing how companies do business, and this is creat- ings, and sustainable price competition, in turn, de- ing an enormous economic power shift from service pends on achieving lower costs in producing the providers to the consumer. Gary Hamel and C.K. Pra- offering.”14 Ten years ago, William C. Cobb, chair of the halad report that few companies (law firms) will be able second ABA “Seize the Future” conference, estimated to create the future single-handedly. that 60% of all available legal work could be considered The need to bring together and harmonize widely dis- commodity work, because clients believed that any parate technologies, to manage a drawn-out standards- good lawyer could perform the services.15 His predic- setting process, to conclude alliances with the suppliers tions pre-dated the emergence of electronic networks of complementary products, to co-opt potential rivals, and the greatly enhanced level of consumer (client) so- and to access the widest possible array of distribution phistication in all aspects of practice. channels, means that competition is as much a battle between competing and often overlapping coalitions as “One of the most fundamental choices every business it is a battle between individual firms.17 must make is whether it will follow the path of com- In this emerging network economy, we are already moditization, competing on cost and price, or differenti- seeing changes in the traditional model of commerce, ation, in which it competes on offering greater value to where a seller advertises a unit of supply in the market- the client, with the potential to achieve premium pric- place at a specified price, and a buyer takes it or leaves ing. Today, even those who choose the path of differen- it. The Priceline shopping system was the first credited tiation must accept that it will always be eroding, and with turning that model around. Now, buyers are able they will have to continually keep running just to stay in to advertise a unit of demand to a group of sellers. The the same spot, let alone move ahead.”16 With either ap- sellers can decide whether to fill the order or not. In ef- proach, law firms can no longer afford to just catch up fect, Priceline provides a mechanism for collecting and to the competition in order to successfully compete in forwarding units to interested sellers—a demand collec- the future. tion system.18 One can argue the relative merits of ac- Crafting Consumer-Driven Legal Services quiring legal services in this manner, but one still needs The practice of law can no longer be viewed princi- to explore the potential impact such a model will have pally through the historical prism of a regulated “pro- on one’s business.

26 Journal | June 2000 Currently, more than 140 million people worldwide Another subtle refinement to this consumer-driven have access to the Internet.19 Within the next five years, economy that promises to have an impact on the deliv- no corner of the economy will be untouched by down- ery of legal services is highlighted by a recent Harvard ward cost of price pressure created by business models Business Review article, where author Adrian J. Sly- like Amazon.com. Many sectors of the economy that wotzky describes how customers are already taking the seemed impervious to systematic improvements are Priceline approach on exact pricing to another level. also under assault—for the better. In 1999, 34.9 million Customers are now gaining control over the design of people sought medical information on the Web, double products. Customers will soon be able to describe ex- the number in 1998, according to Cyber Dialogue, a actly what they want, and suppliers will be able to de- Manhattan firm that tracks Internet usage. There are at liver the desired product or service. Slywotzky uses the least 15,000 health sites on the Web, and more are term, choiceboard to describe an interactive, on-line sys- springing up all the time.20 This new information is tem that will allow individual customers to design their changing the relationship between doctors and patients, own products or services by choosing from a menu of who are using the Web to get background information attributes, components, prices, and delivery options.22 to help frame questions before approaching doctors. The role of the customer in this scenario shifts from Will these sites have an impact on how doctors provide passive recipient to active designer. The author ac- future medical services? knowledges that the choiceboard model is still in its in- In a recent article, “Technology from Hell Challenges, fancy, but by the end of this decade, it is anticipated that Scares Bar,” author Darryl Van Duch wrote, “more than choiceboards will be involved in 30% or more of total a dozen . . . Internet-based legal services appealing to U.S. commercial activities, as the economy moves fur- low-to-middle income consumers have been launched ther away from a supply-driven to a demand-driven in the U.S. in the last 12 months. Nearly all of them are system. If Adrian Slywotzky is correct about choice- owned or financed by free-spending venture capital- boards dominating commerce in the future, could “self ists.” Van Duch continues, “an estimated $100 million help” on the Internet begin to displace many of today’s has been poured into such ‘e-law sites’ in recent months, legal services? And, what will the role of the new law including former New York Mayor Ed Koch’s firm be when customers become product makers? ‘Thelaw.com’ and Harvard Law School Prof. Arthur Miller’s ‘Americounsel.com.’ Many more well-financed Managing Knowledge and Creating clones are expected to be launched in the coming Client Value weeks.”21 Keep in mind the NYSBA Middle Income Today, millions of people are using the Internet to ex- study that showed the public’s lack of understanding change massive amounts of information directly and for of the lawyer’s role, and the public’s interest in self- free. Many people are beginning to believe that much of help. The Internet will certainly be offering the public the existing core legal information will be readily avail- and the legal lawyers exciting challenges. able to the consuming public without the need for any law firm. For the first time, the client would be in control: paying flat fees, having multiple firms bid for legal

Journal | June 2000 27 business, and sometimes bypassing a conventional rela- Knowledge distribution, without developing the closer tionship with a lawyer altogether. and richer relationships with clients, will do very little However, no matter what the firm’s strategy for to help clients gain sustainable competitive advantage. adding value is, what seems to be of greatest value is Ross Dawson has stated that the greatest fear of pro- making clients more knowledgeable while helping them fessionals (lawyers) is that if they make their clients more make better decisions and enhance their capabilities. knowledgeable, they are giving away the key produc- Twelve Steps to Developing 1. Establish a Sense of Urgency1 Does senior man- uct so that knowledge gained from previous experiences agement have a clear understanding of the dangers and can be efficiently recycled for new applications, do not opportunities posed by new, unconventional rivals? overlook the possibility of reaching beyond immediate Gary Hamel and C.K. Prahalad suggest that, to pre- law firm competitors. MDPs tend to be well in advance pare for the future, you need to ask yourself, “Am I of law firms in the area of knowledge systems and man- more of a maintenance engineer keeping today’s busi- agement. ness humming along, or an architect imagining tomor- 5. Maximize Your Time at Bat According to Gary row’s businesses?” 2 Law firms need to pay particular at- Hamel and C.K. Prahalad, “Getting to the future first, tention to the changing business environment and how and being first up on the scoreboard, requires that a professional service providers are realigning their prod- company (law firm) learn faster than its rivals about the ucts and services in response to these new challenges. precise dimensions of customer demand and required Firms that are unaware of what the competition is doing product performance. When the goal is to create new will find themselves unable to participate in the new competitive space, it is usually impossible to know in competitive space. advance just what configuration of product or service 2. Listen to the Revolution Law firms have tradi- features, offered at what price point and through what channels, will be required to unlock the potential mar- tionally delivered competent legal services to clients 3 who have contracted for those services. The legal pro- ket.” fession must do a better job of listening to its customers, To learn faster, Hamel and Prahalad propose, “A firm because the insights into the customer’s individual needs to maximize its time at bat, rather than sit on the needs and preferences will become one of the most im- sidelines waiting for the perfect conditions for the home 4 portant business challenges facing lawyers. run attempt.” Law firms should begin rewarding staff There is no reason for law firms in the future to re- for experimenting with innovative approaches to client strict their core services to traditional “legal self.” Al- services. Some of these experiments will fail, but others though it is important to ask how satisfied current cus- will exceed all expectations. tomers are, it is equally important to ask yourself which 6. Develop New Skills and Competencies The new customers are not even being served. practice of law must be crafted to anticipate and address 3. Reshape the Legal Marketplace Lawyers can no what the consumer believes is valuable or quality work. longer afford to wait and see what happens. Instead, Lawyers need to reinvent the industrial landscape, they need to anticipate “value” as perceived by cus- and new core competencies will be needed to create new tomers and provide new products or services based on benefits or “functionalities.” These new technical and an entirely new business model or paradigm. entrepreneurial skills will be quite different from what The challenging opportunities to reshape the direc- has made their organization (and them personally) so tion of the profession and the legal marketplace will successful, so many lawyers may need to look beyond need a massive transfusion of talented individuals sen- the scope of traditional CLE programs to acquire these sitive to emerging consumer demands. Experience is new skills that will enable them to create new types of showing that innovation and creativity take place when legal services. Law firms will need to look beyond the diverse groups of individuals get together to solve prob- top 2% of law school graduates to identify the individu- lems. Law firms need to learn from business partners to als with the leadership skills and abilities needed to ad- explore new approaches to problem solving. dress consumer demands. Law firms will find some of 4. Think Outside the Box Take a close look at how these talents beyond the law school itself. other professional service providers are incorporating 7. Escape the Bonds of Legacy The practice of law new strategies and techniques to gain competitive ad- can no longer be seen as a regulated profession. Law vantage. firms will need to bring together widely disparate tech- If you are looking to establish a knowledge manage- nologies, manage standards-setting processes, and build ment system to collect and organize internal work prod- alliances with suppliers to shape the direction of future

28 Journal | June 2000 tive assets from which they make money.23 Since elec- transfer is not about teaching your clients to do what tronic networks now allow information to flow largely you do but about making them better at what they do. independently of the economics of things, information And that by no means results in doing yourself out of a is freely available to anyone with Internet access. job.24 Slowly, law firms are beginning to realize that, as a re- According to Dawson, professional services firms can sult of the emerging network economy, knowledge either try to hold on to knowledge and perform “black- Consumer-Driven Legal Services legal services. A glimpse of the future can be seen from Law firm infrastructure will need to provide all pro- the changes taking place in the medical profession and fessionals with the tools to work collaboratively among the activities of Internet-based legal services providers. many offices. It will also require work habits supporting As legal ethicists warn that some of the Internet legal remote collaboration, a mutual understanding of the el- services may be violating ethics rules against fee-shar- ements that define work quality, and a set of common ing, offering legal advice without a license, and the so- standards for satisfactory client service.5 Consumers de- licitation of clients, consider the possibility of changing mand standards of quality, so law firms will have to de- the effected legal ethics rules. Law firms can continue to velop the internal processes and controls to assure that measure individual timekeeper productivity and prof- standards of quality are met. itability, while nevertheless exploring ways to replace 11. Implement Knowledge Management Systems hourly billing strategy before clients demand it. Firms that are able to help clients make better decisions 8. Think Beyond the Numbers Compensation or and enhance their business capabilities will flourish. In performance-appraisal systems can force individuals to an era where information that once was sold on an choose between the new vision of the future and their hourly basis is available free on the Internet, firms that self-interests. If the firm is currently successful in terms rely on Ross Dawson’s black-box services, where the of strong billable hours, complacency can be high, so client is left none the wiser for the experience, will be change initiatives can take time. called on less and less. The longer the firm contemplates its action, the Sophisticated clients are no longer interested in sim- sooner the firm faces irrelevancy. Price pressures created ply obtaining a lawyer’s legal advice; they want a by new e-commerce business models will only acceler- lawyer’s assistance in crafting a solution to a business ate in the years ahead. These changes will affect every problem. The process has become as important as the sector of the economy, so the legal profession cannot af- outcome. ford to sit back while other professional service 12. Form Alliances and Partnerships Many corpo- providers redefine their own new areas of practice. rate clients have become quite sophisticated consumers 9. Make the Internet Your Best Friend Sharing of legal services, so law firms find themselves forming knowledge with clients, and maintaining closer, richer alliances or partnerships to provide clients with highest relationships with them remains a highest priority for all quality services. professional service providers. Although there is noth- Certainly the much-publicized merger of Clifford ing new about this strategy, the Internet is providing Chance with the New York law firm of Rogers & Wells clients with new tools to acquire knowledge, and using LLP, and the German law firm of Püender, Volhard, these tools has given clients a much higher level of so- Weber & Axster is a good example of how some of the phistication. largest firms are positioning themselves to provide Because the consumer is driving the direction of future seamless client services. The Internet provides sole prac- legal services, and the consumer is demanding greater ac- titioners and firms of all sizes some of the same tools cess to information, lawyers will increasingly need to be- available to the nation’s largest firms to form seamless come more comfortable with network technologies in client services. order to be a player in shaping future services. Stephen P. Gallagher 10. Create Practice Quality Standards Any law firm’s 1. See John P. Kotter, Leading Change 4 (1996). competitiveness—and raison d’etre—is based on its com- 2. Gary Hamel & C. K. Prahalad, Competing for the Future petencies and capabilities and their relevance to its busi- 2 (1994). ness environment. As law firms continue to expand al- 3. Id. liances and affiliations with outside service providers, 4. Id. their infrastructures will need to change to support the 5. See E. Leigh Dance, Delivering Seamless Service: Best Prac- delivery of consistent, high-quality legal work product. tices of Multidisciplinary Partnerships, Law Firm Gover- nance, Vol. 4, No. 3, at 6 (Spring 2000).

Journal | June 2000 29 box” services for their clients, or they can proactively 7. See Report of the New York State Bar Association Special Committee on the Law Governing Firm Structure and share their knowledge, working with their clients to cre- Operation, Preserving the Core Values of the American Legal ate value. Dawson describes black-box services as the tra- Profession: The Place of Multidisciplinary Practice in the Law ditional approach, providing services in which the out- Governing Lawyers (May 2, 2000) .The special committee is solely responsible for the contents of this report. Unless opaque and the client is left none the wiser for the ex- and until adopted in whole or in part by the Executive perience.25 A critical difference between black-box ser- Committee and/or the House of Delegates of the New vices and knowledge transfer is that, by the nature of York State Bar Association, no part of the report should be considered the official position of the association. See also black-box services, the client sees only the outcome. It is ABA Commission on Multidisciplinary Practice, Report to relatively easy for competitors to replicate that result, the House of Delegates (June 8, 1999) ; Updated Background and ties. In knowledge transfer, however, the process is often Informational Report and Request for Comments (Dec. 15, 26 1999) . as important as the outcome. 8. See David C. McClelland, Testing for Competence Rather “Those who attempt to hang on to their expertise will than Intelligence, Am. Psychologist, at 46 (1973). soon find themselves supplanted by competitors who 9. Daniel Goleman, Working with Emotional Intelligence 10 are willing and able to make their clients more knowl- (1998). edgeable.”27 Ultimately, lawyers will realize that refus- 10. Daniel Goleman, What Makes a Leader, Harv. Bus. Rev., Nov.-Dec. 1998, at 94. ing to transfer knowledge to clients will be an unsus- 11. Emotional intelligence determines potential for learning tainable position. Law firms that are able to help clients the practical skills that are based on its five elements: make decisions and implement them will add the great- self-awareness, motivation, self-regulation, empathy, and est client value. adeptness in relationships. See Daniel Goleman, Emo- tional Intelligence (1997); Daniel Goleman, Working with Changing times have always created opportunity for Emotional Intelligence (1998). aggressive, innovative competitors, while threatening 12. See Facing the Inevitability, Rapidity and Dynamics of the strength, and even the survival, of those too slow to Change: A Report to the Board of Governors of the Florida Bar Favoring Adoption of MDP Model and Other Actions, Jan. 7, respond. Today, turbulent economic and technological 2000, at 14. changes are challenging law firms to take bold, uncon- 13. Competing for the Future (paperback edition). ventional steps to add greater value to client services in 14. See Developing Knowledge-Based Client Relationships, this new world fraught with nontraditional competi- at 39. tion. One of the key factors that will differentiate today’s 15. William C. Cobb, The Value Curve and the Folly of Billing- successful law firms from those in the future will be the rate Pricing, in Beyond the Billable Hour: An Anthology of Alternative Billing Methods 17 (Richard C. Reed ed., ability to adopt approaches to managing change that 1989). The value curve is further discussed in: Win-Win differ profoundly from the ways they have habitually Billing Strategies 35-48 (Richard C. Reed ed., 1992); operated. Robert J. Arndt, Managing for Profit 56-62 (1991); Back to the Future: The Buyer’s Market and the Need for Law Firm The opportunities for lawyers in these turbulent Leadership, Creativity and Innovation, 16 Campbell L. Rev. times have never been more challenging. The laws gov- 154-56 (1994). erning e-commerce have yet to be written, as legal ethi- 16. Developing Knowledge-Based Client Relationships, at 208. cists warn that some of the Internet legal services may 17. See Competing for the Future, at 34. be already violating ethics rules against fee-sharing, of- 18. Jay Walker, Redesigning Business, a Conversation with Price- fering legal advice without a license, and the solicitation line’s Jay Walker, Harv. Bus. Rev., Nov.-Dec. 1999, at 19-20. of clients. Lawyers need to be vigilant about the dangers 19. International Data Corporation, (visited May 12, 2000) posed by new, unconventional rivals; yet they must also . take immediate steps to acquire new skills that will en- 20. Jeanne Lee, The Internet Can Save Your Life, Money, Vol. 29, No. 3, at 121 (Mar. 2000). able them to use emerging technologies in ways that ex- 21. Darryl Van Duch, Technology from Hell Challenges, Scares ceed client expectations. Bar, N.Y.L.J., Apr. 11, 2000, p. 5. 22. See Adrian J. Slywotzky, The Age of Choiceboard, Harv. Bus. 1. See Gary Hamel & C. K. Prahalad, Competing for the Fu- Rev., Jan.-Feb. 2000, 40-41. ture 18 (1994) (hereinafter “Competing for the Future”). 23. Developing Knowledge-Based Client Relationships, at 22. 2. Ross Dawson, Developing Knowledge-Based Client Rela- 24. See Arthur N. Turner, Consulting is More Than Giving Ad- tionships: The Future of Professional Services (2000) vice, Harv. Bus. Rev., Sep.-Oct. 1982, 28-34. (hereinafter “Knowledge-Based Client Relationships”). 25. Developing Knowledge-Based Client Relationships, at 5. 3. Id. at 28. 26. Id. at 23. 4. See generally Competing for the Future, at 1-25. 27. See id. at 28. This book should be required reading for all 5. See Peter F. Drucker, Management Challenges for the 21st professional services knowledge workers. The book is Century 29 (1999). available for purchase through .

30 Journal | June 2000 Roundtable Discussion U.S., British and German Attorneys Reflect on Multijurisdictional Work

he globalization that has driven the world finan- The Journal recently asked a group of partners at Clif- cial markets for the past decade has had a far- ford Chance Rogers & Wells to reflect on U.S., British Treaching impact on both lawyers and their clients. and German styles of lawyering, the expectations of Global consolidation—jointly fueled by the financial clients with global interests, and the way their firms services and technology industries—has fed a boom in have approached multijurisdictional assignments. Dis- mergers and acquisitions that outperformed the 1980s in cussion participants were Laurence E. Cranch (modera- the size, scope and complexity of legal issues. The glob- tor), the Americas managing partner of Clifford Chance alization of the capital markets has been accelerated by Rogers & Wells whose practice focuses on international the introduction of the euro, creating a deeper European finance; Jan ter Haar, a Dutch native and finance partner market and reshaping multijurisdictional offerings. As who has been based in the firm’s London, Dubai, Ams- these transactions have increased in scale and dimen- terdam, Frankfurt and most recently New York offices; sion, so too has litigation. James N. Benedict, global practice area leader of the British and American firms responded by opening of- firm’s litigation and dispute resolution practice and res- fices and hiring local law capability “across the pond.” In ident in New York; Simon Burgess, a British corporate 1992, Clifford Chance became the first major British firm and commercial partner who has spent more than five to practice U.S. law. Firms such as Allen & Overy, Fresh- years in New York; Andreas Junius, a German native fields and Linklaters followed suit and today have and cross-border finance and corporate partner in New dozens of U.S.-qualified lawyers on staff, including part- York; Robert E. King Jr., global practice area leader of the ners hired away from firms such as Cravath, Davis Polk firm’s capital markets practice who concentrates on cor- and Sullivan & Cromwell and associates recruited di- porate securities and mergers and acquisitions transac- rectly from the top U.S. law schools. American firms like- tions and is resident in New York. wise grew organically—to such an extent that today four- The Emergence of a Global Style fifths of the lawyers at Baker & McKenzie, almost MR. CRANCH: In a recent New one-half of the White & Case lawyers, one-third of the York Times article, Michael Bray, Cleary, Gottlieb lawyers and one quarter of the Shearman the CEO of Clifford Chance, was & Sterling lawyers are based outside the United States. quoted comparing the British, International alliances were the next step as, for ex- German and U.S. cultures repre- ample, when Linklaters & Alliance and Cameron sented within our firm as fol- McKenna established referral networks with limited lows: “‘The British way is a bit fee- and profit-sharing arrangements. And, the single understated and unsaid. . . New European market generated a spate of mergers among York’s way is much more open U.K. and European firms in the late 1990s. and in your face. And the Ger- Then, in July 1999, three firms entered new territory mans are very frank and get to Laurence E. Cranch as Clifford Chance, Rogers & Wells and Frankfurt- the point.’”1 Is this your experi- based Pünder, Volhard, Weber and Axster announced a ence? How does it play out in your daily interactions? transatlantic merger to create a fully integrated global MR. BURGESS: I agree with Michael to an extent. I firm with a single profit pool. The new firm—compris- think a lot of the differences flow from variations being more than 3,000 legal advisers worldwide—is the tween U.S. and U.K. lawyering and client expectations. most ambitious approach to date in fostering interna- I think the U.S. lawyer has a tendency to lead the trans- tional cooperation among lawyers. Managing the op- action. The client expects him or her to get the job done eration of the firm’s 29 offices alone is a gargantuan and that tends to make negotiations more confronta- task—understanding and delivering what global tional. The U.K. lawyer is not quite as far in front of the clients really want from their lawyers will be an even client. He tends to hang back and play a more legalistic greater challenge. role. My experience is that German lawyers look to the

Journal | June 2000 31 client to lead. So, Americans lead the client, the Brits are done, both at the business level and in terms of the prac- with the client and the Germans are very much led by tice of law. It is inevitably going to keep moving in that the client. This is reflected in the ways lawyers act and direction in step with the process of globalization. react across the negotiating table. MR. JUNIUS: One particular instance of the trend to- Also, the practice of American law is more preventa- ward a global style is in the field of mergers and acqui- tive. U.S. lawyers fully explore absolutely every avenue, sitions, where there is a tendency today to be more much more so than the British do. This can make for transparent, more open. Traditionally, in Germany, we endless negotiations. did not grant full disclosure. You trusted your counter- MR. KING: I agree with a lot of part, had good faith and expected good faith. If some- Simon’s views on the cultural thing went wrong, you sought damages. But now we difference. I have learned a lot have been exposed for many years to full disclosure and since we began our merger dis- due diligence reviews. Among the older generation of cussions about the English nego- management this caused real reluctance and problems. tiating style and find it quite dif- The new generation in Germany, however, is much ferent from what I have been more comfortable with it. They have generally adopted accustomed to. For example, I the Anglo style. thought that American drafting MR. BENEDICT: Within the litigation practice, while the style was the most verbose in the system of adjudication may be different, I find more similarities than differences in the style and approach of world. I was surprised to dis- Robert E. King, Jr. cover that the British are even the lawyers. My British and German colleagues who are more loquacious. doing business for Merrill Lynch, Chase or Citibank MR. BURGESS: It is a richer language! have the same client contacts and the same level of ac- MR. JUNIUS: To take the Continental European posi- countability and responsibility as we have here in tion, we always prided ourselves on drafting very short, America. Our styles have to be the same. simply written agreements. Our rationale was that the Bridging the Gap contract did not need to address every point. It is all in MR. CRANCH: We’ve mentioned serving clients glob- the Civil Code and thus there is 120 years of case law be- ally. What are clients looking for when they ask for hind every letter. But I think we have come a long way global service? in terms of understanding the advantage of spelling out MR. JUNIUS: The IPO market is certain things. an obvious example of where MR. BENEDICT: You can spell it out on the document or clients need global counsel. Ger- let a jury do it for you 10 years later. man and European companies MR. BURGESS: What is interesting is to watch how all are awakening to the emerging of those styles are beginning to converge. global capital-raising opportuni- MR. CRANCH: Exactly. My impression is that there has ties. Companies that wouldn’t developed over the past 10 years a way of practicing have dreamt of going public a law and a way of doing business at the “elite” level few years ago want to be listed globally. Within this community, people of all nationali- today on one of the German ex- ties tend to deal with each other in a fairly consistent changes or market segments. Andreas Junius way and to speak essentially the same language. We are While they are going through all generally focused on similar issues. the process of an issuance, they want to do an offering This is very different from when I first started prac- in London or New York or both. Rather than having to ticing law with English law firms years ago. When I did go through three different law firms and taking on the my first euro-dollar deal in London, there was a huge responsibility of managing those interfaces, they can gap in terms of communication. The documentation come to us for “one-stop shopping.” Not many lawyers was different, as was the approach to the practice of law. seem comfortable with that term, but that’s really what I am involved in a large transaction right at the mo- clients tell us they want. ment that is being principally run out of our firm’s Lon- MR. KING: In another example of a recent assignment, don office for an American client. The style, the ap- there is a forthcoming IPO, involving parties in France, proach and the drafting of our U.K. team are almost Germany, Spain and potentially the United Kingdom, identical to the work we produce for that client in New that will be offered globally, including the United States. York. It is really surprising how much of a convergence We are able to advise on all aspects of this transaction there has been globally in the way large transactions are through a truly coordinated use of lawyers from five of

32 Journal | June 2000 our offices and all three legacy firms working very they have with their lawyers. They would like to have closely together. fewer firms and depend on those relationships to do MR. BENEDICT: We have a number of transnational lit- more for them in terms of managing their legal needs igations going on at the present time where there is a and providing strategic advice. two-continent struggle over jurisdiction and venue. One MR. TER HAAR: In a sense, I example involves a suit brought in the United States think clients are ahead of firms over a derivatives contract issued by a European bank on this. I find the clients have a and purchased by British citizens. full understanding of what a Because the U.S. law tends to be much more favor- global client relationship is and able to plaintiffs, our client would prefer, if it has to liti- they see the benefits to them. gate at all, to litigate in Europe or London. We were able MR. CRANCH: The client’s ex- to put together a multijurisdictional team of litigators in pectation is that the style of ser- London and the United States with one partner in vice and the way in which it is charge. We successfully moved to dismiss the U.S. ac- going to be represented tion on grounds of forum non conveniens. If the suit is re- throughout the world are going Jan Ter Haar instituted in London, as we expect it to be, we will be to be the same. By integrating ready. In the past, the client would have had the burden our practice, we are in the position to make that happen. of essentially starting over with U.K. counsel. Here, the I am involved in a transaction right now where a same team of lawyers is able to collaborate on the prob- large financial institution retained the firm to do a major lem on both continents. merger and acquisition transaction in London. It is clear Beyond that, because we are one firm, there is no to me that the client had an expectation that the service jockeying among the lawyers over who is going to take that it would get in London would match what it got the lead in drafting or interviewing the witnesses. There from the firm in New York. To a certain extent that was is no reluctance—not that there ever should be—in hav- true and to a certain extent it was not. As Simon said, I ing the case dismissed and sent to another country. Until think the American lawyers tend to be more aggressive now, a U.S.-based firm would have lost that work. In- in terms of taking control of transactions and making stead, the client is able to use the same law firm and con- sure that they get done. My impression is that the Eng- tinue to handle that lawsuit efficiently with the same lish lawyers tend to be a little bit more pedantic and sit group of litigators and the same litigation support sys- back and raise the 35 considerations behind each course tems. of action. MR. JUNIUS: The multijurisdictional team genuinely MR. BURGESS: They are very good at spotting the adds value in that case. Essentially, you’re able to antic- problem . . . ipate British suit while you are disposing of the U.S. MR. CRANCH: . . . not as good at solutions. case. Likewise, on transactions, we’re able to approach a MR. BURGESS: But we are getting better! problem not from the parochial perspective of a single legal system, but with the many jurisdictions in which MR. CRANCH: As work on this particular transaction we operate in mind. We’re able to open our clients’ proceeded, there was a sense on the part of the client minds if they aren’t already thinking globally. that the team in London didn’t quite understand what the client wanted and the client was having difficulty MR. BURGESS: And you save the client a considerable amount describing it to them. It was very easy once we under- of money. A U.S. corporation stood the situation to have a very frank conversation that operates in seven of the with our partners in London. As a result, our partners major business centers around took a more aggressive approach and the client is happy. the world recently approached But, without that filter, without the trust inherent in the us because it was fed up with interface between our partners and without the ability the inefficiencies in terms of for the client to speak openly to us in New York, the costs and management time of client would probably still be frustrated. having seven separate firms. It MR. KING: I agree. In particular, with American clients wanted international lawyers Simon Burgess entering new markets, it is of great value for us to be who would work together, so it able to bridge the gap. For example, we have a client would not have to reinvent the wheel in each jurisdic- who recently bought a major office building in London. tion. They knew they needed to go there and they knew they MR. KING: That really is a trend. Clients want ease of needed English help. There was no way U.S. lawyers communication and administration in the relationship would be able to do what the client needed. Our ability

Journal | June 2000 33 to consult with them about it and make them feel it was often the cog, the slowest part of the way things get within one “house” made a great deal of difference to done, as technology speeds up the preparation and re- the client. We were able to talk them through each step vision of documents. I think we are on the cusp of fig- as they experienced the process for the first time. uring out ways to truly exploit the emerging technologies. We’ll see transactions and relations with clients go Keeping Up With Technology online over the next two to three years in ways we can- MR. CRANCH: One resource that I think is key to in- not fully grasp today. ternational cooperation is technology. What kind of po- MR. CRANCH: I agree with that, Bob. I think technol- tential does technology offer for the practice of law on ogy presents an enormous challenge because transac- an international basis? tions now can be done at an incredible pace. The time MR. JUNIUS: I don’t think this merger could have been frames within which clients are asking us to get large even conceived of without the phenomenal advances in transactions done are much shorter than they have ever technology, without the Internet, faxes and cell phones been before and all of the mechanics can be easily exe- that make geography and time zones far less of a factor cuted; business plans and contracts can be drafted very, than they were a few years ago. very quickly. You can have e-mails come in as you are participating in the meeting. A new draft can be completed during the Clients have a real interest in course of a negotiating session and sent to everybody si- multaneously; you can all look at it and comment on it. having their U.S. and U.K. The problem is you don’t have time to think. You are lawyers, and all of their lawyers subject to a constant barrage of information and expected to review it, digest it and respond to it. And, it is internationally, work together. becoming a 24-hour-a-day job. I don’t know what the answer is. I don’t think the human brain is going to speed up at all and we are just going to have to find a way to control the process somehow and continue to do MR. BENEDICT: In my experience, e-mail is the only re- a careful and considered job with the practice of law ally effective way to communicate for all but five or six within the context of these demands for incredible hours of the business day. I am able to send an e-mail to speeds. London or Hong Kong as I am leaving the office in the MR. CRANCH: One last question: what’s next? evening and come in the next morning to a response. MR. BENEDICT: A global con- In litigation management, technology is making an solidation like ours is so difficult enormous difference. We have 20 million documents in to do. We got here through a our litigation document imaging and management sys- combination of each firm being tems. We are able to bring up those documents at a mo- in the right place at the right ment’s notice and prepare a witness. Twenty years ago, time, having great synergies in you would have to go through millions of pieces of our client bases and practices manually coded paper to try to find out the documents and tremendous persistence in a particular witness may have authored. Now you type getting the deal done. For us, the in the name and run a simple search. next challenge is to continue to MR. TER HAAR: Intranets are another place where work together to pioneer the de- James N. Benedict technology is really boosting communication and col- velopment of a new firm culture laboration. We have set up Intranet sites dedicated to a that builds on the best of the U.S., British and German particular client where members of our client team from styles. around the world can contribute and access the latest in- MR. CRANCH: Our experience is that multinational formation pertaining to that client. It enables everyone clients have a real interest in having their U.S. and U.K. to stay up to date on media coverage of the client, pub- lawyers, and all of their lawyers internationally, work lic filings, matters in progress, best practices and the together. It’s up to us as a profession to keep pace with like. Clients have even offered to give us feeds from the way clients do business worldwide. We’re really their Intranets so we can have even closer collaboration. thrilled to be the first to do so. MR. KING: I think the computer is going to dramatically change the way we practice law. In 15 years, we 1. Andrew Ross Sorkin, Responsible Party: Michael Bray; A have taken it from a situation where at closings we were Lawyer’s Lawyer, Bridging Borders, N.Y. Times, March 26, marking documents in pen and ink. Today the lawyer is 2000, sec. 3, p. 2, col. 5.

34 Journal | June 2000 “Project Exile” Effort on Gun Crimes Increases Need for Attorneys to Give Clear Advice on Possible Sentences

BY WILLIAM CLAUSS AND JAY S. OVSIOVITCH

roject Exile,” a cooperative program be- Project Exile Strategy tween local law enforcement offices and re- Begun as a joint program between U.S. Attorney gional offices of the U.S. attorneys to work Helen F. Fahey and local police in Richmond, Virginia, “P 1 together in evaluating and prosecuting gun offenses, is in an effort to reduce that city’s high violent crime rate, expanding to cities throughout New York State after ini- Project Exile is credited, at least in part, with the dra- tial implementation in Rochester. This initiative prose- matic reduction in Richmond’s homicide rate.2 cutes defendants in either federal or state court based on Richmond’s early success led U.S. Attorney Denise where prosecutors believe the longest sentence can be O’Donnell and Monroe County law enforcement offi- obtained after conviction. cials to implement Project Exile in Rochester, New York 3 The underlying concept is to use mandatory federal in October 1998. Its effectiveness is measured by the sentencing requirements for firearms offenses to re- statistics it generates. Several factors are widely re- move, or “exile,” offenders from the community. ported, including the number of indictments, the number of convictions and the length of sentences. During To adequately advise a client facing a weapon’s the program’s first year of implementation, the U.S. at- charge in communities where this initiative is being torney’s office indicted 76 defendants under Project pursued, the defense attorney must be familiar with Exile, and credited the program with removing more United States Code title 18, §§ 922(g) and 924(c) (U.S.C.) than 300 firearms from the street.4 and the relationship between the sentencing guidelines and statutorily imposed minimum and maximum sen- The National Rifle Association quickly endorsed tences. After receiving a plea offer from the prosecution, Richmond’s efforts by contributing more than $100,000 the attorney must not only advise the client of the offer and available choices, but must make an informed rec- ommendation to the client based on the relevant law WILLIAM CLAUSS is the federal public and the government’s policy objectives. defender for the Western District of New York ([email protected]). Attorneys representing clients facing weapons He is also a former special assistant charges must consider both the short-term and long- public defender for Monroe County. A term implications of a case. Experience has shown that graduate of the State University Col- clients who unreasonably reject pleas in state court often lege at Brockport, he received his J.D. face mandatory minimum sentences of 5 years or more degree from the University at Buffalo in federal court. The implications become more severe. School of Law. Clients with long criminal histories are finding themselves labeled armed career criminals. This label comes JAY S. OVSIOVITCH is a research and with a 15-year mandatory minimum sentence. writing specialist in the Office of the In these circumstances, the importance of making an Federal Public Defender for the West- informed decision on a plea bargain becomes more crit- ern District of New York (Jay_ [email protected]). Earlier, he served ical. Generally, the risk is that refusal of a plea bargain in as a law clerk to U.S. Magistrate Judge state court, where the penalties are less, could lead to a Carol E. Heckman in the Western Dis- prosecution in federal court where there is no chance to trict. A graduate of the State Univer- negotiate a plea and the penalties are likely to be higher. sity College at Geneseo, received his Clients with long criminal histories are particularly at J.D. from the University at Buffalo School of Law and a risk, because they face a 15-year mandatory minimum Ph.D. from the University of Nebraska. sentence if they are labeled career criminals.

Journal | June 2000 35 to promote the program.5 President Clinton, after some hancements or the criminal history category under the initial reluctance, signed on as a supporter.6 Along with Sentencing Guidelines determine that the defendant is Richmond and Rochester, Project Exile has also been es- to receive a sentence greater than the statutory mini- tablished in Albany, Buffalo, Niagara Falls, Syracuse, mum sentence, the judge generally follows the guide- Denver, Atlanta, Birmingham, Alabama, Fort Worth, lines. If the judge intends to depart from the guidelines’ Texas, New Orleans, Norfolk, Virginia, Philadelphia, range, the judge is prohibited from imposing a sentence and San Francisco.7 below the statutorily required minimum sentence. At the center of a Project Exile prosecution is 18 Representing a Client U.S.C. chapter 44, which deals with unlawful acts in- The most significant decision that must be made volving a firearm. The majority of Project Exile cases in shortly after a client is arrested is whether to accept a the Western District of New York have been brought plea agreement in state court before the charges are sent under 18 U.S.C. § 922(g), which prohibits specified per- to a grand jury. sons, including convicted felons and individuals con- Although the ultimate decision on whether to accept victed of misdemeanor crimes of domestic violence, of a plea agreement is always the client’s,19 the attorney possessing a firearm that is in or affecting interstate faces a heightened obligation to ensure that the client is commerce.8 A firearm need only have traveled in inter- fully informed of the consequences of the decision that state commerce to have been in or affecting interstate is made.20 As the commentary to the ABA Standards of commerce.9 Criminal Justice explain, “[t]he client should be given Section 924(c) of 18 U.S.C. establishes mandatory sufficient information to participate intelligently in deci- minimum penalties for persons who possess or use a sions concerning the objectives of the representation firearm in furtherance of a crime of violence or drug and the means by which they are to be pursued.”21 trafficking.10 Probation is unavailable to a defendant convicted under this statute, and the penalties are to be In cases that predate Project Exile, failure to properly served consecutively to any other sentence that is im- advise a client about whether a plea agreement should posed by the sentencing court or to an existing sen- be taken may result in a defendant raising an ineffective tence.11 Mere possession of a firearm during a crime of assistance of counsel claim in a habeas corpus petition. In violence or drug trafficking several recent cases, the Second Circuit Court of Ap- can result in a term of impris- peals has found that defen- onment of not less than 5 The most significant decision is dants did not receive effec- years.12 If the firearm is bran- tive legal representation dished, the minimum term of whether to accept a plea agree- when their attorneys failed imprisonment is not less than to adequately advise them of ment in state court before the the sentencing ramifications 7 years; if the firearm is dis- 22 charged, the minimum term charges are sent to a grand jury. of rejecting a plea offer. of imprisonment is not less Although not a firearms than 10 years.13 A mandatory case, Boria v. Keane23 pre- minimum sentence of 25 years imprisonment will be im- sented a common fact pattern that many criminal attor- posed if the defendant has a prior 18 U.S.C. § 924(c) con- neys have encountered while representing clients dur- viction.14 ing plea negotiations. Claiming innocence, the In addition to any statutorily mandated sentence, a defendant rejected a plea offer in state court that would defendant convicted either of a drug trafficking charge have resulted in the defendant being charged with a or a crime of violence is also sentenced in accordance Class A-II felony, and a term of imprisonment of one to 24 with the U.S. Sentencing Guidelines.15 A defendant con- three years. The defendant’s attorney had also been victed under 18 U.S.C. § 924(c) will be sentenced in ac- advised that if his client rejected the plea offer the pros- cordance with its statutory requirements. The sentenc- ecutor would seek a superseding indictment for a Class ing judge is bound by the statutory minimum sentences A-I felony that, under the Rockefeller laws, would have 25 imposed by § 924(c).16 Statutory minimum sentencing resulted in a substantially longer sentence. While dis- requirements control the sentencing court.17 The 18 cussing with the defendant strategies that they would U.S.C. § 924(c) conviction is served consecutively to any pursue once the new indictment was issued, the defen- other sentence imposed by the court; the sentencing dant’s attorney never expressed his belief to his client 26 judge has no discretion to impose a concurrent sen- that the rejection of the plea was “suicidal.” At the con- tence.18 clusion of the trial the defendant, a first-time offender, 27 The statutory sentences establish a floor below which was sentenced to 20 years to life. Reviewing the defen- the sentencing judge must not depart. However, if en- dant’s petition for habeas corpus, the Second Circuit held

36 Journal | June 2000 that the client had received ineffective assistance of yet seen the effects of dual sovereignty in the context of counsel. defending a Project Exile case, although the dual sover- A potential problem reminiscent of Boria was seen in eignty doctrine has adversely affected clients in other one of the early Project Exile cases. An attorney repre- situations. At some point during the implementation of sented a client in federal court who had been found in a the Project Exile initiative, an attorney defending a drug house with cocaine and client on a weapon’s charge is money. Several short-bar- likely to encounter the dual reled rifles and a pistol were Other problems may emerge from sovereignty doctrine, which found in a closet. A key to permits “the state and federal the house was found in the dual sovereignty, the effect of governments to prosecute client’s pocket. The client multiple charges on sentencing, someone successively for the was initially arraigned in same criminal acts without state court and offered the and the effect of the Armed violating double jeopardy.”28 opportunity to plead to two Career Criminals Act. Successive prosecutions misdemeanors under state often occur when a defen- law. Acceptance of the plea dant is either acquitted in one bargain would have resulted in the client serving 12 jurisdiction or has received a punishment that prosecu- months in jail. Because of the immigration consequences tors deemed too lenient.29 The Department of Justice has of serving a 12-month sentence, the client rejected the a policy limiting successive prosecutions. According to offer. The client’s state court attorney, who was unaware this “Petite Policy,” the department will limit successive of Project Exile and the consequences of rejecting the prosecutions to cases that are “compelling.”30 However, plea, did not work with the prosecutor to see if a better if the case does not meet the criteria set forth in the Pe- deal could be obtained for the client. tite Policy, the government may still prosecute the 31 The assistant district attorney then sent the case to case. Project Exile for evaluation, and it went before a federal There is one exception to the dual sovereignty doc- grand jury. When the assistant federal public defender trine. In United States v. 38 Whaler’s Cove Drive, a Second was assigned to the case, the client asked whether a bet- Circuit panel explained that the “Double Jeopardy ter plea offer could be arranged, only to learn that the Clause may be violated despite single prosecutions by opportunity to negotiate a favorable plea had vanished separate sovereigns when one ‘prosecuting sovereign 32 once the case went to Project Exile. It is too early to can be said to be acting as a “tool” of the other.’” This 33 know what claims this client may raise in a post-convic- is known as the Bartkus exception, based on a U.S. tion proceeding. The assistant defender who repre- Supreme Court decision which stated that the peti- sented this client in the federal proceedings expects to tioner’s conviction after the second prosecution did see an ineffective assistance claim based on the repre- “not sustain a conclusion that the state prosecution was sentation provided by the attorney who handled the a sham and a cover for a federal prosecution, and 34 matter in state court. thereby in essential fact another federal prosecution.” It is difficult to sustain a claim that one sovereign is Potential Problems acting as a tool for another sovereign. Mere cooperation As recently as 10 years ago, it was possible for crimi- between state and federal prosecutors is not enough.35 nal defense attorneys to limit their practice to state Even significant cooperation between federal and state court. However, the increased federalization of criminal prosecutors has not been sufficient to apply the Bartkus law means that all criminal attorneys, regardless of exception.36 The high bar established by the courts to where they practice, must now understand the intercon- demonstrate that one sovereign is acting as a tool for an- nected relationship between state and federal criminal other makes it difficult for defense counsel to succeed law. on a double jeopardy claim if a client is first prosecuted Myriad problems can be encountered during the rep- in state court and then brought into federal court. resentation of a Project Exile case. The potential ineffec- This is not meant to imply that all defendants con- tive assistance of counsel claim is only one of them. victed in state court will then be facing federal penalties. Other problems that may emerge can result from dual The Rochester office was assigned to represent a client sovereignty, the cumulative effect of multiple charges who was facing a misdemeanor weapons charge in state on sentencing, and the effect of the Armed Career Crim- court. The client was also indicted by a federal grand inal Act. jury on two counts of possessing a firearm with a barrel Dual sovereignty The Office of the Federal Public less than 16 inches in length and having an overall Defenders for the Western District of New York has not length of less than 22 inches.37 The government was

Journal | June 2000 37 willing to withdraw the federal indictment after the “serious drug offense” can be charged as an armed ca- client pleaded guilty in state court because he had no reer criminal.44 This label carries a statutory mandatory prior criminal record. However, to get this agreement minimum sentence of 15 years.45 It is irrelevant whether the client’s state court counsel had to first understand the prior convictions were the result of federal or state the penalties the client faced in case the plea offer was court proceedings.46 not worked out, and communicate the implications of The court will use a categorical approach when de- rejecting the offer to the client. It also required commu- termining whether the prior conviction is a “violent nication between the client’s federal and state court at- felony” or a “serious drug offense.”47 This requires the torneys, as well as the assistant U.S. attorney and the as- court to determine whether the crimes charged fall sistant district attorney. Ultimately, the client was within certain categories rather than examining the facts sentenced to only 90 days in jail. underlying the prior convictions.48 Unexpected sanctions Section 924(c)(1)(C) of 18 Conclusion U.S.C. provides a mandatory minimum sentence of 25 This article’s emphasis on advising a client about a years for a second or subsequent conviction under that plea offer is not meant to imply that a client charged section. Depending on how the government charges the with a weapons violation cannot be acquitted at trial. offense, a client may actually face a sentence of more Attorneys do successfully defend weapons charges in than 30 years. A conviction under § 924(c) does not re- federal court.49 However, both the attorney and the quire the entry of a final judgment of conviction in order client need to be fully aware of the pitfalls that counsel for the court to apply the statutory sentence enhance- may encounter when representing a client subject to ments.38 The first and the second conviction under “Project Exile.” Once the risks are clearly known, the at- § 924(c) may be the result of the same trial.39 torney will be in a position give the client realistic ad- An attorney in Rochester encountered this problem vice on whether to take a plea offer at the earliest op- representing a client arrested during a “buy and bust portunity or proceed to trial. operation.” It is common practice for the Rochester Po- It is also important to remember that both the judges lice Department to first make a confirmatory buy before and prosecutors understand that the statutory penalties executing a search warrant of a residence that the police faced by a client may be unduly harsh and excessive. suspect houses a drug operation. In this instance, the Even after conviction, the courts and prosecutors may police made a confirmatory buy and, within five min- be open to suggestions that can improve a defendant’s utes, executed a search warrant. One weapon was found situation. After trial but before being sentenced, for ex- in the premises during the execution of the warrant. The ample, the client sentenced to 477 months was offered a client was charged with one count of distributing a con- plea bargain (on the record) where his sentence would trolled substance and one count of possession with in- have been reduced by 300 months (25 years) if he 40 tent to distribute a controlled substance. The client was waived his right to appeal. It rests on the defense attor- also charged with two counts of possessing a firearm ney to instill confidence in the client that you have con- 41 during a drug trafficking crime. One count was tied to sidered every option and are making recommendations the distribution charge, and the other count was tied to that are in the client’s best interest. the possession charge. The client faced a 10-year and then a 25-year term of imprisonment on the firearms 1. See Tom Campbell & Gordon Hickey, Project Exile Aims to counts, to be served consecutively to the term of impris- Break Guns, Drugs Link City Wants Federal Arrests, Stiff, onment for the narcotics offenses.42 He was ultimately Richmond Times Disp., Feb. 22, 1997, at B1. sentenced to 477 months (39 years, 9 months) imprison- 2. See Carrie Johnson, Richmond’s Homicide Rate Drops Year ment. Ends With 96 Deaths - The Fewest Since 1987, Richmond Times Disp., Jan. 2, 1999, at A1. The client faced a mandatory term of imprisonment 3. See James Goodman, U.S. Joins County, City Against Guns, of more than 35 years for possession of one weapon be- Democrat and Chronicle (Rochester, NY), Sept. 26, 1998, cause 18 U.S.C. § 924(c)(1)(D) looks only at whether at 1B; James Goodman, Billboards to Trumpet Tougher Pol- there is a second or subsequent conviction. The second icy on Guns, Democrat and Chronicle (Rochester, NY), conviction under § 924(c) can come from the same trial Sept. 30, 1998, at 1B. or plea as the first conviction.43 Nonetheless, a proactive 4. Summary Statistics for Project Exile Cases, Nov. 9, 1999, at 1. The Monroe County District Attorney’s Office indicted 30 attorney who is aware of this pitfall can minimize the defendants under Project Exile and filed Superior Court client’s exposure by negotiating with the assistant U.S. Informations on 62 defendants. Id. at 2. See Greg Livadas, attorney before an indictment is filed. Schumer Praises Project Exile, Democrat and Chronicle (Rochester, NY), Aug. 12, 1999, at 1B (quoting Rochester Armed Career Criminal Act A defendant who has Police Chief Robert Duffy, who claims that Project Exile is three previous convictions for a “violent felony” or for a working because “[w]e’ve had undercover investigators

38 Journal | June 2000 try to buy guns and they were told they wouldn’t sell against such intimate partner or child that would them a handgun because they don’t want to go to federal reasonably be expected to cause bodily injury; or prison.”). (9) who has been convicted in any court of a misde- 5. Project Exile, Homeward Get Grants, Richmond Times meanor crime of domestic violence, Disp., Apr. 11, 1999, at B5; David S. Cloud, Prosecutor’s to ship or transport in interstate or foreign commerce, Strategy Scrambles Gun Control Alliances, Wall St. J., Aug. or possess in or affecting commerce, any firearm or am- 31, 1998, at A20; see Wayne Lapierre, Executive Vice Presi- munition; or to receive any firearm or ammunition dent of the National Rifle Association, News Conference which has been shipped or transported in interstate or on Legislative Proposals Regarding Violent Crime, 1999 foreign commerce. WL 287782 (Federal Document Clearing House, May 10, 1999). 9. United States v. Carter, 981 F.2d 645, 647 (2d Cir. 1992). 6. Compare David S. Cloud, Prosecutor’s Strategy Scrambles 10. 18 U.S.C. § 924(c)(1) provides the following penalties: Gun Control Alliances, Wall St. J., Aug. 31, 1998, at A20 (A) Except to the extent that a greater minimum sen- with The President’s Radio Address, 35 Weekly Comp. Pres. tence is otherwise provided by this subsection or by any Doc. 488 (Mar. 29, 1999) and Memorandum on Deterring and other provision of law, any person who, during and in re- Reducing Gun Crime, 35 Weekly Comp. Pres. Doc. 489 lation to any crime of violence or drug trafficking crime (Mar. 29, 1999). (including a crime of violence or drug trafficking crime 7. In Syracuse, the initiative is known as Project SAFE, for that provides for an enhanced punishment if committed Strategically Applied Firearms Enforcement. John by the use of a deadly or dangerous weapon or device) O’Brien, Partnership Sets Sights on Gun Crimes County, Fed- for which the person may be prosecuted in a court of the eral Prosecutors to Designate Representatives in Each Other’s United States, uses or carries a firearm, or who, in fur- Offices, Post-Standard (Syracuse, NY), Mar. 10, 2000, at therance of any such crime, possesses a firearm, shall, in B3; John O’Brien, Illegal Firearms Traffic Targeted Federal , addition to the punishment provided for such crime of Local Teaming of Prosecutors to Trace Contraband Guns, Deal- violence or drug trafficking crime— ers, Syracuse Herald-Journal, Mar. 9, 2000, at B3. (i) be sentenced to a term of imprisonment of not 8. 18 U.S.C. § 922(g) provides the following: less than 5 years; (ii) if the firearm is brandished, be sentenced to a It shall be unlawful for any person— term of imprisonment of not less than 7 years; and (1) who has been convicted in any court of, a crime (iii) if the firearm is discharged, be sentenced to a punishable by imprisonment for a term exceeding one term of imprisonment of not less than 10 years. year; (B) If the firearm possessed by a person convicted of (2) who is a fugitive from justice; a violation of this subsection— (3) who is an unlawful user of or addicted to any con- (i) is a short-barreled rifle, short-barreled shotgun, trolled substance (as defined in section 102 of the Con- or semiautomatic assault weapon, the person shall trolled Substances Act (21 U.S.C. 802)); be sentenced to a term of imprisonment of not less (4) who has been adjudicated as a mental defective or than 10 years; or who has been committed to a mental institution; (ii) is a machinegun or a destructive device, or is (5) who, being an alien— equipped with a firearm silencer or firearm muffler, (A) is illegally or unlawfully in the United States; or the person shall be sentenced to a term of imprisonment of not less than 30 years. (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmi- (C) In the case of a second or subsequent conviction grant visa (as that term is defined in section under this subsection, the person shall— 101(a)(26) of the Immigration and Nationality Act (8 (i) be sentenced to a term of imprisonment of not U.S.C. 1101(a)(26))); less than 25 years; and (6) who has been discharged from the Armed Forces (ii) if the firearm involved is a machine gun or a de- under dishonorable conditions; structive device, or is equipped with a firearm si- (7) who, having been a citizen of the United States, lencer or firearm muffler, be sentenced to imprison- has renounced his citizenship; ment for life. (8) who is subject to a court order that— (D) Notwithstanding any other provision of law— (A) was issued after a hearing of which such person (i) a court shall not place on probation any person received actual notice, and at which such person convicted of a violation of this subsection; and had an opportunity to participate; (ii) no term of imprisonment imposed on a person (B) restrains such person from harassing, stalking, under this subsection shall run concurrently with or threatening an intimate partner of such person or any other term of imprisonment imposed on the child of such intimate partner or person, or engag- person, including any term of imprisonment im- ing in other conduct that would place an intimate posed for the crime of violence or drug trafficking partner in reasonable fear of bodily injury to the crime during which the firearm was used, carried, partner or child; and or possessed. (C)(i) includes a finding that such person represents 11. 18 U.S.C. § 924(c)(1)(D). a credible threat to the physical safety of such inti- 12. 18 U.S.C. § 924(c)(1)(A)(i). mate partner or child; or 13. 18 U.S.C. § 924(c)(1)(A)(ii), (iii). Brandishing a firearm is (ii) by its terms explicitly prohibits the use, at- defined under § 924(c) as “display[ing] all or part of the tempted use, or threatened use of physical force firearm, or otherwise mak[ing] the presence of the

Journal | June 2000 39 firearm known to another person, in order to intimidate U.S. 529, 530 (1960) (noting “that it is the general policy that person, regardless of whether the firearm is directly of the Federal Government ‘that several offenses arising visible to that person.” 18 U.S.C. § 924(c)(4). out of a single transaction should be alleged and tried to- 14. 18 U.S.C. § 924(c)(1)(C)(i). gether and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of 15. See 18 U.S.C. § 3553. fairness to defendants and of efficient and orderly law 16. See Almendarez-Torres v. United States, 523 U.S. 224, 244-45 enforcement.’”). (1998). 31. Rinaldi, 434 U.S. at 28-29 (noting that the Petite Policy is 17. See 18 U.S.C. § 3553; see also Alexander Bunin, Time and not constitutionally mandated). Again: Concurrent and Consecutive Sentences Among State 32. 38 Whaler’s Cove Drive, 954 F.2d at 38 (quoting United and Federal Jurisdictions, Champion, Mar. 1997, at 34 (not- States v. Aboumoussallem, 726 F.2d 906, 910 (2d Cir. 1984)); ing that statutory requirements are controlling while the see United States v. G.P.S. Automotive Corp., 66 F.3d 483, Sentencing Guidelines are subject to departure). 494 (2d Cir. 1995). 18. 18 U.S.C. § 924(c)(1)(D)(ii); see United States v. Lawrence, 33. Bartkus, 359 U.S. 121. 928 F.2d 36, 38-39 (2d Cir. 1991) (discussing Congress’ intent to impose consecutive punishments). 34. Id. at 123-24. 19. Jones v. Barnes, 463 U.S. 745, 750-51 (1983) (noting that a 35. See id. at 123. defendant has the ultimate authority to make certain de- 36. G.P.S. Automotive Corp., 66 F.3d at 495. Judge Calabresi cisions regarding a case, including “whether to plead noted that even “the cross-designation of a state district guilty, waive a jury, testify in his or her own behalf, or attorney as a federal official to assist or even to conduct a take an appeal”); see Model Rules of Professional Conduct, federal prosecution does not by itself bring a case within Rule 1.2(a); The Lawyer’s Code of Professional Responsibility, the Bartkus exception to the dual sovereignty doctrine.” EC 7-7 (hereinafter “Code”). Id. 20. ABA Standards for Criminal Justice, Standard 4-3.8(b); Code, 37. This was in violation of 26 U.S.C. §§ 5822, 5845(a), EC 7-7. 5861(c), and 5871. 21. ABA Standards for Criminal Justice, Standard 4-3.8 (com- 38. See Deal v. United States, 508 U.S. 129, 132 (1993) (finding mentary). that “‘conviction’ refers to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judg- 22. See Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999); ment of conviction.”). United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998); Boria v. Keane, 99 F.3d 492 (2d Cir. 1996); but see Purdy v. 39. United States v. Bernier, 954 F.2d 818 (2d Cir. 1992) (per cu- United States, 208 F.3d 41, 46-48 (2d Cir. 2000) (distin- riam). guishing Boria). 40. 21 U.S.C. § 841(a)(1). 23. 99 F.3d 492 (2d Cir. 1996). 41. 18 U.S.C. § 924(c)(1)(A). 24. Id. at 494. 42. 18 U.S.C § 924(c)(1)(D)(ii) prohibits the imposition of a consecutive sentence for any term of imprisonment under 25. Id. at 495. § 924. 26. Id. 43. See Deal, 508 U.S. at 134-38. 27. Id. at 494. The petitioner had served approximately six 44. See 18 U.S.C. § 924(e)(1). The Armed Career Criminal Act years of his sentence by the time his case reached the Sec- states the following: ond Circuit. Id. The panel ordered that the sentence be re- In the case of a person who violates section 922(g) of duced to time served and remanded the case to the Dis- this title and has three previous convictions by any trict Court with an order to grant the petition for habeas court referred to in section 922(g)(1) of this title for corpus. Id. at 499. a violent felony or a serious drug offense, or both, 28. United States v. Vazquez, 145 F.3d 74, 84 (2d Cir. 1998); ac- committed on occasions different from one another, cord Heath v. Alabama, 474 U.S. 82, 88 (1985); United States such person shall be fined not more than $25,000 v. 38 Whalers Cove Drive, 954 F.2d 29, 38 (2d Cir. 1992); see and imprisoned not less than fifteen years, and, Abbate v. United States, 359 U.S. 187 (1959); Bartkus v. Illi- notwithstanding any other provision of law, the nois, 359 U.S. 121 (1959). court shall not suspend the sentence of, or grant a 29. See generally, Adam Harris Kurland, Lurking Pitfalls of probationary sentence to, such person with respect Successive Prosecutions: Immunity, Plea Agreements, to the conviction under section 922(g). Promises not to Prosecute, and Cooperation Agreements, Id. Crim. Just., Winter 2000, at 4. 45. Id. 30. U.S. Department of Justice, U.S. Attorney’s Manual tit. 46. Cf. Taylor v. United States, 495 U.S. 575, 578 & n.1 (1990) 9-2.031 (2d ed. 2000). The policy, more commonly known (noting that at least two of the petitioner’s four prior con- as the “Petite Policy,” states that the federal government victions were based on state law). will bring forth a prosecution based on substantially the same facts raised in a state trial if it “involve[s] a substan- 47. Id. at 600-601. tial federal interest,” in which the prior prosecution “left 48. Id. that interest demonstrably unvindicated,” and the federal 49. Alexander Bunin, the Federal Defender for the Northern government believes that “the defendant’s conduct con- District of New York, identified several strategies for suc- stitutes a federal offense, and that the admissible evi- cessfully defending a federal weapons charge. See cf. dence probably will be sufficient to obtain and sustain a Alexander Bunin, Firearms Cases: Building an Arsenal, in conviction by an unbiased trier of fact.” Id.; see Rinaldi v. Federal Criminal Defense Practice Seminar, Presented by United States, 434 U.S. 22, 28-29 (1977) (discussing the the Federal Public Defender’s Office, Western District of purposes of the “Petite Policy”); Petite v. United States, 361 New York, Dec. 3, 1999 (on file with the authors).

40 Journal | June 2000 Normal Rules on Liability for Failure To Use Seat Belts May Not Apply In School Bus Accidents

BY MONTGOMERY LEE EFFINGER

n most automobile accident cases the question of liability from being premised upon the non-use of seat whether an injured party was wearing a seat belt as belts. Although a few cases have considered the impact Irequired by New York law1 is an issue. Although nar- of the Seat Belt Law on school liability, reasonable argu- row restrictions on the proper use of seat belt evidence ments on both sides may clearly be derived from the have evolved through case law and statutes, different statutes, rules and case law. rules and sources of authority may apply when school Limiting School Liability buses are involved in accidents. This article looks at the Although the New York Court of Appeals has not special considerations and legal authority that affect a specifically addressed the impact of seat belt non-use on school’s liability when a school bus is in an accident and school liability, a large body of case law has developed pupils were not wearing seat belts. that favors precluding liability based upon non-compli- In general, the impact of seat belt non-use on litiga- 6 7 2 ance with seat belt requirements both before and after tion is constrained to mitigation of damages. In the enactment of the current Seat Belt Law in 1985. In this usual personal injury automobile accident case, a defen- manner, New York courts have at times applied the dant is not excused from liability merely because the in- precedential authority to dismiss as a matter of law jured party was not wearing a seat belt at the time of the 3 those actions where liability was predicated upon the accident. Indeed, under this body of authority, when failure to employ seat belts. injuries result from an automobile accident “[i]t is well When enacted in 1985, N.Y. Vehicle and Traffic Law settled that failure to use an available seat belt is to be § 1229-c(8) (VTL) incorporated the prior case law, which considered in mitigation of damages and should not be had limited evidence of non-use of seats belts to the considered by the triers of fact in resolving the issue of 8 4 issue of damages. Subsequent decisions have held that liability.” As noted below, there are very few exceptions the statute was intended to codify and expand the rule where the failure to wear a seat belt may become a basis established by the Court of Appeals in Spier v. Barker.9 for determining liability. The controlling “Seat Belt 5 The statute, therefore, maintained the prohibition Law” clearly embodies this restrictive approach con- against causes of action directly or indirectly predicated cerning use of seat belt evidence for the usual motor ve- upon noncompliance with the Seat Belt Law as a basis hicle accident case. for liability, while stating that such evidence of seat belt Although the legal issue is far from settled, when a non-use “shall not be admissible as evidence in any civil school bus is involved in an accident the rules on who action in a court of law in regard to the issue of liability can be held liable for injuries to pupils who are not but may be introduced into evidence in mitigation of wearing seat belts may be different from the rules that damages.”10 apply to accidents involving passenger cars. The analysis of liability in school bus accidents must include con- MONTGOMERY LEE EFFINGER is an asso- sideration of special statutes and administrative rules ciate with O’Connor, McGuinness, that distinguish school buses from other vehicles. Conte, Doyle & Oleson in White These distinctions may be used by plaintiffs in an ef- Plains, N.Y., where his practice in- fort to impute liability to schools notwithstanding the cludes defense work for municipalities Seat Belt Law. Counsel may further endeavor to rely and school districts. He was appellate upon administrative regulations promulgated by the counsel for the defendant in the New York State Department of Education regarding seat O’Connor v. Mahopac Central School belt instruction and use on school buses in a bid to cir- District case cited in the article. He is a cumvent the limitations contained in the statute. In New graduate of Bucknell University and received his J.D. from Pace University School of Law. York, however, considerable authority exists to prevent

Journal | June 2000 41 Among the appellate courts, only the Second Depart- straints where the cause of injury to a firefighter was the ment in O’Connor v. Mahopac Central School District11 has removal of seat belts.17 Before passage of the Seat Belt considered the impact on liability resulting from the Law, the Second Department similarly held in Curry v. failure to use seat belts. The court affirmed summary Moser that evidence of non-use of seat belts could be judgment to the defendant school because the plaintiff used on the issue of liability because the failure to use a acknowledged that there was seat belt caused the plaintiff no evidence that negligence to fall from the vehicle before by the school or the school a collision occurred.18 Efforts bus driver contributed to the Administrative code provisions on behalf of plaintiffs have, vehicular accident. Even be- however, met with much re- fore O’Connor, however, it also have an impact on school sistance since the passage of could be argued that the bus safety issues. the Seat Belt Law. The Third principles limiting the viabil- Department pointed out that ity of claims based on seat these cases were decided belt non-use would have pre- prior to passage of VTL cisely the same impact when applied to injuries suffered § 1229-c(8) and that the Seat Belt Law prohibited this ap- by children while riding a school bus. Generally speak- proach.19 ing, there is no legal distinction between vehicular acci- Although there is legislative authority tending to un- dents involving infants or adults, because the Seat Belt dermine the imposition of liability on the basis of seat Law prohibits proof in support of causes of action pred- belt non-use, the language of these statutes is not with- icated, directly or indirectly, on noncompliance with out exceptions. Indeed, while Education Law § 3813(4) VTL § 1229-c(8) without regard for age.12 Indeed, the does provide that a school district shall not be held li- Fourth Department has read the statute to prohibit any able for personal injuries of a passenger on a school bus exemption to § 1229-c(8) for failure to require young solely on the basis of seat belt non-use, it also allows for children to “buckle up.”13 certain exceptions including failure to maintain equip- While confirming the prohibition against liability ment in operating order as required by statute, rule or predicated upon the non-use of seat belts pursuant to regulation20 and failure to comply with applicable the language of VTL § 1229-c, the Fourth Department in statutes, rules or regulations.21 Baker v. Keller also “invited” the legislature to consider Administrative code provisions also have an impact amending § 1229-c(8) in its application to cases involv- on school bus safety issues. For example, one such reg- ing infants or young children. This invitation empha- ulation entitled “Instruction on use of seat belts” pro- sized the lack of latitude provided in the current vides that, when pupils are transported on school buses statute.14 equipped with seat safety belts, instruction on the use of It should also be noted that § 3813(4) of the N.Y. Ed- such seat belts is to be provided at least three times a ucation Law provides that a school district (as well as a year.22 Further details regarding the nature of instruc- school bus operator under contract with a school dis- tion to be provided by a school, including fastening, and trict) shall not be held liable for personal injuries of a placement of such belts are also included in the regula- passenger on a school bus “solely because the injured tion. Nevertheless, this regulation does not require that party was not wearing a seat safety belt.” The ample all school buses be equipped with seat belts; rather it case law and statutory authority thus serve to bolster a provides guidelines if such equipment is present. Fur- school’s defense against claims of liability premised thermore, obvious hurdles of proximate causation are upon a student’s failure to wear a seat belt. presented to plaintiffs who wish to rely on such rules as a basis for liability. Liability on the Basis of a Failure to Buckle In response to limitations on liability imposed by the Conclusion Seat Belt Law, plaintiffs have often relied on the body of Plaintiffs may seek general support for a breach of case law holding that the statute has no applicability school duty through reference to violations of specific when failure to wear a seat belt is the “cause” of the ac- code provisions including those that deal with seat cident. This approach was enunciated by the Court of belts.23 Nevertheless, it must be remembered that an Ed- Appeals in Spier15 and generally has been used to permit ucation Department regulation cannot overrule a state the imposition of liability under narrow circumstances statute that presents a clear prohibition against advanc- in which a plaintiff’s non-use of a seat belt somehow ing claims based on non-use of seat belts.24 brought about the accident.16 Ultimately, a defendant school will call upon the For example, a lower court allowed liability to be im- clear intent and public policy behind the prohibition posed upon the City of New York for non-use of re- contained within the statutes while plaintiffs will seek

42 Journal | June 2000 both to invoke the exceptions as well as to apply the 9. 35 N.Y.2d 444, 363 N.Y.S.2d 916 (1974); see Hamilton, 162 special rules applicable to school buses as a basis for A.D.2d at 93. supporting their liability claims. However, definitive 10. VTL § 1229-c(8). 11. 259 A.D.2d 530, 692 N.Y.S.2d 76 (2d Dep’t 1999). determination of school liability predicated on seat belt 12. See Hamilton, 162 A.D.2d 91; Bifaro, 242 A.D.2d 892. non-use must await further case law or statutory devel- 13. Baker v. Keller, 241 A.D.2d 947, 947, 661 N.Y.S.2d 330, 330 opments. (4th Dep’t 1997). 14. See id. at 947-48. 1. N.Y. Vehicle and Traffic Law § 1229-c (VTL). 15. 35 N.Y.2d 444, 450, 363 N.Y.S.2d 916, 920 (1974). 2. VTL § 1229-c(8). 16. See Roach v. Szatko, 244 A.D.2d 470, 472, 664 N.Y.S.2d 101, 3. Bifaro v. Smith, 242 A.D.2d 892, 665 N.Y.S.2d 950 (4th 102 (2d Dep’t 1997). Dep’t 1997); Baker v. Keller, 241 A.D.2d 947, 947, 661 17. Weyant v. City of New York, 162 Misc. 2d 132, 616 N.Y.S.2d N.Y.S.2d 330, 330 (4th Dep’t 1997). 428 (Sup. Ct., Kings Co. 1994). 4. Stein v. Penatello, 185 A.D.2d 976, 976, 587 N.Y.S.2d 37 (2d 18. Curry v. Moser, 89 A.D.2d 1, 454 N.Y.S.2d 311 (2d Dep’t Dep’t 1992) (citations omitted). 1982). 5. VTL § 1229-c(8). 19. Hamilton v. Purser, 162 A.D.2d 91, 93, 563 N.Y.S.2d 163, 6. See Spier v. Barker, 35 N.Y.2d 444, 363 N.Y.S.2d 916 (1974); 165 (3d Dep’t 1990). Bongianni v. Vlasovetz, 101 A.D.2d 872, 476 N.Y.S.2d 186 20. N.Y. Education Law § 3813(4)(a) (“Educ. Law”). (2d Dep’t 1984); Tome v. Buitrago, 75 A.D.2d 521, 426 21. Educ. Law § 3813(4)(b). N.Y.S.2d 1008 (1st Dep’t 1980). 22. N.Y. Comp. Code R. & Regs., tit. 8 § 156.3(i). 7. See Davis v. Bradford, 226 A.D.2d 670, 642 N.Y.S.2d 48 (2d 23. See, e.g., Womack by Womack v. Duvernay, 229 A.D.2d 488, Dep’t 1996); Normoyle v. New York City Transit Auth., 181 490, 645 N.Y.S.2d 831 (2d Dep’t 1996); Chainani v. Board of A.D.2d 498, 581 N.Y.S.2d 28 (1st Dep’t 1992); Hamilton v. Educ., 201 A.D.2d 693, 696, 608 N.Y.S.2d 283 (2d Dep’t Purser, 162 A.D.2d 91, 563 N.Y.S.2d 163 (3d Dep’t 1990); 1994), aff’d, 87 N.Y.2d 370, 639 N.Y.S.2d 971 (1995); Blair v. Bifaro, 242 A.D.2d 892. Board of Educ., 86 A.D.2d 933, 448 N.Y.S.2d 566 (3d Dep’t 8. See Biafro, 242 A.D.2d at 892 (citing Spier v. Barker, 35 1982). N.Y.2d 444, 363 N.Y.S.2d 916 (1974)). 24. See Board of Educ. v. Licata, 42 N.Y.2d 815, 396 N.Y.S.2d 644 (1977).

fied support staff and competent junior Most offices send junior attorneys attorneys. Many judges take months to when possible. EDITOR’S deal with infant’s compromise papers A last thought. Just as there are and then refuse to reimburse disburse- lawyers who lack basic diligence and MAILBOX ments. Our office could have hired at professional courtesy, there are too least one additional attorney on the many judges, both elected and ap- amount of disbursements that have pointed, who do not have the tempera- Court Adjournments been denied in the last year or so. ment necessary to deal with crowded ustice Stephen G. Crane and Mr. It takes four to six months for a file calendars and busy attorneys. These Robert C. Meade Jr. are to be com- to be transferred from one county to judges make issuing threats and hav- Jmended for their thorough exposi- the next when venue has been ing temper tantrums their modus tion in the May issue of the Journal of changed. It takes a month or two to operandi. Decisions that are either bla- when judges should and should not enter an order. These delays count tantly unlawful or gross abuses of dis- grant adjournments and what counsel against the pre-note of issue deadlines. cretion are part and parcel of the court- can do to avoid having a problem get- It is always a pleasure when a judge room karma for these judges. The bar ting an adjournment. Unfortunately, has read the papers in advance of an has no effective way of dealing with the realities of practice, particularly in argument, but most have not. There- them. A couple of them in each county New York City, make compliance with fore, attorneys operate on the assump- are more than enough to severely dam- the lofty goals of the Comprehensive tion that the judge hasn’t read the pa- age the timely and efficient administra- Civil Justice Program and the Uniform pers, which frequently leads to delays, tion of justice. Court Rules a frequent impossibility. problems and mischief. The courts The foregoing are just a few of the If nothing else, the economics of the bring these problems on themselves. reasons why the courts should make legal business prevent one from hiring The new pretrial conferences are, in sure cases are decided on the merits, enough attorneys to do all the sched- most parts, an absolute joke. No issues not on the question of whether one side uled depositions, serve all the autho- are narrowed, or even discussed. Set- asked for one adjournment too many. rizations, write all the motions and tlement is rarely entertained in any Mark J. Elder briefs, cover all the conferences, re- meaningful way. Instead, the confer- New York City spond to all the discovery and try all ences merely involve setting up trial The writer is of counsel at Gorayeb & the cases within the time frames allot- dates, a process that could have been Associates, P.C. ted. There is a vast shortage of quali- handled by mail, phone or Internet.

Journal | June 2000 43 Meet Your New Officers President President-Elect Paul Michael Hassett, man- New York attorney Steven aging partner of the Buffalo C. Krane, a partner in the Liti- law firm of Brown & Kelly, gation and Dispute Resolution LLP, has been named president Department of Proskauer Rose of the New York State Bar As- LLP, has been named presi- sociation (NYSBA). dent-elect. As president-elect, Hassett served as presi- he will chair the House of Del- dent-elect, chaired the House egates. of Delegates, the state bar’s Krane assumed office on policy and decision-making June 1. He will become presi- body, and co-chaired the Presi- dent of the NYSBA on June 1, dent’s Committee on Access to 2001, the youngest person ever Justice. to hold that post. He has served as a NYSBA Krane is a graduate of vice president, a member the SUNY at Stony Brook (1978), Committee on Attorney Professionalism, Task Force on the Pro- where he was elected to Phi Beta Kappa, and earned his law de- fession and the Trusts and Estates Law Section, member-at-large gree from the New York University School of Law (1981). He of the Executive Committee, chair of the Commission on Provid- served as a law clerk to then New York Court of Appeals Judge ing Access to Legal Services for Middle Income Consumers and Judith S. Kaye (1984-1985). the Special Committee to Improve Court Facilities. He is also a Since 1995 he has chaired the Special Committee to Review the former chair of the New York State Conference of Bar Leaders. Code of Professional Responsibility, shepherding major changes Hassett is a past president of the Bar Association of Erie in the Code, which governs the daily business and ethical behav- County, chaired its Committee on Grievances and is a member of ior of New York lawyers, through the House and the courts. He the Finance Committee. He previously served on the board of di- also represented the state bar on the Office of Court Administra- rectors of the Volunteer Lawyers Project, the Aid to Indigent Pris- tion’s Task Force on Attorney Professionalism and Conduct. oners Society, and the Erie Institute of Law. He is also a past pres- A sports law practitioner, Krane has litigated major cases for ident of the Erie County Bar Foundation. Hassett will be the 10th the National Hockey League, Major League Soccer and the Na- Buffalo lawyer to serve as president of the 124-year-old state bar tional Basketball Association. He also regularly represents law association. firms and individual attorneys in disciplinary and professional li- A graduate of Canisius College (1962), he earned his law de- ability matters. gree from Georgetown University (1965), where he was associate editor of the Georgetown Law Journal. His practice is concentrated in the areas of probate, estate and trust administration, and general business law.

Treasurer Secretary Frank M. Headley, Jr., a Lorraine Power Tharp, a partner in the Scarsdale and principal in the Albany law Bronxville law firm of Bertine, firm of McNamee, Lochner, Hufnagel, Headley, Zeltner, Titus & Williams, P.C., was re- Drummond & Dohn, was re- elected secretary of the New elected treasurer of the New York State Bar Association York State Bar Association (NYSBA). (NYSBA). A graduate of Smith Col- A graduate of Denison Uni- lege, Tharp earned her law de- versity, Headley earned his law gree from Cornell Law School. degree from Fordham Law She has served as a member of School, where he was a mem- the state bar’s Executive Com- ber of the Fordham Law Review. mittee since 1994. She is the im- He has served as a NYSBA mediate past chair of the Real vice-president, Ninth Judicial Property Law Section and a District, and a member-at-large of the Executive Committee. past member of the Committee on Women in the Law. Headley is a past president of the Westchester County Bar Asso- ciation, Westchester County Bar Institute and Legal Aid Society of Westchester County.

44 Journal | June 2000 NYSBACLE Publications Preparing For and Trying Editors-in-Chief the Civil Lawsuit Neil A. Goldberg, Esq. Saperston & Day, PC In this valuable book, 20 of New York State’s leading trial practi- Buffalo tioners reveal the techniques and tactics they have found most ef- Gregory P. Joseph, Esq. fective when trying a civil lawsuit. Fried Frank Harris Shriver & The new practitioner will benefit from this book’s comprehen- Jacobson sive coverage of the topic. A thorough discussion of pretrial prepa- New York City ration and investigation will aid the attorney in obtaining an ad- vantageous settlement even if the case never goes to trial. The numerous practice tips from some of the leading practitioners in New York State will provide excellent background for representing your client, whenever your case goes to trial. Especially helpful are excerpts from actual trial transcripts, which illustrate the effectiveness of certain lines of questioning. Ex- perienced trial attorneys will benefit by using the book to supplement and reinforce their own methods of practice. Periodic supple- ments make this book even more valuable.

Contents Pleadings and Motions Directed Strategies and Tactics in the About the to the Pleadings Wake of Tort Reform 2000 Supplement Disclosure The Conduct of the Deposition: Editor-in-Chief Neil A. Goldberg, Esq. Investigation of Case and Use of Some Guidelines and Ground Experts Rules In addition to case and statutory law updates, the 2000 cumu- Ethical/Good Faith Obligations 1987; Supp. 2000 • 448 pp., lative supplement expands the of Insurance Counsel hardbound • PN: 4195 coverage of the original text with Settlement List Price: $110 (incls. $8.15 tax) additional sample testimony and Selecting the Jury Mmbr. Price: $80 (incls. $5.92 practice tips. Motions In Limine/Opening tax) (Prices include the 2000 Supple- 2000 • 288 pp., softbound Statements • PN: 51959 ment) Direct Examination of Lay Wit- List Price: $55 (incls. $4.07 tax) nesses Mmbr. Price: $45 (incls. $3.33 tax) Cross-Examination of the Lay Witness “This publication should be on the desk of every litigator, young To order Direct Examination of the Tech- and old alike. . . . It thoroughly nical/Medical Witness examines the litigation process Call 1-800-582-2452 Cross-Examination of the Techni- from the pleading stage to post- Source code: cl1116 cal/Medical Witness trial motions with insightful comments from a host of distin- Use of Demonstrative Evidence guished practitioners.” New York State During Trial Henry G. Miller, Esq. Bar Association Summations Clark, Gagliardi & Miller Jury Instructions White Plains Post-Trial Motions

Journal | June 2000 45 New York State Bar Association’s Surrogate’s Forms

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46 Journal | June 2000 The New York State Bar Association’s Surrogate’s Forms on HotDocs offer unparalleled advantages, including:

• The Official OCA Probate, Administration, Small Estates, Wrongful Death, Guardianship and Accounting Forms, automated using HotDocs document-assembly software. • A yearly subscription service, which will include changes to the official OCA Forms and other forms related to Surrogate’s Court Practice, also automated using HotDocs. • A review process by a committee that included clerks of the New York surrogate’s courts (upstate and downstate) as well as practicing attorneys. • Links to the full text of the Surrogate’s Court Procedure Act (SCPA); the Estates, Powers and Trusts Law (EPTL); and the Uniform Rules for Surrogate’s Courts. • Presentation in a clear, easy-to-use graphical format that makes the forms tamperproof, protecting against accidental deletions of text or inadvertent changes to the wording of the official forms. • Practice tips to help ensure that the information is entered cor- rectly; automatic calculation of filing fees; and warnings when af- fidavits need to be completed or relevant parties need to be joined. • The ability to enter data by typing directly on the form or by using interactive dialog boxes, whichever you prefer. • The capability to view the filled-in form on your computer screen exactly as it will print. • The ability to spell-check your answers and to correct mistakes before you print the form. • An overflow capability that handles lengthy data by: –shrinking the text; –editing the response; –sending the text to an addendum; –resizing the field; or –creating a new field. • A history of forms you’ve used and when they were created for each client. • A “find” feature that allows you to locate any form quickly and easily.

“Use of the program cut our office time “Having already used this product, I “The New York State Bar Association’s in completing the forms by more than am convinced that the NYSBA’s Surro- Official Forms are thorough, well orga- half. Having the information perma- gate’s Forms on HotDocs will markedly nized and a pleasure to work with.” nently on file will save even more time facilitate the filing of forms with the in the future when other forms are surrogate’s courts.” Gary R. Mund, Esq. added to the program.” Probate Clerk Clover Drinkwater, Esq. Kings County Surrogate’s Court Magdalen Gaynor, Esq. Former Chair Brooklyn, NY Attorney at Law NYSBA Trusts and Estates Law Section White Plains, NY Elmira, NY

Journal | June 2000 47 Proposed GST Regulations Clarify TAX TECHNIQUES Exemptions for Grandfathered Trusts

BY ARTHUR D. SEDERBAUM

ver since the generation-skipping tioners in this area are familiar with Third, and of great interest to New transfer (GST) tax provisions each situation. York State practitioners due to the were enacted as part of the Tax First, if a court construction pro- presence of N.Y. Estates Powers and E 7 Reform Act of 1986 (TRA 86), the ap- ceeding resolves an ambiguity in the Trusts Law § 10-6.6(b) (EPTL), is a sit- plication of the grandfather provisions terms of the trust instrument, the im- uation in which the trustee possessing has generated a significant number of plementation of the court’s decree will invasion power distributes principal of private letter ruling requests.1 The ma- not cause the trust to lose its GST tax an exempt trust to a trust created jority of these ruling requests have exempt status provided the issue is under an instrument other than that concerned modifications made after “bona fide” (whatever that means) and under which the power to invade is 5 September 25, 1985, to trusts created the Bosch test is satisfied. The Treasury created. If the governing instrument of before that date.2 Department views such construction the exempt trust authorizes such dis- On November 18, 1999, the IRS is- proceedings as determining the sett- tributions without the consent or ap- sued proposed regulations to “provide lor’s intent as of the date of the instru- proval of any beneficiary or court, the ment, which was grandfathered to guidance with respect to the type of new trust will also be exempt provided begin with. An example in the pro- trust modifications that will not affect that the perpetuities period is not exposed regulations describes the case of the [GST tax] exempt status of a tended beyond any life in being at the an ambiguous provision in the trust in- trust.”3 The proposed regulations take date of the creation of the original trust strument regarding whether the princi- 8 a more liberal standard with respect to plus 21 years. A period of 90 years pal is to be distributed per stirpes or modifications that may occur in a measured from the date of the creation per capita. Practitioners have all had grandfathered trust without the loss of of the original trust will not be consid- instances of these construction pro- GST tax-exempt status. The hope is ered an exercise that postpones ab- ceedings, which are not reformation that this ruling will lessen the need for solute ownership beyond the perpetu- proceedings because the proceeding re- ities period. private letter rulings on the subject. lates back to the initial date of the in- What if court approval or benefi- Section 1433(b)(2) of TRA 86 ex- strument. Therefore, the construction ciary consent is required to make the empts certain trusts and transfers from by the court is really not a modification distribution, as is the case under the trusts from the imposition of the GST at all; the court is clarifying what the New York statute? An example in the tax. These exemptions are: settlor intended to say in the first place. proposed regulations, quoting EPTL 1. Any transfer from a trust that was Second, and related to the court con- 10-6.6(b) verbatim without actually cit- irrevocable on September 25, 1985, struction proceedings, is a court-ap- ing it, concludes that the consent re- to the extent the transfer is not proved settlement of a bona fide con- quirement regards use of the statute a made out of additions to the trust troversy relating to the administration 4 “modification,” making this exception after that date. of a trust or the construction of the to the loss of grandfathered status in- 2. Any transfer under a will or revo- terms of its governing instrument, but applicable.9 However, because the dis- cable trust executed before Octo- only if “(1) [t]he settlement is the prod- tribution to the new trust in the exam- ber 22, 1986, if the testator or sett- uct of arm’s length negotiations, and ple did not shift a beneficial interest in lor died before January 1, 1987. (2) [t]he settlement is within the range the trust to any beneficiary of a lower 3. Property included in the gross es- of reasonable outcomes under the gov- generation than that of the beneficia- tate of a decedent if, on October erning instrument and applicable state ries of the original trust, it met the re- 22, 1986, he/she was under a men- law addressing the issues resolved by 6 quirements of the separate exception, tal disability to change the dispo- the settlement.” What is “within the discussed below, under which exempt sition of his/her property and did range of reasonable outcomes?” Obvi- status will be retained. not regain competence to do so be- ously, the IRS will be the arbiter of this. fore death. The example in IRS’s explanatory pro- In effect, if the trust settlor’s autho- visions to the proposed regulations is rization is all that is required to make Scope of Modifications singularly unhelpful and there is no the distribution to a new trust, the Five different situations are covered example in the proposed regulations trust provisions may be extended to in the proposed regulations. Practi- themselves. younger generation beneficiaries with-

48 Journal | June 2000 out the loss of exempt status, so long as transfer made from the transferor (de- cise that discretion by appointing the new trust does not last beyond the fined as the person whose transfer was trust principal to a trust under a different instrument. perpetuities period. A distribution subject to either the federal gift tax or 14 8. Prop. Treas. Reg. under a statute such as New York’s to the federal estate tax ) to a skip per- § 26.2601-1(b)(4)(i)(A). a new trust with younger generation son. The transfer occurs with the act of 9. Prop. Treas. Reg. beneficiaries will cause the trust to lose exercising, releasing or lapsing. A § 26.2601-1(b)(4)(i)(E), Example 2. its exempt status. Thus, at this junc- lapse of a testamentary power of ap- 10. Prop. Treas. Reg. ture, the underlying purpose of EPTL pointment occurs upon the date of § 26.2601-1(b)(4)(i)(D). 10-6.6 is being attacked by the pro- death. If that date is after September 11. 183 F.3d 812 (8th Cir. 1999) (holding posed regulations. If no change is 25, 1985, the lapse should be subject to that the exercise of a general power of appointment over a trust that was made in the final regulations, the EPTL the GST tax. irrevocable on September 25, 1985 is may have to be amended to enable a Conclusion exempt from the GST tax). previously grandfathered trust to be 12. 78 F.3d 795 (2d Cir. 1996) (holding extended into more remote genera- The joke is often made that the that the lapse of a general power of tions within the original perpetuities statement “I’m from the IRS and I’m appointment over a trust that was period. here to help you,” is second only to irrevocable on September 25, 1985 is “the check is in the mail” in accuracy. not exempt from the GST tax). Fourth, in a catch-all provision, a Yet, these proposed regulations are an- 13. Prop. Treas. Reg. § 26.2601-1(b)(1)(i). grandfathered trust modified by a re- other recent example of IRS’s attempt 14. Internal Revenue Code § 2652(a). formation, judicial or nonjudicial, that to be more user-friendly. The agency is valid under state law will remain ex- Arthur D. Sederbaum is a member of has recognized taxpayers’ concerns empt for GST tax purposes if the mod- Patterson, Belknap, Webb & Tyler with grandfathered GST tax trusts, and ification does not shift a beneficial in- LLP in New York City. He is a fellow these proposed regulations, acknowl- terest in the trust to a beneficiary who of the American College and Trusts edging that there has been no previ- occupies a lower generation than those and Estates Counsel and a frequent ously published position, constitute an lecturer and author. who held the beneficial interest before attempt to give taxpayers guidance on the modification.10 Also, the modifica- modifications that will be acceptable to tion cannot extend the time for vesting the IRS in maintaining the grandfa- a beneficial interest beyond the period thered status of a GST tax-exempt originally provided for in the trust. NYSBACLE trust. We will, however, be compelled Fifth, the exercise of a general to follow the progress in these pro- power of appointment after September posed regulations as they affect the use 25, 1985, is treated in detail by the pro- and operation of EPTL 10-6.6. posed regulations in order to reconcile New York State Bar the differences between the Eighth Cir- 11 1. Tax Reform Act of 1986, Pub. L. No. Association seminars cuit in Simpson v. United States and 99-514, § 1433(b)(2), 100 Stat. 2717 the Second Circuit in Peterson Marital (TRA 86). and selected audio- 12 Trust v. Commissioner. The question to 2. The GST tax does not apply to any tapes and videotapes be answered is whether exercising a transfer that was irrevocable on Sep- general power of appointment and al- tember 25, 1985, to the extent the are a great way to transfer is not made out of additions lowing a general power of appoint- to the trust after September 25, 1985. earn MCLE credit! ment to lapse are any different. Trea- TRA 86 § 1433(b)(2)(A). sury believes they are not, concluding 3. 64 Fed. Reg. 62,997 (1999). For more information on that an individual possessing a general 4. See Treasury Regulation CLE seminars and power of appointment possesses the § 26.2601-1(b)(1)(ii) (“Treas. Reg.”) products, call equivalent of outright ownership in for exceptions to this rule. the property. Thus, the proposed regu- 5. Commissioner v. Estate of Bosch, 387 U.S. 456 (1967) (court’s decision lations take the position that the exer- must be consistent with applicable 1-800-582-2452 cise, release or lapse of a general state law that would be applied by power of appointment created in a the highest court of the state). grandfathered GST tax trust is a trans- 6. Proposed Treas. Reg. fer that occurs when that exercise, re- § 26.2601-1(b)(4)(i)(B). lease or lapse becomes effective.13 This 7. Under that section a trustee with absolute discretion to invade principal position seems correct to the author, for the income beneficiary may, because the GST tax arises from a under certain circumstances, exer-

Journal | June 2000 49 NYSBACLE Publications Estate Planning and Will Drafting in New York Estate planning involves much more than drafting wills. As the in- Editor-in-Chief troductory chapter of Estate Planning and Will Drafting in New York Michael E. O’Connor, Esq. notes, good estate planning requires the technical skills of a tax DeLaney & O’Connor, LLP lawyer; a strong understanding of business, real property and dece- Syracuse dent’s estate law; and the human touch of a sensitive advisor. This book is designed to provide an overview of the complex rules and considerations involved in the various aspects of estate planning in New York State. Written by practitioners who specialize in the field, Estate Planning and Will Drafting in New York is a comprehensive text that will benefit those who are just entering this growing area. Experienced practitioners may also benefit from the practical guidance offered by their colleagues by using this book as a text of first reference for areas with which they may not be as familiar. Annual updates will make Estate Planning and Will Drafting in New York an invaluable reference for many years to come.

Contents 6. Revocable Trusts 2000 • 700 pp., loose-leaf 1. Estate Planning Overview Howard B. Solomon, Esq. • PN: 4095 James N. Seeley, Esq. Markfield & Solomon List Price: $140 (incls. $10.37 tax) Bond, Schoeneck & King, LLP New York City Syracuse David C. Reid, Esq. Mmbr. Price: $110 (incls. $8.15 tax) 2. Federal Estate and Gift Taxation Rochester Karin J. Barkhorn, Esq. 7. Lifetime Gifts and Trusts for Mi- 12. Long-Term Care Insurance Ingram Yuzek Gainen nors Peter Danziger, Esq. Carroll & Bertolotti LLP Susan Porter, Esq. O’Connell and Aronowitz New York City US Trust Company of New York Albany William R. Dunlop, Esq. New York City 13. Practice Development and Schnader, Harrison, Segal Magdalen Gaynor, Esq. Ethical Issues & Lewis, LLP Attorney at Law Arlene Harris, Esq. New York City White Plains Kaye, Scholer, Fierman, Hays Sanford J. Schlesinger, Esq. 8. Qualified Plans and the IRA in the & Handler, LLP Kaye, Scholer, Fierman, Estate New York City Hays & Handler, LLP Robert F. Baldwin, Jr., Esq. Jack Evans, Esq. New York City Baldwin & Sutphen, LLP Attorney at Law Syracuse 3. The New York Estate and Great Neck Gift Tax 9. Estate Planning with Life Insurance Carl T. Baker, Esq. Douglas H. Evans, Esq. FitzGerald Morris Baker Firth PC Sullivan & Cromwell To order Glens Falls New York City 4. Fundamentals of Will Drafting 10. Dealing with Second or Troubled Call 1-800-582-2452 Denise P. Cambs, Esq. Marriages Source code: cl1118 DeLaney & O’Connor, LLP Willard H. DaSilva, Esq. Syracuse DaSilva, Hilowitz & McEvily LLP New York State 5. Marital Deduction/Credit Shel- Garden City ter Drafting 11. Planning for Client Incapacity Bar Association Mary Beth Ritger, Esq. Louis W. Pierro, Esq. Olshan Grundman Frome Pierro & Associates, LLC Rosenzweig & Wolosky LLP Albany New York City

50 Journal | June 2000 ness. The so-called “Dead Man’s Rule” law. There, the assumption is that one is a very much alive survivor of that does not belong only to oneself. Just as LAWYER’S mistrust2 and, for what are deemed to one has no right to inflict injury upon be sound policy reasons, so are the another, so one has no right to inflict in- BOOKSHELF ever-expanding evidentiary privileges. jury on oneself. Therefore, the confes- Those policy reasons, however, sion of a defendant had no legal valid- have failed to establish a logical coher- ity and was unacceptable as evidence. ence in the present rules of privilege The passage of centuries has im- videntiary Privileges (Grand that bar a witness’s testimony. For exposed limitations on this broad exclu- Jury, Criminal and Civil Trials), ample, there may be policy reasons for sion against self-incrimination. Gray Eby Lawrence N. Gray, New York continuing the common law prohibi- comprehensively deals with its present State Bar Association (1999), 241 pages, tion against disclosure of a confidential lesser breadth, in the New York courts, $50 ($38 for members). Reviewed by communication made by one spouse to in the U.S. Supreme Court, and in David O. Boehm. the other.3 However, those reasons every federal circuit with the varying Lawrence N. Gray is an author of give no logical support to the distinc- interpretations under the Federal remarkable and prodigious productiv- tion between spousal incompetency to Rules of Evidence. ity. His extensive writings on many testify in a matrimonial action based The journalists’ privilege, which is a subjects, including Grand Jury Proceed- on adultery4 and the absence of similar product of the N.Y. Civil Rights Law,5 ings and Criminal and Civil Contempt, incompetency in a divorce action rather than of the CPLR, is the subject have made significant and invaluable based on other grounds. Of course, of a penetrating analysis by the author. contributions to the jurisprudence of that distinction is not based on logic As he points out, the statute creating New York. And now he has completed but on historical attitudes in New York the privilege as it was interpreted by an expanded third edition of his Evi- against divorce. the Court of Appeals in 1988 appears dentiary Privileges, which illuminates As is apparent, the myriad rules of to be in direct conflict with Article I, an interesting area of the law that deals evidentiary privilege, with their incon- section 6 of the state Constitution deal- as much with human relationships as gruities and varying applications, can ing with the willful misconduct of it does with the rules of evidence. be labyrinthine. However, they have public officers, as well as the Sixth The rules of privilege are a reflec- been ably harnessed and presented by Amendment of the U.S. Constitution. tion of the historic tension between the Lawrence Gray in his encyclopedic Interestingly, as Gray further notes, the high importance given to fact-finding treatment of the privileges in our law. Court of Appeals decision in O’Neill v. in the legal process and the impedi- He has made a scholarly survey of this Oakgrove Construction, Inc.,6 appears to ment to that goal created by develop- complex subject that is both authorita- be in direct conflict with its earlier de- ing human values and priorities. Pro- tive and immensely readable. cision in People ex rel. Mooney v. Sheriff fessor Lawrence M. Friedman, in his In addition to the older, well-known of New York County.7 excellent history of American law, privileges, he covers the newer privi- Similar trenchant review is given to writes that many of the limitations im- leges, such as the those of the social the judicially created parent-child posed on the receipt of evidence are worker-client and rape counselor- privilege. Despite a number of Second the result of the early distrust in post- client, and the privilege given to library and Fourth Department cases, that colonial law of both the judge and jury records. It also informs us of the failed privilege is found neither in the com- as fact-finders. The rules of evidence attempts to assert privilege by pharma- mon law nor in legislation. It is the leg- grew up as some sort of countervailing cists and scholars. There is an extensive islature alone that in New York has the force.1 Thus, the hearsay rule evolved, discussion of the privilege against self- power to create a privilege, and the au- as did its numerous exceptions. incrimination with an interesting his- thor admonishes with some justifica- Similarly, as Friedman points out, tory of its origins in the early 16th cen- tion that, in the absence of legislative the rules limiting the kind of evidence tury of English history and its even action, a privilege should neither be that could be heard from witnesses be- earlier roots in the Talmud. “created or ‘evolved.’” As he points came equally complicated. Early law As to the Talmud, a digression may out, all of the federal circuit courts barred husbands and wives from testi- be in order. Under Talmudic law, a have rejected the parent-child privi- fying for or against each other. Neither party to a civil suit could admit the lege, whether based on maintaining a plaintiffs nor defendants could testify obligation for which suit was brought successful parent-child relationship or in their own behalf because no person on the assumption that every person is on the theory of the best interest of the with a financial interests in the out- entitled to give away his or her prop- child. However, as an alumnus of the come of a case could testify as a wit- erty as a gift. Not so under the criminal Fourth Department, I feel obliged to

Journal | June 2000 51 suggest that in In re Application of A. & tion of the phrase (“nolle to be unwill- mate terms of art, on the one hand, and M.,8 that court based its decision not so ing, not to wish; prosequi to prosecute, musty expressions with perfectly ser- much on privilege as on the constitu- continue, follow up”) followed by a viceable English equivalents, on the tional right of privacy and “the in- polished translation (“to be unwilling other, should not be crossed. Keep tegrity of family relational interests” to continue or follow up”). Then you habeas corpus, but renounce sub suo per- that requires constitutional protection. will see a definition of the term as used iculo forever. Turn to this book for its Gray’s book is a learned and global in the law: “A formal entry on the seductive information and lexical guide to this sheltered area of the law. record of an action, indicating that the charms, but go home with the lan- His thoughtful and thorough discus- plaintiff or prosecutor will no longer guage you came with. sion of the privileges arising under the continue with the suit or action either Bill of Rights, the circumstances under wholly or partly.” Then you will find a Susan McCloskey is president of Mc- Closkey Writing Consultants in Ver- which a privilege may be waived, and sentence in which the phrase properly bank, N.Y., and a frequent contributor his procedural instructions with re- appears, followed by related terms—in to the Journal. spect to grand jury proceedings, to- this instance, “non prosequitur; qui gether with the many helpful state and semel etc.; and retraxit”—to which obbing: Emotional Abuse in federal case and legislative references, you might turn. the American Workplace, by make this an invaluable text to include Your first question settled, you will MNoa Davenport, Ph.D., Ruth in every practitioner’s library. find other riches in store. If you’re un- Distler Schwartz and Gail Pursell El- certain about the plural form of amicus liott, Civil Society Pub., 213 pages, 1. Lawrence M. Friedman, A History of curiae, you’ll find it here: amici curiae. If $14.95. Reviewed by Judith A. La American Law 153 (2d ed. 1985). you have wearied of using the Latin res Manna. 2. N.Y. Civil Practice Law and Rules judicata, you’ll find the French equiva- Do you remember when you were a § 4519 (CPLR). lent, chose jugée. And if you’re curious 3. CPLR 4502(b). kid on the school playground and for about expressions from other lan- some reason that was important at the 4. CPLR 4502(a). guages that have nothing to do with 5. N.Y. Civil Rights Law § 79-h(b). time one group of kids decided to pick the law, you can explore the entries for on some other kid? They would all de- 6. 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988). the Japanese honcho, the Hebrew shib- 7. 269 N.Y. 291 (1936). cide to make life miserable, every day, boleth, the Italian adagio, and the Span- for a classmate, apparently for sport. 8. 61 A.D.2d 426, 433, 403 N.Y.S.2d 375 ish fandango. (4th Dep’t 1978). Well, that about sums up the You’ll be reassured to find that premise of this book, except that the lawyers are not alone in relying on for- David O. Boehm, a retired associate playground is the workplace and the eign languages to adorn their prose; justice of the Supreme Court, Appel- bullies are one or more fellow employ- foreign expressions current in philoso- late Division, Fourth Department, is ees, or a superior or subordinate climb- now senior counsel at Harris Beach & phy, history, rhetoric, and the sciences ing over superiors to get to the top. Wilcox, LLP, in Rochester. appear here as well. The book is a cor- nucopia for those who love words and Of course, this is said in many more orld Dictionary of Foreign revel in the English language’s habit of pages and in more words, over and Expressions: A Resource for begging, borrowing, and stealing its over. It takes up almost 200 pages, but WReaders and Writers, by lexicon from other tongues, living and that includes a seven-page index, an Gabriel G. Adeleye with Kofi Acquah- dead. The authors and editors of this Authors’ Note, Forward and Introduc- Dadzie, edited by Thomas J. collection—a professor of ancient his- tion and numerous charts, lists and Sienkewicz with James T. McDonough tory, a teacher of law, and a classicist— other made to be easy-read graphics, Jr., Bolchazy-Carducci Publishers, Inc., are expert guides. Together, they have followed by an Epilogue, Bibliography 1999, 411 pages, hardbound $70; pa- assembled an elegant and useful refer- and Index. Did I forget to mention the perback $29.95. Reviewed by Susan ence tool. chapter endnotes? McCloskey. All that the World Dictionary of For- What we learn from the authors If you have ever wondered, in the eign Expressions lacks is the caution (Noa Davenport, a cultural anthropol- small hours of a new day, what nolle that legal writers should rifle its trea- ogist and an adjunct assistant profes- prosequi actually meant to native sures sparingly. A legal writer’s first sor at Iowa State University; Ruth Dis- speakers of Latin, the World Dictio- duty is to communicate clearly in Eng- tler Schwartz, president of a consulting nary of Foreign Expressions is the ref- lish. That an inviting entry appears and marketing firm; and Gail Pursell erence book for you. here is not warrant to jimmy it into a Elliot, a human resources and training In an easily legible format, you will brief, legal memorandum, or letter to a consultant) is that bullying is now to find a helpful word-by-word transla- client. The bright line between legiti- be called “mobbing” in the workplace,

52 Journal | June 2000 even though it can be the act of one “Since you have no written contract, person against another. you believe you have no recourse.”) As to the explanations offered about and “Considerations That May Lead who does it, who has it done to them, You to Decide to Take Legal Action” (I why and how to guard against it, the like, “You want your employer to be readership of this Journal will not find more vigilant in preventing future oc- any of the information earthshaking. currences.”) Get the general picture? Soft, sensitive, feeling, maybe, but not There is a later chapter that por- earthshaking. tends to be about “Mobbing and the To be fair, the information is inter- Law.” Danger. Danger. It offers a Lay- esting, certainly, but only the first or man’s Restatement of Employment second time it is repeated. Mostly it is Law, made to look reliable, but akin in overly general and not very grounded. substance (and depth) to what a friend The authors rely heavily on limited was told by a friend who knows for a European study, for example, and they fact that another friend’s attorney offer broad statements, mostly mean- said.... Well, you get the idea. And the ingless, as if it is actually informative, explanation on “hostile environment” like listing the “parts” of the “mobbing is a must-miss. No law here. phenomenon,” as No. I correct myself. Law is covered in this chapter. In fact, on the first page the psychology and the circumstances of the mobbers; the organi- of the chapter the reader is offered two zational culture and structure; the very sound legal concepts. Under the psychology, personality, and cir- subtitle “Present Rights and Statutes” cumstances of the mobbee; a trigger- the authors “wish to emphasize that ing event, a conflict and factors out- mobbing is a new cause of action” side of the organization, i.e., values which “per se is not covered under and norms of the U.S. culture. present laws in any of the 50 U.S. Amid limited text, there are a multi- States.” (Whoops. So much for the tude of interview vignettes from chapter title.) And they did a nice job “mobbees” who stand in a variety of with their footnoted disclaimer, “This treatment circumstances. They “share” chapter is in no way a substitute for paragraphs of their stories of being the services of an attorney.” Truth and mobbed, and especially their “feel- honesty. Thank you. ings” with the reader about their expe- The authors of Mobbing cannot de- rience. A lot of fluff, a lot of emotional cide if this is to be a self-help book or purging, a lot of words. A lot of the an employer’s reference book or some- same words. A lot. thing else, as it clearly addresses dif- There is not much to recommend of ferent chapters to different audiences. this book to the legally trained. Any What it is not, is anything near to being labor and employment law practi- a legal review and analysis. Simply tioner can tell you that this type of ac- put, this is a moderately interesting tion, in its blatant and provable form, pop-psych article, stretched almost be- is civil harassment, which might be ac- yond recognition. tionable in a different forum if the harassing touched a protected class. But Judith A. La Manna, an attorney who do not rely on this book for the law. serves as a mediator in employment and civil matters and as a labor arbi- The part of the book that offers legal trator, was for more than 10 years the advice, mercifully, is short and harm- editor of the Labor and Employment less enough. It takes up two pages of Newsletter published by the Labor the chapter entitled “How You Can and Employment Law Section. Cope.” This includes the sub-subtitles of “Concerns That May Keep You From Taking Legal Action” (Example,

Journal | June 2000 53 “essential clause” as a substitute for then is the correct word to use. Are they “restrictive clause” and “non-essential wrong, or have I been ungrammatical LANGUAGE clause” for the non-restrictive clause. all these years? “The difference between them,” the Answer: They are wrong; you are TIPS book states, “is that the essential clause right. The word than is a conjunction, cannot be eliminated without changing used to express comparison in sen- the meaning of the sentence—it so ‘re- tences such as “He is taller than I am,” B Y G ERTRUDE B LOCK* stricts’ the meaning of the word that its and “I like sweets more than salads.” absence would lead to a substantially The word then is a temporal adverb in- Question: A Rochester lawyer who different interpretation of what the au- dicating the time of occurrence. It does not want his identity disclosed thor meant.” means “at that time,” as in “It hap- because he considers his question “too Regardless of the terminology you pened then,” or “Then the plaintiff re- basic” asks which relative pronoun adopt, the principle is easy to under- alized that something was unusual.” (which, that, or who) is correct in the fol- stand when you use as examples the The young associates may be con- lowing two sentences: two sentences that follow: fused into thinking that the temporal • The identity is unknown to this adverb then is appropriate because a defendant . . . did not sell the • The member of this faculty who is goods. on sabbatical at present is Professor date follows than in the second sen- Mary Smith. tence. But change the sentence, remov- • The identity is unknown to ABC Corporation . . . did not sell the • Professor Mary Smith, who is a ing the date, and one can see why than goods. member of this faculty, is on sabbat- is correct: “I will need this form earlier ical at present. than I previously stated.” Substituting The lawyer need not have been con- In the first sentence, who “defines” “at that time,” and you’ll get the unid- cerned about revealing her/his iden- which faculty member is on sabbatical. iomatic, “I will need this form no later tity. This question has befuddled many In the second sentence, the member of at that time September 17.” writers, legal and lay, and has caused the faculty has already been identified many an ulcer for authors whose man- From the Mailbag (“defined”), and the non-restrictive rel- uscripts have been returned by editors, A number of correspondents re- ative clause that follows merely adds in- with every relative clause red-lined. sponded to my request for substitutions formation. I tell my students that a sim- to the salutation Gentlemen. The most A short answer to the question: in ple way to decide whether a relative the first sentence, add either which or popular suggestion was Greetings, the clause is restrictive (no commas) or pejorative association with the former who, depending on whether the defen- non-restrictive (commas) is to ask the dant referred to is a person or an insti- military draft apparently having disap- question: “Which one?” If the clause peared. One correspondent, Illinois at- tution. In the second sentence, in which answers that question, it is restrictive. the entity referred to is a corporation, torney Fred Carman, objected, arguing In the first illustration, that question that the subject was off-target because use which. In both sentences, add a (“Which faculty member?”) is an- comma before the relative pronoun. the salutation Dear, which means, swered by the relative clause that fol- “beloved, loved, precious,” is inappro- The explanation is easy enough; lows. In the second illustration, we priate. Dear, he said, “should be con- only the grammatical terminology may know who the faculty member is, so signed to the Home for Old Words be confusing. A few definitions first. A the question does not apply. (where it can live with wherefor and relative clause is any independent Although this rule is often breached, whereas),” unless the person to whom clause that is introduced by a relative it is important to follow because judges you are writing is really “dear” to you. pronoun (who, which, or that). A restric- sometimes decide cases based on the Other correspondents also objected to tive relative clause “defines or re- “Doctrine of the Last Antecedent,” the Dear, but none so eloquently. stricts” the language that follows. In a legal language for the grammatical rule non-restrictive relative clause, the lan- *Lecturer emeritus and writing special- of punctuation in relative clauses. guage following the relative pronoun ist at Holland Law Center, University of Question: As a legal secretary for has already been “defined or re- Florida, Gainesville, FL 32611, and con- more than 20 years, I have often typed sultant on language matters. She is the stricted.” Commas enclose non-restric- the following sentences: author of Effective Legal Writing, fifth tive relative clauses; no commas are edition (Foundation Press, July 1999), used around restrictive clauses. • I have no alternative other than to and co-author of Judicial Opinion Writ- file this motion. (I told you that the grammatical ter- ing Manual (West Group for ABA, 1991). minology might be confusing; now pity • I will need this form no later than The author welcomes the submission September 17. your clients who must deal with legal of questions to be answered in this col- umn. Readers who do not object to their language.) In an effort to reduce the Recently, however, three young as- names being mentioned should state so confusion, the editors of the Associated sociates have criticized my use of than in their letters. E-mail: Press Stylebook adopted the designation in these sentences, maintaining that [email protected]

54 Journal | June 2000 Adam David Chassin Hope Ellis Drury Juan Gabriel Giraldez Galal Chater Robert J. Dunne Ann Laura Gisolfi Partha Pratim Chattoraj Kimberly Elizabeth Melissa Glass NEW Julie Min Chayet Dvorchak Joseph Daniel Glatt Rachel Lynn Chazin Geoffrey Paul Eaton David Ryan Gledhill MEMBERS Sonya Gidumal Chazin Fred Ebrahemi Stacy Felice Gluck Victor W. Cheng Bettina Eckerle Aaron Arthur Goach WELCOMED Jaiho Cho Terry L. Eder Kaufman Ekin Gokkilic Allison Diane Christians Bradley Kent Edmister Lauren Goldberg David V. Christopherson Grace Frances Egan Jessica Paige Golden Daniel Chu Daniel Scott Ehrenreich Joanna Goldenstein Patrick P. Chu Daphna Eisenberg Lauren Beth Goldfarb FIRST DISTRICT Stephanie Mara Berger Anthony G. Ciavarelli Tamer Hany El-Emary Stuart Robert Goldfarb Jennifer R. Abrams Andrea Grace Berkley Jeffrey Ellis Clarke Robert J. Elders David Michael Goldstein Micah Aaron Acoba Gillian L. Berman Amy Christina Cococcia Anita S. Eliot Eric Matthew Goldstein Anna May Adams Matthew Brian Berman Brett Frederick Cohen Saamir Elshihabi Simon Goldstein Colin McNeill Adams Barry M. Bernstein Bryan Jason Cohen Blair A. England German A. Gomez Michael Aaron Adelstein Dara Robin Bernstein David Cohen Stefanie Lynn Epstein Nadeen N. Gopie Veronica Ester Afif Maria Edith Bertoletti Mitchell S. Cohen Sandra J. Esquiva-Hesse Robert Joseph Gorzelany Richard C. Agata Monica V. Bhattacharyya Seth Adam Cohen Leo L. Esses Ross M. Gotler Nitza A. Agrait Alexandre Bibitchev Debra Cohn Sagit Amit Evan Jonathan M. Gottsegen Monica Aguilar Maryanne Bifulco Mark David Cole Lydia Lucy Fan Clovis S. Goyon De Hyung Jung Ahn Christine Connolly Beth Ann Collier Lilly Farahnakian Courmakou Suzin Ahn Bingham Ian C. Connor Anthony J. Fauci Rebecca D. Gradinger Stephen Andrew Ahrens Michael Sarkis Birajiclian Heidi Christine Constantine Jonathan Andrew Feldman Christopher Neil Gray Jonathan A. Ain Nathan Vidra Bishop Kimberly Lynn Cook Anthony Feo Isaac Stephen Greaney Mark A. Allebach Elizabeth Amy Blecker Victoria Shane Cook David L. Feron Diane Greenburg Danny Lowell Allen Barry S. Bloom Michael Parsons Cooley Robert D. Ferrari Ashley S. Gregory Harold Davis Allen Esther E. Bloustein Karen D. Coombs Mark Stephen Filipini Andrew Griffel Garland W. Allison Simone Zahleay Boayue John Abbot Root Cooper Marianne Christina Fiorelli Margaret E. Grigus Joseph Kenyatta Alston Valerie L. Boccadoro Mary Ellen Cormier Jens Martin Fischer Suzanne M. Grosso Natercia Alves Philippa Melanie Bond Donna Elizabeth Correll Laura Jane Fischer Tracy Lynn Groves Anne-Mette E. Andersen Laurie J. Borgerding Cynthia Corsiglia Cecelia M. Fitzgerald Cheryl L. Guibone Tawia Ansah Jennifer Rose Boyle Todd G. Cosenza Mary Beth Flaherty Ranjeer Singh Guliani Roger Ethan Anscher Mark Bradford Thomas Nicholas Costa Victor A. Flores Nicholas L. Gunther Jennifer D. Antolini Jeffrey L. Brandt Jennifer Anne Cotton Michael Anthony Foley Kathleen Roseanne Jodye M. Anzalotta Jarrett Braterman Florence Amanda Crisp Donyele L. Fontaine Gutman Naomi Aoyama Lance Marvin Breiland Joseph Patrick Cunningham Nicole Reyes Forde Jill Marie Guzzetti Daria C. Apter Sheila Mary Brodbeck Payam Danialypour Christy Lynn Forth Peter C. Gyr Angelica Aquino-Gonzalez Adam M. Brodsky Joseph Carl Daniels Michael Peter Fox Paul Thomas Halajian Stacy P. Aronowitz Eliezer Brodt Leslie Ann Danon Lisa B. Freedman Daphne M. Halaris Ryan Asher Darren Chester Broughton David Samuel Beth Freeman Meghan M. Halleron Joanna Lynne Askey Valerie Ann Bruce Melissa Jayne Dawson Joshua Mark Fried Constantine D. Haloulos Lauren Jennifer Aste Frank Anthony Bruno Bart J. De Bie Alexander S. Friedman Jyotin Rustom Hamid Shlomo Aviezer Niles Bryant Kiva Dina A. De Falco Mayrose Friedman Douglas A. Hand Lila Ayers Kristen Skog Buersttetta Monica De La Torre Michael Joseph Friedman Nir Harel Miriam Aliza Bacon Vu Quy Bui Sona De Jacob Joseph Frohman Christine M. Harman Darci Jean Bailey Micah Jay Burch Alison Degregorio Daniel Paul Frommer Tomasita L. Harrison Lisa Gina Baltazar Kimberly K. Burgess Rachelle DeGregory David S. Frydman Erik Anders Hassing Jason Michael Ban David E. Burns Hendrik DeJong Yoriko Fujimaki Jody Irene Hawke Michal Barak-Lotenberg Denis M. Butkovic Ada Dekhtyar Erin Caitlynn Furman Richard D. Hayes Karen Marie Barna Robert Raymond Buzard Vincenzo A. Deleo Skye Gabel Sean Hayes Karl S. Barrios Johanna Calabria Paul Denaro Rachel Gagnebin Deborah E. Heine Selwyn N. Bartholomew Ferdinand A. Calice Jennifer Anne DePriest M. Salome Galib Leigh Ann Hellner-Cord Donna L. Bascom Suzanne Rita Calvert Daniel Paul Derechin Thomas J. Gallagher Ryan Scot Henriquez Luana Bastone Timothy Gray Cameron Beth Ann DeSanto David Gallai Brian Thomas Henry Andrew J. Bates Jay Charles Campbell Meredith Lisa Deutsch Eduardo Gallardo Julia E. Herr Gregory James Batista Stephen Louis Campbell Rebecca Rene Dew Omar B. Gambari David Robert Hesse Deborah M. Baumgarten Thomas Teige Carroll Jeremy W. Dickens Gila Garber Dana Danielle Hill David Stephen Baxter H. Stephen Castro Michele C. Dickey Raymond Charles Garrigan Malika S. Hinkson Crystal Lynne Beal Olivier Christophe Serena C. Dignan Rebecca M. Gaslow Jennifer Lee Hobbs David N. Becker Catherine Rebecca Ann Ditsch Steven Kenneth Gendal Christopher B. Holt Steven Anthony Behar J. Justin Cavanah Lorraine B. Dixon Nikolaos George Unkee Sarah Hong Jerilyn L. Bell Scott M. Cech Teal MacLure Dixon Sophia Georgiou Michael R. Horenstein Atienne Caron Benitez Jeff Alan Chabrowe Michelle Dobrawsky Melina Gesell Steven Brent Horowitz Stacey Lynn Bennett Alex Verbin Chachkes Anna E. Dodson Csuti Craig Allin Getty Peter Bryn Hovde Robert D. Benton Michael Soo-Hyun Chae Patrick Donohue Jonathan Peter Gill Ying X. Hsu Bethany Ruth Berger Chad Roger Chambers Rosemary Dooley Michelle Gill Stanley J. Hsue Jonathan Andrew Berger Cherng Hsueh Chao Terence Robert Dougherty Sartaj Singh Gill Sharon Ting Huang Marc Peter Berger Anita Lee Chapdelaine Arthur Thomas Doyle Jennifer Lynn Gillman Steven Wenhong Huang

58 Journal | June 2000 Michael Erich Hurelbrink Audrey Landau-Flynn Stephanie Copp Martinez Yasutaka Nukina Santiago J. Rendon Michael David Hynes David Matthew Lange Dina Maslow Haskell Hillel Nussbaum Jessica M. Resnick Raymond Iglesias Elizabeth Sudbury Angela Mastrandrea-Miller James A. O’Brien Timothy Cotton Reusing Soo Hyun Im Langston Lisa Mateos Maeve O’Connor Scott L. Reynolds Yongjin Im Gregory B. Lare Karen Isabelle Maxfield Yewande O. Odia Eva L. Robertson Clara Colette Ingen-Housz Karen Elizabeth Lasko Joanna Elizabeth McCarthy Daniel J. O’Donnell Silke Angelika Rochelois Jennifer Yayoi Ishiguro Jesse David Latham Shawn Edward McDonald Neil Francis O’Donnell Paul M. Roder Catherine Isobe Rachel Lavine Laurie McFadden Yon-Sam Oh Christopher S. Roehrs Marcus William Jackson Steven David Lavine Daniel John McLeod Peter F. Olberg Katherine D. Roome Stanley G. Jacobs Audra K. Lazarus Stephen McLeod Justine Jane Olderman Paul P. Rooney Darryl Morgan Jacobson Alla G. Lee Laura Haldeman McNeill Mark S. Oldman Phoebe Roosevelt Ivy Lynn Jacobson Anita J. Lee Kate Marietta McQuire Amy Katherine Olson Tali Rosen Randolph Daniel Janis Emma Lee Brian C. Meagher Riyad Ali Omar Stephan L. Rosenbaum Evan M. Janush Hae-Joon Joseph Lee Gabriel Ethan Meister Jonathan Henry Oram Ira Lawrence Rosenblatt Cameron Jenkins Joseph Lee Arthur Paul Melendres Kenneth David O’Reilly Ronald G. Rosenfarb Garry William Jenkins So Young Lee Andrea Mendez Katherine Florence Shira Y. Rosenfeld Heather Lynn Jensen Winnie Lee Neil Jason Meyer O’Rourke Jeffrey Mark Rosin Miles D. Jessup Maria Eduardovna Leibholz Beth Rachel Meyers Francisco D. Ortiz Kristina Ross Gretchen Ann Johanns Lara K. Leighton Ron Lee Meyers Dawn Monique Osborne Michelle Anne Rossettie James David Jones Barbara Ann Leonhauser Edward Bennett Micheletti Jason Abe Otto Andrew Robert Rossi Leeta Lyle Jordan David Jason Lestz Adam Matthew Miller Jodie Leigh Ousley Andrew Evan Roth Michaela A. Jurkowitsch Jared M. Levin Bradley R. Miller Dennis June Pak Patricia Roufca Catherine I. Kaczowka Steven L. Levine Charles Lee Miller Simone V. Palazzolo Gregg Lawrence Rozansky Arjun Lal Kampani Lisa Levinthal Sarah Hale Minifie Richard Patrick Palermo Noga Rubinstein Walter M. Kane Meredith Levy Sapna Mirchandani Alice Dene Palmer Scott Ruskay-Kidd Farzana Salim Kanji Erica Lewis Stacey-Alissa Mirsky Carleton Paul Palmer Victoria B.M. Sanborn Gary Lee Kaplan David Gerard Leyden Marc Philip Misthal Sye Ha Park Teena-Ann Varghese Barbaros M. Karaahmetoglu Jennifer T. Li Matisse Mitelman Jeffrey David Parnass Sankoorikal Elizabeth J. Karas Gioia Marie Ligos Nikhil Mittal Bryan J. Pechersky Cuauhtemoc R. Santa Ana Mikhail I. Kargin Connie H. K. Lim Mayu Miyashita Julie Pechersky Melinda Marie Sarafa Nadine M. Kassouf Janet M. Lipinski Francis C. Mizzo Kimo Silvay Peluso Edward Oppenheimer Andrew S. Kazin Joanne Chen Liu Marissa Bea Mole Silvana Penava Sassower Edward A. Keane Kai Yin Liu Maureen Rose Monaghan Zachariah Pencikowski Jason Mitchell Satsky Elizabeth J. Keefer Sarene Anne Loar Filipa Monteiro Luis Francisco Peral Nella Maria Scalora Colleen Mary Keegan Katchen Anne Locke David Guy Montone Amanda Tara Perez Jason Bennett Schaeffer John Pryor Keiserman Karen Jeane Loga Frank Carol Moore Kristen D. Perrault Daniel I. Schlachet Amalia D. Kessler Clark B. Lombardi Francesca Anne Morris William J. Peterfriend Steven Schmutter Jason A. Kesslman Wendy E. Long Jonathan A. Moskowitz Brewster Wright Pettus Tracy Jeanette Schneider Marilyn Kessous Sonia Maria Lopez Daniyal Neyan Mary Leed Piciocchi Beth Ann Schultz Baruch D. Kfia Kim Lopp-Manocherian Mueenuddin Lawrence David Piergrossi Tovit Yaffa Schultz Ronald Khabbaz Pierre J. Lorieau Sheldon Mui Christopher M. Pilkerton Alison Jill Schwartz William John Kilgallen David Luce Joshua A. Munn Marc H. Pillinger Stephanie Schwartz Daniel Kim Bryan John Luchs Erin Patricia Murphy Lynn Ellen Pincus Nicole Lee Schwarz Heather H. Kim Hallie Gayle Ludsin Jessica A. Murzyn Daphne Pauline Pineda Caren Schweidel Judy E. Kim Marta Maria Lugones Sara Nagai Fosca F. Piomelli Carol A. Seelig Nam Hee Kim Anthony Mark Lujack Alexander B. Naidenov Lara Kimberly Pitaro Lior Segev Peggy Y. Kim Alan S. Lungen Mari Nakamichi Jeremy S. Pitcock Lysa Sondra Selfon Alyson Ruth Grace King Courtney E. Lynch Lonappen Sunny Jeffrey W. Pitts Jonathan N. Seliger Rachel Lynn Kirsh Timothy D. Lynch Nallengara Robert Pleasant Sandeep Sharma Elvira A. Kisish Michelle Kimberly Lynd Daniel Ung Doo Nam David Plutzer Michelle L. Shelton Kevin Gerard Kitching Erica F. Lyons Hilla Narov Mali Polani Leslie Jill Sherman Trygve E. Kjellsen Jeffrey James Macel Valere Laurence Nassif Edmund Polubinski Elizabeth L. Shields Adam Kleinberg Laia Macia-Usua Edwin Javiel Nazario Annmarie Polucci Jonathan Adam Shiffman Ross H. Klenoff Kimberly Ann Madden Patrick Wade Neal Katherine L. Pringle Michael S. Shim Leslee Sue Klinker Jill Susanne Mahonchak Peter C. Neger Debra A. Profio Hyun Young Shin Anna Alexandra Kobilansky Rahul S. Maitra Daniel Benjamin Nelson Michael Puma Robert Hisashi Shiroishi Ilya Eric Kolchinsky Frank Maldari Erik S. Nelson Paul John Pun Pankauz N. Shrestha Marcus Kollmorgen Erica Beth Maloff Robert Jay Nelson Susan Klepper Quill Victoria Shtainer Siu Yun Kong Warwick A. Mancini Michael Nertney James J. Quinlan Joseph Bruce Shumofsky Kimberly Jill Konner Michael Patrick Mangan Amy Lynn Neuhardt Amal Ann Raad Arielle J. Siebert Michael E. Kontokosta Richard D. Marans Marcus H. Neupert Gregory N. Racz Craig L. Siegel Joseph C. Kopec Henry Marines Nobuko Neuwirth Andrea Beth Radosevich Betsi Ann Silverman Jill Rachel Kotner Lori Beth Marino Katharine F. Newman Stephen Todd Raff Debra Stacie Silverman Rie Kotokawa Eamonn Paul Markham Joseph Kar Sing Ng Karri A. Rakow David H. Singer Yoel Kranz Philip Alan Markowitz Sarah Soames Nickerson Robert Daniel Ralls Stephen Gibson Skinner Mitchell Harrison Kraus Eugene Richard Marquardt Jennifer Nierenberg Amie Rappoport Rachel Elizabeth Sklar Gary Mark Kravetz Andrew Michael Martin Babak Emil Nikravesh Zachary Myles Ratzman Kiersten M. Skog Susan Jo Krembs Candace Nicholle Martin Michael Nathan Nitabach Adam Reed David Michael Smith Gabriela Nossar Labouriau Michael John Martin Melissa Ann Noah Natalie Lynn Reeves J. Ryan Smith J. Gregory Lahr Frank Flores Martinez Zachary N. Noffsinger Christine Reinhardt Reed Allen Smith Steven Arthur Reinhardt

Journal | June 2000 59 Trisha Lynn Smith Kathryn Lynn Turner Kenneth Lamar Johnson Bonnie Porter Marie Kately St. Fort Eugene Bernard Sohn Stefan Paul Unna Alexander Kaplan Andrew Proto Bethany Marie Thomas Sarah K. Solum Jennifer Unter Richard A. Kaplin Ruairi James Regan Richard K.E. Warner David G. Sommers Marianna Vaidman Stone Kevin L. Kelly Barbara S. Rowin Un Hae Song Noel B. Vales David Yung-Oh Kim Jacob T. Septimus TWELFTH DISTRICT Thomas James Speechley Ingrid Eliane Vandenborre Eric Joachim Lucentini Walter R. Sevastian Douglas W. Ambrose David K. Spencer Rodolfo Vela-Montemayor Karen Elizabeth Manfield Ting-Ting Shi Eugene Anyikwa Andreas Spiker Elizabeth Anne Virgin Darius Joseph Mehraban Denise E. Singh-Skeete Archibong Mendie Shernette Ava Lorraine Diane Nhu Vo-Verde Geoffrey Takao Mukae Barry H. Steinfink Archibong Stafford Christopher John Voci Jocelyn Normand Mark D. Torche Llinet Beltre Catherine Louise Stam George John Vogrin Bichha Thi Pham Mona Wasserman-Lapin Oladeji Oluyomi Bolaji Ann Elyce Stanley Brian Andrew Waldbaum Julie Rikelman Morrison D. Webb Alejandro Gamaliel Kim Starr Samuel Marc Walker Jason D. Sanders Borrero James Stefanick Ian Michael Wallach David Anthony Straite TENTH DISTRICT Louise Michelle Brown Erich John Stegich Craig S. Warkol Marvin Usdin Didi Aidit Cohen Audrey A. Burke Brian Marc Steinhardt Christopher Robert Warren Dawn M. Velez Russell J. Coyne Roberta Esmena Campbell Millicent Stilwell Andrew Vincent Waskow Charles R. Whitt Michelle Daoust Merima Cobaj Daniele B. Strain Joshua Philip Weiss Woodrow J. Wilson Lorenzo V. Delillo Scott Edwards Jocelyn Emily Strauber Susan Elizabeth Welber Constance R. Brown Tracy E. Gibbs Paola Lorena Fernandez Kelvin Strausman Philip D. Weller Dawn W. Hadley Reine H. Glanz Dionne R. Gill Gil Jack Strauss Yael Louise Weston Jeanette F. Kunker D. James Gounelas Joseph Gitler Martin G. Strohmann Jonathan Patrick Whalen Jonathan D. Masters James J. Graham Kevin A. Green Lowell Andrew Strug Gillian Stern Whitman Michael B. Mednick Lora R. Groginsky Michelle A. Greenberg- Auria O. Styles Peter Janusz Wiazowski Susan M. Narkewicz Joseph Hyland Kobrin Andre Martin Suite Catherine Anne Wible Paul D. Schwartzberg John A. Ilibassi Yolanda Harris Dermot Sullivan Mark Mansfield Wiedemer Annabel V. Teiling Constantine Intzeyiannis Michael Henry Jennifer Ayn Sultan George David Wilkinson Megan P. Van Aken Gibbs Alan Johnson Adrienne Cherie Howard David Bruce Suna Charles D. Williams David Aubrey Kaufman Robert A. Kahn Heather Megan Susac John Eric Wise FOURTH DISTRICT Stuart Klein Seth Lebowitz Edward Patterson James Patrick Wiseman John H. Bernhard Edward R. Loomie Judyann M. Lee Sutherland Samuel Leonard Wolf Barbara M. Friend Maya Majumdar Iris Leibowitz Robert Sutton Anne Rose Wolfson Edward J. Murphy James C. Maloney Reginald Michael Lewis Paul J. Svendsen Ha Kung Wong Drew D. Peabody Barbara Mato Craig S. Marshall Eliza Williams Swann Joanne Wong Therese M. Wittner Thomas R. McCarthy Corey Newton Martin Richard G. Swanson Melissa Sharon Woods Susan M. McLendon Beatrice Encalada Mayol Julian Charles Swearengin Michael Lee Wooley FIFTH DISTRICT Colleen McMahon Oliver Obioma Mbamara Edward P. Taibi Michael Mark Woznicki Michael N. Livingston Saul Olinsky Sheila E. McGrath Laura Ruth Taichman Joel David Wright Pamela M. Pozzi Jay P. Quartararo Marisa Miranda John Vincent Tait Brian Matthew Wyatt Charles R. Welch Erik H. Rosanes Elizabeth Ozo-Onyali Mark Alan Taustine Babak Yaghmaie Laurie Sayevich-Horz Frank C. Randazzo Nicole Gail Tell Andrew Yang SIXTH DISTRICT Esther M. Schonfeld Joseph A. Reda Jonathan David Hannah Yi Yang Martin E. Engstrom-Heg Marc C. Sherman Jeannie Iris Rivera Tepperman Thomas Yih Peter F. Finnerty Noyel St. Louis Rachel Sydney Singer Elian Aviv Terner Tiffany Dale Yonker David V. Suarez Melanie Therese Singh Vincent Frank Terrasi Daniel Matthew Young SEVENTH DISTRICT Lynn A. Waylonis Colette Helena Stanford Todd Bruce Terry Edward J. Zabrocki Patricio Jimenez David P. Weiss Eileen F. Swan Kevin Yoshiwo Teruya Marie-Anne Zabrocki Andrew B. Levy Robert G. Wessels Giancarlo Terilli David I. Tesler Marc Alan Zametto Brett A. Zekowski Clarence Trocio Jessica Thaler Amirpasha Zargarof EIGHTH DISTRICT Glenn Edward Westrick Charles G. Thomas David Craig Zeiden Elena J. Ancona ELEVENTH DISTRICT Narcisa Woods Christian Rene Thomas Mark Daniel Zerdin Tracey A. Kassman William Robert Allen Amy Guerin Thompson Wenhong Rose Zhu Jean M. Pyle Thane Benedict OUT-OF-STATE Elliot Robert Thomson Kip Steven Zimmerman Antonia Rodriguez Ross Belton Brooks Lizbeth C. Aaron Yael Tilajef Robert Mayer Zimmerman Hyuck Bai Choi Sham-E-Ali Al-Jamil Michael Francis Tomlinson Sam Zodeh NINTH DISTRICT El Wong Chon Kelly Susan Allen Lisa E. Toporek Christine Antonia Zorzi Christopher S. Carolan Peter Alfonso Damiano Luis Jesus Amaro Michael H. Torkin Damien Rudyard Zoubek Guilherme Carvalho Meryl Diamond Guilherme A. Aquino Elisa Torres-Blatt Tracy Zwick Scott Charles Eisenberg Sharon Patterson Glenn Catherine K. Banson Johanna Maria Toth Joan M. Feeley Audrey M.L. Greene-Perez Mehtap Melinda Basaran David A. Trapani SECOND DISTRICT Kelly Flood-Myers Gail S. Hoenig Melissa Battino Claudia Troncoso Frederick N. Collins Kenneth Harold Martin Ilan Jajan Robert A. Becker Adam True William Thomas DeVinney Frenchman Ned Kassman Arik Ben-Ezra Geralyn J. Trujillo Thomas J. DeVito John W. Furst Robert I. Lapidow Eric Shane Block Robert Harold Trust Amy S. Ebinger Theresa R. Hanczor Ruhua Liu Mark Aaron Boltz Kelly Hsiao-I. Tsai Lorraine Elenbogen Michael J. Hurley Milos Naumovic Heather Waters Borthwick Jeffrey V. Tsang E. Marvin Geiger Katherine A. Lynch Brian K. O’Connor Emilie Jean Bourgeois Thomas Tsang Kenneth Geller Francois Rene Martino Brian Stephen O’Connor Richard Matthew Boyden Peter Tsu-Man Tu Israel Goldberg John Alden Millard Michelle Ann Peters Carolyn Crink Brady Joel M. Tucker Leander C. Gray Maura Kathleen Yogesh Kumar Rai Michael E. Brems Robin Alex Tuerks Peter Alan Greenspan Monaghan Timur Slonim Stuart John Brinkworth

60 Journal | June 2000 Todd Brown Patrick John Henigan John Hartman May Greg D. Shaffer Lorrie E. Whitfield George Caballero Jason Makar Hill Molly D. McDevitt Eliav Sharvit Kristin Brady Whiting Jeffrey W. Cameron Mami Hino Mark Joseph McKeefry Thomas Bailey Shropshire Dorothy P. Whyte Alexander Paul Cano Patricia Ann Alice Fyfe McMath Steven Siegler Peter John Williams John P. Carlin Hollingsworth Molly Ann McQueen Ian Hunter Silver Elizabeth Jane Williamson Robert E. Carlson Mark B. Holton Ting Meng Eric Sinn Richard G. Wood Maria Jan Carthy Christopher Fairfield Michael Jay Messersmith Marci G. Skolnick Andrew Lawson Wright Ying Ya Chen Hopson Rubin H. Miller David Kibben Spencer Masayuki Yamada Stephanie Yoon-Sun Cho Jonathan Howard Maggie Miqueo Roxanne Lucinda Spiegel Shengjin Yang Jaeho Choi David Andrew Hughes Amisha Mody Deyan Panayorov Shin Yokota Ellen Eunna Chun Janene Danielle Jackson Joanne B. Moon Spiridonov Melissa You Felicia Denise Collins Rachael Jane James Jamal Shaka Morris Stamatios Stamoulis Lydia R. Zaidman Melissa Ellen Cooper Christopher Lee Javens Michael Paul Moyer Stephen Thomas Straub Kexin Zhao Frank Corazzelli Daniel Joe Mary Mulvanerton Guhan Subramanian John C. Corbett Matthew A. Kaminer Manuel Munoz Jung K. Suh Victoria Craine Eileen Marie Kane Stephen Wade Negben Frederick Sullivan Geoffrey W. Crawford Sean M. Kane Shari E. Newberger Timothy James Sullivan Steven C. Cunningham Sim Kituuka Katende Sean K. O’Brien Lura Swihart Bridget T. Cusack Dimitrios Katsantonis Kathleen P. O’Connor Kecia Monica Taitt David Joseph Danon Craig W. Kaylor Hisanori Oguri Susan Grace Thatch Victoria Zoe Deitcher Masahiro Kihara Colleen Marie O’Reilly Robert C. Thomson Richard William DeKorte James B. Klein Rodrigo Orozco-Waters Karen Sara Tickner Frank Anthony Delucia Brent Krusik Oladapo Afolabi Otunla Frederick S. Title Nathalie L. Den Hollander Douglas Kuber Omer S. Oztan Koichi Tsuchida Keenan T. Dmyterko Andreas Kubli Dawn M. Pacifico Jobst H. Upmeier Sarah Elizabeth Downie Katherine Kudriashova Rocky Pan Estela M. Valdez Brian K. Duck Sun-Goon Kwon Jong-Koo Park Carol Susan Warren Craig Eckstein Thomas W. LaBarge Seoung-Hee Park Kathleen Anne Weadock Matthew R. Elkin Daniel Hector Rees Sharon S. Park Elizabeth Ann Weiner Hays Ellisen Laguardia D. David Parr Patrick Mulvihill White Jeremy Benson Esakoff Robert R. Laurenzi Ana Julia Pena Amy Holland Farris David C. Lavalle Luis I. Perez-Equiarte Craig M. Fasano Johann Welby Leaman Rossina Kirilova Petrova Robert C. Feidler Patrick W. Leary Renier P. Pierantoni Alice Reiter Feld Ann Elizabeth Leddy David Allen Piscitelli Tara Elizabeth Flanagan Celia Wan-Tsing Lee Sundari Prasad Pisupati Marta Fornes-Llaras Susan L. Lee Hilary Lee Potashner Jeffrey Zev Frank Charles Albert LeGrand Clifton Michael Prabhu Jordan Scott Friedman Bo Li John Joseph Purcell Lisa Flavia Garcia Jennifer Lee Light Kevin Joseph Purvin In Robert Garner Thomas Paul Lihan Silke Rabbow Michelina Marie Gauthier Alvin K. Lim Otto D. Rafuse Memoriam David E. Gilbert Hao Liu Hugh Joshua Rappaport Charles Patrick Gillette Yufeng Liu Kashif Rashid Fritz W. Alexander Shalini Gopalakrishnan Tristan C. Loanzon Morris S. Ratner New York, NY Edward Michael Greaney Marco Antonio Madriz Thomas A. Rayski Ana Cristina Guzman Gregoire Marchac Christine Reitano Albert D. Early Takeyoshi Harada Karen Marie Markey Jeffrey Stuart Respler Sarasota, FL Daniel A. Harris Karl Lawrence Marquardt Paul Allen Robbins Pamela Beth Harris Kathleen Hazel Marron Rita Anne Roca Alfred P. O’Hara Theresa Harris Paul R. Martin Amy Appleton Ruth New York, NY Karriem M. Hassan Liliana Martire Jennifer Ann Schneider Nancy Schade Hearne Josh Maximon Walter Keating Scott

MEMBERSHIP TOTALS NEW REGULAR MEMBERS ______JANUARY 1, 2000 THROUGH MAY 17, 2000 ______2,207

NEW LAW STUDENT MEMBERS ______JANUARY 1, 2000 THROUGH MAY 17, 2000______630

TOTAL REGULAR MEMBERS ______AS OF MAY 17, 2000 ______54,452

TOTAL LAW STUDENT MEMBERS ______AS OF MAY 17, 2000 ______4,546

TOTAL MEMBERSHIP ______AS OF MAY 17, 2000 ______58,999

Journal | June 2000 61 Continuing Legal Education Law Office Economics and Management Terry J. Brooks, Director, Stephen P. Gallagher, Director, HEADQUARTERS [email protected] [email protected] Jean E. Nelson II, Associate Director, Law, Youth and Citizenship Program STAFF [email protected] Gregory S. Wilsey, Director, Jean Marie Grout, Staff Attorney, [email protected] E-MAIL ADDRESSES [email protected] Lawyer Assistance Program Leslie A. Fattorusso, Staff Attorney, Ray M. Lopez, Director, [email protected] [email protected] Management Information Systems Cheryl L. Wallingford, Program Manager, John M. Nicoletta, Director, Executive Staff [email protected] [email protected] William J. Carroll, Executive Director, Daniel J. McMahon, Assistant Director, Ajay Vohra, Technical Support Manager, [email protected] Publications, [email protected] [email protected] John A. Williamson, Jr., Associate Executive Patricia B. Stockli, Research Attorney, Paul Wos, Data Systems and Telecommunications Director, [email protected] [email protected] Manager, [email protected] L. Beth Krueger, Director of Administrative Governmental Relations Marketing Services, [email protected] C. Thomas Barletta, Director, Richard Martin, Director, Kathleen R. Baxter, Counsel, [email protected] [email protected] [email protected] Ronald F. Kennedy, Assistant Director, Media Services and Public Affairs Lisa Bataille, Administrative Liaison, [email protected] Bradley G. Carr, Director, [email protected] Graphic Arts [email protected] Kathleen M. Heider, Director of Meetings, Roger Buchanan, Manager, Frank J. Ciervo, Associate Director, [email protected] [email protected] [email protected] Accounting William B. Faccioli, Production Manager, Daniel M. Kittay, Editorial Services Specialist, Kristin M. O’Brien, Director of Finance, [email protected] [email protected] [email protected] Human Resources Membership Anthony M. Moscatiello, Controller, Richard V. Rossi, Director, Patricia K. Wood, Director, [email protected] [email protected] [email protected] Pro Bono Affairs Anthony Perez Cassino, Director, [email protected]

OURNAL OARD THE NEW YORK J B EMBERS BAR FOUNDATION M EMERITI

s a tribute to their outstanding service to 2000-2001 OFFICERS DIRECTORS Aour Journal, we list here the names of Richard J. Bartlett John P. Bracken, Islandia each living editor emeritus of our Journal’s President Cristine Cioffi, Niskayuna Board. 1 Washington Street Angelo T. Cometa, New York City P.O. Box 2168 Richard J. Bartlett Maryann Saccomando Freedman, Buffalo Glens Falls, NY 12801-2963 Coleman Burke Jules J. Haskel, Garden City Emlyn I. Griffith John C. Clark, III Vice President Paul Michael Hassett, Buffalo Angelo T. Cometa 225 North Washington Street John R. Horan, New York City Lawrence H. Cooke Rome, NY 13440-5724 Susan B. Lindenauer, New York City Roger C. Cramton William J. Carroll Robert L. Ostertag, Poughkeepsie Maryann Saccomando Freedman Secretary Maxwell S. Pfeifer, Bronx Emlyn I. Griffith H. Glen Hall One Elk Street, Albany, NY 12207 Joshua M. Pruzansky, Smithtown Charles F. Krause Randolph F. Treece Thomas O. Rice, Brooklyn Treasurer Philip H. Magner, Jr. M. Catherine Richardson, Syracuse Office of State Controller Wallace J. McDonald Alfred E. Smith Office Bldg. Hon. Shira A. Scheindlin, New York City J. Edward Meyer, III Legal Services, 6th Floor Justin L. Vigdor, Rochester Robert J. Smith Albany, NY 12236 Lawrence E. Walsh

62 Journal | June 2000 Members of the House of Delegates 2000-2001 First District Terrelonge, Lynn R. Cassano, Thomas R. Alcott, Mark H. Church, Sanford A. OFFICERS Auspitz, Jack C. Third District Dale, Thomas Gregory Baker, Theresa J. Agata, Seth H. Eppers, Donald B. Barasch, Sheldon Ayers, James B. Evanko, Ann E. Batra, Ravi Bergen, G. S. Peter Freedman, Bernard B. † Bowen, Sharon Y. Cloonan, William N. †* Freedman, Maryann Saccomando Brett, Barry J. Connolly, Thomas P. Gerstman, Sharon Stern Paul Michael Hassett, President Cashman, Richard Copps, Anne Reynolds Graber, Garry M. Christian, Catherine A. Flink, Edward B. † Hassett, Paul Michael Buffalo Chambers, Cheryl E. Friedman, Michael P. McCarthy, Joseph V. * Cometa, Angelo T. Helmer, William S. O’Donnell, Thomas M. Steven C. Krane, President-Elect Davis, Evan A. Kelly, Matthew J. Palmer, Thomas A. New York DeFritsch, Carol R. Kennedy, Madeleine Maney Pfalzgraf, David R. Eisman, Clyde J. Kretser, Rachel Webb, Paul V., Jr. Frank M. Headley, Jr., Treasurer Eppler, Klaus LaFave, Cynthia S. * Fales, Haliburton, 2d Lagarenne, Lawrence E. Ninth District Scarsdale Field, Arthur Norman Maney, Hon. Gerard E. Aydelott, Judith A. Lorraine Power Tharp, Secretary Finerty, Hon. Margaret J. Miranda, David P. Berman, Henry S. Flood, Marilyn J. Murphy, Sean Galloway, Frances C. Albany * Forger, Alexander D. Netter, Miriam M. Gardella, Richard M. Freedman, Hon. Helen Samel, Barbara J. Giordano, A. Robert * Gillespie, S. Hazard Swidler, Robert N. Golden, Richard Britt Goldstein, M. Robert Tharp, Lorraine Power Headley, Frank M., Jr. Gross, Marjorie E. * Williams, David S. Herold, Hon. J. Radley Handler, Harold R. * Yanas, John J. Klein, David M. Handlin, Joseph J. Kranis, Michael D. * Heming, Charles E. Fourth District Manley, Mary Ellen Hirsch, Andrea G. Ciulla, John H., Jr. McGlinn, Joseph P. Vice-Presidents Hoffman, Stephen D. Eggleston, John D. Miklitsch, Catherine M. First District: Horowitz, Steven G. Elacqua, Angela M. * Miller, Henry G. Stephen D. Hoffman, New York Jacobs, Sue C. FitzGerald, Peter D. Mosenson, Steven H. Jacoby, David E. Higgins, Dean J. O’Keeffe, Richard J. Kenneth G. Standard, New York Jaffe, Barbara Hoye, Polly A. * Ostertag, Robert L. Second District: Kenny, Alfreida B. Jones, Matthew J. Scherer, John K. Edward S. Reich, Brooklyn Kilsch, Gunther H. Steinman, Lester D. * King, Henry L. Fifth District Stewart, H. Malcolm, III Third District: Kougasian, Peter M. Buckley, Hon. John T. Wolf, John A. James B. Ayers, Albany Krane, Steven C. Burrows, James A. Fourth District: Krooks, Bernard A. DiLorenzo, Louis P. Tenth District Landy, Craig A. Doerr, Donald C. Abrams, Robert Matthew J. Jones, Saratoga Springs Leber, Bernice K. Dwyer, James F. Asarch, Joel K. Fifth District: Lieberman, Ellen Fennell, Timothy J. †* Bracken, John P. James F. Dwyer, Syracuse Lindenauer, Susan B. Getnick, Michael E. Capell, Philip J. * MacCrate, Robert Gingold, Harlan B. Corcoran, Robert W. Sixth District: Mandell, Andrew * Jones, Hon. Hugh R. Dietz, John R. Eugene E. Peckham, Binghamton Minkowitz, Martin Klein, Michael A. Filiberto, Hon. Patricia M. Seventh District: * Murray, Archibald R. Mawhinney, Donald M., Jr. Fishberg, Gerard Opotowsky, Barbara Berger Priore, Nicholas S. Gutleber, Edward J. A. Vincent Buzard, Rochester * Patterson, Hon. Robert P., Jr. Rahn, Darryl B. Karson, Scott M. Eighth District: Paul, Gerald G. †* Richardson, M. Catherine Levin, A. Thomas Joseph V. McCarthy, Buffalo Pickholz, Hon. Ruth Sanchez, Ruthanne Meng, M. Kathryn Quattlebaum, Poppy B. Uebelhoer, Gail Nackley Mihalick, Andrew J. Ninth District: Raubicheck, Charles J. O’Brien, Eugene J. Joseph P. McGlinn, Suffern Rayhill, James W. Sixth District †* Pruzansky, Joshua M. Tenth District: Reiniger, Anne Anglehart, Scott B. Purcell, A. Craig Rifkin, Richard Denton, Christopher Roach, George L. A. Thomas Levin, Mineola Rocklen, Kathy H. Drinkwater, Clover M. Rothkopf, Leslie Eleventh District: Roper, Eric R. Hutchinson, Cynthia Spellman, Thomas J., Jr. Robert J. Bohner, Garden City Rothberg, Richard S. Kachadourian, Mark Walsh, Owen B. Safer, Jay G. Kendall, Christopher Wimpfheimer, Steven Twelfth District: Schaffer, Frederick P. Madigan, Kathryn Grant Steven E. Millon, Bronx * Seymour, Whitney North, Jr. Mayer, Rosanne Eleventh District Shapiro, Steven B. Peckham, Eugene E. Bohner, Robert J. Silkenat, James R. Perticone, John L. Darche, Gary M. Sloan, Pamela M. Reizes, Leslie N. DiGirolomo, Lucille S. Souther, Eugene P. Glover, Catherine R. Members-at-Large of the Standard, Kenneth G. Seventh District James, Seymour W., Jr. Stenson, Lisa M. Bleakley, Paul Wendell Nashak, George J., Jr. Executive Committee Vitacco, Guy R., Sr. Buzard, A. Vincent Mark H. Alcott Wales, H. Elliot Castellano, June M. Twelfth District Yates, Hon. James A. Dwyer, Michael C. Bailey, Lawrence R., Jr. Sharon Stern Gerstman Getman, Steven J. Friedberg, Alan B. Michael E. Getnick Second District Heller, Cheryl A. Kessler, Muriel S. Matthew J. Kelly Adler, Roger B. Lawrence, C. Bruce Kessler, Steven L. Agress, Vivian H. †* Moore, James C. Millon, Steven E. Bernice K. Leber Cohn, Steven D. * Palermo, Anthony R. †* Pfeifer, Maxwell S. Susan B. Lindenauer Cyrulnik, Miriam Reynolds, J. Thomas Schwartz, Roy J. Dollard, James A. Small, William R. Torres, Austin Doyaga, David J. Trevett, Thomas N. Fisher, Andrew S. * Van Graafeiland, Hon. Ellsworth Out-of-State Lashley, Allen * Vigdor, Justin L. Chakansky, Michael I. Morse, Andrea S. †* Witmer, G. Robert, Jr. Hallenbeck, Robert M. Reich, Edward S. * Walsh, Lawrence E. † Delegate to American Bar Association House of Delegates †* Rice, Thomas O. Eighth District * Past President Sunshine, Hon. Jeffrey S. Attea, Frederick G.

64 Journal | June 2000