December 2007 Subversion Notes from Albany of ADR: by STEVEN WIMPFHEIMER

www.qcba.org

Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 71 / No. 3 / December 2007 Subversion Notes from Albany Of ADR: By STEVEN WIMPFHEIMER

Met a really nice guy from Rochester. He asked me to Nondisclosure Of Ties tell that to all of you. Never mind. Here is the really important stuff. By Appointed And Friday morning the State Bar’s Nominating Committee Aspiring Arbitrators met. Of single importance to Queens was the election of our own Seymour James to the office of Treasurer. by HOWARD L. WIEDER Arthur tells me that Seymour is the first member of our Steven Bar Association to be elected to State office and this is a Court administra- Wimpfheimer stepping stone to the Presidency. tors and private arbitration companies actively dissuade liti- Congratulations Seymour. gants from seeking relief in the courts, urging them, instead, to various forms of Alternative Dispute Resolution (“ADR”). Central to the neu- Howard L. trality of any trier of Wieder fact, whether judge or arbitrator, is the requirement to disclose any tie that might threaten not only the ability of the fact-finder to decide a matter fairly, but the very appearance of fairness in reaching the result. Disclosure and disqualification are not the same. Arbitrators should not be able to decide to withhold information, since it is the parties who select from lists of arbitrator candidates. Failure of an arbitrator to disclose ties to a claimant or his/her/its counsel amounts to nothing less than a manipulation of the parties. Failure of a court to vacate an arbitral award that casts shadows on the appearance of impartiality and fairness effectively destroys the promotion of ADR throughout the country and encourages arbitrator self- aggrandizement and lawlessness. Every single night from Monday through Thursday, in the Small Claims Part of the Civil Court of the City of New Continued On Page 3 York, for example, filled-to-capacity Continued On Page 4

INSIDE THIS ISSUE

Notes from Albany ...... 1 Lawyer’s Assistance Committee ...... 6 Subversion of ADR ...... 1 Three Year Suspension Of Practicing Law . . . .6 The Docket ...... 2 Golf Outing ...... 7 President’s Message ...... 3 Stated Meeting Photos ...... 8 Profile of Hon. Cheree Buggs ...... 3 Culture Corner ...... 12 2 THE QUEENS BAR BULLETIN – DECEMBER 2007

T HE D OCKET... E DITOR’ S N OTE... being the official notice of the meetings and programs listed below, which, unless other- On behalf of the Board of Managers, the entire wise noted, will be held at the Bar Association Building, 90-35 148 Street, Jamaica, New York. More information and any changes will be made available to members via written staff of the Association, and myself we wish you and notice and brochures. Questions? Please call (718) 291-4500 your families a Very Happy and Healthy Holiday PLEASE NOTE: season, and Happy New Year! The Queens County Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Education Provider in the State of New York.

2007 Fall CLE Seminar & Event Listing Les Nizin

December 2007 LAWYERS ASSISTANCE COMMITTEE Wednesday, December 12 UM/SUM Update Thursday, December 19 Holiday Party Terrace on the Park The Queens County Bar Association All communication with QCBA LAC (QCBA) provides free confidential staff and volunteers are completely January 2008 assistance to attorneys, judges, law confidential. Confidentiality is privi- Monday, January 28 Stated Meeting - Tentative students and their families struggling leged and assured under Section 499 of with alcohol and substance abuse, the Judiciary laws as amended by the February 2008 depression, stress, burnout, career Chapter 327 of the laws of 1993. Monday, February 25 Stated Meeting concerns and other issues that affect If you or someone you know is hav- Thursday, February 28 CPLR Evidence Update quality of life, personally and/or ing a problem, we can help. To learn professionally. more, contact QCBA LAC for a March 2008 QCBA Lawyers Assistance confidential conversation. Wednesday, March 5 Family Law Seminar Committee (LAC) offers consultation, Wednesday, March 26 Basic Criminal Law Part 1 assessment, counseling, intervention, Lawyers Assistance Committee Monday, March 31 Past Presidents and Golden Jubilarians Night education, referral and peer support. Confidential Helpline 718-307-7828 April 2008 Wednesday, April 2 Basic Criminal Law Part 2 Wednesday, April 9 Civil Court Seminar Monday, April 14 Judiciary Night 2007 - 2008 Wednesday, April 16 Equitable Distribution Update Officers and Board of Managers May 2008 Thursday, May 1 Annual Dinner and Installation of Officers of the Queens County Bar Association N EW M EMBERS DAVID LOUIS COHEN - President Murray Daniel Bach Sally Rose Maiolo Pierre Bazile Venus Diana Marinescu STEVEN S. ORLOW - President-Elect Richard Bryan Laura Margaret Mullaney GUY R.VITACCO, JR. - Vice President David Joseph Conn Iris Hilary Nat RICHARD MICHAEL GUTIERREZ - Secretary Jose Grajales James L O’Connor CHANWOO LEE - Treasurer Karla Antonieta Guerra Farrah Starr Wax David B. Katz Brad Lawrence Wolk Class of 2008 Class of 2009 Class of 2010 Dimitri Kotzamanis John P. Zervopoulos Paul E. Kerson Joseph F. DeFelice Gregory J. Brown Gary Francis Miret George J. Nashak, Jr. Joseph Carola, III Joseph John Risi, Jr. Jerome D. Patterson John Robert Dietz Steven Wimpfheimer Nelson E. Timken Mona Haas James J. Wrynn Carmen Velasquez Arthur N. Terranova . . . Executive Director Queens Bar Bulletin EDITOR - LESLIE S. NIZIN

A New Member Benefit from Queens County Bar Association Associate Editors - Paul E. Kerson, Michael Goldsmith and Peter Carrozzo

QCBA recently selected a credit card program that is specifically designed for law Published by Long Island Commercial Review, firms and sole practitioners. QCBA members receive reduced processing rates and Send letters and editoral copy to: Queens Bar Bulletin, multiple features built to properly process client-attorney transactions. Opening a (631) 737-1700; Fax: (631) 737-1890 90-35 148th Street, Jamaica, New York 11435. Law Firm Merchant Account is easy and helps your practice. Publisher John L. Kominicki x Safeguard and segregate client funds. Production Manager Editor’s Note: Articles appearing in the Queens Bar Bulletin represent the views of the respective authors and do not x Properly process retainers. Kerri Cettel x Attract clients and win business. necessarily carry the endorsement of the Association, the Board of Associate Publisher / Managers, or the Editorial Board of the Queens Bar Bulletin. x Improve cash flow and reduce collections. Director of Advertising Kathleen Gobos Custom Publications Manager Queens Bar Bulletin (USPS No. 0048-6302) is published With a Law Firm Merchant Account credit cards that are accepted for retainers are monthly, except June, July, August, and September by deposited into your trust account while processing fees are paid from the operating Ken Kroncke Long Island Business News, 2150 Smithtown Ave., Suite account to avoid the commingling of client funds. Account Executive 7, Ronkonkoma, NY 11779-7358, under the auspices of the Queens County Bar Association. Entered as periodi- Shirley Bracken If you are considering or already accept credit cards in your practice, we encourage cal postage paid at the Post Office at Jamaica, New York Pat Kunder you to confirm that your program is competitive and can properly processes and additional mailing offices under the Act of Congress. Postmaster send address changes to the Queens County transactions. Call for a no obligation consultation with our partner Affiniscape Classified Sales Bar Association, 90-35 148th Street, Jamaica, NY 11435. Merchant Solutions, 800.376.0950 or click here for more information! Joe Parrino THE QUEENS BAR BULLETIN – DECEMBER 2007 3

P RESIDENT’ S M ESSAGE

This past week (November only “crime” was being the government in doing our best to repre- one goes about entering the legal profes- 12-16) I had two experiences President of the Supreme sent our clients - no matter how unpop- sion. Our goal was to stimulate their that reenforced the pride that I Court Bar of Pakistan and ular the cause. We as a profession must interest not just in the law, but in the feel in being an attorney. On a leader of the campaign to be ever vigilant to insure that the rule value of an education. The future is in the the 13th I participated in the restore the Chief Judge of of law and the independence of the judi- hands of these high school students. By rally to protest the jailing of the Supreme Court to his ciary remain on our radar screen. We volunteering our time to this effort, hope- lawyers and judges in Pakistan. position. As the time for can never take these bedrock principles fully we inspired a few of these young While I am fully aware and the rally neared, it was of our society for granted. One way that adults to strive to enter our profession understand that some may heartwarming to look out we can preserve our liberties is to sup- and become our colleagues, or at least to question this action, I for one from the Courthouse steps port our brother and sister attorneys continue on with their education. felt compelled to lend my indi- and see hundreds of wherever they are located, when the This selfless effort to help the youth of vidual support to this cause. David Cohen lawyers converging to join rule of law and judicial independence our community shows that the legal pro- We were there not to support or in the rally. Our common are threatened. We must be ever on our fession is not just about fees. We care promote any particular political agenda, concern was to show the world that guard to defend and protect the rule of about our community and we demon- nor did we seek “regime change”. Our judges and lawyers everywhere should law and judicial independence. strate it in no small part by the signifi- purpose was to express our collective con- enjoy freedom and independence. We all Two days later, myself and five other cant amount of pro bono activities that cerns over the jailing of judges and were there for the principled reason and QCBA members John Dietz, Ed we participate in. By participating in lawyers and the blatant governmental not for any other purpose. Rosenthal, Joe Carola, Steven Orlow, and these two events, my pride in being a part disregard for the rule of law. I arrived on As I listened to the powerful presen- Judge Ritholtz, answered the call of Guy of this noble profession was once again the steps of the Courthouse at 60 Centre tations made by Barry Kamins and R. Vitacco, Chair our Speakers Bureau, justified. My sincere thanks and appreci- Street about one-half hour before the Kate Madigan, President of the NYSBA, and spent an entire morning addressing ation to those who attended the rally and rally was to start. Almost no was present I was reminded how fortunate we are in students at Hillcrest High School’s Career to my fellow QCBA members who gave of except Barry Kamins, President of the this Country to be members of the legal Day. All of us made accommodations to their time at Hillcrest High School. City Bar and a few other individuals, one profession. While there may be many our schedules in order serve the youth of I wish all of you a happy and healthy of whom was Ali Ahsan, an attorney in lawyer jokes, when push comes to shove, our community. We lawyers and judges holiday season. As always, I can be New York City, whose father is under we are truly a respected profession and, gave of our time to provide these students reached at the QCBA or by email at dlc- arrest and in solitary confinement. His for the most part, unimpeded by the insight in what a lawyer does and how [email protected]. ■

P ROFILE OF... Hon. Cheree A. Buggs By STEVEN J. SINGER* The thing with “profiles” is that they are often bor- Attorney’s Office (it was then John Santucci) as an intern.The ing. I shamelessly admit to skipping over them when I summer previous to this she had also committed herself to an am reading the bulletin, or save them for really desper- internship, that time in the office of Joan Specter, the wife of ate moments when I am stuck in court and have U.S. Senator Arlen Specter. His wife was a City run out of newspapers. However, that being Councilwoman at the time. Attitudes were, in fact. said, I can truly advise you that there is nothing changing and her graduating class from Temple was boring about Cheree Buggs! From the moment comprised of women, to the tune of 40%. When I she walked into my office for the interview, graduated from law school there were two women in everything about her was Vavoom! She is a par- our entire graduating class. She has been practicing ticularly attractive, stylish young woman who law for twenty-one years now and has had a varied oozes professionalism out of every pore. On the and most interesting series of job experiences. day of our meeting she had her hair done in a Cheree worked for the N.Y.C. Transit mentally ill persons who have committed crimes and French twist and was wearing a terrific black Authority as a legal consultant and the Greater refuse to take their medication), and the like. Believe it pinstriped business suit that fairly screamed Steven J. N.Y. Mutual Insurance Company doing defense or not, Ms. Buggs … who it would seem may have “lady lawyer.” I was smitten immediately. Singer work. A personal injury career proved too mun- coined the term “multi-tasking” … then became a It was clear from the outset of our conversa- dane for her and while she was still seeking to Commissioner at the Equal Employment Practices tion that as the only daughter from a household where find her special niche in the legal world she spotted an Commission, monitoring City agencies for equal she was the youngest child, Ms. Buggs knew just what advertisement for attorneys to do conservatorships. employment practice compliance. In the year 2002, she to do to get everyone’s attention. As a fellow committee This would provide an opportunity to combine her legal switched over to work at the N.Y.C. Council as a staff member who has attended numerous meetings with talents with her background in psychology. She worked attorney to the Committee on Aging. In 2004, she her, I can state categorically that she is one sharp lady as a staff attorney for the Department of Human returned to private practice on a full time basis, while with an established ability to take charge in a room full Resources, seeking to have conservators or committees somehow managing to keep a hand in the administra- of mature male counterparts … and that is no mean appointed for those persons who were too ill to manage tive law area by maintaining her per diem work at the feat. But of course, she didn’t start out that way. She is their own affairs and who lacked concerned, qualified N.Y.C. Department of Health and Hygiene, reviewing a Queens girl in every sense of that term. She was born family members to assume that role. restaurant violations, lead poisoning cases and pest in Elmhurst Hospital, raised in St. Albans and Queens Following a two and a half year stint at Human control issues. She was also … and I’m feeling more Village, and attended the Alley Pond Elementary Resources, she ventured into a different government than redundant in saying so … doing “per diem” work School in Bayside. After completing the Nathaniel sector, working “per diem” at the Parking Violations as an Administrative Law Judge at the Environmental Hawthorne middle school, she finished her basic educa- Bureau as an Administrative Law Judge. She ultimate- Control Board. This is one Judge with a true multitude tion in Benjamin Cardozo High School. How fitting is ly gained status there as a “senior” Judge and as the of skills and experiences, as well … as we lawyers are that for this new jurist? Her college years were spent at site supervisor of the Queens Adjudication Center, as most fond of noting … as having an actual background N.Y.U. as a commuter, majoring in psychology and jour- well as serving on the Appeals Panel from that body. in the practice of law. nalism. Although she never pursued the writing career, She has assured me that all of those rumors about The Judge has been an active member of the Queens aside from penning several short stories … which I quota systems (for convictions and fines) and about County Bar Association since 1987. She has served with could never get her to share with me … the psychology marking judges “lousy” who were too liberal, are all distinction on our Judiciary Committee … and I know did come in handy later on, as you are about to learn. false. At the same time, while balancing all of the this personally, having served on several sub-commit- At age twenty she moved to Philadelphia, attending responsibilities at the P.V.B., she began to accept con- tees with her … and as the Vice Chairperson of both the Temple University Law School. She had finally man- servatorship appointments from then Judge Kassoff, Cancer Awareness Committee and the Judicial aged to escape from Queens for a while and it was a gaining experience on that side of the fence as well. She Relations Committee. She has also served on our Board wonderful experience for her. Philly was totally differ- has only kind memories of the Judge, who she cites as of Managers. I was duly impressed with this lady, as you ent from New York and not just because of the cheese having a “humanist” attitude towards those who came can tell, not only because of her superlative background, steak hoagies. That city had a regulation about the before him as litigants and respect for the lawyers who but because of her professional attitude. That she had height of their buildings back then, which Cheree found represented their causes. Cheree can recall the Judge judicial ambitions is hardly a surprise, given her lengthy quite amusing. No building could be erected which rose coming down from the bench to sit with the conserva- background as an Administrative Law Judge. She is above the head of William Penn, who appeared as a tees and taking the time and trouble to ensure their more than qualified to serve on the Bench and personal- statue on the top of the City Hall. It was an overall “low understanding of the proceedings in non-legal terms. ly, I can’t wait to appear before her now that she has key” attitude that prevailed in that smaller town and She hopes that she may acquire a similar reputation. been elected to the Civil Court here in Queens County. ■ she loved it. Best of all she was not too far from home At the same time that she was earning her stripes in and could return home to sample some of her Mom’s the mental health field, she served as counsel for the *Editor’s Note: Stephen J. Singer is a Past President (96- great cooking when the urge struck her. Health and Hospital Corporation and Jamaica 97) of the Queens Bar Association and Co-Chair of its During the final summer of her law school career she Hospital, dealing with the retention of mentally ill Criminal Court Committee. Mr. Singer is also a partner in returned to Queens County for a stint in the District patients, arguing Kendra’s Law cases (the retention of the firm of Sparrow, Singer and Schreiber. 4 THE QUEENS BAR BULLETIN – DECEMBER 2007 Subversion Of ADR: Nondisclosure Of Ties By Appointed And Aspiring Arbitrators

Continued From Page 1 (393 U.S. at 149-150; boldface and opinion in Commonwealth Coatings that Godfrey after the arbitration, and that it underlining added for emphasis). even the concurrence termed the Court’s never would have agreed to Shurn’s crowd of litigants are urged by a judge Justice White wrote a concur- “majority opinion” gets repeatedly selection had it known about his long- not to respond, in the calendar call, ring opinion, joined by Justice Marshall, ignored to date by federal and state standing relationship with that law firm. “Ready by the Court,” but, instead, to stating that he was “glad to join” the courts in favor of the two-person concur- The federal district court granted simply say “Ready,” thereby assenting to “majority opinion” (id. at 151). Justice rence. The Second Circuit is not alone in Positive Software’s motion and vacated a hearing by and the decision of trained White’s concurrence emphasized that all its confusion in trying to come to terms Shurn’s award based on its finding that and smart arbitrators. relationships should voluntarily be dis- with Commonwealth Coatings or believ- Susman Godfrey and Shurn’s law firm of If a rule mandating honest self-disclo- closed at the outset of an arbitration so ing that the opinions expressed therein twenty years, Arnold White, had repre- sure by arbitrators is not enforced to the as to avoid a situation where the losing, represented a “fractured [C]ourt.” Even sented Intel in protracted litigations for hilt - - throughout the United States - - disgruntled party in the arbitration will more bizarre is that, this year, the several years. Susman Godfrey had han- then all the promotion and encourage- conduct an investigation to seize upon United States Supreme Court blew a dled four related Intel actions, Arnold ment of arbitration is a cheap, cosmetic anything that smacks of bias, unfairness, golden opportunity to review the issue. White had handled five, and the two show. Without judicial enforcement of or a failure to disclose. Justice White, firms had acted as co-counsel in three arbitrator disclosure, the giving of self- while strongly urging voluntary and different matters. Lawyers from both laudatory speeches on Law Day that we complete disclosure before the arbitra- POSITIVE SOFTWARE firms frequently signed pleadings on are “a country of laws, not of individuals” tion of all relationships, nevertheless The United States Court of Appeals Intel’s behalf, listing both firms as coun- is nothing less than a tireless exercise in continued that an arbitrator candidate for the Fifth Circuit took a disastrously sel of record (Petition for a writ of certio- hypocritical posturing. did not need to provide a “complete and restrictive view of arbitrator disclosure rari, 2007 WL 1093508). This year, a decision by the United unexpurgated business biography” (id.). in the case of Positive Software Solutions, The evidence further demonstrated States Court of Appeals for the Fifth He concluded that “arbitrators are not Inc. v. New Century Mortgage Corp., 337 that Camiña, New Century’s co-lead Circuit, sitting en banc, unfortunately automatically disqualified by a business F. Supp. 862 (N.D. Tex. 2004), aff’d as arbitration counsel, and Shurn, a mem- gives that Court that aura of hypocrisy, relationship with the parties before them modified, 436 F.3d 495 (5th Cir. 2006), ber of Arnold White, were major players and the failure in June, 2007, of the if both parties are informed of the rela- rev’d, 476 F.3d 278 (5th Cir.) (en banc; 11- in the several litigations. Camiña was United States Supreme Court to grant tionship in advance, or if they are 5 opinion), cert. denied, 127 S. Ct. 2943 counsel of record in three Intel matters, the petition for a writ of certiorari unaware of the facts but the relationship (June 11, 2007). In Positive Software, the and Shurn handled two Intel cases. For amounts either to disappointing inertia is trivial” (id. at 150). plaintiff licensed a software support pro- nearly a year, Shurn and Camiña per- or an ominous rubberstamp of numerous Both Black’s opinion for the Court and gram to the defendant. In the lawsuit, sonally represented Intel in one of the cases where arbitrators failed to disclose White’s concurring opinion highlighted plaintiff alleged that defendant copied several cases, Cyrix v. Intel. Their names ties to claimants and their counsel. the need to make disclosure at the out- the program in violation of the parties’ appeared side-by-side on ten different set. Although Justice White indicated agreement. In the United States pleadings - - two of which were signed by COMMONWEALTH COATINGS that he was “glad to join” Justice Black’s District Court, the plaintiff secured a Shurn himself. The only witness testi- opinion and that he desired to make preliminary injunction in its favor thus mony that New Century proffered, in One of the strangest chapters in judi- “additional remarks,” and Justice Black’s indicating a likelihood of success on the opposition to Positive Software’s motion cial history is the varied interpretations, opinion was designated the “opinion of merits. Pursuant to the contract to vacate, was the four-page affidavit of misconstructions, and continuing force of the court,” some lower federal courts between the parties, the district court Camiña, which the district court largely the concurring opinion of Justice White, have seen a conflict between the two sent the case to arbitration. The parties dismissed as not credible. The district joined only by Justice Marshall, in the writings. selected attorney Peter J. Shurn III court gave no credence to Camiña’s insis- United States Supreme Court’s decision It is difficult to fathom ANY basis for (“Shurn”) to arbitrate the case. tence that her involvement in the Intel in Commonwealth Coatings Corp. v. confusion about Black’s and White’s After the arbitration, Shurn issued a litigations “ceased” in June 1992, two Continental Cas. Co., 393 U.S. 145, 89 S. opinions in Commonwealth Coatings. ruling that not only rejected Positive months before Shurn himself got Ct. 337 (1968) (4-2-3). Never has such an The award was vacated by six justices Software’s claims, but ridiculed them. involved in the various litigations, since opinion speaking for only two Justices ONLY because the prior relationship of Instead, Shurn awarded defendant New her claim was betrayed by pleadings held such sway. the third arbitrator, minimal and of no Century $11,500 on its counterclaims plainly revealing her and Shurn’s names, In that case, Justice Black, writing for consequence to the award, might give the and $1,500,000 in attorneys fees. Shurn side-by-side, as late as June 1993. a plurality of four Justices of the Court, impression of possible partiality. did not even order defendant to return Tellingly, New Century never submitted concluded that an arbitrator’s failure to In Applied Industrial Materials Corp. the software support program that it an affidavit from Stephen Susman - - or disclose warranted vacating an award v. Ovalar Makine Ticaret Ve Sanayi, A.S., licensed from Positive Software. any other Susman Godfrey lawyer - - dis- for evident partiality even though there 492 F.3d 132 (2d Cir. July 9, 2007) Finding it impossible to square claiming a professional or personal rela- was no proof of actual bias. In (“Applied Industrial”), the United States Shurn’s rulings with the parties’ licens- tionship with Shurn (id.). Commonwealth Coatings, not only was Court of Appeals for the Second Circuit ing agreement and the district court’s Further revealing her lack of credibil- there no actual bias, no appearance of just recently made clear that it would not decision that Positive Software had a ity, the district court found that New bias existed, notwithstanding the subse- follow Black’s four-person opinion, but substantial likelihood of success on the Century, with Camiña’s knowledge, vio- quent, incorrect, almost surreal interpre- would, instead, follow White’s two-person merits, Positive Software’s lawyers con- lated the protective order that the court tations of several prominent federal cir- concurrence. The Second Circuit stated: ducted a search of the federal courts’ had issued to guard the parties’ confi- cuit judges. Everyone agreed that this In Morelite Construction Corp. v. New Public Access to Court Electronic dential information during the pendency third arbitrator on the panel was York City District Council Carpenters Records service (PACER). Positive of the action and that she was aware that absolutely impartial. The arbitrator in Benefit Funds, 748 F.2d 79 (2d Cir. 79) Software discovered through the PACER New Century’s Chief Technology Officer Commonwealth was never asked to dis- (2d Cir. 1984) (“Morelite”), we concluded search that Shurn and Susman Godfrey had lied at his deposition about his con- close anything. Yet, Justice Black, writ- that the fractured court in LLP (“Susman Godfrey”) had represent- tinued use of the software support pro- ing for the Court, vacated the arbitration Commonwealth Coatings and our prece- ed Intel Corp. as co-counsel in several lit- gram, and, yet, she took no steps to cor- award because of the third arbitrator’s dent provided us “with little guidance igations. Shurn’s name and that of his rect his deposition testimony. In addi- failure to disclose a past business rela- concerning what standard is to be former firm which was then known as tion to misstating the length of her tionship THAT MIGHT HAVE CREAT- applied in construing the ‘evident par- Arnold White & Durkee (“Arnold involvement with Shurn in her sworn ED AN IMPRESSION OF POSSIBLE tiality’ language of the statute.” See White”), appeared on pleadings along affidavit to a federal district court, vio- BIAS. The arbitration in Commonwealth Morelite, 74 F.2d at 83. We held that a with the name of Ophelia F. Camiña lating a protective order, and knowingly Coatings was not vacated for “the father-son relationship between an arbi- (“Camiña”) and her law firm of Susman condoning perjured testimony, Camiña appearance of bias”: THE FAILURE trator and an officer of one party to the Godfrey, New Century’s arbitration and New Century withheld critical docu- TO DISCLOSE A PRIOR RELA- arbitration rose to the level of “evident counsel. More important, Camiña and ments from Positive Software, commit- TIONSHIP CREATED AN IMPRES- partiality.” Id. at 84. Noting that in two fellow partners, including first name ting what the district court recognized as SION OF POSSIBLE BIAS. Justice Commonwealth Coatings Justice Black partner Stephen D. Susman himself, the most pernicious form of discovery Black stated: did not speak for a majority of the Court, were very much involved with Shurn for abuse. [A]ny tribunal permitted by law to try we elected to followed [sic] Justice six years. Having assessed the witnesses’ credi- cases and controversies not only must be White’s reasoning that arbitrators are Invoking the district court’s jurisdic- bility and weighed all the evidence, the unbiased but also must avoid even the not subject to the same standards of tion, pursuant to 9 USC section 10(a), district court reached the “firm convic- appearance of bias. We cannot believe impartiality as Article III judges. See id. Positive Software immediately moved to tion” that “any reasonable trial lawyer that it was the purpose of Congress to at 82-84. vacate the arbitration award based on would want to know of an arbitrator-can- authorize litigants to submit their cases (Applied Industrial, 492 F.3d at 137 Shurn’s failure to disclose information didate’s prior association with opposing and controversies to arbitration boards creating a reasonable impression of bias. [discussed below, the court vacated the counsel before choosing him as the sole that might reasonably be thought award under an incorrect, narrow Positive Software supported its motion arbitrator” (Petition for a writ of certio- biased against one litigant and standard]). with evidence that it only discovered rari, found at 2007 WL 1093508). favorable to another. The scenario is bizarre. A plurality Shurn’s relationship with Susman THE QUEENS BAR BULLETIN – DECEMBER 2007 5

Although Positive Software had request- Camiña” (436 F.3d at 504). While noting nection to the parties” (id. at 282-283). protect the finality of arbitration awards ed discovery to uncover the full extent of that some lower federal courts have seen The majority of the en banc Fifth and avoid a return to extended court the relationship between Shurn and a conflict between Justice Black’s major- Circuit minimized Shurn’s involvement expense and delay, this does not justify Susman Godfrey attorneys, the district ity opinion and Justice White’s concur- with New Century’s counsel, Camiña. evading the law of the Supreme Court by court concluded that it had seen enough rence in Commonwealth Coatings, the The majority said that Camiña and misstating it or by avoiding it by bleach- and that the facts already of record cre- panel nevertheless concluded that both Shurn were co-counsel for Intel for only ing the evidence of possible partiality. ated A REASONABLE IMPRESSION opinions share the same goal of full dis- a year - - although the district court Nor should we miss the need to promote OF PARTIALITY that required closure at the arbitration’s outset. In found that the relationship was much the impartiality of arbitrators in this vacatur under Commonwealth Coatings “maintaining faithfulness to the Court’s longer and more involved. The en banc time when that is the favored method of (id.). opinion in Commonwealth Coatings”(id. majority, in an effort to justify its dispute resolution. Influence can so easi- The appeal from the federal district at 502), Judge Reavley, writing for the result, observed that Shurn and ly corrupt the decision-making process court’s order was determined by a unan- unanimous panel, stated: Camiña were only two of 34 lawyers even when it is not recognized by the imous three-judge panel of the Fifth [A]n arbitrator selected by the parties and seven law firms that represented magistrate or arbitrator himself. And to Circuit. The opinion was written by displays evident partiality by the very Intel in the various litigations. This prove bias or improper influence is rarely Judge Thomas M. Reavley, who is one of failure to disclose facts that might create “harmless fraction” argument makes possible. It is imperative that we not this nation’s most distinguished appel- a reasonable impression of the arbitra- little sense since poison, although dilut- allow even the good faith or memory of late judges and humanist intellectuals. tor’s partiality. The evident partiality is ed, still retains its toxic nature. The the potential arbitrator to control the In affirming the district court’s vacatur demonstrated from the nondisclosure, Fifth Circuit’s en banc majority thus disclosure decision for, as the Justices of the award, Judge Reavley stated: “We regardless of whether actual bias is permitted Shurn’s arbitration award in made clear in Commonwealth Coatings, hold that the arbitrator was required to established. favor of defendant New Century to it is the protection and reassurance of disclose the relationship because it (id.). The panel added that “[w]hile stand, without permitting discovery as the party that matters most. might have created an impression of pos- an arbitrator to be selected by the parties to the full extent of Shurn’s relation- (Id. at 288). sible bias.” (436 F.3d 495, 496). Judge need not disclose relationships that are ships with the Susman Godfrey part- Judge Jacques L. Wiener, Jr., wrote a Reavley pointed out Shurn’s repeated trivial, an arbitrator should always err in ners [which the district court said it did separate dissenting opinion, in which false and misleading statements on dis- favor of disclosure” (id. at 503). not need in light of other evidence]. Judge Reavley joined. Judge Wiener closure forms. For instance, Shurn was The Fifth Circuit heard the case en Five judges dissented, including the emphasized the difference between dis- asked on one form: “Have you had any banc and reversed the panel’s decision. three members of the Court who com- qualification and disclosure, correctly professional or social relationship with The Fifth Circuit in Positive Software posed the original panel [Reavley, Garza, stating that the en banc majority con- counsel for any party in this proceeding styled Commonwealth as a “plurality and Benavides, JJ.]. In dissent to the en fused the two terms. Disqualification or with the firms for which they work?” plus” opinion and concluded that arbi- banc opinion, Judge Reavley accused the applies to judges who must weigh (Id. at 497). Shurn insisted several trator Shurn’s undisclosed relationship majority of a failure to follow a preceden- whether a relationship will affect the times, and one time under written oath, with defendant New Century was triv- tial opinion of the United States actual neutrality of the decision-making that he had nothing to disclose (Petition ial and too insubstantial so as to man- Supreme Court. “I dissent because this process or its appearance. Disclosure is for a writ of certiorari, 2007 WL date the arbitration award’s vacatur court may not overrule a decision of the what arbitrators are required to do in the 1093508). (476 F.3d at 281-283). The en banc Supreme Court” (id. at 286). In beauti- forms they must complete so that the Judge Reavley concluded that “the majority concluded: “[N]ondisclosure ful and powerful language that will long parties can make informed and non- district court properly vacated the arbi- alone does not require vacatur of an be remembered, even though unfortu- manipulated choices of who the decision- tration award by reason of Shurn’s fail- arbitral award for evident partiality. nately it did not persuade his colleagues, maker should be. Judge Wiener elo- ure to reveal to the parties his prior rela- An arbitrator’s failure to disclose must Judge Reavley stated: quently stated: tionship with Susman Godfrey and involve a significant compromising con- While I can understand the desire to Continued On Page 10

Queens County Bar Association 90-35 148th Street, Jamaica, New York 11435 l Tel 718-291-4500 l Fax 718-657-1789

NOTICE OF NOMINATING COMMITTEE MEETINGS:

Please take notice that those members who wish to be considered for nomination as Officers or Members of the Board of Managers of the Queens County Bar Association should submit written requests and resumes high- lighting your activities in the Association prior to January 16, 2008. Tentative meetings pursuant to the by-laws have been scheduled by the Nominating Committee on January 23, 2008 and finally on January 30, 2008. Said meetings are scheduled for 5:00 P.M. in the Board of Managers Room - in the Headquarters Building, 90-35 148th Street, Jamaica, N.Y. At those meetings you may present the names of the persons whom you desire to have considered by the Nominating Committee for nomination to offices to be filled at the Annual Meeting. Hearings will be held at those times for that purpose pursuant to the by-laws.

Richard M. Gutierrez Secretary

Please submit your requests in writing to the attention of the:

Nominating Committee Queens County Bar Association 90-35 148 Street Jamaica, N.Y. 11435

The Annual Election of Officers and Managers will be held on March 7, 2008. The newly elected Officers and Managers will assume their duties on June 1, 2008.

Dated: November 28, 2007 Jamaica, NY 6 THE QUEENS BAR BULLETIN – DECEMBER 2007 Lawyers’ Assistance Committee Save a license, save a life!

Are you aware of the fact that the Courthouse and in the Supreme Court and professional coping that face attor- today for information, to share your Queens County Bar Association has an lobby. Awareness of the existence of our neys throughout the State. concerns or to discuss a troubled active Lawyers’ Assistance Committee Lawyers’ Assistance Committee is just In less than two years, the member of the Bar. Your call is confi- presently in place? We are willing to the beginning. Committee members have fielded and dential and will be treated as such. assist our members and their families Contacting the Committee through its handled quite a few inquiries regard- The favor that you are doing such an when the overwhelming problems of daily monitored contact number begins ing victims of alcohol and drug-related attorney and his family will never be alcohol and drug addiction impair their the process. No one relishes the idea of problems. Remember that the Queens forgotten. If early confidential inter- ability to function. suggesting a fellow member of the Bar Lawyers’ Assistance vention prevents a catastrophe, the In 2005, then President George J. needs help, or even admitting his own Committee is a con- entire profession Nashak, Jr. revitalized the Committee of personal problem that involves substance fidential alterna- also is enriched by Lawyers’ Assistance which had unfortu- abuse. Alcohol and drug addiction has tive to the formal the thoughtful nately become dormant over the past not only ruined the professional standing and serious charges moment you have decade. His platform included the devel- of many an attorney but it has also which could lead to taken to get in opment and implementation of proce- destroyed his family, his health and even disciplinary pro- touch. Remember, dures to assist fellow members suffering taken the lives of numerous lawyers ceedings and loss you are not only from alcohol or drug problems. throughout the State. of license. By saving a license, This early intervention is designed to The Queens Bar Association Lawyers’ addressing the you may be saving divert and prevent formal disciplinary Assistance Committee has been working problems of our a life. action and loss of license. The in conjunction with the New York State colleagues early Our 24-hour-a- Committee which began to function less Bar Lawyers’ Assistance Program by par- on, we perform a day confidential than two years ago has already had suc- ticipating in lectures, presentations, and service to the affected attorney, his hotline number is cessful results. You might even have seen responding to phone requests for assis- family and our profession. 718-307-7828. our tri-fold brochures placed by the ele- tance. We have had an eye-opening expe- Why don’t you call the Lawyers’ Someone will be back to you within 24 vator bank on each floor of the Supreme rience regarding the problems of stress Assistance Committee hotline number hours. ■ Three Year Suspension from Practice of Law Questioned

By DENNIS BOSHNACK* plates with a particular combination He paid no interest or late fees, and Tyrpe field as well as state the reason for of letters and numbers — 4GZZ5O nothing on the older tickets. the omission on line one (1) of the sum- In a case of first impression, last year and Y50V26 — because he believed (5) He admitted that he obtained mons. If the “N/A” box is checked off but the First Department suspended an that those plates would be misiden- the vanity plates for the purpose of an explanation is not provided on line attorney, with an unblemished discipli- tified in connection with any parking tricking the ticketing agents; one (1) , this constitutes grounds for ask- nary record, from the practice of law for tickets issued to those plates and described what he did as an “error in ing for a dismissal of the charged viola- three years (Matter of Caldwell, 27 that such misidentification would judgment”; and denied having any tion. A.D.3d 124) . It suspended him not for result in a valid technical defense to intent to obscure the registration (Emphasis in original). doing anything in his law practice, but those parking tickets. sticker, shifting the blame to his Instead of writing the attorney’s cor- for evading liability on his own 167 park- (2) On several occasions the occasional driver, who had died in rect plate type (“SRF”) or indicating the ing tickets issued in New York City 1997- attorney, who had been an ALJ for 2002. plate type listed on the registration 1999. It characterized his behavior as the New York City Parking In imposing a three-year suspension, sticker was covered, the ticket writers “deceitful acts,” “criminal or fraudulent Violations Bureau (hereafter “PVB”) the First department stated: usually wrote the plate type as “PAS.” If design,” and “dishonest scheme to 1991-1995, placed his expired ALJ That respondent, a former ALJ, a ticket for a vehicle bearing New York defraud the City out of parking fines.” identification card on the dashboard. would utilize his expired identification plates lists a plate type, PVB does not This article considers the attorney’s eva- In other instances, he covered part of card and his knowledge of the inner attempt to match the ticket with a vehi- sive techniques in light of Vehicle and the windshield registration sticker, workings of the PVB adjudicatory cle having a different plate type even Traffic Law §§ 238 and 241 and ques- the part that listed the vehicle plate process for his own personal gain, is sim- when the ticket describes a plate type tions whether the suspension is too long. type. ply appalling. Moreover, his statement at that does not exist for the license plate What the attorney essentially did to (3) He did not respond to his deposition and at the Referee’s hearing designation listed on the ticket. When a evade liability on his parking tickets was parking tickets. to the effect that he was technically not ticket describes the plate type as not to obtain vanity license plates from the (4) By 1999 he had incurred obligated to pay the summonses because shown, however, PVB uses other infor- New York State Department of Motor approximately $12,000 in unpaid they were defective are most revealing. mation contained in the ticket, such as Vehicles and affix those plates to family parking tickets, not including late They are demonstrative of respondent’s license plate designation, to match the cars. Although he had put those plates on fees that could never be assessed apparent belief that his criminal or ticket with the correct vehicle. his cars legally, the First Department because of his evasive techniques. In fraudulent design is irrelevant and for- Regardless of plate type, PVB did not suspended him from the practice of law November 1999 he settled with PVB givable where a technical defense exists match any ticket with the correct vehicle, for three years because of the following: by paying $8,225, the face amount of to avoid liability. Respondent is mistak- because PVB entered the wrong plate (1) The attorney ordered those all tickets less than two years old. en, and his reliance on technicalities do designation for the attorney’s vehicles. not take away from the fact that he delib- The attorney’s vehicles had plate desig- erately attempted to cheat the City out of nations containing the letter Q and not money that it was rightfully owed. This the number 0. Many of the 167 tickets was not an instance of mere “error of issued to those vehicles wrote the plate We’ve got a judgment,” but rather persistent miscon- designation as containing a letter O, duct by a former judicial officer. In light while many others wrote the plate desig- of respondent’s continued inability to nation as containing a number 0 (an O appreciate the seriousness of his miscon- with a slash through it). When entering Patent • Our expertise extends to all areas of technology duct, we agree with the Hearing Panel the plate designation from any of the 167 on • We represent everyone from individuals to that a three-year suspension is the tickets into its data base, PVB always multinational corporations appropriate sanction under the circum- entered the plate designation as contain- Experience • We serve clients with distinction in both foreign stances [citations omitted] ing a number 0 instead of letter O. and domestic intellectual property law According to instructions for ticket PVB entered the plate designation • We help clients identify emerging technologies writers on page 9 of The “New” Parking as containing number 0 regardless of Over 8,000 patents granted and ideas Summons Issuance Guidelines (New whether the ticket stated the wrong For more information, call us today at York City Department of Finance, plate type, such as passenger (e.g., ticket Over 15,000 516.365.9802 Parking Violations-Analytical Services 3126213820 issued to plate 4GZZ5O on trademarks obtained or fax us at 516.365.9805. Unit [1996]): 7/28/97) ; stated the plate type as “N/A,” If the PLATE TYPE for any vehicle “covered,” “unreadable,” etc. (e.g., ticket Over 40 years of experience cannot be determined because the regis- 3203678974 issued to plate 4GZZ5O on tration sticker is either covered, faded, 9/25/97) ; or stated the correct plate type, 1077 Northern Blvd., Roslyn, NY 11576 defaced, or mutilated, the issuer should www.CollardRoe.com check the “N/A” box next to the Plate Continued On Page 14 THE QUEENS BAR BULLETIN – DECEMBER 2007 7 Golf Outing September 6, 2007

A wonderful time was had by more than 150 golfers, ten- Empire Bail Bonds, Big Apple Abstract, Orlow, Orlow and nis players and diners at the Annual Golf and Tennis Orlow PC, Sterling National Bank, Signature Bank, HSBC, Outing held at North Hills Country Club. The weather was George Nashak, Esq., Crowley and Kaufman, Esqs., Capell great and the competition hot and heavy. The Golf awards Vishnick, LLC, Affordable Bail Bonds, Laurino and Laurino, went to John Steigler, President’s Cup - Member Low Esqs., Scott Baron and Associates, PC, Old Republic Title Gross; Member Low Net, Drew Wasserman; Guest Low Company, Holt, Rubinstein and Reminick CPAs, and National Gross, John O’Kane; Female Low Gross; Pat Colella, Female Bank of New York City. Please support our sponsors as they Low Net, Maura Nicolosi; Closest to the Pin, John Trotti support the QCBA. and Ellie Vreeburg, Longest Drive, Kevin Berry and Jackie Wagner. Hope to see you all next year! In addition to a good time, we raise money for our Pro bono efforts. The following sponsors helped make this outing a David L. Cohen financial success: Chair, Golf Outing

Window is Closing on Unique Chance to Make Charitable Contributions

By MARK WELIKY*

The 2006 Pension Protection Act allows a limited-time opportunity to make tax-free charitable contributions directly from IRAs to qualified charitable organizations such as the Queens Volunteer Lawyers Project. These gifts are tax free – no personal income is realized and no income tax is paid on the withdrawal. This is good news for people who want to make a charitable gift during their lifetime from their retirement assets, but have been dis- couraged from doing so because of potential tax penalties. It is also good news because traditional IRAs are among the most heavily taxed assets if they remain in your estate upon death – since they are subject to both estate tax and income tax. Between now and December 31, 2007 you may still take advantage of this unique opportunity to support the pro bono program of the Queens County Bar Association. The basics of these “Charitable IRA Rollovers” are: ● Individuals aged 701/2 and older may transfer up to $100,000 per year directly from an IRA (traditional or Roth) to a qualified charity; ● The charitable distribution is tax- free and may be applied toward your annual Required Minimum Distribution; ● Even if you plan other charitable gifts that will fully utilize your allow- able federal income tax charitable deduction (50% of your adjusted gross income for cash gifts to public chari- ties), you can take advantage of this legislation. If you wish to make a gift or if you would like more information call Mark Weliky at (718) 291-4500.

*Mark Weliky is Pro Bono Coordinator for the Queens County Bar Association. 8 THE QUEENS BAR BULLETIN – DECEMBER 2007

PHOTO CORNER

Stated Meeting, Monday, November 19, 2007 Meet Our New Administrative Judge, Civil Term – Hon. Jeremy S. Weinstein

George Nashak, Hon. Jeffrey Lebowitz and Hon. Augustus Agate, Tracy Catapano-Fox and Hon. Charles LoPresto, Hon. Robert Kalish and Mike Dikman Hon. Jeffrey Lebowitz Ted Gorycki

Greg Brown and George Nashak, Jr. Hon. Jeremy Weinstein speaking

Ed Rosenthal, Jim Pieret, Guy Vitacco, Jr., Mike Dikman and Richard Gutierrez

Hon. Bernice Siegal, Tracy Catapano-Fox, Hon. Augustus Agate, Dimitri Kotzamanis , Hon. Jeremy Weinstein, Ira Futterman and James Wrynn Hon. Robert Kalish, Hon. Augustus Agate, Hon. Denis Butler, Hon. Charles LoPresto and Nelson Timken

Hon. Martin Ritholtz, Hon. Bernice Siegal, Hon. James Golia, Tracy Catapano-Fox Hon. Seymour Boyers, Hon. Jeremy Weinstein and Hon. Charles LoPresto and Jerome Patterson and Ted Gorycki Hon. Augustus Agate

Photos by Walter Karling THE QUEENS BAR BULLETIN – DECEMBER 2007 9

Nelson Timken, Hon. Martin Ritholtz and Ted Gorycki, Joseph Risi, Jr. and Angelo Jim Pieret Caldi Richard Lazarus, Hon. Stephen Knopf, Debra Knopf and Richard Gutierrez

Jerome Patterson, Guy Vitacco, Jr., Tracy Catapano-Fox, Hon. Augustus Wallace Leinheardt, Hon. Denis Butler and Joseph Risi, Jr. and Richard Gutierrez Agate and David Cohen Hon. Seymour Boyers

Attendees listening attentively

Wallace Leinheardt and Steven Orlow asking questions of Hon. Jeremy Weinstein

Attendees of the Stated Meeting

David Cohen and Hon. Tracy Catapano-Fox, Hon. Jeremy David Cohen introducing Hon. Jeremy Weinstein Jeremy Weinstein Weinstein and Hon. Bernice Siegal 10 THE QUEENS BAR BULLETIN – DECEMBER 2007 Subversion Of ADR: Nondisclosure Of Ties By Appointed And Aspiring Arbitrators

Continued From Page 5 A COURT’S POWER TO Incidentally, to the extent that the en 756 NYS2d 403 (Sup. Ct. Nassau County banc majority of the Fifth Circuit wanted 2003), the petitioner’s attorney learned In federal court, it is the system and CHOOSE AMONG POLICIES to avoid finality, it got an unexpected sur- that 25 years earlier, the arbitrator had the judges who perform the “gatekeeper” An interesting aspect of Positive prise. Positive Software, in the federal worked for Allstate for 20 years but had function to exclude decision-maker Software is a court’s ability to decide pol- district court, has now sued the Susman not disclosed this fact. Briefly citing favoritism or its appearance. In arbitra- icy and to choose between competing Godfrey lawyers for tortious conduct and Commonwealth Coatings, without refer- tion, though, it is the parties who are the policies. Of course, the members of the conspiracy with New Century in the ring to either the Black or White opin- gatekeepers, and not the potential arbi- Fifth Circuit had to engage in traditional unlawful copying of the software (John ions, Justice Peter B. Skelos, in trators or the arbitration associations (or judicial functions of how to interpret Council, “Susman Godfrey Sued over Seligman, vacated the arbitration their rules). Filtration of partiality in both the federal statute governing the Alleged Fraud, Conspiracy,” Texas award, stating: “The determination of arbitration is the exclusive prerogative vacatur of arbitration awards and a Lawyer, Aug. 27, 2007, available at whether the relationship is trivial or not and duty of the parties - - and only the United States Supreme Court case. In www.law.com). does not rest with the arbitrator, but parties - - as it is they alone who select reality, Positive Software shows a court’s Judge Reavley, in both the panel opin- rather must in the first instance be the decision maker. As gatekeepers, the policy-making powers and how judges ion of Positive Software and in his dis- passed upon by the parties” (id. at 557, parties are charged with guarding make decisions on what values or goals sent to the en banc opinion, got it right. 756 NYS2d at 407). against favoritism and prejudice, a duty that they deem to be important or want In the aftermath of Positive Software, the A recent, excellent law review article, that they cannot possibly discharge in to give preference. Consider: decision of what standard to apply in Rossein & Hope, “Disclosure and the absence of total disclosure. ● ARBITRATIONS NEED FINALI- deciding whether or not to vacate an Disqualification Standards for Neutral * * * * * * * TY. If arbitration awards are not treat- arbitral award as the result of an arbi- Arbitrators: How Far to Cast the Net ....For the system to enjoy credibili- ed with finality, disgruntled parties will trator’s nondisclosure is unsettled. More and What Is Sufficient to Vacate ty, each potential arbitrator absolutely keep searching for ways to overturn likely, vacatur will be determined by the Award,” 81 St. John’s L. Rev. 203, 256 must disclose every relationship with them. narrow, impressionistically-laced stan- (2007), concludes: the parties and counsel, no matter how ● ARBITRATIONS NEED INTEGRI- dard of “evident partiality” - - contraven- Disclosure must occur at every stage minimal or insignificant the aspiring TY. Especially at a time when ADR is ing the intention of the six Justices of the of the arbitration, as arbitrators have a arbitrator might deem it to be. For it is being touted and encouraged, we should Commonwealth Coatings Court that continuing duty to disclose, and some- not the prerogative of the candidate to not trust arbitrator candidates to an vacated an arbitration award for nondis- times a continuing duty to investigate, pick and choose, but the prerogative of honor system in deciding what relation- closure, based upon AN IMPRESSION circumstances or relationships which the parties alone to decide such signifi- ships with parties and their counsel OF POSSIBLE BIAS, even though every- may provide evidence of evident partiali- cance. And that cannot be done with any that they need to disclose, without one agreed that the arbitrator there was ty, WHETHER THAT BE AN IMPRES- degree of comfort absent full disclosure. checks-and-balances, safeguards, and unquestionably and actually impartial. SION OF BIAS OR FACTS WHICH These reasons and those expressed by penalties to serve as a deterrent in the Since honesty in disclosure is hard to WOULD LEAD A REASONABLE PER- Judge Reavley compel me to concur in event of abuse and dishonesty. In order enforce and an investigation of an arbi- SON TO BELIEVE AN ARBITRATOR his dissent. to maintain the integrity of the process, trator’s actual candor is costly and can be IS BIASED. Where an arbitrator has (Id. at 293-294; italics in the original). the failure of arbitrator candidates to undertaken by only financially well- completely followed his obligation under Both Judge Reavley in the panel deci- complete the disclosure form honestly heeled litigants, that standard of “evi- rules and terms of the parties’ agree- sion and Justice White in his concur- should be a compulsory vacatur of the dent partiality” leaves in place an ment, which she or he believes might dis- rence in Commonwealth Coatings main- award with a direction to go back to the unworkable honor system of disclosure. qualify him as impartial arbitrator, an tained that they were not concerned with starting block. It is not within the arbitration award cannot be set aside on “trivial” ties, although they, too, in an province of arbitrators to decide RECENT NEW YORK CASES ground of arbitrator bias. [Boldface and abundance of caution should be disclosed whether they should disqualify them- capitalization added]. (436 F.3d at 503; 393 U.S. at 150). selves. Since the parties must choose In Applied Industrial, supra, 492 F.3d “Trivial” is exactly what it means: “Once among several candidates, the key must 132, the United States Court of Appeals AN UNWORKABLE upon a time, we met or were in the pres- be full disclosure of all ties to a party or for the Second Circuit, which still adheres HONOR SYSTEM ence of each other.” No one should have its counsel. Anything less encourages to Justice White’s two-person concur- trouble with this understanding of “trivi- manipulation and lawlessness. A rule rence, and interprets it very narrowly, Justice White urged all arbitrator can- ality.” The relationship of co-counsel in of mandatory vacatur of an award for nevertheless held found “evident partiali- didates to make disclosure of all ties at protracted, lengthy, and sophisticated nondisclosure - - especially when the ty” of an arbitrator, warranting vacatur of the very outset of the arbitration process high-stakes commercial litigations can- matter was decided by one arbitrator, as the arbitration award. In Applied so as to avoid a subsequent, ugly, and not be marginalized as “trivial,” infa- opposed to a panel of three or more arbi- Industrial, the arbitrator learned of a expensive challenge by the losing party mously done by the en banc majority, trators - - and possibly professional dis- potential conflict of interest arising from to the arbitration. A recent article by together with “bleaching the evidence of cipline to a lawyer-arbitrator candidate contract discussions between the arbitra- Pulitzer Prize-winning economics and possible partiality” (476 F.3d at 288, will result in honest disclosure. tor’s company and the parent of a party to financial affairs commentator Gretchen Reavley, J., dissenting). The Fifth Circuit’s en banc majority, in arbitration. The arbitrator instead, on his Morgenson brilliantly exposes that such Despite a persuasive petition for a narrowly interpreting 9 U.S.C. section own initiative, decided to erect a “Chinese an honor system cannot work. In “When writ of certiorari, available on Westlaw 10(a)(2) so as to require “evident partiali- Wall” instead of investigating further and Arbitrators Are Their Own Judges,” NY at 2007 WL 1093508, showing the divi- ty” and ignoring Justice Black’s opinion failed to inform the parties of the problem Times, Aug 12, 2007, at Business section, sion among the federal circuits in the for the Supreme Court in Commonwealth or the “Chinese Wall.” p. 1 [available at www.nytimes.com], construction of Commonwealth Coatings Coatings, opted to reach its policy prefer- The New York state courts also ignore Morgenson focuses on one case. Harley and the injustice sustained by plaintiff ence of arbitration finality. Judges Justice Black’s opinion for the McDonald, a retired lawyer, and his wife, Positive Software, which was ordered by Reavley and Wiener, on the other hand, Commonwealth Coatings Court and Carol, had a retirement account valued Shurn to pay an outlandish sum to a sought to protect the sanctity of the con- instead quote Justice White’s concurrence. at $60 million. His investment advisers party that copied and stole its software cept of ADR by insuring arbitrator disclo- The New York Court of Appeals, following at Piper Jaffray (“Piper”) gave advice support program, the Supreme Court sure. Both goals, finality and integrity, White’s opinion, in J.P. Stevens & Co., Inc. that resulted in the nest egg losing 80% denied the petition and refused to hear are laudable. Ultimately, a case present- v. Ryder Corp., 34 NY2d 123, 129-130, 356 of its value. Unlike in Positive Software, the case (127 S. Ct. 2943 [June 11, 2007]) ing a collision between these two goals NYS2d 278, 283 (1974), similarly stated: in which the arbitration was heard by a Perhaps the enticement of summer force judges to make a policy choice. “[I]n the interest of fairness . . . all arbi- sole arbitrator, the McDonalds’ dispute vacation played a part in the denial of the Equally important, this type of collision trators before entering upon their duties was to be submitted to a panel of arbi- Supreme Court to resolve a division on between two viable policies forces us to should make known any relationship trators. With only three-four days left to how one of its own decisions should be deal with our own internal ethical codes. direct or indirect that they have with any the start of the arbitration, the interpreted at a time when businesses and We ALL promote the concept of arbitra- party to the arbitration, and disclose all McDonalds’ lawyer discovered that the individuals are forced into contractually tors’ self-disclosure, but how far are we facts known to them which might indicate chairman of the panel, attorney Mark F. binding arbitrations. Its failure to address willing to fight for the sanctity of a dis- any interest or create a presumption of Marshall, failed to disclose that his law such a question of fundamental impor- pute resolution process? Judge Reavley bias.” Just recently, in SOMA Partners, firm, Davenport, Evans, Hurwitz & tance, which would have provided neces- readily prizes the integrity of the arbitra- LLC v. Northwest Biotherapeutics, Inc.,41 Smith in South Dakota, represented sary guidance to lower courts and arbitration, so essential in keeping the confi- AD3d 257, 838 NYS2d 519 (1st Dept. Piper, the defendant in the arbitration on tor candidates, is nothing less than judicial dence of both the public and the business 2007), the appellate court, also following numerous, repeated occasions. In 1999, abdication. The judicial branch’s potency world in judicially-sanctioned proceed- Justice White, recently vacated the award Davenport, Evans represented Piper in a lies solely because of public confidence in ings. In sharp contrast, to attain its goal because the arbitrator learned that a litigation; in 2003, it represented Piper the integrity of our courts and judicially- of finality, the Fifth Circuit’s en banc lawyer who was “of counsel” to his large in a case involving alleged misconduct of mandated proceedings. Failure to address majority in Positive Software expediently law firm’s D.C. office was connected to and three of its brokers; and, in both 2002 and correct an arbitrator’s manipulative sacrificed both the need to insure full dis- knew one of the parties, and the arbitrator and 2006, it provided legal representa- nondisclosure does not promote public con- closure by arbitrator candidates and the failed to disclose that fact. tion to Piper regarding the underwriting fidence, when court-ordered arbitrations public’s impression of the integrity of the In Matter of Seligman v. Allstate of public offerings. Violating his written are under a judicial umbrella. arbitration process. Insurance Company, 195 Misc. 2d 553, oath as to the truth of his disclosures, THE QUEENS BAR BULLETIN – DECEMBER 2007 11 attorney Marshall did not reveal his law review commentators. A lawyer who is appointed or aspiring arbitrator who when lawyer-arbitrator Peter Shurn, in firm’s solid ties to and repeated legal rep- a candidate for appointment as an arbi- failed to disclose a relationship? Positive Software, and lawyer-arbitrator resentation of the defendant to the trator may calculate [incorrectly] that, Probably. In In re Forrest, 265 A.D.2d Mark F. Marshall, in the McDonald v. McDonalds in the arbitration about to even if his or her duplicity is caught, the 12 (2000), the First Department Piper arbitration, falsely responded that commence. After reading Morgenson’s chances of professional discipline are imposed reciprocal discipline upon a they had nothing to disclose when they recent, excellent expose, would you now minimal. At most, in the face of nondis- lawyer who failed to disclose to an arbi- were required to list any relationships or feel comfortable in submitting your con- closure, his or her name will be struck, trator and opposing counsel that his ties to the parties and their counsel in the troversy to binding arbitration? not from the rolls of admitted attorneys, client, the claimant, had died. Since underlying arbitrations. Marshall failed to return phone calls but from the lists of qualified arbitrator many states, such as New York, impose No one is afraid of toothless tigers. to Ms. Morgenson for comment. His fail- candidates of only the host arbitration professional discipline - - including dis- Holmes, writing for the Supreme ure to disclose or to explain his nondisclo- company, and perhaps only temporarily, barment - - on lawyers who misstate or Court’s majority in The Western Maid, sure speaks volumes about an arbitral thereby free to solicit work from compet- falsify credentials on their bar applica- 257 U.S. 419, 433 [1922], stated: “Legal process with the possibility of not only ing ADR firms. He or she may be tempt- tion papers and resume (see, e.g., In re obligations that exist but cannot be mere mischief, but abuse and corruption. ed not to disclose in order to gain a Parker, 777 NE2d 677 [Ind. 2002] [dis- enforced are ghosts that are seen in the American courts will not hesitate to healthy fee, while either assisting a barment ordered]; In re Osredker,25 law but that are elusive to the grasp.” enforce a contract mandating arbitration friend, former comrade, or supporter or, AD3d 199 [4th Dept. 2005] [same]), Judge Wiener, in dissenting in Positive (see, e.g., Rodriguez de Quijas v. as in Mr. Marshall’s notorious case, to there is no valid reason why that rule Software, described the already slen- Shearson/American Exp., Inc., 490 U.S. reward and favor a client of the potential should not be extended to lawyers who der, even “anorexic” reed of truthful 477 [1989] [pre-dispute agreement to arbitrator’s law firm. A rogue arbitra- fail to make the proper disclosure in the self-disclosure which is the underpin- arbitrate claims under the federal tor’s decision to refrain from honest dis- arbitration forms, especially when they ning of arbitration (476 F.3d at 294). Securities Act was enforceable]; McGraw- closure is further protected, as a practi- are signed under oath. Without taking any steps to protect the Hill Companies, Inc. v. School Specialty, cal matter, by the prohibitive cost of pay- Neither Shurn nor Marshall were integrity of arbitrations, the promotion Inc., 42 AD3d 360, 840 NYS2d 47 [1st ing for an investigation of the arbitra- deterred by the language of oaths or of ADR is hollow. Judges can describe Dept. July 19, 2007] [dismissing com- tor’s background and maintaining a post- current penalties when they repeated- arbitration as both fast and final - - but plaint, court enforced ADR provision of arbitration vacatur litigation. ly made false and misleading respons- honest? By the eloquent and fact-filled the agreement]). In light of uniform judi- Such thinking is not foolproof. In one es. The failure to impose an enforce- accounts of Judge Reavley, Judge cial enforcement of agreements to arbi- case, the Supreme Court of Colorado held, able and clear standard for the courts Wiener, and journalist Morgenson - - trate disputes, despite the lure of sum- in In re Attorney D., 57 P.3d 395 [2002], to follow in vacating arbitral awards not always. mer recess, the United States Supreme that an attorney’s conduct of falsely sign- based on nondisclosure and to mete The appeal to arbitrators to disclose Court should have exercised its concomi- ing an oath in 1992 and failing to disclose stiff professional discipline upon rogue relationships in Continental Coatings, tant responsibility to hear cases reaching a financial, business, or professional rela- arbitrators who misrepresent their ties decided in 1968, is almost 40 years old. the integrity of the arbitration process. tionship in connection with his appoint- to parties or their counsel, by commis- Despite such judicial appeals, abuses By denying the petition for certiorari in ment as an insurance arbitrator fell clear- sion or omission, will defeat the goal of have occurred. The time has arrived Positive Software, the Supreme Court ly within the meaning of “fraud” for pur- encouraging ADR, promote an atmos- to implement meaty, meaningful mech- failed both in performing its duty and in poses of the rule excusing compliance phere of lawlessness, and lose public anisms to enforce honest disclosure. demonstrating real judicial leadership. with a five-year limitations period to initi- confidence in judicially-sanctioned pro- Imposing attorney discipline upon ate an attorney disciplinary investigation. ceedings. If appointed and aspiring lawyer-arbitrators who make false NONDISCLOSURE CAN BE My research has not found any New lawyer-arbitrators cannot, by moral statements in the arbitration forms SUBJECT TO ATTORNEY York case of an arbitrator-lawyer being conscience, voluntarily disclose ties and adopting the clearer standard subject to attorney discipline for failing and tell the truth, then the commence- urged by Judge Reavley of vacating DISCIPLINE to disclose a relationship or tie and mak- ment of disciplinary proceedings awards where the nondisclosure cre- A judge who fails to disqualify himself ing a false statement on the arbitration against such rogues will have a benefi- ates the impression of the appearance or herself is subject to review and criti- company’s disclosure forms. Will New cial cleansing and cathartic effect. of bias will produce the even playing cism by appellate courts, a Commission York follow the Colorado lead of pursu- No one was asking for their unabridged field that is the aspiration of every on Judicial Conduct, and, not least, law ing professional discipline against an professional and personal biographies party to an arbitration. ■

Business Banking. Commerce Style. Looking for a Banking Partner? Let Commerce Be Your Counsel. • Open 7 Days with Extended Hours • Deposits Credited Up to 6pm • Next-Day Availability on Deposited Checks • EscrowDirect®— 24/7 Online Access to Escrow Accounts • IOLA Accounts

Call Jack Rainey at 1-888-751-9000

commerceonline.com

Restrictions may apply for next-day availability. Please see deposit account rules for details. Member FDIC 12 THE QUEENS BAR BULLETIN – DECEMBER 2007

T HE C ULTURE C ORNER

The Metropolitan Opera, discussed in 319 Bowery [tel. 212-228-8200] and pro- class productions, receiving commenda- Upon arrival, you will be warmly last month’s column, for opera aficiona- vides a much needed venue for up-and- tions and awards from several New York greeted by IRENE FYDEL KIM, ANN dos, is not the only opera show in town. coming opera singers and musicians to City Mayors. The Amatos have been BONEY, who, working for 50 years with THE AMATO OPERA and THE NEW perform. If you think that seats to the inducted into City Lore’s Peoples’ Hall of the Amato Opera, now sells tickets after YORK CITY OPERA also deserve your AMATO OPERA are easy to come by, Fame, honored by the American Cultural having been a soprano in numerous pro- attention and patronage. think again. Each of the weekend per- Roundtable, and the Italian Heritage and ductions, and the professional House formances on November 24 and 25 were Cultural Committee, in recognition for Manager, JOHN KIM. This year, two sold out, and I witnessed the House staff their contribution to the artistic life of overhead screens in the theater conve- THE NEW YORK CITY OPERA adding chairs to accommodate persons New York City. niently give simultaneous English subti- “Vanessa,” which probably ranks as the who would not be turned away and In 1964, Amato Opera found a new per- tles and summaries, similar to that greatest American opera to insisted on seeing the operas! manent home in a four-story white build- employed by the New York City Opera. A date, by composer Samuel To get a feel and under- ing, which was converted into a 107-seat well-stocked refreshment stand, with Barber, enjoyed a magnificent standing of the AMATO theater with a 20-foot stage, orchestra pit, reasonable prices, is located at the back run at THE NEW YORK OPERA, I attended three rehearsal space, storage for 55 sets, and of the theater. CITY OPERA, closing on the separate performances seating in both orchestra and loge. For anyone who hasn’t planned New matinee of November 17. [November 17, 24, & 25] of Each season includes six different Year’s Eve, I heartily recommend buying Both Lauren Flanigan in the both of the twin-bill produc- operas, typically a mix of comedies and tickets for the New Year’s Eve Gala, com- title role and Katharine tions that just concluded on tragedies. Performances of each opera mencing at 7:30 P.M. At only $125.00 per Goeldner as Erika, Vanessa’s November 25, “Cavalleria run over five weekends with six to ten person, the gala includes a splendid buf- niece, were superb opera Rusticana” and “Pagliacci,” different casts. Throughout its life the fet dinner, champagne, and the continua- singers and performers. usually referred in the trade Amato Company has maintained a poli- tion of food and drink after the perform- After seeing Bellini’s as “Cav/Pag” because of the cy of keeping prices low, charging only ance of Puccini’s beautifully composed famous classic “Norma” at Howard L. worldwide coupling of the $1.80 a seat when it moved into its cur- and emotional heartbreaker “La the Metropolitan Opera, the Wieder two operas. These two rent building in 1964. By 1975 ticket Boheme.” You will need to hurry to make next day I saw “Vanessa” at operas, written by different prices were only $3-4. Today, at only $35 reservations for New Year’s Eve, since THE NEW YORK CITY OPERA. As a composers, are usually presented as a for an orchestra seat ($30 for students, the seating capacity is almost full. On result of scheduling coincidence, I twin-bill for several reasons. First, they children, and seniors), ticket prices are May 4, 2008, the AMATO OPERA will noticed their identical themes, even are both short operas and deal with the still a fraction of the prices for compara- present a similar gala, with elaborate though the two operas have different same theme: marital infidelity, jealousy, ble seats at larger opera houses. and exquisite Italian homemade cooking, time periods and settings. Both “Norma” rage, and revenge. Second, the settings The Amato Opera also mounts, each to celebrate its 60th season. Tickets are and “Vanessa” are stories regarding the of both operas take place in 19th century season, popular Saturday morning available for that gala as well. complete loyalty of one woman to her Italy. Third, they were daring at their Opera-In-Brief performances, at 11:30 THE AMATO OPERA can be proud female friend or relative, sacrificing her creation as opera verismo. Fourth, for A.M., where each performance is only 90 of the talent it has amassed in its rotat- happiness for her friend/relative, both composer Pietro Mascagni [1863- minutes long so as to present only high- ing casts. Among the performers, I although desirous of the love of the same 1945], the composer of Cavalleria lights to young children. The cost for enjoyed the remarkable voices of JAME- man. In “Norma,” Adalgisa, a Druid Rusticana, and for Ruggero Leoncavallo these operas is $15 for each child under SON JAMES, ENRIQUE REXACH, priestess, immediately and suddenly [1857-1919], the composer of Pagliacci, 12 years of age and only $20 for everyone CHERYL LYNN WARFIELD, and the breaks off her relationship with Pollione these two operas marked their finest else accompanying the child. Aimed at conducting talent of ANDREW WHIT- as soon as she learns that High Priestess achievement, and nothing else written children, the Opera-In-Brief series per- FIELD. Their life stories are a tribute to Norma is the mother of his two young by them remotely reached their musical formances are full-length short operas or the vital work to which ANTHONY sons and that Norma still loves him. In beauty and splendor. Fifth, in each of abridged versions of longer operas inter- AMATO and the late SALLY AMATO “Vanessa,” Erika, the title character’s these two operas, the infidelity is spersed with narration. have devoted their lives in founding niece, even covers up the fact that she is exposed to the betrayed spouse by a THE AMATO OPERA. carrying Anatol’s child when she learns rejected suitor; in Cav, it was the Handsome, noble looking, and vocally- that her reclusive aunt Vanessa has tormented, loving, and despairing gifted tenor JAMESON JAMES, play- finally found love after 20 years of wait- Santuzza, desirous of Turridu’s ing Beppe, a supporting role in “Pag,” is a ing futilely for Anatol’s late father. affection and return, who true talent with an enormous future As opposed to the themes of informed Alfio of his wife Lola’s ahead. He has the potential for reaching “Cavalleria Rusticana” and “Pagliacci,” betrayal, and in Pag, Tonio, upset the opera world’s heights. In the role of discussed below, where tragic conse- that Nedda rejected his advances, Beppe, his singing was clear and showed quences are the brutal pay when lust tri- blew the whistle to Canio of her great range in all registers. His pronun- umphs over marital fidelity, in both extramarital liaisons with Silvio. ciation of Italian was flawless in a rapid- “Norma” and “Vanessa” a woman’s friend- Finally, the scores in both are so fire, crucial scene, where Beppe success- ship and fondness for her female beautiful and memorable that they fully prevents Canio [in his first friend/relative is a great gift, with sacri- have made the basic opera reper- attempt] from killing his wife. JAME- fice, where loyalty triumphs over passion. toire throughout the world. SON JAMES’S acting skills were THE NEW YORK CITY OPERA’S Mascagni’s Intermezzo during “Cav” excellent in that scene, maintaining, as production of Handel’s “Agrippina” was is a renowned piece of composition, the linchpin, the intensity and believ- similarly innovative and visually arrest- and numerous tenors have performed ability of the moment. Later in the ing, in addition to the brilliant performance the immortal “Vesti la Giubba,” where opera, despite the carelessness of of Nelly Miricioiu. Massenet’s “Cendrillon” the clown Pagliacci expresses his some company members causing was a fairy tale in four acts starring searing pain. plates and cups to tumble repeatedly, Cassandre Berthon and Joyce Castle. Beth Now, turning back to the fascinat- Mr. James seamlessly scooped up a Clayton was a sensuous, sultry, and seduc- ing AMATO OPERA, it is soon cele- fallen prop and made it seem natu- tive Carmen in the New York City Opera’s brating its 60th year of existence under ral. critically acclaimed production. Her beau- the direction of its Artistic Director, JAMESON JAMES, born in tiful mezzo-soprano voice and performance Italian-born tenor ANTHONY Austin, Texas, has sung for Boston as the passionate vixen captivated a filled- AMATO and the watchful management Lyric Opera, Bronx Opera, Dicapo to-capacity audience. eye of his niece, IRENE FYDEL KIM, Opera, Amato Opera, Aspen Opera The New York City Opera’s schedule its executive director. THE AMATO Theater Center, New Texas for spring 2008 runs only from March 5 OPERA is a hidden gem in New York Festival, and Rome Opera Festival. to April 20, 2008, so you better purchase City, unknown to many culture lovers, He received his Bachelor of Music from tickets now at www.nycopera.com or call although it is the subject of articles on Rice University’s Shepherd School of 212-721-6500. www.wikipedia.com and on www.pbs.org. The next production, Puccini’s “La Music, and a Master of Music from the The AMATO OPERA is believed to Boheme” premieres on December 8, 2007 New England Conservatory in Boston. be the only self-sustaining opera house and closes with the performance on In 2007, JAMESON JAMES was a THE AMATO OPERA in the United States. It is a not-for-prof- January 13. A special Saturday matinee regional finalist at the prestigious What do the AMATO OPERA and it corporation, and all checks and dona- will be held on December 29. Other operas Metropolitan National Council Regional the State of Israel have in common? tions made to this very worthy Opera that will be performed during the 2007- Auditions in San Antonio, Texas. In Both were founded in 1948, and in May, Company are tax-deductible. The 2008 CONSECUTIVE 60th Anniversary addition, he is a versatile singer and has 2008, they will be both celebrating their AMATO OPERA was founded in 1948 by Season include: Donizetti’s comic “Don had the opportunity to create roles for 60th year of existence! ANTHONY AMATO [born 1920] and his Pasquale” from February 16 through new works. In 2008, he will sing the role One of the great hidden gems of New late devoted wife SALLY AMATO [1917– March 16, including a special Saturday of the Beast in Dicapo Opera’s produc- York City’s pulsating cultural life can be 2000], with two goals in mind: to perform matinee on March 8; Verdi’s “Il Trovatore” tion, Beauty and the Beast. found at the corner of the Bowery and entertaining opera at a reasonable price from March 29 through April 27, and By day, 31- year-old tenor JAMESON Bleeker Street, on the edge of and to give promising singers experience Mozart’s comic “Cosi Fan Tutte” from May JAMES works in a noted wine store, Manhattan’s SoHo. Right near the ele- and a training ground with full-length 10 through June 9. The complete list of Moore Brothers Wine Company, at 33 gant Bowery Hotel, the AMATO productions. The AMATO OPERA has operas is located on the AMATO OPERA’s East 20th Street in Manhattan. On OPERA [www.amato.org] is located at gained a reputation for mounting first- web site of www.amato.org. Sunday mornings, JAMESON JAMES THE QUEENS BAR BULLETIN – DECEMBER 2007 13

T HE C ULTURE C ORNER can be seen and heard as a soloist at St. in Rome as Fiordiligi in Mozart’s “Cosi method acting. Here’s a word to the first complete opera, Verdi’s beautiful “La Patrick’s Cathedral on Fifth Avenue. His fan tutte.” She has appeared with the wise for opera agents and managers: Traviata.” In 2004, he conducted “Le dream, however, is of attaining his pro- renowned Bregenz Festival in Austria, CHERYL LYNN WARFIELD’s acting Nozze di Figaro.” In 2006, he took the fessional quest as an operatic tenor. at the Theater des Westins in Berlin, and vocal gifts are ready NOW for the position of musical director at the That means money to support numerous and in Sweden and the Czech Republic. major leagues of the operatic world: LA AMATO OPERA and has gone on to con- lessons over years with noted and costly In New York, CHERYL LYNN SCALA in Milan and the METROPOL- duct numerous famous operas, including vocal coaches. I hope that Mr. James, WARFIELD has performed over 15 lead ITAN OPERA in New York! “Tosca,” “The Merry Widow,” “Aida,” “Don who has already played Count Almaviva roles in the standard Italian repertory, By day, CHERYL LYNN Giovanni,” “Faust,” “Rigoletto,” “Die in Rossini’s “Barber of Seville” at the and she appeared on Broadway in Hal WARFIELD is the Director of Finance Fledermaus,” “La Forza del Destino,” Amato Opera, will get the chance to tack- Prince’s Tony Award-winning revival of at The New York Sun newspaper. She is “Madama Butterfly,” “Falstaff,” “Il le even meatier roles, such as the title Jerome Kern’s masterpiece “SHOW- developing an opera pod cast that will be Barbiere di Siviglia,” among many others. character in Gounod’s “Faust.” BOAT.” She has appeared frequently in available at www.nysun.com. The 29-year old, handsome virtuoso JAMESON JAMES attributes his the spirituals concert “Paul Robeson: A I was also impressed generally by conductor, violinist, and tenor, has the interest in music to his mother’s musical Celebration of Culture,” and the one- other performers. Associate conductor unique life’s experience to be a great con- side of the family. Although his maternal woman show she wrote and directed ANDREW WHITFIELD, also a singer ductor, sensitive to the needs of both grandmother wanted all of the grandchil- “Meet Dorothy Maynor,” about the life and musician, was in terrific form, ener- singers and musicians. The singers that dren to play musical instruments, no one and artistry of the famous soprano and getically conducting the Cav/Pag twin-bill I interviewed, JAMESON JAMES, turned to singing. Then only 12 years old, founder of the Harlem School of the Arts. on both days of the sold-out weekend of ENRIQUE REXACH, and CHERYL Mr. James saw a production of Mozart’s CHERYL LYNN WARFIELD’s por- November 24-25. He kept the momentum WARFIELD were unreserved in their “Die Fledermaus” and was hooked on the trayal of Santuzza, in “Cavalleria of the music, briskly leading the orches- praise for ANDREW WHITFIELD’S operatic art form. Opera, to JAMESON Rusticana” at THE AMATO OPERA, for tra, while discreetly and almost unde- talent, style, skills, and understanding. JAMES, is a “totally integrated art form. three performances this past Fall, was a tectably signaling cues to the singers and ANDREW WHITFIELD admires con- Music, theater, sets, costumes, voice - - all virtuoso triumph. Her voice was beauti- the ensemble cast. ANDREW WHIT- ductors James Levine of the Metropolitan of it must be communicated effectively to ful and, indeed, flawless, and her per- FIELD understood the sweep of both the Opera and Anthony Amato for their abil- an audience. It is the ultimate challenge.” formance was a tour de force. CHERYL Mascagni and Leoncavallo scores, and he ity to juggle many operas at the same Among his favorite opera singers are: LYNN WARFIELD listened to record- moved the orchestra, to tap its maximum time. He also admires Wagnerian opera Alfredo Kraus, Luciano Pavarotti, Renee ings of both Renata Scotto and Renata best. This young, talented conductor is a singers Gwyneth Jones, Birgit Nilsson, Fleming, Bryn Terfel, and Thomas Tebaldi before taking on this complex name to remember. and Lauritz Melchoir. Hampson. role. CHERYL LYNN WARFIELD cap- ANDREW WHITFIELD grew up in Setting designer RICHARD Puerto Rican born baritone tured the emotional vulnerability, cling- Brookline and Cambridge, Massachusetts. CERULLO performed a fine job of cre- ENRIQUE REXACH, possessing ing, hopeful ardor, and tormented des- From the age of five, he started taking vio- ating sets for the Cav/Pag productions another beautiful voice, is literally inch- peration of Turridu’s rejected lover. lin lessons and spent much of his earlier that evoked the Italian villages. The cos- es away from the Met Opera. To support When she, as Santuzza, informs Alfio musical life playing in orchestras and tumes by RINEKE AKKERHUIS and his operatic and vocal studies, he works that her boyfriend Turridu has been seen chamber music, switching from violin to PATRICIA MCCRAY also contributed to the realism of the rich, Italian setting. regularly at the gift shop of the with his wife too often, the confession is viola to cello, as needed. At the age of 15, Among other excellent performers in the Metropolitan Opera at Lincoln Center, in not of a vengeful woman, as misinter- he started taking voice lessons and devot- Cav/Pag performances that I attended were the hope of, one day, reaching its stage. preted by several operatic actresses, but ed his life to voice, working with such peo- the vocally gifted HELEN VAN TINE [as In “Cav,” he performed the role of Alfio, an act of desperate impulse. To reach the ple as Phyllis Curtin, Richard Cassilly and the tormented Santuzza in Cav], VIN- the jealous husband who, despite early climatic moment, and to understand the Marlena Malas, while continuing with the CENT TITONE [a magnificent Turridu in suspicions, is rudely awakened by pivotal communication as one of impulse, violin lessons. Cav], and KERRY ANN ERICKSON After graduating from Boston Santuzza to his wife Lola’s wandering not revenge, required acting of a superi- [Lola in Cav], DEBORAH SURDI [bril- eye. ENRIQUE REXACH brought a or and exceptional force and a mature, University in 2000, ANDREW WHIT- liant actress and singer, who brought mature understanding to the role of deep understanding. CHERYL LYNN FIELD moved to New York City and, insights into Canio’s unappreciated wife, Alfio, shunning interpretations depicting WARREN grasped the role! within a few months, started singing at Nedda, and her sexual frustration and him as a Sicilian male brute and buffoon. This type of Santuzza was not the the Amato Opera. Under the guidance of energy in Pag] and EVELYN THATCH- ENRIQUE REXACH’s Alfio is the loyal, product of picking up the script, but of Anthony Amato, the AMATO OPERA ER [as Nedda in Pag], and IVAN AMARO hard-working husband, who, consistent hard work, study, and rehearsal. Too has served as his musical home. At the [showing great promise and vocal power with prevailing Sicilian mores, is con- often, Santuzza can be played as a one beginning, Anthony Amato assigned him and range as Tonio in Pag]. strained to homicide to avenge a humili- dimensional, tormented and suffering supporting roles and chorus. As his voice Some of the voices are truly excellent, ation and dishonor. martyr. CHERYL LYNN WARFIELD matured into that of a lyric tenor, he start- and a lot of other talented voices are gift- Smart shoppers will buy tickets now portrayed Santuzza as emotionally vul- ed singing major roles including Alvamiva ed works-in-progress. Several alumni of to hear and see ENRIQUE REXACH nerable and frail, clearly tormented, yet (Il Barbiere di Siviglia), Eisenstein (Die the Amato Opera have graduated to full- play Marcello in the Amato Opera’s pro- longing and hopeful, spiritually pious — Fledermaus), Danilo (The Merry Widow), time, professional opera careers. SO BE duction in “La Boheme,” with a although shunned by her religion and Alfredo (La Traviata), Nemorino (L’Elisir ALERT: in the performance you attend December 8 premiere. Starting March fellow citizens, and determined to resort D’Amore), Don Ottavio (Don Giovanni), of THE AMATO OPERA, you may be 29, at AMATO OPERA, his home away to every persuasive means to SAVE, not and Fenton (Falstaff). hearing the next Renata Tebaldi, Maria from home, ENRIQUE REXACH stars to destroy, her man. The result of ANDREW WHITFIELD’s foray into Callas, Tatiana Troyanos, Benjamino as Count di Luna, a wonderfully villain- CHERYL LYNN WARFIELD’s per- conducting happened quite by accident; it Gigli, and Franco Corelli. ■ ous role, in Verdi’s “Il Trovatore” [with formance of a lifetime was that I had was during a new production of “Faust,” in the famous “Anvil Chorus”]. tears in my eyes toward the end of the 2001, that ANTHONY AMATO, needing HOWARD L. WIEDER is the sole editor/writer of both a backstage conductor for the small buried “THE CULTURE CORNER” and the “BOOKS AT THE ENRIQUE REXACH has immense opera, regarding Santuzza’s emotional BAR” columns, appearing regularly in The Queens gratitude for Alicia Morales, or “Cucha” pain. Only the callous-hearted would not orchestra pit at the AMATO OPERA, Bar Bulletin, and is JUSTICE CHARLES J. MARKEY’S as he calls her, for being his very best have so responded. instinctually turned to ANDREW WHIT- Principal Law Clerk in IAS Part 32 of Supreme Court, friend, vocal coach, and “second mother.” CHERYL LYNN WARFIELD’s FIELD. In 2003, Andrew conducted his Civil Term, in Long Island City, New York. Ms. Morales was a concert pianist, who insights into Santuzza’s character graduated from Juilliard and studied were brilliant. During the playing of with the great Russian pianist Rosa Mascagni’s moving and lovely Levine. Her aunt was the piano accom- Intermezzo, for example, Ms. Warfield’s panist of the famous Puerto Rican tenor Santuzza, excommunicated by the Antonio Paoli, whom Mr. Rexach wor- Church, leaned against the Sicilian ships. ENRIQUE REXACH, who is Cathedral, while mouthing silently the fiercely proud of his Puerto Rican roots, prayers. No other operatic actress I also has taken voice lessons with Eva De have ever seen revealed such pene- La O [not a typo, visit www.evadelao.com] trating insight into Santuzza’s charac- and Mercedes Alicea, both of whom have ter as a spiritual woman, although helped Mr. Rexach develop the beautiful, barred by an organized religion from rich, dark color in his baritone voice. attending a house of worship, and Gifted soprano CHERYL LYNN CHERYL LYNN WARFIELD knew WARFIELD, a native of Warren, Ohio, how to use a musical interlude in order has become a well-known interpreter of to enrich the audience’s understanding Verdi heroines to New York audiences. of a character. She debuted with the Woodstock Earlier this year, I saw famous and Chamber Orchestra (“WCO”) as gifted mezzo-soprano Dolora Zajick do Leonora in Verdi’s “Il Trovatore” in the great justice to the role of Santuzza at spring of 2006, followed by performanc- the Metropolitan Opera, but Miss es as Micaëla in “Carmen” and Donna Warfield’s performance of the role at Anna in “Don Giovanni.” Her newest AMATO OPERA was the perform- role is Leonora in Verdi’s “La Forza del ance of a lifetime, extraordinary in Destino.” She made her operatic debut beauty and use of voice and intense 14 THE QUEENS BAR BULLETIN – DECEMBER 2007 Three Year Suspension from Practice of Law Questioned

Continued From Page 6 identification elements. VTU § 238 (2-a) provides: license plate designation even when the ticket (a) Notwithstanding any inconsistent provision described that plate designation as containing a letter namely, “SRF” (e.g., ticket 3204866774 issued to plate of subdivision two of this section, where the plate O and not a number 0, stopped PVB from matching 4GZZ5O on 7/28/97) type or the expiration date are not shown on either those tickets with the attorney’s cars and, in turn, Even if he had committed the charged parking viola- the registration plates or sticker of a vehicle or would stop PVB from pursuing those tickets after they tions, the attorney was not liable to pay any parking where the registration sticker is covered, faded, were over two years and thirty days old. PVB, a crea- ticket that misdescribed his vehicle’s plate type or plate defaced or mutilated so that it is unreadable, the ture of statute, has no authority to pursue a ticket more designation (Wheels, Inc. v. Parking Violations Bureau plate type or the expiration date may be omitted than two years after the expiration of the time for of Dept. of Transp. of city of New York, 80 N.Y.2d 1014 from the notice of violation [parking ticket]; provid- entering a plea (normally 30 days) unless PVB renders [1992]; People v. Gabbay, 175 Misc.2d 421, 423 [Sup Ct. ed, however, such condition must be so described a default judgment on the ticket before those two years App. T. 2nd Dep’t 1997]; VTL § 238 [2] [2-a]). and inserted on the notice of violation. expire (see VTL § 241) In Matter of Wheels, supra, although the official (b) If any information which is required to be insert- With the attorney’s parking tickets never adjudi- case summary points out (at 1014) that the petitioner, ed on a notice of violation is omitted from the notice of cated by PVB and his liability for them and his who had been issued parking tickets, “had not alleged violation, misdescribed, or illegible, the violation shall need to respond to them doubtful or nil under VTL prejudice,” the Court of Appeals dismisses those park- be dismissed upon application of the person charged §§ 238 (2) , (2-a) , and 241 (2) , does the three-year ing tickets for misdescription of plate type and holds (at with the violation. suspension here for evading that liability appear 1016) that “a misdescription of any of the five mandato- Covering the plate type on a registration sticker is an too long? Or do the expectation that City employees ry identification elements [the vehicle’s license plate open act, not a fraudulent one. It constitutes a parking will misidentify lawfully displayed license plates designation, plate type, registration expiration date, violation (34 RCNY 4-08 [j] [3]), not a crime (see VTL § and the belief that such misidentification will make or model, body type] also mandates dismissal.” In 155). Nor can it justify misdescription of plate type (see result in a technical defense to parking tickets People v. Gabbay, supra, the court holds that a parking VTL 238 [2-a] [a]), much less misdescription of plate des- issued to those plates essentially merit that three- ticket’s omission of a mandatory identification element ignation. year suspension from the practice of law? ■ requires dismissal of the ticket on appeal despite a plea The attorney made no response to his parking tick- of guilty in the court below. ets, because errors made by ticket writers, who misde- *Dennis Boshnack is an attorney in New York and a former adminis- VTU § 238 (2) requires a parking ticket to contain scribed the plate type or plate designation, and by PVB trative law judge for the New York City Parking Violations Bureau. The certain information, including those five mandatory data entry clerks, who entered a number 0 for the views expressed in this article are his own.

EMPLOYMENT & LABOR LAW STEPHEN D. HANS & ASSOCIATES, P.C. Counsel to the Profession

❑ Sexual Harassment ❑ Union Representation ❑ Americans with Disabilities Act ❑ Title VII – Discrimination ❑ Education Law ❑ Pension Issues ❑ Arbitrations

Counsel to the Profession – over two decades Commentator – Cochran & Company; Chairperson of Employment Law Committee – Queens County Bar Association NELA (National Employment Lawyers Association) member

45-18 Court Square, Suite 403, Long Island City, New York 11101 Telephone 718-275-6700 Fax 718-997-0829

FLASH REPORT Our twice daily news alert is free. Sign up now at www.libn.com. THE QUEENS BAR BULLETIN – DECEMBER 2007 15 Notes from Albany

Continued From Page 1

The rest of the officers are: President Elect: Mike Getnick of Utica Secretary: Bruce Lawrence of Rochester The nominating committee’s meeting was a grueling affair, lasting till after 6:00 PM. Our delegates were yours truly, Chanwoo Lee, with Arthur as the alternate. General Meeting called to Order at 10:15 by the President Elect, Bernice Lieber. The first order of business was giving directions on evacuating the building in case of fire. An auspicious beginning. Treasurer’s Report – boring. State Bar has money. Finance————————More Boring. The State to the Appellate Divisions for their consideration. injury to the financial interests or property of another Bar has more money and is thinking of ways to make The proposed Rules are voluminous: that is reasonably certain to result or has resulted from more. The ones presented at this meeting dealt with: rep- the client’s past, ongoing or intended commission of a Seymour’s wife, the Hon. Cheryl Chambers then pre- resentation of organization as clients, confidentiality of crime or fraud in furtherance of which the client is sented the report and recommendations of the information, declining or terminating representation, using or has used the lawyer’s services.” Committee on By-laws. These included increasing the duties to prospective client, candor toward tribunals, After a heated, erudite discussion (an erudite discus- term of members at large to two years (presently one fairness to opposing counsel, truthfulness in statements sion is defined as anything I don’t understand), the year) and the formation of an independent audit com- to other, preamble and scope. City Bar’s proposal was soundly defeated and the origi- mittee as per Sarbanes Oxley. Both recommendations At this point the meeting got really interesting. The nal proposal was adopted and will be shipped off to the passed without opposition. topic was the revelation or use of confidential informa- Four (4) Appellate Divisions for their consideration.. Hon. George Bundy Smith reported on the Special tion. The original proposed rule: After the COSAC report all else was anti-climatical- Committee on Civil Rights. He was for more Diversity. “6 (b) (3) A lawyer may reveal or use confidential ly. The following reports were presented but did not The report looks two inches thick and is merely infor- information to the extent that the lawyer reasonably require action on the part of the House of Delegates. mational. More to come. believes necessary, to withdraw a written or oral opin- Report and recommendations of Committee on President Madigan reported on her activities this ion or representation previously given by the lawyer Standards of Attorney Conduct re Ethical year. This Report can be obtained from the Bar and reasonably believed by the lawyer still to be relied Considerations pertaining to lawyer advertising. Association or on-line at the State Bar web site. She is upon by a third person where the lawyer has discovered Report of Task Force on Eminent Domain very involved and active. that the opinion or representation was based on mate- Report and Recommendation of Committee on The final report and recommendations of the rially inaccurate information or is being used to further Minorities in the profession concerning the measure- Committee on Standards of Attorney Conduct (COSAC) a crime or fraud.” ment of racial and ethnic diversity among New York was presented: This is important stuff. It effectively At the apparent behest of the City Bar (formerly the Lawyers. changes our current Disciplinary Rules and adopts the Association of the Bar of the City of New York) this was Report re Medical Malpractice Liability Task Force. Model Rules with some changes suitable to New York. changed to: Bar Foundation Report. After debate they passed and they will be transmitted “6 (b) (3) to prevent, mitigate or rectify substantial Time for lunch and going home. ■

CLASSIFIED

Wall Street Office, NY ASSOCIATION OFFICE FOR RENT JUNIOR ATTORNEY $99.00 per Month DESIRED One Old Country Rd., Carle Place seeks to work * Phone & Mail Service part time/volunteer Established firm has Windowed furnished office * Full Support Services opportunity for Attorney Available for immediate 3-4 days a week with occupancy. * Conference Rooms (Hourly Rental) who seeks to build Full Time or Part Time * Furnished Offices experienced trusts practice. Phones/Fax/Copier/Conf Rm * Beautiful Full Floor Corporate Setting and estate or real We will provide Available Perfect Satellite Office * Stunning Attended Reception Area for Practitioner estate attorney office and support. seeking Nassau Presence At 110 Wall Street/11th Floor Call: (212)943-1111/(800)205-7685 718-506-4722 or 516-873-6330 www.sri-ny.com (718) 740-5311 [email protected] [email protected] [email protected]

OFFICE SPACE Rockville Centre PLAINVIEW Looking for an attorney to fill Queens County Jamaica SUNNYSIDE BLVD. Reserved Parking a Postition? Advertise 1-2 Offices available, reception Merrick Road, Elevator, 11' X 14' in the Queens Bar Bulletin area and kitchen. Very nice, 2500 sq ft, waiting room, windowed office, clean, newly renovation office secretary area, conference secretarial station, Classifed Section. for rent on major street. Good rooms, private offices. conference room, for an Attorney in any field. Perfect for single firm or reception area, fax, office suite. SPECIAL RATES APPLY Contact: S. Power photocopy, parking, (718)322-8338 Near RR. 24/7 access. Available immediately. Call Joe Parrino at email: Call Paul at Subscribe. 631-913-4253 Call 1-800-542-6397. very special pubs for just $104. and 11 52 weeks [email protected] 516-764-2725 (516) 576-0101 16 THE QUEENS BAR BULLETIN – DECEMBER 2007