Judicial Wellness: the Ups and Downs of Sitting New York Judges by Hon

JUNE 2017 VOL. 89 | NO. 5 JournalNEW YORK STATE BAR ASSOCIATION Judicial Wellness: The Ups and Downs of Sitting New York Judges by Hon. Gerald Lebovits

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NEW YORK STATE BAR ASSOCIATION QUALIFIED. CONSISTENT. TRUSTED. Journal BOARD OF EDITORS EDITOR-IN-CHIEF LAWYER REFERRAL David C. Wilkes Tarrytown e-mail: [email protected] As the world evolves, so does the New York State Bar Association Hannah R. Arterian Syracuse Lawyer Referral and Information Service. Marvin N. Bagwell Westbury Brian J. Barney In the age of online marketplaces, the legal profession is experiencing Rochester Mark A. Berman a moment of opportunity. By deeply embedding these tools in our New York City Katherine W. Dandy program, we have laid the foundation for seamless connection White Plains between our LRIS members and the public. Janet M. DiFiore Albany Elissa D. Hecker Irvington Michael J. Hutter Albany Barry Kamins Brooklyn Paul R. Kietzman Latham Daniel J. Kornstein New York City Ronald J. Levine New York City Julia J. Martin Syracuse Marian C. Rice Garden City MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Tarrytown

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JUDICIAL WELLNESS: The Ups and Downs of Sitting New York Judges by Hon. Gerald Lebovits 10 DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 24 Burden of Proof by David Paul Horowitz 36 Tax Alert by Robert W. Wood 28 Performing Artists’ Entitlement to 39 Point of View Compensation Under the N.Y. Workers’ by Robert Kantowitz Compensation Law 43 Point of View by Harvey S. Mars by Evan A. Davis 46 Contracts 32 Return to Fundamentals? by Peter Siviglia Tax Malpractice Damages – 48 Meet Your New Officers Recovery of Additional Taxes 50 New Members Welcomed by Jacob L. Todres 53 Book Review by Stephen P. Younger 54 Attorney Professionalism Forum 57 Becoming A Lawyer by Lukas M. Horowitz 61 Index to Advertisers 61 Classified Notices 63 2017–2018 Officers 64 The Legal Writer by Gerald Lebovits

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2017 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

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ohn Legend, the singer/songwriter and winner of an Oscar, a Golden JGlobe and 10 Grammy awards, has been speaking out on prison reform. His multi-cultural campaign “Free America” means to educate the public on the frightening statistics regarding incarceration. Posted on his website, www.lets freeamerica.com, are the following facts: Nearly seven million people are now under correctional control (in prison, on parole or on probation). One in four adults (65 million people) has a criminal record. Over the last 40 years, the incarceration rate has increased 700 percent, even though crime rates have fallen. One way to reduce the prison popu- to employ in the effort to reduce juve- In 2015, the Koch brothers announced lation is to ensure that children do not nile crime and criminality. an alliance with the Obama White enter prison. One of NYSBA’s legisla- I have also asked the Criminal Jus- House to work on criminal justice tive priorities of 2016–2017 was to raise tice Section, under the leadership of reform, with an eye toward reducing the age of criminal responsibility from Tucker Stanclift, to address a number of the prison population. While many 16 to 18. We are very pleased that this issues that affect our prison population: are skeptical about their motivation, was accomplished through the state’s bail, implicit bias in the exercise of DA the Kochs have brought attention to budget bill, passed in April 2017. How- discretion, recidivism and rehabilita- the problem of mass incarceration and ever, much more needs to be done to tion, and the privatization of federal have made it “safe” for conservatives break the cycle of criminality within prisons. I will be reaching out to our to embrace criminal justice reform. In juvenile populations. Too often, zero partners – the courts, the district attor- 2016, there was bipartisan support for tolerance in our schools means that neys, the Department of Corrections – a number of criminal justice reform children deemed disruptive are arrest- about working on these issues together. bills, including sentencing reform. ed or are disciplined by being expelled The cost of incarceration in New During the next year, NYSBA will or suspended, which keeps them out York is the highest in the United States. host a number of initiatives on ways of school. Without education, the hope According to the New York Times, as of we can reduce the population in state of leading a successful life is greatly 2013, it was $60,000 per inmate, per and federal prisons. As of March 30, diminished, and too often a life of year, outside of New York City, and 2016, there were 77,227 adults incarcer- crime is inevitable. Solving the “school $168,000 within the five boroughs.3 ated in New York correctional facili- to prison pipeline” requires concerted There is no shortage of good rea- ties.1 The good news is that since 2007, efforts by all of the stakeholders. We sons to address these issues now. n the number of incarcerated adults has must find alternatives to traditional decreased from 95,005. The bad news discipline while keeping our schools 1. Website of New York State Department of Corrections, www.scoc.ny.gov/pop.htm. is that there has been no decrease over safe. I am so pleased that John Gross 2. New York Corrections and Community the last three years. Furthermore, the and Sheila Gaddis have agreed to co- Supervision Under Custody Report, www.doccs. demographics of those held by the chair a new task force that will bring ny.gov/Research/Reports/2013/UnderCustody_ State Department of Corrections reveal together school districts, teachers, Report_2013.pdf. that the population is overwhelmingly police, district attorneys, Family Court 3. www.nytimes.com/2013/08/24/nyregion/ citys-annual-cost-per-inmate-is-nearly-168000- African American or Hispanic. In 2013, judges, student advocates, and others, study-says.html. it was reported that 49.6 percent of to study current methods, review the inmates were African American and law of school discipline, and formulate Sharon Stern Gerstman can be 24.1 percent were Hispanic.2 policies and best practices for schools reached at [email protected].

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By Hon. Gerald Lebovits

Gerald Lebovits, an acting Supreme Court justice in New York County, udges are held to high standards of ethics and compe- is president of the New York State Association of Acting Supreme Court tence in their personal and professional lives, in which Justices and was president of the New York City Civil Court Board of Jthey must make hard decisions nearly every day. Liti- Judges and the Association of Housing Court Judges. For their research, gants, lawyers, law students, the press, and other judges he thanks Alexandra Standish, his principal court attorney, and Michael scrutinize their decisions. When judges are wrong, people Curreri, his judicial fellow. For their thoughts on judging, he thanks David condemn them. When judges are right, people celebrate M. Godosky, Pery D. Krinsky, Michael S. Ross, Debra A. Scalise, Gerald Stern, Robert H. Tembeckjian, and Presiding Justice Karen K. Peters. them. Some judges are mythical and legendary. All are smart and dynamic. They’re responsible, not only for the fate of litigants, but also for upholding the public good, due process, equal justice, and the federal and New York Constitutions. Being a judge is an honor and privilege beyond measure. Judicial service ranks among the highest-status jobs and the most fulfilling ways to serve our country. Judges possess accoutrements of power – court-

10 | June 2017 | NYSBA Journal Judicial Wellness: The Ups and Downs of Sitting New York Judges

By Hon. Gerald Lebovits

rooms, gavels, robes – and honorifics. Judging is indoor Stress work with no heavy lifting. Judicial responsibility comes with pressures. Struggles Perhaps because it’s all those things, judging is take a toll on judges. Judges aren’t immune from anxiety, demanding. In their next lives, some judges might prefer addictions, or mental illness. Stressors, or those things to return as waiters. That way the customer will always that cause stress, have impaired some of the most quali- be right. In this life, half a judge’s customers are wrong, fied, skilled, humane, and intelligent jurists. New York and the judge must look them in the eye and tell them so. judges are subject to stressors specific to New York, such Judges must act like they know what they’re doing. as budgetary deprivations that have acutely affected New They must conform to an image of integrity and wisdom York courts and presiding over enormous caseloads that – the late Judge Joseph A. Wapner comes to mind – with- always grow larger. Working as a judge in New York, a out breaking a sweat, complaining, seeking anything in state fueled by stressors, is difficult for judges to sustain return, or expecting (or wanting) a thank you. Nothing over a span of years. Judicial candidates are aware of is easy about doing that day in and day out. Judging is these pressures before they take the bench. But the weight stressful. Judges must cope with intellectual and emo- of judicial stress is impossible to appreciate until judicial tional ups and downs. service begins.

NYSBA Journal | June 2017 | 11 Lawyers often don’t appreciate, or care about, the Financial hardship has also caused stress. That stress stresses judges face. Nor should they. Lawyers and the is in the rear-view mirror, finally, thanks to the extraor- public are entitled to good, honest judges without wor- dinary efforts of so many, especially the New York State rying about how a judge’s problems will affect them. The Office of Court Administration. But until recently, New strain lawyers experience, including getting and keeping York State judicial salaries failed to compensate judges clients, are foreign to judges. But judges are subject to adequately to assure that they’d spend their time work- dynamics different from what lawyers experience. A law- ing on their cases instead of fretting about their rent or yer’s work is often collaborative, with clients and other mortgages.8 For 13 years, until 2015, New York City Civil lawyers. Trial judges are each stranded on their own Court, Criminal Court, and Housing Court judges were islands. Judges must deal with heightened oversight: the lowest-paid judges in America in terms of cost of Their decisions are subject to appeal and to motions for living.9 Upstate judge suffered, too. Low judicial salaries leave to renew and reargue. Lawyers can complain to led to divorce, crippling loans, early retirement, reduced their clients, partners, and the judges who rule against pensions, and “imped[ed] retaining qualified and experi- them. To whom can judges talk about their problems? Too enced judges and attracting the best and brightest attor- often the answer is no one. neys to the bench.”10

To whom can judges talk about their problems? Too often the answer is no one.

Subordinates, colleagues, and lawyers rarely tell a To be a judge is also to gamble with your life. One judge about a problem the judge is having. If they did, incentive of judicial service is a pension. Judges begin most judges would be unwilling to unburden themselves their judicial careers late and retire late. That makes for fear of looking weak and not in control or of being judges, almost alone in public service, at risk of losing reported to the New York State Commission on Judicial the Death Gamble.11 Under New York’s Retirement and Conduct (CJC), which is responsible for disciplining Social Security Law, the beneficiaries of a judge who judges of the State’s Unified Court System (but not sup- dies in office aren’t entitled to the full pension benefits port magistrates, court attorneys, referees, administrative a retired judge would have received.12 This often forces law judges, or New York City Housing Court judges).1 judges to retire prematurely and causes trauma for loved The CJC’s staff prosecutes judges for violating the ones. New York Rules Governing Judicial Conduct (RGJC),2 The words judges use to render decisions are another often called the Rules of Judicial Conduct. The CJC’s source of stress. Judges must walk a fine line between commissioners adjudicate. The judge is the respondent. writing too much and too little. An increasing trend In 2016, eight judges were admonished, censured, or would hold judges accountable for opinion writing that removed for violating the rules; four more retired or had amounts to “intemperate conduct in court.”13 Judges are expired terms while charges were pending.3 The majority legitimized by their words, and “their words deserve of disciplined judges are part-time town or village jus- respect only when those who utter them are ethical.”14 tices, who comprise about 60 percent of the approximate- Judges fear that after years of service they’ll say or write ly 3,150 New York State Unified Court System judges.4 In something that in a microsecond might destroy otherwise 2015, for example, 12 of the 16 judges disciplined were stellar careers. town or village justices. Ten of those 12 were non-lawyer The high-stakes nature of exercising discretion to judges. About 61 percent of town and village justices are decide a case is taxing. All judges must decide the fate non-lawyers.5 All other state judges are lawyers. of litigants.15 Except when they have some discretion, Judges can’t confide deep, dark secrets to other judges, judges must render decisions, not according to their even judge-friends. There’s competition among judges to beliefs, but according to the law. Judges inevitably render get elected and promoted. And the RGJC might require a decisions that contradict their values. judge to report possible misconduct to a supervising or Because judges are subject to public opinion, they administrative judge or to the CJC.6 must behave cautiously on and off the bench. A judge’s Many judges suffer from isolation.7 The burden of behavior, professionally and socially, is always under the judicial decision-making is heavy. Judges must make microscope. They must avoid the appearance of impro- these decisions alone. Loneliness plagues judges who’re priety.16 Under the Code of Conduct for United States isolated due to their position in society. After taking the Judges and New York’s RGJC, judges must always main- bench, judges often lose contact with friends, family, and tain an image of judicial propriety: Judges must make peers. sure they don’t “lend the prestige of judicial office to

12 | June 2017 | NYSBA Journal advance their [personal] interests.”17 Outside the court- the first thing people do after meeting someone, having room, judges must conduct their extra-judicial activities a negative web footprint is embarrassing, especially for so as not to “cast reasonable doubt on the judge’s capacity judges, who are constantly being Googled. to act impartially as a judge [,] . . . detract from the dig- Thanks largely to the internet, threats against judges nity of judicial office[,] . . . or . . . interfere with the proper are on the rise, as evidenced by many news reports detail- performance of judicial duties.”18 A momentary lapse ing electronic threats sent to members of the judiciary.30 in judgment, even in the form of “[j]okes and offhand Threats cause extreme distress for judges. According to remarks,”19 can have catastrophic effects on a judge’s U.S. District Judge and Chair of the Judicial Conference career. Committee on Judicial Security Nancy Atlas, “[t]he Inter- Although stress may lead some judges to say wrong net and social media are having a profound impact on things, judges often believe themselves forced to say judges’ personal security.”31 nothing at all and just take it on the chin. Although judges Blog posts and social-media platforms have unified are entitled judiciously and temperately to rebuke way- disgruntled litigants. This has led to a new age of “online ward litigants and lawyers, judges often decline to con- mob threat.”32 Public figures like judges are subject to front anyone in the courtroom. Whether out of concern of and expect threats because of the visibility of their roles. being scolded in the press, disciplined by the CJC, or con- Judges give up anonymity when they take the bench. But demned by bar associations, judges sometimes feel forced with disgruntled litigants and critics joining forces like to allow others to get away with egregious behavior. never before, the stress and effects it can have on mem- Women judges, especially, are no strangers to dealing bers of the judiciary are higher than ever. with egregious behavior. They face “disrespect in the Aggrieved parties also use the court system to go after courtroom and professional settings.”20 Some lawyers judges. The right to pro se representation is important, and litigants reject women judges: “[E]fforts to remove as is the courts’ obligation to give the unrepresented female judges from a variety of cases [arise] simply access to justice. Too often, though, pro se litigants use because they are women.”21 This lack of acceptance isn’t courtrooms as “battlegrounds to satisfy private, legally limited to attorneys and litigants. It extends to the judi- unredressable vendettas.”33 Some file false and frivolous ciary itself – colleagues.22 Federal and state judges are claims to harass judges. These claims include Uniform predominantly male.23 Commercial Code (UCC) liens against judges for alleged Women judges’ isolation is greater than that of their financial harm arising from court rulings. In 2014, the male counterparts.24 In a study of 500 U.S. judges, 73 per- New York Legislature made this behavior punishable as cent of female judges reported incidents of compassion a Class E felony under Penal Law § 175.35. fatigue and symptoms of depression versus 54 percent of Sometimes pro se litigants won’t simply appeal a males.25 Among new judges, women experience higher judge’s decision. They’ll sue the judge. Pro se litigants levels of stress than men; “women continue to have pri- don’t always know how to handle unfavorable decisions. mary family responsibilities [and] they are more often Some seek revenge. Fortunately, the State Attorney Gen- conflicted with role conflicts.”26 Women judges must also eral’s Office does a fine job defending judges sued by consider family planning and maternity leave. They must aggrieved litigants.34 deal with balancing their careers and families in ways Because judges must never respond to threats or male judges will never experience.27 They must deal with disparaging accusations, judges suffer in silence. Not the same stresses male judges do while facing gender bias responding to public comments leads to internalized and warding off gender-based attacks. stress in which stress manifests in the form of physical All judges experience feelings that they’re under conditions or illnesses that impair a judge’s well-being. attack. Outside the courtroom, judges are subject to criti- Bar associations and the Communications Office of the cism, public assaults on their character, and threats. One New York State Unified Court System are left to stand up popular way to confront judges is anonymously, on the for the judge’s skills and character and for the judiciary’s internet. Blog posts, social-media networks, judge-rating dignity when a judge is unfairly assailed in the press or websites, and media websites give the public a forum by elected officials.35 to talk and rant about judges. Information published Aggression against judges isn’t reserved to litigants online is often false. Judges are often portrayed in an and lawyers. Our highest-ranking officials have called unsavory and inaccurate way. Removing this informa- into question the judiciary’s aptitude and neutrality. The tion from the internet is nearly impossible. The right to President of the United States recently referred to a fed- have content removed, or taken down, is mainly reserved eral judge as a “so-called judge” and labeled one of his for copyright holders under the Digital Millennium rulings ridiculous.36 Nothing good can come of it when Copyright Act.28 The First Amendment strongly protects the nation’s leader assaults the judiciary’s independence, information posted on the internet, and search engines integrity, and competence. like Google refuse removal requests unless accompanied Stress associated with reactions to judges’ rulings by a court order.29 In an age when Googling someone is doesn’t end with criticism. Violence plagues judges

NYSBA Journal | June 2017 | 13 across the country. Acts of violence against judges have court system has been ravaged by years of miserly bud- resulted in the murders of judges and their loved ones. gets – and crushing caseloads, slated for reduction under With U.S. court-targeted violence on the rise, the fear for Chief Judge Janet DiFiore’s Excellence Initiative45 – that the safety of judges and their families is real.37 Judges have affected New York State judges’ ability to render are “more visible, susceptible, and vulnerable than other timely justice. Also, New York State judges must struggle public figures” because of their decisions.38 It’s simple for with the anxiety surrounding reelections and reappoint- judges to collect enemies. Judges are twice as likely to be ments. Unlike federal judges, New York State judges killed when an act of “courtroom violence” is committed don’t have lifetime tenure. against them.39 Home security is given to all federal judg- Further specific to the stress of New York State judges es but not state judges.40 Living in fear of confrontation is the open-door policy that allows anyone to complain in the courtroom and in one’s home affects the judiciary’s about judges to supervising and administrative judges.46 well-being. Lawyers and litigants are given a forum to submit letters of protest against judges. Dealing with these complaints puts supervising and administrative judges in Justice suffers when a judge an awkward position. These grievances can be one of three types: those made by psychopathic complainers, suffers physically or mentally. by parties angling to get a judge to rule for them, or as legitimate concerns about judicial efficiency and tempera- Judges have an arduous time finding relief from these ment. What are these supervisory judges to do when they threats. The law doesn’t protect judges from a threat receive these letters? Do they tell their judges? Do they unless it’s a true threat. The Second Circuit has defined investigate their colleague’s conduct? What do they tell a true threat as “a statement that . . . a reasonable person the letter-writers? hearing or reading the statement and familiar with its Some of the biggest recipients of complaints are Fam- context would understand it as a serious expression of ily Court judges and the Supreme Court’s Matrimonial intent to inflict an injury.”41 This leaves New York State Part justices. These judges are subject to bitter accusations judges without recourse to avert non-violent threats made from aggrieved husbands, wives, mothers, and fathers. against them and which inconvenience their lives. Limit- Aside from worrying about the behavior of dis- ing the scope of threats in this manner provides a loophole gruntled parties, judges must forgo activities important for disgruntled litigants and other displeased parties to to them, such as supporting or opposing political candi- launch their mayhem. The courtroom is a public forum dates.47 where New York litigants in distress engage in intimida- The visibility of judicial service exposes judges’ lives tion tactics like sitting in the front row of a courtroom to the public. No matter how judges conduct themselves, staring down a judge when their case isn’t on the calendar. they can’t hide much or for long. Judges must file a finan- The issue of security is as vital for judges in New cial disclosure statement with the Ethics Commission for York’s big cities as it is for judges in New York’s towns the Unified Court System.48 The statement, made public, and villages, where judges are likely to encounter disaf- includes judges’ income, debts, investments, and assets fected litigants whose cases they decided. We are grateful and that of their families.49 This disclosure comes as no in New York City to our court officers, whom we call surprise to those aspiring to the bench, though. Judges New York’s Smartest. must uphold high standards. Turning over informa- Many threats that would go unaddressed for state tion about their lives is also necessary before judges are judges are addressed for federal judges. The United elected or appointed. The public is entitled to know about States Marshals Service, Judicial Security Division (JSD), candidates and not be surprised about their past. Trans- provides federal judges with protection from threats.42 parency is expected and required. Federal judges benefit from offices like the Office of Pro- The fear of a judge’s issues being exposed acts as a tective Intelligence and the Office of Protective Opera- roadblock for judges to correct and prevent them. When tions, which conduct threat assessments and provide judges don’t address their problems and instead internal- protective responses.43 The Department of Public Safety, ize stress, they increase the risk of negative manifesta- headed by the Chief of Public Safety, oversees the man- tions and ultimately harm the judiciary.50 Justice suffers agement of judicial threats in New York State.44 New York when a judge suffers physically or mentally.51 judges are given a Judicial Threats phone number, but in an emergency they should call 911. Manifestations New York State judges face challenges different from Accumulating stress and suppressing emotions have those of federal judges. New York judges don’t have a damaging effects on a judge’s cognitive and decision- fraction of the resources available to the federal judiciary. making skills, especially for the “many difficult decisions Many state courthouses are beautiful and well-equipped, [that] must be made quickly.”52 Stress ineffectively main- but too many are less so. In so many respects, our state tained can manifest in a judge’s body, mind, and actions.

14 | June 2017 | NYSBA Journal Trial judges who report high levels of stress have exhibit- Compassion fatigue and burnout lead to “chronic ed effects like frequently arguing, feeling easily annoyed, health problems, poor job performance, substance abuse and having temper outbursts, trouble concentrating, and other forms of self-medication, and impoverished making decisions, recalling simple things, sleeping, and relationships.”63 The symptoms of compassion fatigue maintaining an appetite.53 “parallel those of posttraumatic stress disorder.”64 These Judges are human. They laugh, cry, get injured, and symptoms are far-reaching.65 In a study examining 105 are diagnosed with illnesses that require treatment. Yet by judges representing a cross-section of U.S. urban and virtue of their positions, their work must get done. They rural centers, 63 percent of judges reported experienc- have cases to preside over, decisions to make, deadlines ing one or more short- or long-term compassion-fatigue to meet. Staying on top of these obligations makes judges symptoms.66 put their well-being on the back burner. In extreme situ- One way stress might manifest itself in judges is bul- ations, judges experience depression, breakdown, and lying from the bench.67 Good jurists can come across as even suicidal thoughts or actions. Sometimes judges use angry. Stress can cause an occasional temper tantrum or negative coping methods like gambling, drinking, and rude behavior.68 Bullying can be unintentional: A bad day abusing drugs to deal with these problems.54 Negative might cause it.69 coping is manifested in judges’ exhibiting “hostile behav- A form of bullying is benchslapping – public shaming ior, frequent absences and inappropriate behavior and in which a judge criticizes lawyers and litigants in a judi- moods . . . that lead to violations of the code of judicial cial opinion for real or imagined misbehavior. Benchslap- conduct.”55 Overworked and depressed judges can be ping, which can’t be appealed, might violate a judge’s obli- slovenly in dress, unkempt in appearance, and regularly gation to be courteous, dignified, patient, and respectful. late to court and in their decision-making. Some judges also suffer from “judge-itis,” or “robe- Depression is prevalent among lawyers. A recent itis”: An imaginary illness that causes judges to believe study by the Hazelden Betty Ford Foundation and the they’re all knowing, all powerful, and better than every- American Bar Association Commission on Lawyer Assis- one else.70 Often that’s an unfair diagnosis: Judge-haters tance Programs reported significant levels of depression, believe that every judge has judge-itis, that everyone who anxiety, and stress among lawyers, “with 28%, 19%, and exercises judgment is judgmental, that judges lack empa- 23% experiencing mild or higher levels of depression, thy watching events in the little workshops they call their anxiety, and stress, respectively.”56 In a study of 104 courtrooms. But it’s true that once judges embark on their professions, lawyers were found to have the highest rate of depression, “suffering at a rate four times the general population.”57 The level of depression in judges is doubt- lessly high as well, given the judiciary’s unique pressures and isolation. Judges might self-medicate with drugs and alcohol to mitigate the effects of depression.58 These unhealthy habits can lead to dependencies and diseases that cause a decline in cognitive function and contribute to judicial impairment. The effects of stress – disrupting sleep and appetite – cause weight gain.59 In a 2012 study conducted by Har- ris Interactive for Careerbuilder.com, judges were found among the top four occupations most likely to report  COURT & LITIGATION 370 Lexington Ave. weight gain.60 Issues with sleep, exercise, and diet com- Suite 1101  BANKRUPTCY & DEPOSITORY bined with the sedentary lifestyle of working from the New York, NY 10017 bench make judges gain weight.  TRUSTS & ESTATES 212-986-7470 Judges also suffer from compassion fatigue and burn- 212-697-6091 Fax out, not surprising given the sadness they see and the  INDEMNITY & MISCELLANEOUS profound decisions they make. Families torn apart, cata-  LICENSE & PERMITS strophic injuries, whether to send people to jail or order [email protected] people treated over objection – those are a judge’s bread and butter. Compassion fatigue is “a disorder that affects those who do their work well, specifically encompass- ing the burnout, and . . . trauma associated with those in the helping professions who encounter clients who have SURETY BOND SPECIALISTS 61 undergone trauma.” Burnout consists of “a pattern of www.LevineCompany.com emotional overload and subsequent emotional exhaus- tion.”62

NYSBA Journal | June 2017 | 15 judicial careers, lawyer-colleagues begin acting more for- to attend are judicial-education programs offered by New mally. Friends, neighbors, even relatives “display height- York’s Judicial Institute and our state’s judicial asso- ened respect and deferential behavior.”71 ciations. These programs satisfy the state’s Mandatory Judges who experience judge-itis become overly Continuing Judicial Education (MCJE) requirements, the absorbed in their professional role, lose some of their judicial equivalent of a lawyer’s Continuing Legal Educa- former identity, and become unable to “relate as a peer tion (CLE) requirements.78 to most people.”72 The power trip of judge-itis can build Outsiders can empathize with the weight judges carry, up a judicial façade of infallibility that can trickle into the but they’ll never fully appreciate it unless they take the courtroom and the judge’s personal life. New judges are bench themselves. Finding a judicial mentor can provide especially susceptible to judge-itis. Culture shock accom- judges with insight into maintaining a healthy career. panies the first months after judges are appointed or New judges who participate in a mentoring program elected. Their once-private life is now public. The learn- show a statistically significant “reduction in the stress ing curve’s steep. It’s intimidating. domains of role overload, role boundary, and psychologi- cal strain.”79 Experienced judges “can act as important Suggestions confidants and help newer judges recognize and address Judges should integrate stress-management techniques their stress.”80 Older judges can pass down techniques and activities into their lives. Tackling milder stressors that minimize stress.81 Mentorships benefit not just men- head-on can prevent long-term adversities like depres- tored judges but their mentors as well.82 These relation- sion and substance abuse.73 According to the lawyers ships give experienced judges an opportunity to give thanked in the credits to this article, here are some strate- back to the judicial community and find satisfaction help- gies for judges to reduce stress, promote wellness, and ing other judges.83 stay away from the CJC. Community Involvement Time Outside the Courtroom Whether from judge-itis or because of the job’s authorita- Constantly focusing on others’ lives makes judges ignore tive nature, judges too often feel isolated from the public. their own. Many judges dedicate insufficient time to their Community events foster a positive relationship between own feelings. A “chronic disregard of one’s own feelings the judiciary and the public. Judges can participate in negatively affects social, cognitive and physical well- local school mock trials and law school moot competi- being.”74 Judges must address their physical and psycho- tions. Judges can teach, write, and volunteer. logical wellbeing. Judges who suppress their emotions might engage in “a repressive coping style” like sub- Organize stance abuse, bullying, and other undesirable practices.75 Judges should create daily routines to make their lives Time spent outside the courtroom can make for a less easier. To decide cases efficiently, judges should invent stressful and more productive judicial career. When judg- shortcuts. Judges can avoid negative thoughts, anxiety, es become overwhelmed or agitated, they should get up, and depression when they deploy “effective control go for a walk, and drink water. Judges should take short strategies . . . and [minimize] mental load.”84 Judges can coffee breaks twice a day, eat a healthful lunch every day, lighten their workloads by delegating work to court staff. and enjoy the generous vacations allotted to them. Judges Court attorneys and law clerks will help judges research must decompress and spend time with loved ones, fam- and draft opinions. So long as every word in an opinion is ily, and friends. the judge’s authentic expression, the collaborative effort For new judges, their time is no longer entirely theirs. of opinion writing allows judges to delegate work and Much of it now belongs to the public. Family and friends still maintain control.85 must share their time with the judge, and the judge must Judges should address communications like email find ways to include them. quickly to avoid a cluttered, unanswered inbox. When Engaging in after-work, extracurricular activities can emailing, they should think twice before sending any- increase the brain’s “plasticity and ultimately the qual- thing possibly harsh or injudicious. ity of work while increasing our resilience to stressful Judges must learn to say no if they already have a lot material.”76 Physical activity, rest, relaxation, and social on their plate. activity are among the most useful strategies to cope with Perfection, as we know, is the enemy of the good. bench-related stress.77 Judges shouldn’t overstress drafting perfect decisions. Socializing with other judges will reduce compassion Efficiently and quickly deciding cases is a priority and fatigue, stress, and other judicial challenges. They should a central metric to being a good judge. Don’t use your secure a support network of likeminded individuals decisions to teach forensic skills or to lecture on social who deal with similar issues. Judges should attend such issues. Just decide the case. And don’t live in fear of events as judicial conferences, judge lunches, judge din- getting reversed; reversals are healthy in a democracy, ners, and bar association meetings. Especially important and judges can learn from them.86 As long as an opinion

16 | June 2017 | NYSBA Journal decides the motion or case, it needn’t address every issue. Do Homework Doing so seems defensive anyway. Judges should study and adhere to ethics opinions issued But a judge who has made a decision should move on by the Advisory Committee on Judicial Ethics, cur- to the next case and not look back, wracked by what-ifs, rently co-chaired by retired Second Department Justice should’ve said thats, guilt, and remorse. George D. Marlow and Justice Margaret T. Walsh, an Judges should accept their share of work. Judges Albany County Family Court judge and acting Supreme greatly appreciate those colleagues who don’t dump Court justice.89 Its opinions are easily accessible through cases on them. Decide the simple things. Clear your the nycourts.gov website, where judges can search for workload by timely issuing decisions on less complicated specific issues. Judiciary Law Article 7-A provides that matters. Decide motions from the bench without always judges’ actions taken in accordance with findings or rec- issuing written opinions. Sometimes it’s practical to forgo ommendations from Advisory Committee opinions are a written opinion.87 Bench decisions often leave an insuf- presumed proper for the purpose of a CJC staff investiga- ficient explanation for the clerk’s office, parties, the pub- tion.90 Judges should also submit their own ethics ques- lic, other lawyers and judges, and appellate courts. And tions to the Advisory Committee to clarify concerns.91 forcing a judge to write assures a better decision, because Adhering to the New York State Standards of Civility writing is thinking at its hardest. But when appropri- (NYSSC) will help judges. The NYSSC set forth “princi- ate, bench decisions save time and effort, and lawyers ples of civility and decorum” for judges, court personnel, will appreciate a speedy resolution without the need to and lawyers.92 These guidelines are aspirational remind- explain delays to their clients. ers for judges about how they should conduct themselves Judges must control lawyers. Allowing them to carry in court and with lawyers, parties, and witnesses. The on more than necessary prevents judges from maximiz- NYSSC has seven recommendations specific to judges ing their schedules. The more lawyers talk, the less time regarding demeanor, consideration of others, punctual- judges have to address others in the courtroom. But don’t ity, promptness, and best efforts to ensure courtroom prevent lawyers from making a record. Lawyers need to civility.93 preserve their arguments for clients and for an appeal. Judges who know the law are less stressed than those Judges must control their courtrooms. In addition who don’t. It’s understandable for judges to take extra to handling litigants, lawyers, and other parties, judges time to learn new information when deciding a case. must manage court staff. The actions of court staff reflect It’s hard for judges to admit they don’t know an area of on their judges.88 Monitoring staff is important to make law. The sooner they accept the need to brush up on or sure that they engage in respectful behavior and appear- learn new material, the easier it’ll be to decide the case ance. But treat them well as a team, even as family. Judges and maybe figure out a way to help the litigants settle must have an open and respectful dialogue with court and thus bring justice to them. New judges, in particular, staff. Court officers, clerks, interpreters, and others can must do their homework, learn the material, and confer protect their judges and prevent mistakes. When they’re with court staff and peers on complicated matters.94 abused, they can throw their judge under a bus.

NYSBA Journal | June 2017 | 17 Avoid Controversy Outside the courtroom, too, judges must conduct Judges should avoid and rise above controversy. They themselves as though the whole world is watching. must maintain courteous behavior at all times toward Remember that you’re a judge everywhere – from your court staff, colleagues, litigants, and the general public. chambers to an unfamiliar street.98 Judges should stay out of infighting between other judges Don’t discuss cases or decisions outside work. The and never pick fights with colleagues or supervising or repercussions can be catastrophic. You might want to administrative judges. share with people the important, exciting work you’re Opinion-writing should be all business. Avoid humor, doing, but doing so might violate the RGJC.99 puns, satire, embellishments, personal asides, and The judicial image shouldn’t be confused with robe- attacks.95 Neither judging nor judges are funny. itis. Maintain a level head and avoid believing that

Don’t use decisions to teach forensic skills or to lecture on social issues. Just decide the case.

Stay out of political drama. Avoid political activity people treat you differently “because you are especially unless it’s for your own campaign for elected office.96 brilliant or you are a special person.”100 Stay humble: Just Avoid debating religion and politics on or off the bench. because people call you Your Honor doesn’t mean you Judges may never use their status to secure prefer- shouldn’t wash the dishes and discard the trash. ential treatment in personal matters. Don’t show your judicial identification to a police officer who has pulled Be Safe you over or otherwise ever ask for special consideration. Maintaining a low profile is important for judges con- One adjustment new judges undergo is dealing with cerned about their safety. Judges should refrain from their family and friends. They’ll act differently; they’ll revealing themselves unless there’s a reason to do so. If expect undeliverable things from you. The RGJC’s pro- someone cuts you off in traffic or picks a fight with you, fessional requirements offer guidance on how to behave don’t reveal your status. Judges should forgo judicial with family and friends.97 privileges such as special judicial license plates, experts Judges must be prepared to recuse themselves in say. Though convenient, these symbols allow people to accordance with the RGJC. They must be prepared to lose identify you as a judge. friends for not using judicial power for their benefit. They Something I neither encourage nor discourage, but must be prepared to lose friends for many reasons. Or, mention for information only, is that under New York worse, for no reason. Penal Law § 400.00(2)(d), certain New York judges are specially eligible to get a license to carry a concealed Uphold the Judicial Image pistol. Judges are less on a pedestal than they are on display. People always stare at a judge on the bench. The higher Maintain a Healthy Regimen judges ascend in their careers, the more exacting become Physical fitness, diet, and strong, supportive social net- the standards required of them. The appearance of judges, works outside work will keep mental health on track.101 regardless of their skill, will dictate how the public per- Studies have shown that “intervening psychosocial vari- ceives them. Keep inappropriate behavior off the bench. ables, such as hardiness, Type A and Type B personality Professionalism and civility come from the bench, styles, sense of humor, social support . . . and coping” which is seen as the face of the legal system. Don’t scold help moderate stress.102 Find healthy ways to cope with or lecture people from the bench. To avoid saying the your stress. wrong words while on the bench, judges should speak Regular exercise increases a judge’s ability to perform one third slower and filter their thoughts. When things at optimal levels, think better, and build immunity to get stressful, take a deep yoga breath, in and out through disease and illness.103 Increasing overall health, exercise the nose. Nasal breathing allows you to take a quick has a direct stress-busting benefit.104 Exercise can be moment, catch your breath, and do so without opening accomplished through competitive sports like basketball your mouth for the whole courtroom to see and hear. or more relaxing practices like yoga. Before beginning an Avoid eye contact with those in the courtroom who aren’t exercise program, judges should take a fitness test, con- speaking. Never go mano a mano with lawyers or litigants. sult a physician, and get medical clearance.105 Keep good posture on the bench. Don’t eat or chew gum Judges with a history of physical activity are ideal can- on the bench. Regardless what kind of day you’re having, didates for high-intensity interval training (HIIT).106 HIIT keep a serious but kind judge-like face about you. involves quick bursts of intense work periods that allow

18 | June 2017 | NYSBA Journal for a full workout in 20 minutes.107 HIIT isn’t suitable ing sucrose, which assists stress relief.115 Bring a stash of for judges with a history of coronary disease, smoking, fruit, dark chocolate, and other sucrose-laden snacks to hypertension, diabetes, abnormal cholesterol levels, and chambers. obesity.108 But all judges will benefit from a well-rounded physical activity program comprised of aerobic exercise Confront Issues and strength-training exercise of moderate intensity for It’s difficult for judges to hide impairments. Judges are 30 minutes, five days a week.109 To stay engaged, alter visible in court and through their writing. Their decisions your routine every few weeks. Enjoy your workout, not have an impact, and making the wrong decision will hurt just for its stress-busting benefits, but also for the time it people. Instead of avoiding subjects and making excuses, gives you to focus on yourself. judges should acknowledge their symptoms.116 Judges Exposure to stress can alter the metabolic and behav- must have the strength, courage, and conviction to get ioral state of humans and have detrimental effects on help when they need it. Getting help is necessary to pro- diet and well-being.110 A “true causal association [exists] tect themselves and the public. To seek help, judges must between diet quality and depression.”111 As a result of accept that they’re humans before they’re judges. heavy caseloads and the demanding nature of being a judge, judges tend to skip meals, overeat, or develop Rely on Assistance Programs other unsavory dietary habits. These habits are an easily Judges needn’t handle bench stress on their own. Judges maintainable aspect of a judge’s daily routine. Maintain- should seek outside assistance. New York is fortunate ing a healthy diet is crucial in controlling stress levels. to have the Judges’ Assistance Program (JAP) under Healthful eating can be a “preventi[ve] strategy” and the Lawyer Assistance Program (LAP) of the New York provide a “therapeutic strategy for those with existing State Bar Association Judicial Wellness Committee. This depression.”112 committee, chaired by the Hon. Karen Peters, Presiding Stress is better dealt with when people eat a variety of Justice, Appellate Division, Third Judicial Department, is healthful foods.113 Comfort food can “diminish the con- made up of judges who assist judges with stress-related tribution of life stress to . . . stress-related disorders.”114 concerns.117 The Committee formulates and recommends Eat at intervals during the day by having a snack contain- policies and procedures to help judges deal with prob-

Confidential Assistance for NY Judges

Hon. Karen K. Peters, Chair, NYSBA Judicial Wellness Committee

he Judicial Wellness Committee fosters a sense of Judges who practice wellness are rewarded with a bet- community and care among the New York State ter quality of life, both professional and personal, and are TJudiciary and provides confidential assistance to better equipped to serve the public and achieve justice for impaired judges. Recognizing that all judges are affected those who appear in their courtrooms. by the day-to-day stress of their responsibilities, the Com- mittee works to foster mutual support among members and to promote the concept of judicial wellness through For confidential assistance, call Susan M. Klemme, educational and outreach programs. In furtherance of its purpose, the Committee, among Director, New York State Bar Association Lawyer other things, formulates and recommends policies and Assistance Program, 1-800-255-0569; Paul Curtin, procedures to assist judges in dealing with treatable men- Office of Court Administration Special Projects Coor- tal illnesses, such as addiction and depression. Through its programs and conferences, it assists judges in the iden- dinator, 315-278-0028; or Eileen Travis, Director, tification of these impairments in themselves and others, New York City Bar Association Lawyers’ Assistance and promotes rehabilitation in an environment of care Program, 212-302-5787. and concern. All services are confidential and protected under § 857 of the Judiciary Law.

Hon. Karen K. Peters is the Presiding Justice of the Appellate Division, Third Department, and Chair of NYSBA’s Judicial Wellness Committee. She previously served as counsel to the New York State Division of Alcoholism and Alcohol Abuse.

NYSBA Journal | June 2017 | 19 lems like alcoholism, gambling, drug abuse, stress, and When the CJC addresses a complaint, it might, in less depression.118 Under Judiciary Law § 857, communica- serious cases of possible misconduct, consider judicial tions between judges and judicial assistance committees, stresses as a mitigating factor. Apt stressors include hav- with carefully tailored exceptions to protect the public ing an ill child, spouse, or parent. The Commission may interest, are confidential.119 To access JAP, judges must consider stress when it determines whether to go forward contact a helpline. For more information, see Justice with a complaint or when it decides what type of sanc- Peters’s sidebar in this issue. tion to impose on a judge. Judges too embarrassed to In addition to or instead of the New York-specific admit things to their lawyers and the Commission will be Committee helpline, judges may call the American Bar unable to avail themselves of all possible defenses. Association’s national hotline for judges with mental- Stresses may offer more than mitigation. Judges health and addiction problems.120 This hotline is confi- should raise all defenses they have. A judge who engages dential and pairs judges with local resources and peer- in introspection, contrition, and meaningful steps like support judges who’ve been through similar issues. therapy and treatment to prevent complained-of inci- Assistance programs like JAP make it easier for judges dents might see a Commission that decides not to go and their families, staffs, and the public to come to terms forward with charges. As a former CJC commissioner with human imperfections. It’s long gone unrecognized recently explained, “[j]udges who can project a serious that judges “face the same challenges to their physical, commitment to duty, a capacity not to re-offend and who mental and emotional health as do other members of admit their errors and apologize may be treated leniently society.”121 When not addressed, issues with physical, and even, in a close case, avoid removal.”125 mental, and emotional health might result in judicial That said, the goal of judicial discipline is not to misconduct. Seeking confidential assistance helps judges punish judges but to protect the public.126 The Court of avoid behavior that may lead to sanctions. Appeals in In re Restaino articulated a standard of behav- The Judicial Wellness Committee has the resources ior higher for judges than for non-judges.127 The Court to help. According to Paul Curtin, an Office of Court also found that stressors offer no defense to judges in Administration Special Projects Coordinator who works serious instances of misconduct and that the gravity of with the Judicial Wellness Committee, 13 judges in recov- proven wrongdoing is “[o]f ultimate importance” in cal- ery from chemical dependence are available to travel culating fitness.128 throughout the state to assist judges with similar dependencies. The Judicial Wellness Committee also organizes Conclusion 12-Step meetings. Judicial service isn’t for the faint of heart. But for those Some want to end the confidentiality of Judicial Well- with the stomach for it, the virtues of judicial service ness Committee communications with judges. But the vastly exceed and easily justify the sacrifice necessary to Committee is one of the few platforms judges have to get be a good judge these days. Judicial service is like joining help. Take confidentiality away, and a judge needing help hands with our maker to bring justice for victims and might have nowhere to turn.122 peace to our neighbors. Judges have but three masters: the public, the law, and their conscience. If you must have Complaints Against Judges three masters, those seem like pretty good ones. The CJC holds hearings in secret to protect judges from A judicial career is privileged; it should bring joy to embarrassment.123 The 11-member CJC and its staff judges. Judges whose stresses threaten to stop them from would like to change the law regarding confidentiality of that enjoyment should get help from the New York State disciplinary proceedings and enact a public-proceedings Bar Association. Its wellness program can avert judicial law “to open the Commission’s proceedings to the pub- misconduct and sanctions – and also be a life – and lic.”124 Although the CJC might be better perceived if its career-saver. work were more transparent, keeping proceedings confi- And let’s hope that our Judicial Branch, our Legisla- dential allows innocent judges to keep their reputations tive Branch, and our Executive Branch will always work intact and prevents unfair allegations from tarnishing the together to ensure that our judges – those tasked in New judiciary as a whole. York with assuring the independent and true administra- Because of the nature of the job – in which judges are tion of justice – have the tools to administer that justice expected to portray an image of calm and control – judges for the public they serve. n are slow to seek help. Doing so signifies they’re no longer calm or in control. Judges against whom complaints are filed 1. N.Y. St. Comm’n on Jud. Conduct, The Commission’s Authority and Jurisdic- tion, www.scjc.state.ny.us/Publications/Brochure.pdf (last visited May 15, should consult an affordable attorney right away. Judges 2017). are uniquely unqualified to address their own complaints 2. 22 N.Y.C.R.R. 100.0. against them. Judges should be honest with their attorneys. 3. N.Y. St. Comm’n on Jud. Conduct, Annual Report 2017, at 8, www.scjc. Just as judges are reluctant to tell others about their stresses, state.ny.us/Publications/AnnualReports/nyscjc.2017annualreport.pdf (last they’ll often hide problems from their attorney. visited May 15, 2017).

20 | June 2017 | NYSBA Journal 4. N.Y. St. Comm’n on Jud. Conduct, Annual Report 2016, 8, www.scjc.state. 32. Id. at 268; Karen Eltis & Yigal Mersel, Cyberintimidation and Judicial Expres- ny.us/Publications/AnnualReports/nyscjc.2016annualreport.pdf (last visited sion in the Digital Age, https://www.youtube.com/watch?v=va5NEOZ7OZE May 15, 2017). (streamed Apr. 25, 2017) (discussing the pernicious forms of online misinfor- mation, harassment, and intimidation against judges, most often women and 5. Id. minority judges, and noting that judges may not respond except in their judg- 6. 22 N.Y.C.R.R. 100.3(D)(1) (“A judge who receives information indicating ments). a substantial likelihood that another judge has committed a substantial viola- 33. Eric J.R. Nichols, Preserving Pro Se Representation in an Age of Rule 11 Sanc- tion of this Part shall take appropriate action.”). tions, 67 Tex. L. Rev. 351, 351 (1988). 7. Isaiah M. Zimmerman, Isolation in the Judicial Career, 36 Ct. Rev. 4, 4 (2000). 34. N.Y. Public Officers L. §§ 17, 18. 8. Glenn Blain, Panel Approves Big Pay Boosts for New York’s State Judges, NY 35. The Communications Office, Press Center, N.Y. St. Courts, https://www. Daily News (Dec. 14, 2015), www.nydailynews.com/news/politics/panel- nycourts.gov/press/index.shtml (last updated Apr. 24, 2017). approves-big-pay-boosts-new-york-state-judges-article-1.2465861 (noting that New York judges went without a raise from 1999 until 2012). 36. David Cole, So-called Judges’ Trump Trump, Washington Post (Feb. 10, 2017), https://www.washingtonpost.com/opinions/so-called-judges-trump- 9. Submission, Bd. of Judges, N.Y.C. Civ. Ct., N.Y. St. Comm’n on Legisla- trump/2017/02/10/573fd1c8-ef42-11e6-b4ff-ac2cf509efe5_story.html?utm_ tive, Judicial & Executive Comp. (Nov. 18, 2015), www.nyscommissiononcom- term=.1e8792da5aae. pensation.org/pdf/Board-of-Civil-Court-Judges-NYC.pdf (last visited May 15, 2017). 37. Chuck Weller, What Judges Should Know About Court-Related Violence, 53 Judges’ J. 28, 28 (2014) (noting that courthouse attacks that include shootings, 10. David P. Miranda, President, N.Y. St. Bar Ass’n, Hearing of the bombings, and arson have more than doubled over the last two decades); Commission on Legislative, Judicial and Executive Compensation, www. James M. Riehl, A Safe Forum for Justice, 44 Judges J. 1, 1 (2005) (citing dis- nyscommissiononcompensation.org/pdf/NYS-Bar-Association.pdf. gruntled civil litigant’s murder of U.S. District Court Judge Joan Humphrey 11. Michael Miller et al., Report by the New York County Lawyers Association on Lefkow’s husband and mother). the Death Gamble and Section 60 of the New York Retirement and Social Security 38. Weller, supra note 37, at 29. Law, N.Y. County Lawyers Association (2015), www.nycla.org/siteFiles/Pub- lications/Publications1759_0.pdf. 39. Id. 12. Id. at 1. 40. Id. 13. Douglas R. Richmond, Bullies on the Bench, 72 La. L. Rev. 325, 344 (2012). 41. United States v. Turner, 720 F.3d 411, 418, 422–23, 426 (2d Cir. 2013) (finding that Turner’s “lengthy discussion of killing the three judges, his reference 14. Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical Judicial Opinion to the killing of Judge Lefkow’s family, and his update the next day about Writing, 21 Geo. J. Legal Ethics 237, 237 (2008). how to locate Judges Easterbrook, Bauer, and Posner,” amounted to powerful 15. Priscilla V. Marotta et al., Surviving Bench Stress, 49 Fam. Ct. Rev. 610, evidence of a true threat). 611–12 (2011). 42. U.S. Marshals Service, Judicial Security, https://www.usmarshals.gov/ 16. Judges Struggling with Depression: More Common Than You Think, Lawyers judicial/(last visited May 15, 2017). with Depression, www.lawyerswithdepression.com/articles/judges- 43. Id. struggling-depression-common-think/ (last visited May 15, 2017). 44. N.Y. St. Courts, OCA Support Units, www.nycourts.gov/admin/suppor- 17. 22 N.Y.C.R.R. 100.2(C). tunits.shtml (last visited May 15, 2017). 18. 22 N.Y.C.R.R. 100.4(A)(1)(2)(3). 45. N.Y St. Courts, Excellence Initiative, https://www.nycourts.gov/excel- 19. Zimmerman, supra note 7, at 4. lence-initiative (last updated Mar. 24, 2016). 20. Lynn Hect Schafran, Not from Central Casting: The Amazing Rise of Women 46. N.Y. St. Courts, To File a Complaint about a Judge, www.nycourts.gov/ip/ in the American Judiciary, 36 U. Tol. L. Rev. 953, 957–58 (2005). judicialconduct/index.shtml (last updated May 15, 2017). 21. Id. at 957–58. 47. Raymond J. McKoski, Judicial Discipline and the Appearance of Impropriety: 22. Id. at 957. What the Public Sees Is What the Judge Gets, 94 Minn. L. Rev. 1914, 1955-57 (2010). 23. Deborah L. Rhode, ABA Commission on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession 5, 5 (2001); Becky 48. 22 N.Y.C.R.R. 100.5(A)(4)(g). Kruse, Luck and Politics: Judicial Selection Methods and Their Effect on Women on 49. Id. Rule 100.4(I). the Bench, 16 Wis. Women’s L.J. 67, 67 (2001). 50. Terry A. Maroney, Emotional Regulation and Judicial Behavior, 99 Cal. L. 24. Mary M. Schroeder, Judging With a Difference, 14 Yale J. of L. & Feminism Rev. 1485, 1550 (2011) (stating that judges frequently engage in emotional 255, 260 (2002). suppression that negatively impacts cognitive ability and memory). 25. Peter G. Jaffe et al., Vicarious Trauma in Judges: The Personal Challenge of 51. Bremer, supra note 26, at 245. Dispensing Justice, 54 Juv. Fam. Ct. 1, 4 (2003). 52. Maroney, supra note 50, at 1550–51. 26. Celeste F. Bremer, Reducing Judicial Stress Through Mentoring, 87 Judica- 53. Tracy D. Eells & C. Robert Showalter, Work-Related Stress in American Trial ture 244, 249-50 (2004). Judges, 22 Bull. Am. Acad. Psychiatry Law 71, 80–81 (1994). 27. Leah V. Durant, Gender Bias and the Legal Profession: A Discussion of Why 54. Cynthia Gray, The Worst-Kept Secret in the Courthouse, 90 Judicature 30, 35 There Are Still So Few Women on the Bench, 4 Margins: Md. L.J. Race, Religion, (2006). Gender & Class 181, 193 (2004) (citing Theresa M. Beiner, The Elusive (But Worthwhile) Quest for a Diverse Bench in the New Millennium, 36 U.C. Davis L. 55. Id. at 30. Rev. 597, 616 (2003)). 56. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health 28. 17 U.S.C. § 512(c)(3), (d)(3). Concerns Among American Attorneys, 10 J. Addiction Medicine 46, 51 (2016). 29. U.S. Const. amend. I; see also Allyson Haynes Stuart, Google Search Results: 57. Stephen M. Terrell, The Dirty Secret in the Lives of Lawyers, 49 Res Gestae Buried if Not Forgotten, 15 N.C. J. L. & Tech. 463, 466 (2014). 34, 34 (2006) (citing Positive Psychology and the Law: Why Lawyers Are So Dis- satisfied, Lawyers Weekly USA, July 25, 2005). 30. Andrea Henson-Armstrong, Suffering in Silence: The Dark Side of Judging in 2013, 63 Syracuse L. Rev. 253, 254 (2013). 58. Debra S. Austin, Drink Like a Lawyer: The Neuroscience of Substance Use and Its Impact on Cognitive Wellness, 15 Nev. L.J. 826, 846 (2015). 31. Id. at 267 (citing Committee Works to Increase Security Awareness, Inter- view with Judge Nancy Atlas, United States Courts, www.uscourts.gov/News/ 59. Guglielmo Beccuti & Silvana Pannain, Sleep and Obesity, 14 Current TheThirdBranch/12-02-01/Committee_Works_to_Increase_ Security_Aware- Opinion in Clinical Nutrition and Metabolic Care 402 (July 2011), available ness.aspx). at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3632337/pdf/nihms-

NYSBA Journal | June 2017 | 21 459205.pdf, at *2 (noting 50 epidemiological studies done throughout several 94. Douglas S. Lavine, Practical Tips for New Judges Making the Transition to the geographical regions that examined the correlation between sleep and obesity Bench, 48 Judges’ J. 14, 15 (2009). in adults and children found a significant association between short sleep and 95. Lebovits et al., supra note 85, at 270–75, 282. increased obesity risk). 96. Robert H. Tembeckjian, Point of View: Judicial Reform and the Test of Time, 60. Jennifer Grasz, Travel Agents, Attorneys/Judges and Physicians Among 82 N.Y. St. B.J. 40, 42 (May 2010) (citing 22 N.Y.C.R.R. 100.0, 100.5). Occupations Most Likely to Report Weight Gain, Finds Annual CareerBuilder Survey, Careerbuilder (June 6, 2012), www.careerbuilder.com/share/aboutus/ 97. Lavine, supra note 94, at 15–16. pressreleasesdetail.aspx?sd=6%2F6%2F2012&id=pr699&ed=12%2F31%2F2012. 98. Saxe, supra note 86. 61. Brittany Stringfellow Otey, Buffering Burnout: Preparing the Online Genera- 99. 22 N.Y.C.R.R. 100.3(B)(8). tion for the Occupational Hazards of the Legal Profession, 24 S. Cal. Interdisc. L.J. 100. Saxe, supra note 86. 147, 167 (2014). 101. Otey, supra note 61, at 193, 196. 62. Jaffe et al., supra note 25, at 2. 102. Ells & Showalter, supra note 53, at 71. 63. Lee Norton et al., Burnout and Compassion Fatigue: What Lawyers Need to Know, 84 UMKC L. Rev. 987, 987 (2016). 103. Mark R. Siwik, Using Exercise to Reduce Corporate Law Practice Stress: It’s a Marathon, Not a Sprint, 19 ACCA Docket 59, 65 (2001). 64. Jaffe et al., supra note 25, at 2. 104. Mayo Clinic Staff, Exercise and Stress (Apr. 16, 2015), www.mayoclinic. 65. Susan P. Cohen, Judicial Wellness & the Impaired Judge (Oct. 2015) org/healthy-lifestyle/stress-management/in-depth/exercise-and-stress/art- (seminar to the N.Y.C. Bd. of Judges). 20044469. 66. Norton, supra note 63, at 992. 105. Len Kravitz, High-Intesity Interval Training, ACSM.ORG (2014), https:// 67. Maxine Goodman, Three Likely Causes of Judicial Misbehavior and How www.acsm.org/docs/brochures/high-intensity-interval-training.pdf. These Causes Should Inform Judicial Discipline, 41 Cap. U. L. Rev. 949, 996 (2013). 106. Id. 68. Id. 107. Id. 69. See generally Charles Sevilla, Protecting the Client, the Case and Yourself from 108. Id. an Unruly Jurist, Champion, Aug. 2004, at 28, 28-29. 109. Id. 70. Zimmerman, supra note 7, at 5. 110. Yvonne M. Ulrich-Lai et al, Stress Exposure, Food Intake and Emotional State, 71. Id. 18 Int’l J. on Bio. of Stress 381, 381 (2015). 72. Id. 111. S. E. Quirk et al., The Association Between Diet Quality, Dietary Patterns 73. Mirelsa Modestti Gonźalez, Judges in Distress: When to Seek Help, Judicial and Depression in Adults: A Systematic Review, 13 BMC Psychiatry (2013), Family Inst., www.judicialfamilyinstitute.org/Topics-and-Programs/Judicial- available at http://dro.deakin.edu.au/eserv/DU:30054643/quirk- Assistance/Judges-in-Distress-When-to-Seek-Help.aspx (last visited May 15, associationbetweendiet-2013.pdf, at *19 (2013). 2017). 112. Id. 74. Norton, supra note 63, at 989. 113. Ulrich-Lai, supra note 110, at 385 (describing how a diet with various 75. Maroney, supra note 50, at 1552. food options is better than a diet high in fat/sugar). 76. Norton, supra note 63, at 998. 114. Id. 77. Jaffe et al., supra note 25, at 6. 115. Id. at 383–85. 78. N.Y. St. Courts, N.Y. St. Jud. Inst., https://www.nycourts.gov/ip/judicia- 116. Wegner, supra note 84, at 50 (“Strategies people use to relax excessive linstitute/ (last updated Apr. 9, 2014). striving for control . . . show promise in reducing the severity of ironic effects. 79. Bremer, supra note 26, at 245 (examining “mediating effects of mentoring Potentially effective strategies include accepting symptoms rather than on personal strain and to obtain additional empirical data on judicial stress”). attempting to control them and disclosing problems rather than keeping them secret.”). 80. Monica K. Miller et al., Addressing the Problem of Courtroom Stress, 91 Judi- cature 60, 68 (2007). 117. N.Y. St. B. Ass’n, Judicial Wellness Committee, www.nysba.org/A17600/ (last visited May 15, 2017). 81. Id. at 68. 118. N.Y. St. B. Ass’n, Judges’ Assistance Program, www.nysba.org/WorkArea/ 82. Bremer, supra note 26, at 246. DownloadAsset.aspx?id=58049 (last visited May 15 2017). 83. Id. 119. Id. 84. Daniel M. Wegner, How to Think, Say or Do Precisely the Worst Thing for 120. John Council, Judges Afraid of Seeking Help for Mental Health Issues, Any Occasion, 325 Sci. 48, 48 (2009). N.Y.L.J., Apr. 14, 2017, at 1 col. 3. 85. See generally Gerald Lebovits, Alifya V. Curtin, & Lisa Solomon, Ethical 121. Cttee of the Am. Judicature Society, A Fresh Look at Judicial Impairment, 90 Judicial Opinion Writing, 21 Geo. J. Legal Ethics 237 (2008). Judicature 1, 1 (2006). 86. David B. Saxe, Tips for New Judges, N.Y.L.J. (Apr. 29, 2015), available at 122. Council, supra note 120 (quoting Eileen Travis, director of the New York City www.newyorklawjournal.com/id=1202724855739/Tips-for-New-Judges. Bar Association’s Lawyer Assistance Program, “judges are afraid that if word 87. John B. Nesbitt, The Role of Trial Court Opinions in the Judicial Process, 75 gets out, that’s just going to be it. That’s going to be the end of their career.”). N.Y. St. B.J. 39, 39 (2003). 123. William Glaberson, Proposal to Revamp Judicial-Conduct Agency 88. Saxe, supra note 86. Draws Fire, N.Y. Times (Jan. 25, 2011), www.nytimes.com/2011/01/26/ nyregion/26judges.html. 89. N.Y. St. Courts, Advisory Committee on Judicial Ethics, Organization and Purpose, https://www.nycourts.gov/ip/acje/whatis.shtml (last updated 124. N.Y. St. Comm’n on Jud. Conduct, Annual Report 2017, 18-19, www.scjc. Sept. 7, 2016). state.ny.us/Publications/AnnualReports/nyscjc.2017annualreport.pdf (last visited May 8, 2017). 90. Judiciary L. § 212 (2)(l)(iv). 125. Richard Emery, Judicial Conduct, Demystifying the Operations of the Com- 91. N.Y. St. Courts, Advisory Comm. on Judicial Ethics, Search Help, www. mission on Judicial Conduct, N.Y.L.J., May 19, 2017, at 3, col 1. nycourts.gov/ip/acje/search-help.shtml. 126. N.Y. St. Comm’n on Jud. Conduct, supra note 3, at 89, 121. 92. N.Y. St. Courts, Standards of Civility, www.nycourts.gov/ip/jipl/pdf/ standardsofcivility.pdf (last visited May 15, 2017). 127. In re Restaino, 10 N.Y.3d 577, 589–90 & 589 n.8, 890 N.E.2d 224 (2008). 93. Id. 128. Id. at 590.

22 | June 2017 | NYSBA Journal Are you feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help.

We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression.

NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law.

Call 1.800.255.0569

NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM BURDEN OF PROOF BY DAVID PAUL HOROWITZ David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over 26 years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and lectured on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam. He serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee.

Brick and Mortar Rules!

Introduction requirement that non-resident attor- attended on June 5, 2007, she We’ve heard a lot in the news, for many neys maintain a physical office for the “learned for the first time that, years, about the demise of brick-and- practice of law in New York, thereby according to § 470 of the New York mortar stores due to the rise of e-com- providing a means “for them to estab- Judiciary Law which is applicable merce, and main streets and malls lish a physical presence in the state on to non-resident New York attorneys throughout the country are replete with a par with that of resident attorneys.” only, she may not practice law in the shuttered stores that were formerly the State of New York unless she main- linchpins of their communities. Schoenefeld at the Trial Level tains an office located in the State.” However, brick-and-mortar offices Southern District Judge Buchwald set (Citation and footnote omitted) This are alive and well for lawyers admit- forth the pertinent facts in her order statutory provision has not been ted to practice in New York who do transferring venue of the action to the enforced against plaintiff nor has not reside in the state. For this group of Northern District of New York:3 any party threatened to enforce the lawyers, a physical office in New York Plaintiff is an attorney admitted to law against her. Plaintiff, however, is required to avoid running afoul of practice law in New York, New Jer- concerned about potential disciplin- Judiciary Law § 470 (Jud. Law). sey and California. (Citation omit- ary action, has declined one or more Jud. Law § 470 provides: ted) She resides in Princeton, New cases that would have required her to practice in the state courts of New § 470. Attorneys having offices in this Jersey and has her office in Law- York, including in New York City. state may reside in adjoining state renceville, New Jersey, where she (Citation omitted).4 A person, regularly admitted to works as a solo practitioner. (Cita- practice as an attorney and coun- tion omitted) The thirty-six named Following the transfer to the North- sellor, in the courts of record of this defendants in this case include ern District of New York, Judge Kahn state, whose office for the transac- twenty-one members of the Com- denied defendants’ motion to dismiss tion of law business is within the mittee on Professional Standards, Schoenefeld’s Privileges and Immuni- state, may practice as such attorney Third Department, eleven justices ties Clause claim: or counsellor, although he resides of the Appellate Division, Third Section 470 does not serve to facili- in an adjoining state. Department, the clerk of the Appel- tate a full-time practice require- On April 17, 2017, an eight-year late Division, Third Department, ment applicable only to attorneys legal saga came to an end when the U. the Attorney General of the State of admitted on motion. Nor is it a local S. Supreme Court denied certiorari in New York, the New York Supreme rule adopted by a particular court. Schoenefeld v. Schneiderman.1 Along the Court Appellate Division, Third Rather, it is a state rule that applies way, the case, which was filed in the Department, and the State of New to all nonresident attorneys, even Southern District of New York, made York. (Citation omitted) The indi- those who have shown their com- its way to the Northern District of New vidual defendants, all sued in their mitment to service and New York York, to the Second Circuit, to the N.Y. official capacities, reside in Albany. law through attending CLE courses Court of Appeals, and back to the Sec- (Citation and footnote omitted). and passing the state bar exam. ond Circuit where, on April 22, 2016,2 Plaintiff alleges that during a con- Plaintiff has alleged sufficient facts, that court upheld Jud. Law § 470’s tinuing legal education class she which, if accepted as true, indicate

24 | June 2017 | NYSBA Journal that she has a protected interest New York allows licensed corpora- Schoenefeld on Appeal in practicing law in New York. tions to appoint an agent for ser- On appeal to the Second Circuit, that The state has offered no substan- vice of process in-state if the corpo- court certified the central question in tial reason for § 470’s differential ration maintains its principal place the case to the N.Y. Court of Appeals: treatment of resident and nonresi- of business out-of-state or abroad. Because it is “our preference dent attorneys nor any substantial (Citation omitted). Mandating that states determine the mean- relationship between that differen- that out-of-state attorneys have an ing of their own laws in the first tial treatment and State objectives. appointed agent for service of pro- instance,” (citation omitted), we Given this failure, and because case cess in New York is a simple and respectfully certify the following law does not necessitate dismissal less restrictive means of ensuring question to the New York Court of of Plaintiff’s claims as a matter of that a nonresident attorney will Appeals: law, the Court denies Defendants’ be subject to personal jurisdiction Under New York Judiciary Motion to dismiss Plaintiff’s claim instate and to contact by the court, Law § 470, which mandates that § 470 violates the Privileges clients, and opposing parties. that a nonresident attorney and Immunities Clause.5 Similarly, the Supreme Court in maintain an “office for the Piper suggested that state courts transaction of law business” Thereafter, Judge Kahn granted may require a nonresident lawyer within the state of New Schoenefeld’s motion for summary who resides at a great distance York, what are the mini- judgment: from a particular state to retain a mum requirements neces- In deciding whether a statute bears local attorney for the duration of sary to satisfy that mandate? a close or substantial relationship to proceedings and to be available The New York Court of Appeals a substantial state interest, a court for any meetings on short notice. may, of course, expand, alter, or must consider the availability of less (Citations omitted). Such a require- reformulate this question as it deems restrictive means to pursue the state ment would be less restrictive than appropriate. (Citation omitted). interest in order to minimize the the current requirements imposed The N.Y. Court of Appeals explained burden on the affected party. (Cita- by § 470 for two reasons: first, the origin, evolution, and 21st century tion omitted). Even assuming that it would affect only out-of-state rationale for Jud. Law § 470: attorneys who reside a great dis- § 470 advances a substantial state It is well settled that, where the tance from New York; and second, interest, Defendants argue that it language of a statute is clear, it it would only require those attor- employs the least restrictive means should be construed according to neys to make arrangements for the available to do so because there its plain terms (citation omitted). limited duration of a proceeding. are a number of different ways for We have also held that “no rule of The Supreme Court also held in nonresidents to satisfy the office construction gives the court discre- Frazier that the problem of attorney requirement. Defendants primarily tion to declare the intent of the law unavailability to court proceedings rely on Austria, which held that a when the words are unequivocal” may be significantly alleviated with nonresident attorney paying rent for (citation omitted). the use of “modern communication a desk in, and maintaining an “of Here, the statute appears to presup- systems, including conference tele- counsel” relationship with, an office pose a residency requirement for phone arrangements.” (Citations in New York satisfied the office and parentheticals omitted). All of the practice of law in New York requirement. (Citation omitted). the above present less restrictive State. It then makes an exception, by This argument is unavailing. The means of ensuring attorney avail- allowing nonresident attorneys to Court of Appeals held in Matter of ability than does § 470’s burden- practice law if they keep an “office Gordon that although a state has a some requirement that all nonresi- for the transaction of law business” legitimate interest in regulating the dent attorneys maintain offices or in this State. By its plain terms, then, attorneys who practice law in their full-time of-counsel relationships the statute requires nonresident courts, there are less restrictive in New York. (Citation omitted). attorneys practicing in New York to means of furthering that interest Because Defendants have failed to maintain a physical law office here. than denial of admission to the bar. establish either a substantial state However, recognizing that there (Citation omitted). Matter of Gor- interest advanced by § 470, or a may be a constitutional flaw if the don suggested, for example, that substantial relationship between statute is interpreted as written, one such method would be to enact the statute and that interest, the defendants urge us to construe the “legislation requiring nonresident Court concludes as a matter of statute narrowly in accordance with attorneys to appoint an agent for law that it infringes on nonresi- the doctrine of constitutional avoid- the service of process within the dent attorneys’ right to practice law ance (citation and parenthetical omit- State.” (Citations and parenthetical in violation of the Privileges and ted). In particular, they suggest that omitted). It well-established that Immunities Clause.6 the provision can be read merely

NYSBA Journal | June 2017 | 25 to require nonresident attorneys to ments have generally interpreted purpose of favoring New York resi- have some type of physical presence the statute as requiring a nonresidents in their ability to practice for the receipt of service – either an dent attorney to maintain a physi- law. To the contrary, the statute was address or the appointment of an cal office space (citations omitted). enacted to ensure that nonresident agent within the State. They maintain Defendants’ proffered interpreta- members of the New York bar could that interpreting the statute in this tion, on the other hand, finds no practice in the state by providing a way would generally fulfill the legis- support in the wording of the pro- means, i.e., a New York office, for lative purpose and would ultimately vision and would require us to take them to establish a physical pres- withstand constitutional scrutiny. the impermissible step of rewriting ence in the state on a par with that The statute itself is silent regarding the statute (citation omitted). of resident attorneys, thereby elimi- the issue of service. When the stat- The State does have an interest in nating a service-of-process concern. ute was initially enacted in 1862, ensuring that personal service can We identify no protectionist intent however, it did contain a service be accomplished on nonresident in that action. Indeed, it is Schoene- provision. At that time, it essen- attorneys admitted to practice here. feld who, in seeking to practice law tially required that an attorney who However, it is clear that service in New York without a physical maintained an office in New York, on an out-of-state individual pre- presence in the state, is looking to but lived in an adjoining state, sented many more logistical diffi- be treated differently from, not the could practice in this State’s courts culties in 1862, when the provision same as, New York resident attor- and that service, which could ordi- was originally enacted. The CPLR neys. Such differential treatment is narily be made upon a New York currently authorizes several means not required by the Privileges and attorney at his residence, could be of service upon a nonresident Immunities Clause. made upon the nonresident attor- attorney, including mail, overnight * * * ney through mail addressed to his delivery, fax and (where permitted) Indeed, the effect of § 470, as applied, office (citation omitted). Upon the email (citation omitted). Under our is no different from a neutral stat- enactment of the Code of Civil Pro- own Court rules, the admission of ute requiring all licensed New York cedure in 1877, the provision was attorneys who neither reside nor attorneys, resident and nonresident codified at § 60. In 1909, the provi- have full-time employment in the alike, to maintain a physical pres- sion was divided into two parts – a State is conditioned upon designat- ence in the state, which raises no service provision, which remained ing the clerk of the Appellate Divi- Privileges and Immunities concern.8 at § 60 of the Code, and a law office sion in their department of admis- requirement, which became § 470 sion as their agent for the service of Conclusion of the Judiciary Law. Notably, after process for actions or proceedings The Memorial Day weekend will have we invalidated a New York resi- brought against them relating to come and gone when you read this dency requirement for attorneys in legal services offered or rendered column, and summer will be upon Matter of Gordon (citation omitted) (citation omitted). Therefore, there us. As you fire up the grill, go to the the legislature amended several would appear to be adequate mea- beach, or attend a baseball game, you provisions of the Judiciary Law and sures in place relating to service can look forward to summer reading the CPLR to conform to that hold- upon nonresident attorneys and, in the form of next month’s column, ing (citation omitted). Section 470, of course, the legislature always discussing what it means to maintain however, was not one of the provi- remains free to take any additional an “office for the transaction of law sions amended and has remained action deemed necessary. business” in New York State. n virtually unchanged since 1909. Accordingly, the certified question Even assuming the service require- should be answered in accordance 1. ___U.S.___, 2017 WL 1366736 (April 17, 2017). 7 ment had not been expressly sev- with this opinion. 2. 821 F.3d 273 (2d Cir. 2016). ered from the statute, it would The last stop for this case was back 3. Schoenefeld v. New York, 2009 WL 1069159 (S.D.N.Y. Apr. 16, 2009). Venue was transferred be difficult to interpret the office at the Second Circuit: pursuant to 28 U.S.C. § 1404(a) based upon the requirement as defendants sug- Having now received the New convenience of witnesses. gest. As the Second Circuit pointed York Court of Appeals’ response 4. Id. out, even if one wanted to inter- to our certified question as to the 5. Schoenefeld v. New York, 2010 WL 502758, at *5 pret the term “office” loosely to “minimum requirements neces- (N.D.N.Y. Feb. 8, 2010, [LEK/RFT]). mean someplace that an attorney sary to satisfy” § 470’s office man- 6. Schoenefeld v. New York, 907 F. Supp. 2d 252, can receive service, the additional date, (citations and parenthetical 264–66 (N.D.N.Y. 2011). phrase “for the transaction of law omitted) we conclude that § 470 7. Schoenefeld v. State, 25 N.Y.3d 22, 26–28 (2015). business” makes this interpreta- does not violate the Privileges and 8. Schoenfeld v. Schneiderman, 821 F.3d 273 (2d Cir. 2016). tion much less plausible. Indeed, Immunities Clause because it was the Appellate Division depart- not enacted for the protectionist

26 | June 2017 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

CONNECT | INSPIRE | LEARN

Access the full Report to Membership online at www.nysba.org/annualreport

REPORT TO MEMBERSHIP 2016–2017 Harvey S. Mars, Esq., is a 1985 graduate of Albany Law School of Union University and also holds a Master of Science in Industrial Labor Relations from Cornell University and Baruch College. He currently serves as In House Counsel to The Associated Musicians of Greater New York, Local 802 AFM and is Co-General to District Council 1707, AFSCME and represents several other local unions and employee benefit trust funds. Mr. Mars coun- sels many individual and corporate clients on employment and labor issues.

Performing Artists’ Entitlement to Compensation Under the N.Y. WCL By Harvey S. Mars

orkers’ compensation statutes exist in this After a herculean effort by advocates for perform- country for two basic reasons. First, they pro- ing artists that extended several years, in 1986, the Wvide a streamlined procedure through which definitional section of the N.Y. Workers’ Compensa- employees who are injured during their employment can tion Law (WCL), § 2(4), was amended so that profes- receive income replacement if they are unable to work sional musicians and other persons engaged in the temporarily because of these injuries. Second, by placing performing arts rendering services for various enter- financial limitations on the award employees can recover tainment establishments and venues were now statu- from an employer because of a work-related injury, the torily defined as employees. The justification for the law protects and ensures the solvency of employers. amendment cited in the memorandum that supported Employers are legally required to obtain insurance that it was that will provide the financial means by which workers’ com- [m]usicians and performers are often required as a pensation awards may be satisfied. Nevertheless, one condition of employment, to sign a statement that they factor that limits the reach of workers’ compensation laws are independent contractors. Thus, these individuals is that only employees are eligible to apply and receive are denied the basic rights afforded to other working it. For many years, this fact precluded performing artists men and women in New York State. This bill would from successfully applying for workers’ compensation as provide basic coverage to musicians and performers they were characterized as independent contractors. For who are presently excluded from many benefits and/ 1 performing artists to obtain recompense for work related or protections under the Labor Law. personal injuries, they had to engage in protracted legal This legislative reform was the initiative of a diverse proceedings at a substantial cost, both in terms of time array of proponents, including various unions that rep- and money. resented performing artists. For instance, the AFL-CIO

28 | June 2017 | NYSBA Journal wrote in support of this amendment that “[t]he entertain- NYSLRA § 701(3)(b): ment industry in New York is unique and deserving of (b) The term “employee” shall also include a profes- interest, support and, where necessary, legislative pro- sional musician or a person otherwise engaged in tection. For too long these workers were without union the performing arts who performs services as such. representation and the resulting benefits because they “Engaged in the performing arts” shall mean performing services about production of or performance in any were classified as essentially independent contractors.”2 artistic endeavor which requires artistic or technical Assemblyman Roger J. Robach, then chairman of the skill or expertise. Assembly’s Committee on Commerce, Industry and Eco- nomic Development, noted in a letter he wrote in support Without this presumption, musicians cannot avail of the amendment that the themselves of the protections of state representational vast majority of musicians and performers who are and unfair labor practice proceedings when the NLRB is not in the “star” category are under the direction of an incapable of exercising jurisdiction. employer, whether directly or as a contractor. Under The import of these sections is that they create a pre- common law these groups are eligible as employees sumption that musicians and other performing artists since they meet the test of being under an employer’s are employees, rather than independent contractors. This direction, supervision and control. Currently these is an important distinction since by operation of these employees must now litigate to be awarded their due statutes, employees are entitled to unemployment insur- 3 benefits. ance, workers’ compensation benefits and the protections At the same time, the definitional sections of the and the ability to form a union afforded by the NYSL- N.Y. Unemployment Insurance Law and the N.Y. State RA, whereas, independent contractors are not. Benefit Labor Relations Act (NYSLRA) were amended to provide entitlement hinges upon the classification of the worker that performing artists were statutorily presumed to be involved in the proceeding. For performing artists such as employees. Because of the comprehensive amendment, musicians, these provisions remove a significant obstacle WCL § 201 now states: to coverage. As it now stands, performing artists do not “Employee” shall also mean, for purposes of this have to prove that they are employees. Rather, employers chapter, a Professional musician or a person other- must prove that they are independent contractors. wise engaged in the performing arts who performs Under the National Labor Relations Act, a multi-fac- services as such for a television or radio station or tored “right of control” test is utilized to ascertain wheth- network, a film production, a theatre, hotel, restaurant, er a worker is an independent contractor or employee.4 night club or similar establishment unless, by written Under this test, an individual is considered an employee contract, such musician or person is stipulated to be if the one for whom services are performed retains the an employee of another employer covered by this right to control the manner and means by which he or she chapter. “Engaged in the performing arts” shall mean achieves the result sought. This test is usually satisfied performing service in connection with the produc- because most musicians’ performances are controlled by tion of or performance in any artistic endeavor which requires artistic or technical skill or expertise. the music director or conductor of the organization for which they are engaged (even though the way they play Unemployment Insurance Law § 511(1)(b)(1-a) was their instruments is not).5 added to the definition section of that statute, which now The fact that the right of control test may be satisfied states that: for musicians when many of the facts indicate indepen- The term employee is defined as: dent contractor status was made clear by the NLRB in (1-a) as a professional musician or a person otherwise a case involving the American Federation of Musicians engaged in the performing arts, and performing ser- (Royal Palm Theatre) musician’s union.6 There, the board vices as such for a television or radio station or net- held that freelance musicians who were hired to make work, a film production, a theatre, hotel, restaurant, recordings used at a dinner theater were employees, even night club or similar establishment unless, by written though the musicians were not selected by the employer contract, such musician or person is stipulated to be and were utilized for only a few hours with no real expec- an employee of another employer covered by this tation of future employment. The board held that these chapter. “Engaged in the performing arts” shall mean factors, which would normally indicate independent performing services about the production of or perfor- contractor status, were outweighed by the fact that the mance in any artistic endeavor which requires artistic or technical skill or expertise. employer’s musical director exercised complete control over the musicians, telling them when to appear, what to NYSLRA, the statute that applies when the National play, and how the music should sound. The board con- Labor Relations Board (NLRB) does not have jurisdiction, cluded that the musicians were “under the continuous such as when an employer does not have significant rev- supervision and exercised control of the musical director enue, has similar language to the other statutes because and subject to his complete discretion and artistic inter- of the amendment: pretation and taste.”7 Prior to the amendment of New

NYSBA Journal | June 2017 | 29 York’s statutes, performing artists were often misclassi- In an initial attempt to surmount the potential legisla- fied as independent contractors, despite precedent under tive roadblock to the suit, in 2015, legislative lobbyists federal law. secured passage of an amendment to § 2(4) by both the Until recently, performing artists’ entitlement to Assembly and Senate. This amendment would have workers’ compensation benefits and unemployment permitted musicians and other performers to opt out of insurance under New York law remained unquestioned. coverage.9 Viewed in its best light, the amendment was However, recently performing artists’ coverage under a retrograde throwback to the pre-1986 legal landscape the WCL has been called into question. This was the where musicians and other performers once again can result of a horrific accident that occurred on the stage of be considered non-employees. While this consequence the one the world’s most celebrated opera houses – The might have been unintended and not immediately obvi- Metropolitan Opera (Met). On December 17, 2011, during ous, it existed and would have had an adverse impact a performance of Gounod’s “Faust,” veteran Metropoli- on those musicians who, not understanding the ramifi- tan Opera mezzo-soprano Wendy White fell from a plat- cations and ultimate effect of seeking exemption from form eight feet above the stage. Evidently the accident coverage under the workers’ compensation law, would was caused by a faulty hinge connecting the platform to have by doing so lost the protection of employee status. a stairway leading to the stage. While she did not suffer It was suggested that the amendment would have no any broken bones from the fall, the fall ended her career impact on the beneficial purposes of the 1986 amendment. as an opera singer. The fall injured her torso and caused A close examination of the proposed amendment, how- nerve damage that prevents her from singing sustained ever, did not bear this out. Once a musician or performer high notes. She also has trouble standing for long periods exercised their newly conferred statutory right not to be of time. Because of her inability to sing at a professional considered an employee eligible for workers’ compensa- level, the Met terminated her contract and refused to pay tion, their choice would have been immutable and they her the remaining balance.8 Not surprisingly, Ms. White would no longer be entitled to employee status. Once they commenced a breach of contract suit against the Met. returned to work after their injury abated, the precedent However, the primary defense the Met has raised to the would have been set and their employer would have legal suit is that it is barred by operation of the WCL. justification in excluding them from employee status. This possibility existed even though collective bargain- ing agents were given the legal right to veto the perform- Until recently, performing artists’ er’s request, because a significant portion of performing entitlement to workers’ compensation artists are often compelled to work in non-union contexts to make a living. Moreover, once they have been designat- benefits and unemployment ed as independent contractors, there is no longer any pos- insurance under New York law sibility that these performers can unionize, because inde- remained unquestioned. pendent contractors are excluded from coverage under the National Labor Relations Act as well as NYSLRA. Nor was this exclusion from employment status Under most circumstances, because of the 1986 leg- warranted or necessary. The fact remains that the WCL islative amendment, an injury sustained by a perform- exempts corporate officers from coverage under § 54, ing artist while performing, such as what happened to subdivision 6. The fact also remained that the amend- Ms. White, is covered by the WCL. However, typically, ment may not have its intended effect since many courts workers’ compensation claims are limited to lost wages will still make an independent assessment of whether a and medical expenses. If a personal injury lawsuit were particular performing artist is truly an independent con- filed instead of a workers’ compensation claim, potential tractor under traditional common law analysis, although recovery is much greater because additional forms of they operate as a corporate entity. damages, such as compensation for “pain and suffering” While the amendment passed both the State Assem- and front pay, would be available. The financial limita- bly and Senate, on December 22, 2016, it was vetoed tions on recoverable damages in a plenary suit will be by Governor Cuomo.10 In his veto message Governor much less. However, if a claim is covered by the WCL, it Cuomo stated that the bill would violate the “fundamen- is barred from being pursued as a personal injury claim. tal” bargain of the state workers’ compensation system, Financial recovery under the WCL on a claim such as that workers injured on the job are entitled to recover Ms. White’s inhibits Ms. White from receiving the full benefits for lost earnings and medical expenses while range of damages she may be entitled to because of her the employer is shielded from liability. It would “violate career-ending accident. Thus, to ensure that her suit may that basic compromise by defining certain individuals proceed to a determination on the merits, she is seeking as non-employees” and “create confusion by treating an legislatively an exception to § 2(4). These efforts have individual as a non-employee for workers’ compensation been problematic for performing artists. benefits but an employee for the purpose of other laws.”11

30 | June 2017 | NYSBA Journal As it stands there have already been three bills present- that would limit the exception only to Ms. White’s acci- ed to the legislature meant to permit Ms. White’s suit to dent.15 Such legislation, known as a “picture bill,” would proceed. Each attempt, however, failed, partially because allow Ms. White’s suit to proceed but would not other- the definitional revision to the Workers’ Compensation wise disturb the broad coverage the law extended to per- Law potentially adversely impacted performing artists. forming artists. The enactment of this amendment would While the legislature has not yet accorded Ms. White modify the Appellate Division’s holding and produce an the ability to proceed with her suit, the Appellate Divi- optimal situation by allowing Ms. White to pursue full sion, First Department was more willing to do so. Its compensation, without jeopardizing performing artists’ recent decision in the pending personal injury suit litiga- ability to seek statutory protection as employees. tion, White v. Metropolitan Opera Association, Inc.,12 reveals On March 15, 2017, Governor Cuomo signed this that the results of this suit and further legislation that is amendment into law. In the justification section of the anticipated to be proposed in tandem with it could have bill sponsor’s memo, it is noted that “[t]his bill is not a far-reaching impact upon professional musicians and intended to impact the beneficial purpose of the 1986 performing artists alike. amendments and the right to workers’ compensation for On January 5, 2017, the appellate court affirmed the other musicians and performing artists, but to remedy an Supreme Court of New York County’s decision denying unfair interpretation of the law for a particular performer. the Met’s motion to have Ms. White’s suit dismissed on Every musician or other performing artist would still the ground that it was barred by the WCL. As an initial be automatically covered by the statute as amended in ground for the affirmance, the court determined that 1986.” Hopefully, this amendment will mitigate the nega- since Ms. White worked as an employee of her own com- tive impact of the White decision. n pany, Wendy White, Inc. (WW, Inc.), she might be exempt from the reach of the § 2(4) statutory definition since she 1. See NYLS’ Governor’s Bill Jacket, 1989 Chapter 43, p. 6. was the employee of another employer. The fact that WW, 2. See NYLS’ Governor’s Bill Jacket, 1989 Chapter 903, p. 50. Inc. did not maintain a separate Workers’ Compensation 3. See NYLS’ Governor’s Bill Jacket, 1989 Chapter 903, p. 6–7. insurance policy was not deemed fatal to this holding 4. 29 U.S.C. § 152(2). because that issue was between WW, Inc. and the Work- 5. See Lancaster Symphony Orchestra v. Nat’l Labor Relations Bd., 822 F.3d 563 (D.C. Cir. 2016) (holding that musicians are employees under the “right of ers’ Compensation Board, and not Ms. White. control” test). However, the appellate court went further and indi- 6. 275 NLRB 677 (1985). cated a second reason for its denial of the motion to 7. See also In re Faze 4 Orchestra, Ltd., 245 A.D. 2d 929, (3d Dep’t 1997). In dismiss. During the suit, documentary evidence was that case, musicians were ruled to be employees of their booking agent, who presented revealing that the legislature intended to set their fee and instructed the band where and when to play. exempt “star” performers from coverage. The court noted 8. See Singer Files Suit Against Met Opera Over Fall, NewYork Times, August that the evidence produced “indicates that the statutory 2, 2013, https://artsbeat.blogs.nytimes.com/2013/08/02/singer-files-suit- against-met-opera-over-fall/. definition of employee was intended to protect the vast 9. The pertinent portion of the amendment stated that: “Employee” shall majority of performers, who are not ‘stars’ and that the also mean, for the purposes of this chapter only, and not for the purposes of any statutory exception was designed to exclude those per- other provision or statute dependent upon the definition of employer, a professional formers with the clout to negotiate the terms of their own musician or a person otherwise engaged in the performing arts who performs 13 services as such for a television or radio station or network, a film produc- engagements.” The court determined that based upon tion, a theater, hotel, restaurant, night club, or similar establishment unless this legislative history star performers were not intended by written contract, such musician or person is stipulated to be an employee to be considered employees.14 of another employer covered by this chapter, or exempt from the requirement of coverage because the musician or person is an executive officer of a corporation who This determination is problematic for performing art- is deemed excluded from coverage under paragraphs C and E of subdivision six of ists. How can the judiciary determine which musician section fifty-four of this chapter. “Engaged in the performing arts” shall mean should be considered a “star” exempt from the WCL? performing services in connection with the production of or performance in any artistic endeavor which requires artistic or technical skill or expertise Many star performers may still be considered employees (emphasis supplied). See Senate Bill 4402, 2015–2016 Regular Sessions. under the common law right of control test. If the only 10. See http://laborpress.org/sectors/municipal-labor/9294-cuomo-vetoes- parameter that is relevant to coverage is a performer’s bill-exempting-performers-from-workers-comp. leverage to negotiate an individual services contract, a 11. Id. huge number of musicians may be potentially excluded 12. 2017 N.Y. App Div. LEXIS 90, 2017 N.Y. Slip Op. 00093 (1st Dep’t Jan. 5, from coverage. 2017). The fact that the motion to dismiss has been denied 13. See NYLS’ Governor’s Bill Jacket, 1989 Chapter 903, p. 6-7. simply means that the case may proceed and further pro- 14. The court did take judicial notice of the fact that legislation had been proceedings may result in a further determination that the posed further refining the law’s definition of employee to exclude executive WCL bars this suit. Further, the Met may decide to pursue officers of corporations, but held that this fact was not dispositive of the issue. a discretionary appeal before the N.Y. Court of Appeals. 15. The Bill, Senate 3353, only excludes certain musicians or persons who had a work-related accident on December 17, 2011 who are an executive offi- However, subsequent to this decision a new amend- cer of a corporation who contracts for the musician or person’s services from ment to the definition section of the WCL was introduced the definition of employee for purposes of the Workers’ Compensation Law.

NYSBA Journal | June 2017 | 31 Return to Fundamentals? Tax Malpractice Damages – Recovery of Additional Taxes By Jacob L. Todres

f a client overpays taxes due to the negligence of a fraud measure of damages rather than the appropriate, tax advisor, one of the most fundamental elements of and broader, negligence measure of damages. The reason damages that ought to be recoverable from the errant they do so is a mystery. I 1 advisor is the additional taxes incurred. Normally the tax The most recent appellate level case to address this advisor will be either an attorney or CPA. In New York, issue is Serino v. Lipper.3 On its face and ignoring these as in most states, the rules governing recoveries for tax few recent fraud-based cases, Serino is a rather unremark- malpractice by attorneys are the same as those governing able case. In Serino, the First Department seems to have other claims for attorney negligence. The same standards correctly applied longstanding fundamental principles are utilized when the advisor is a CPA. Whether addi- of New York law. The court recognized that the fraud tional taxes incurred are recoverable will be determined and negligence measures of damages are different. The by the measure of damages rules governing attorney court also held that additional taxes incurred, while not negligence. recoverable in fraud, may be recoverable in negligence, Under New York’s traditional measure of damages thus recognizing that the negligence measure of damages recoverable in a negligence cause of action for attorney is broader than the fraud measure of damages. malpractice, the additional taxes seem to be recoverable. However, there are several cases in roughly the last decade that simply hold such additional taxes are not recoverable.2 While these cases do not articulate a Jacob L. Todres is a Professor of Law at St. John’s University School of principled rationale for disallowing such a recovery, they Law. all seem to deny the recovery by applying the narrower

32 | June 2017 | NYSBA Journal In an action to recover damages for fraud . . . “[t]he I believe Serino has effectively overruled these few true measure of damage is indemnity for the actual recent fraud-based cases and should be viewed as return- pecuniary loss sustained as the direct result of the ing New York law to its traditional and correct approach. wrong” or what is known as the “out-of-pocket” rule . . . Under this rule, the loss is computed by ascertaining New York’s Negligence Measure of Damages the “difference between the value of the bargain which In New York, the measure of damages in an attorney a plaintiff was induced by fraud to make and the malpractice cause of action goes back more than 100 amount or value of the consideration exacted as the years to Flynn v. Judge.4 In Flynn, the plaintiffs were price of the bargain” . . . Damages are to be calculated removed as executors and trustees of their father’s to compensate plaintiffs for what they lost because of estate. They sued their attorney for damages, asserting the fraud, not to compensate them for what they might his negligent advice caused them to lose their positions have gained . . . Under the out-of-pocket rule, there can be no recovery of profits which would have been real- and the income they would have earned. In reviewing ized in the absence of fraud.13 the trial court’s dismissal of the plaintiffs’ causes of Nor does the out-of-pocket rule allow for recovery of action, the Second Department held: “the measure of the payment of taxes, couched as consequential dam- damages is the difference in the pecuniary position of ages or otherwise . . . This case is similar to Alpert v. the client from what it should have been had the attorney Shea Gould Climenko & Casey.14 acted without negligence.”5 The court continued, quoting from a contemporary treatise, “[i]n actions against In denying recovery for the payment of taxes under the attorneys for negligence or wrongs . . . the plaintiff is fraud out-of-pocket rule, the Court of Appeals approved entitled to be in the same position as if the attorney had Alpert v. Shea Gould Climenko & Casey.15 In Alpert, the done his duty.”6 plaintiffs invested in a tax shelter whose chief attrac- Campagnola v. Mulholland, Minion & Roe7 involved tion was the immediate deduction of advance minimum the issue of whether in a legal malpractice action the royalty payments for the right to mine coal in the future. defendant attorney could offset the agreed upon contin- The defendant law firms gave opinions that the shelter gent fee against any recoverable damages. In addressing was valid. The shelter turned out to be invalid and the the measure of damages, the majority of the Court of plaintiffs paid substantial back taxes and interest. The Appeals held “[t]he object of compensatory damages plaintiffs brought this action against the defendants for is to make the injured client whole. Where the injury fraudulent misrepresentation – i.e., fraud. They sought to suffered is the loss of a cause of action, the measure of recover lost profit as well as the tax benefit they would damages is generally the value of the claim lost.”8 But have obtained if they had not relied on the defendants’ the majority opinion is not specific about what it means opinions and, instead, invested in a viable tax shelter.16 to make the injured client “whole.” However, the con- The lower court granted the defendants’ motion for par- currence by Judge Judith S. Kaye specifically addresses tial summary judgment, dismissing the plaintiffs’ claim this issue and, while not citing Flynn, adopted the Flynn for back taxes. In affirming this portion of the lower measure of damages: court’s opinion, Alpert held: In lawyer malpractice cases, as in all negligence cases, The IAS court was correct in rejecting plaintiffs’ the focus in damages inquiries must be on the injured damage claims for back taxes. The recovery of con- plaintiff . . . the objective being to put the injured sequential damages naturally flowing from a fraud is plaintiff in as good a position as she would have been limited to that which is necessary to restore a party to in had there been no breach of duty.9 the position occupied before commission of the fraud . . . in the instant case, recovery of back taxes would Sanders v. Rosen,10 a subsequent lower court case, left place plaintiffs in a better position than had they never no doubt that in an attorney malpractice cause of action, invested in the . . . [tax shelter]. the measure of damages is the Flynn measure. Sanders It is also well settled that the victim of fraud may not held “damages for malpractice are also limited to pecu- recover the benefit of an alternative agreement over- niary loss – i.e., the difference between the actual result looked in favor of the fraudulent one. Hence, plain- achieved and that which should have been accomplished, tiffs’ argument that but for the fraud they would have and the financial loss thereby sustained.”11 invested in some other tax shelter must fail.17 Under this negligence measure of damages, which essentially enables the injured plaintiff to recover his or The “Other” Cases her expectancy, it would seem that any additional taxes Despite the longstanding and well established differences caused by the negligence are recoverable. between the negligence and fraud measures of damages, there are approximately a half dozen cases within the last New York’s Fraud Measure of Damages decade that have totally ignored the negligence measure Lama Holding Co. v. Smith Barney Inc.12 is a recent reitera- of damages and have simply held, or assumed, that in tion by the Court of Appeals of New York’s traditional negligence causes of actions involving tax malpractice fraud measure of damages, the “out-of-pocket” rule: no taxes may be recovered as damages.18 For some

NYSBA Journal | June 2017 | 33 unexplained reason these “other” cases apply the fraud damages. Chen and all the “other” cases simply did what “out-of-pocket” measure of damages to tax malpractice Gertler did and transported Alpert’s fraud result to the negligence claims. negligence area. These cases can be illustrated by focusing on the earli- Alpert involved a fraud cause of action. Alpert’s hold- est and most recent of these cases – Menard M. Gertler, ing that taxes paid may not be recovered in a fraud M.D., P.C. v. Sol Masch & Co.19 and Chen v. Huang,20 respec- cause of action is consistent with New York’s fraud mea- tively. Gertler involved an action against an accountant sure of damages. As reaffirmed by the Court of Appeals for professional malpractice, apparently involving taxes in Lama Holding, New York’s out-of-pocket fraud mea- incurred in trading securities on margin in a pension sure of damages is designed so that a plaintiff may account. In affirming the trial court’s directed verdict recover only what was lost because of the fraud, i.e., the dismissing the complaint, the First Department, without difference between what the plaintiff was fraudulently

It seems almost inexplicable why Gertler and the “other” cases following it applied the fraud measure of damages to malpractice – a species of negligence – causes of action rather than the appropriate negligence measure of damages.

any discussion, simply held “taxes are not recoverable induced to pay and the value of what was received. under New York Law,”21 citing only Alpert,22 a fraud case Under this rule, a plaintiff may never recover any poten- applying the fraud “out-of-pocket” measure of damages. tial profit that might have been gained.26 Under Flynn’s Chen involved an allegation by the plaintiff that the negligence measure of damages, as reaffirmed by the defendant attorney failed to properly effectuate a like- Court of Appeals in Campagnola, a plaintiff may recover kind exchange under § 1031 of the Internal Revenue Code the difference between what was actually obtained and despite representing that she would do so. The causes the position the plaintiff would have been in had there of action asserted by the plaintiff were for breach of been no breach of duty,27 i.e., the plaintiff may recover contract, breach of fiduciary duty and legal malpractice. his expectancy. It seems clear that the Flynn measure of Among the damages asserted by the plaintiff was that damages is broader than the fraud “out-of-pocket” mea- he had to pay income taxes currently on the disposition sure of damages. While taxes paid may not be recover- of his real property rather than being able to defer such able under the fraud out-of-pocket rule, any additional taxes under a valid § 1031 like-kind exchange.23 In Chen, taxes caused by the malpractice negligence seem to be the defendant moved for summary judgment dismiss- recoverable under Flynn’s negligence measure of dam- ing the complaint on the grounds that the plaintiff did ages. not allege any compensable damages, even if the alleged It seems almost inexplicable why Gertler and the malpractice did occur. In addressing the recovery of taxes “other” cases following it applied the fraud measure of the court stated: damages to malpractice – a species of negligence – causes Here, defendant correctly asserts that taxes paid are of action rather than the appropriate negligence measure generally not recoverable under New York law (see of damages. Nor did any of these cases even acknowl- Menard M. Gertler, M.D., P.C. v. Sol Masch & Co. . . . edge that they were applying a measure of damages from Alpert v. Shea Gould Climenko & Casey . . . see also Lama a different area of law. It is almost as if these cases simply Holding Co. v. Smith Barney24 (citations omitted). applied the Alpert result to all tax malpractice claims The only rationale given by the court for this hold- encountered since Alpert also involved a tax malfeasance ing was to adapt a statement from Alpert that since “tax situation, never focusing on the different causes of action liability results from a taxable event . . . allowing recovery involved. for the payment of such tax would therefore constitute a windfall for a plaintiff.”25 The Serino case Two of the three cases Chen relies upon – Alpert and In Serino v. Lipper,28 the First Department returned to Lama Holding – are fraud cases, not negligence/malprac- longstanding and fundamental principles and held that tice cases. While the other case, Gertler, is a negligence fraud and “negligence/malpractice” causes of action case, it contains no reasoning. It simply adopted Alpert’s have different measures of damages and that taxes might holding without focusing on the fact that Alpert was a be recoverable in a negligence, but not fraud, cause of fraud case applying the fraud out-of-pocket measure of action.

34 | June 2017 | NYSBA Journal Serino arose from alleged malfeasance by the auditor, damages. Hopefully this will settle the area, reestablish PricewaterhouseCoopers (PWC), of an investment com- the traditional distinction between the negligence and pany and its hedge funds in not detecting the overvalu- fraud measures of damages, and confine Alpert’s narrow ation by at least $130 million of securities owned by the measure of damages to fraud causes of action, which is all hedge funds. Serino involved cross claims by the owner that Alpert itself did. n of the investment company, Lipper, against PWC arising from the overvaluation. 1. Other elements of recoverable damages are not focused upon. In addition to performing services for the invest- 2. See, e.g., Menard M. Gertler, M.D. P.C. v. Sol Masch & Co., 40 A.D.3d 282, 283, (1st Dep’t 2007); Shaiman v. Carpet One of the Hamptons, Inc. 27 Misc. 3d ment company and the hedge funds involved, PWC also 1232(A), 2010 N.Y. Misc. LEXIS 1551, at *9 (Dist. Ct., Suffolk Co. June 9, 2010); prepared Lipper’s personal tax returns and provided Apple Bank for Savings v. PricewaterhouseCoopers, LLP, 23 Misc. 3d 1126(A), him with personal financial advice, for which Lipper 2009 WL 1363026 at *6 (Sup. Ct., N.Y. Co. April 14, 2009), rev’d, 70 A.D. 3D 438, (1st Dep’t 2010); Chen v. Huang, 43 Misc. 3d 1207(A), (Sup. Ct., Kings Co. personally paid. One of the claims asserted was that in 2014); see also Solin v. Domino, 2009 WL 536052 at *3 (S.D.N.Y. Feb. 25, 2009), rendering personal advice to Lipper, PWC utilized the aff’d, 501 Fed. Appx. 19 (2d Cir. 2012). inflated value of the hedge funds’ securities, thereby 3. 123 A.D. 3d 34, (1st Dep’t 2014). overstating Lipper’s net worth. Relying on the inflated 4. 149 A.D. 278 (2d Dep’t 1912). values, in connection with his divorce, Lipper agreed to 5. Id. at 280. make certain gifts to his daughters, and incurred more 6. Id. (quoting Edward P. Weeks, Treatise on Attorneys and Counsellors at than $6 million in gift taxes. One of the cross claims Law § 319 (2d ed. 1892)). asserted by Lipper against PWC was to recover the gift 7. 76 N.Y. 2d 38 (1990). taxes paid. Causes of action for recovery of the gift taxes 8. Id. at 42. were asserted in fraud, negligence/malpractice, breach 9. Id. at 45-46. of contract, breach of fiduciary duty and negligent mis- 10. 159 Misc. 2d 563 (Sup. Ct., N.Y. Co. 1993). representation. 11. Id. at 572. In reversing the lower court’s dismissal of all asserted 12. 88 N.Y.2d 413 (1996). causes of action for the recovery of the gift taxes, the First 13. Id. at 421. Department held that recoupment of taxes paid under 14. Id. at 422. the fraud and negligent misrepresentation claims was 15. 160 A.D.2d 67 (1st Dep’t 1990). barred by New York’s out-of-pocket damages rule. How- 16. Id. at 71. ever, the court went on to hold that the out-of-pocket 17. Id. at 71–72. Alpert also focused on the recoverability of the interest damages rule did not bar the recovery of such damages paid on the tax underpayment. However, that portion of the opinion is not in connection with the cross claims for negligence/mal- relevant. I addressed Alpert much more extensively in Jacob L. Todres, New practice, breach of contract or breach of fiduciary duty.29 York’s Law of Tax Malpractice Damages: Balanced or Biased, 86 St. John’s L. Rev. 143 (2012). The court thus properly distinguished negligence/mal- 18. See, e.g., Menard M. Gertler, M.D. P.C. v. Sol Masch & Co., 40 A.D.3d 282, practice damages from the more limited fraud out-of- 283, (1st Dep’t 2007); Shaiman v. Carpet One of the Hamptons, Inc. 27 Misc. 3d pocket measure of damages and held that additional gift 1232(A), 2010 N.Y. Misc. LEXIS 1551, at *9 (Dist. Ct., Suffolk Co. June 9, 2010); taxes paid may be recovered in negligence/malpractice Apple Bank for Savings v. PricewaterhouseCoopers, LLP, 23 Misc. 3d 1126(A), 2009 WL 1363026 at *6 (Sup. Ct., N.Y. Co. April 14, 2009), rev’d, 70 A.D. 3D 438, (1st causes of action. Dep’t 2010); Chen v. Huang, 43 Misc. 3d 1207(A), (Sup. Ct., Kings Co. 2014). Whether Serino’s clear differentiation of the negli- See also Solin v. Domino, 2009 WL 536052 at *3 (S.D.N.Y. Feb. 25, 2009), aff’d, gence/malpractice measure of damages from the fraud 501 Fed. Appx. 19 (2d Cir. 2012). out-of-pocket measure of damages will finally reestab- 19. 40 A.D. 3d 282, (1st Dep’t 2007). lish the Flynn measure of damages in tax malpractice 20. 43 Misc. 3d 1207 (A) (Sup. Ct., Kings Co. 2014). situations remains to be seen. In two prior instances, the 21. Id. at 283. First Department indicated that additional taxes could 22. Gertler, 40 A.D.3d 282; Alpert, 160 A.D. 2d 67 (1st Dep’t 1990). be recoverable damages in a negligence cause of action. 23. Chen, 43 Misc. 3d 1207(A) at *1. In both instances the court held that an assertion by a 24. Id. at *2. plaintiff that additional taxes were incurred was a suf- 25. Id. ficient allegation of recoverable damages to withstand 26. Lama Holding Co. v. Smith Barney Inc., 88 N.Y. 2d 413, 421. 30 the defendant attorney’s motion to dismiss. However, 27. Campagnola v. Mulholland, Minion & Roe, 76 N.Y. 2d 38, 45–46. in each instance the court was conclusory and did not 28. Serino v. Lipper, 123 A.D. 3d 34 (1st Dep’t 2014). 31 elaborate at all. Both cases seem to have disappeared. 29. Id. at 42. Neither case was even cited by any of the “other” cases 30. Fielding v. Kupferman, 65 A.D.3d 437 (1st Dep’t 2009); Proskauer Rose Goetz that applied the fraud measure of damages. & Mendelsohn LLP v. Munao, 270 A.D.2d 150 (1st Dep’t 2000). In Serino the First Department specifically focused on 31. Fielding, 65 A.D.3d at 442; Proskauer, 270 A.D.2d at 151. the negligence/fraud distinction as to damages recoverable and, while the court did not cite Flynn, it appropriately applied Flynn’s longstanding negligence measure of

NYSBA Journal | June 2017 | 35 TAX ALERT BY ROBERT W. WOOD

Robert W. Wood is a tax lawyer with www.WoodLLP.com, and the author of numerous tax books including Taxation of Damage Awards & Settlement Payments (www.TaxInstitute.com). This discussion is not intended as legal advice.

Key Steps to Dispute IRS Tax Bills

You can contest many IRS tax bills, tional taxes you’ll want to preserve although there are times not to. When your rights. Timelines and procedure you disagree with the IRS, procedure are critical. is important. You must pay attention to the order in which notices arrive and the Watch Out for Proposed specific ways in which you can respond. Deficiencies The notice described above is not a Most Audits Are Via Notice of Proposed Deficiency. Still, Correspondence you should answer it. An Examina- Most audits do not involve sitting tion Report may follow the first notice across the desk from an IRS agent. if you fail to respond. Most tax law- Let’s say you file your tax return and yers call the Examination Report and later receive a notice from the IRS accompanying letter a “30-day letter.” veryone must pay federal saying it has information that you It will say you have 30 days to respond income taxes. Yet exactly how received $6,000 that you failed to in a so-called administrative “protest.” Emuch you owe, and on exactly report. It might be due to a Form 1099 A protest is just a letter. how much, is famously complex. All you mislaid, one that failed to show up tax returns must be signed under pen- in the mail, or some other bit of infor- Make Sure You Prepare alties of perjury. That means you have mation the IRS has that does not match a Timely Protest to do your best to report everything your return. If you receive an IRS Examination fully and honestly. But the grey areas Usually such a notice will ask you Report, make sure you prepare a pro- are legion. to sign the form and mail it back if you test and sign and mail it before the For example, exactly when is some- agree. Alternatively, the notice will ask deadline. Keep a copy. Keep proof of thing income, even though you phys- for an explanation of why the informa- mailing too, preferably certified mail ically don’t have it? What type of tion is incorrect. You can contest it – if to provide verification of mailing and proceeds qualifies for long term capi- you do so promptly. You can also agree of IRS receipt. Explain yourself thor- tal gain rather than ordinary income if the IRS is right. oughly and attach documents where rates? What losses are full write-offs, they will be helpful. and which ones are limited to offset- Don’t Fight Every Tax Bill Your protest should analyze the ting gains? What assets can be writ- If you know the IRS is correct, don’t facts and the law. Put your best foot ten off all at once, and what must be fight. Likewise, if the IRS is seeking a forward. The IRS may review your pro- capitalized and written off ratably over small amount of tax, you may be better test and agree with you. Even if they many years? off not fighting it, even if you are right. don’t, how you frame your protest can These and many other questions Just consider whether it is worth it if help later. If you have protested in a come up at tax return time. You must the dollars are small. Of course, what timely way, you will normally receive have some answers to be able to file, is a small tax bill can mean different a response that the IRS is transferring even if you are leaving many of the things to different people. your case to the IRS Appeals Division. details to tax return preparers. But Sometimes, disputing something once you sign your name and file, small can end up triggering other IRS Appeals Division what about the IRS notices that come? issues that might have best been left Is Nationwide How should you react, and in what alone. So consider that, too. But in The IRS Appeals Division is a separate order? most cases, if you get a bill for addi- part of the IRS. Its mission statement

36 | June 2017 | NYSBA Journal is to resolve cases. By definition, these to protest a Notice of Deficiency. In Often, a Notice of Deficiency is issued are cases in which the auditor has fact, only one response to a Notice of before a case has ever gone to IRS recommended additional taxes, and Deficiency is permitted: filing a Tax Appeals. In that sense, it can seem as if the taxpayer disagrees. The Appeals Court petition in the U.S. Tax Court the IRS is trying to cut off your right to Officer assigned to your case works for clerk’s office in Washington, D.C. an appeal. Actually, though, it is usu- the IRS, and in that sense, can never be Although it is best to hire a tax law- ally because of workload, or because truly unbiased. yer, some taxpayers handle their Tax the IRS is worried that the statute of Even so, the IRS Appeals Office is Court case on their own, pro se. There limitations on the tax year in question separate, and it tries to be impartial are special simplified procedures avail- is about to run. and (when it can), to split the baby. This process of working out compro- mises works surprisingly well. A tax lawyer may be best qualified to handle A tax lawyer may be best qualified to handle your case, but an accountant can too. your case, but an accountant can too. Alternatively, you can do it yourself. Just be aware that while it is less expensive to do it yourself, it is also able to taxpayers who represent them- The IRS often issues a Notice of generally less effective. The vast major- selves in cases where less than $50,000 Deficiency to make sure you can’t ity of tax cases are resolved at Appeals. in tax is in dispute. Whether you are later say the IRS is too late to assess Usually, you’ll be assigned to the handling the case yourself or you hire taxes. When this happens, the IRS Appeals Office closest to you. Offices a tax lawyer, the U.S. Tax Court cannot lawyer will almost always be happy to are throughout the U.S. Sometimes hear your case if you miss the 90-day transfer your case to (or back to) IRS you are assigned to an Appeals Office deadline. Appeals. This also ties into extensions in some far corner of the country. of the IRS statute of limitations, below. This is generally based on the work- Tax Court Judges Travel load of the offices and Appeals Offi- to Your Area IRS Often Asks You to Extend cers. It can also be based on particular The Tax Court building and clerks are the Statute tax issues that some offices are han- all in Washington, D.C. However, the Often, the IRS says it is auditing you, dling. If that location doesn’t facilitate 19 Tax Court judges travel to federal but needs more time. Giving the IRS a face-to-face meeting and you want courthouses all around the country more time to audit you? It may sound one, you can ask for the case to be to conduct trials. You can pick the counterintuitive – if not downright moved to the IRS Appeals Office near- city where you want your case to be crazy – to give the IRS more time, but it est you, nearest to your tax lawyer, heard when you file your Tax Court is not, as we will see. The IRS may ask your books and records, etc. petition. you for an extension because it needs The IRS is not required to grant Tax Court procedure and rules of more time to audit you. such requests, but it usually does. Most evidence are streamlined, with no jury, Your first reaction may be to relish IRS Appeals Officers are happy to get and with relaxed rules of evidence. the thought of telling the IRS abso- a case they are assigned off their desk You can call witnesses, and many cases lutely not! Even a routine tax audit can and assigned to someone else! are presented based on a “stipulated be expensive and nerve-wracking. The record.” In it, you and the government IRS normally has three years to audit, Beware a Notice of Deficiency agree on certain facts. measured from the return due date or If you fail to protest, or if you do filing date, whichever is later. But the not resolve your case at IRS Appeals, Your Case Can Go Back three years is doubled in a number of you’ll next receive an IRS Notice of to IRS Appeals cases. For example, the IRS gets six Deficiency. An IRS Notice of Deficien- Remember, the only way you can years if you omitted 25 percent or more cy always comes via certified mail. It respond to a Notice of Deficiency is to of your income. can’t come any other way. A Notice of file a timely petition in U.S. Tax Court. Even worse, the IRS has no time Deficiency is often called a “90-day let- Fortunately, though, that doesn’t mean limit if you never file a return, or if you ter” by tax practitioners, because you’ll your case will necessarily be decided skip certain key forms (for example have 90 days to respond. in court. An IRS lawyer will file an if you have an offshore company but There used to be many flubs about answer to your Tax Court petition. As fail to file IRS Form 5471). You have to exactly when those 90 days ran out. with most other answers in litigation, assume that if the IRS is asking you to So today, the IRS is required to promi- the IRS will generally deny whatever extend the statute, the IRS is already nently display on page one of the your petition says. monitoring you closely. And for the Notice of Deficiency the actual deadline But then, you can ask the IRS lawyer most part, people usually do volun- for your response. Don’t write the IRS to transfer your case to IRS Appeals. tarily give the IRS more time to audit.

NYSBA Journal | June 2017 | 37 Why would anyone do that? It works You Can Sometimes Get Still, it is sometimes possible to undo like this. The IRS contacts you (usually Extensions Too IRS action after the fact. For example, about two and a half years after you Everyone knows there are automat- even after the IRS places a lien on file), asking you to extend the statute. ic six-month extensions to filing your property or levies on a bank account, Most tax advisers say you should usu- taxes. April 15 can become October 15, this can be reversed. However, it is ally agree. If you say “no” or ignore the although you still must pay any taxes usually harder and more expensive request, the IRS will assess extra taxes, due by April 15. But what about exten- to undo something, and it usually usually based on an incomplete and sions when the IRS demands a response requires professional help. quite unfavorable picture. to a notice or letter within 30 days? You might think that you could fail For many notices, the IRS will grant You Can Pay Up, Then Sue to say yes or no and that the IRS might an extension of time to respond. In If you do not respond to a Notice of Defi- forget about you. But this is something some cases, though, it can’t. For exam- ciency within 90 days, and you have an the IRS is very careful about. The ple, when you receive a Notice of Defi- assessment, all is not lost. You will not IRS rarely misses issuing a Notice of ciency (90-day letter), you must file in be able to go to Tax Court, but you can Deficiency, and you usually will be Tax Court within 90 days, and this date contest the taxes in federal district court worse off (often much worse off) than if cannot be extended. Most other notices or in the U.S. Claims Court. Usually you you agreed to the extension. There are are less strict. If you do ask the IRS for must pay the taxes first and file a claim exceptions to this rule, but relatively an extension, confirm it in writing, and for refund. If the refund request is not few. And sometimes you can agree to keep a copy. In fact, confirm everything granted, then you can sue for a refund. the extension but limit the extra time you do with the IRS in writing. The primary advantage of proceed- you give, or even the tax issues at ing in Tax Court is that you need not stake. Get a professional to help you Some IRS Actions Can Be Undone pay the tax first. In contrast, most weigh your facts. It is always best to respond to IRS taxpayer suits in U.S. District Court or notices within their stated time frames. U.S. Claims Court are after the tax has been paid. Sometimes, though, you can cleverly shoehorn yourself into Pro Bono one forum even though it might seem that you don’t satisfy the rules. Take the case of Colosimo v. U.S.1 There Opportunities Guide the IRS pursued the company and its owners for payroll taxes. The owners www.nysba.org/probono sued in District Court for a ruling they were not “responsible persons” required Want to volunteer? to pay the payroll taxes. But the owners This easy-to-use guide will help you find the right volunteer pro bono paid only a fraction of the taxes the IRS opportunity. You can search by county, subject area, and population served. was seeking. This was a clever use of the notion that sometimes you can pay only a portion of the tax due and with your suit resolve both pieces of the asserted tax: the part you paid, and the part you didn’t.

Be Careful Remember, there are many different types of tax notices, even if you are only talking about the IRS. We have covered a few types of IRS notices here, including a Notice of Deficiency. However, there are many other types of important notices, including liens, levies and summonses. Forms of response vary, Questions about and procedure is important. You’re best pro bono service? advised to get some professional help. www.nysba.org/probono In general, don’t ignore anything you (518) 487-5641 get from the IRS! n [email protected] 1. 630 F.3d 749 (8th Cir. 2011).

38 | June 2017 | NYSBA Journal POINT OF VIEW BY ROBERT KANTOWITZ

Robert Kantowitz has been a tax lawyer, investment banker and consultant for more than 35 years. He is responsible for the creation of a number of widely used capital markets products, including “Yankee preferred stock” and “trust preferred,” as well as numerous customized financial solutions and techniques for clients. He is a longtime member of the New York State Bar Association Committee on Attorney Profes- sionalism and, as such, co-authored the Com- mittee’s “Report on Attorney Ratings” dated December 7, 2015 and has contributed to the monthly Attorney Professionalism Forum feature in this Journal. The author acknowledges helpful comments from Jeffrey Kantowitz and Andrew Oringer. The opinions expressed herein are his own.

The Downsides of a Constitutional Convention Editor’s note: At the time of publication, the State Bar Association had no position on the question of whether to support or oppose the convening of a constitutional convention in 2019. However, the Association’s House of Delegates was scheduled to consider at its upcoming meeting of June 17 the questions of whether to take a position, and if affirmative, what position to take. r. Henrik Dullea wrote in a established political figures or in any a convention called for these specific previous issue of the NYSBA way representative of the state’s popu- purposes. DJournal in favor of what might lation as a whole. Unfortunately, Article XIX, section be accomplished in a constitutional Second, no matter how delegates 2 appears on its face to operate on an convention for New York.1 Allow me actually were to be selected, there all-or-nothing basis. to inject a note of caution and some could be years of challenges in state In an era where this nation is polar- suggestions. and federal courts and perhaps even ized as we have arguably not seen since In short, I agree with Dr. Dullea’s competing conventions, each claiming the 1850s and 1860s,4 a plenary con- suggestions for electoral and judicial to be the sole legitimate convention. vention might rewrite the constitution reform, but I have objections rooted in The first fusillade of litigation might of this state in a way that does far more both process and substance to calling a be launched even before a conven- damage than good. The disagreements constitutional convention. tion could convene or even before the reflect not only the traditional political selection of delegates, alleging that the fault-lines of liberal and conservative What Could Possibly Go Wrong selection method is unconstitutional.3 but also whether a constitution is to With a Constitutional Convention? Third, it is possible that a conven- be interpreted under the principles of As a matter of process, Article XIX, tion would attempt to constitute itself textualism and originalism. The anger, section 2 of the current (1938) New as a permanent, self-perpetuating font rancor and recklessness that many on York Constitution,2 which is the provi- of piecemeal amendments. That is each side display toward those on the sion that governs a convention, is so surely not what was intended, but it is other sides of the issues are unparal- short on details that it would be nearly arguably within the purview of what leled. There is a real danger that what- impossible to ensure any predictable is literally permitted under Article XIX, ever is produced by a convention and process for selecting delegates. That in section 2. approved by a majority of this state’s and of itself is not a defect – democracy As a matter of substance, I believe voters could do damage to significant at its best is, after all, messy – but chaos that there are some things that should minorities who disagree, not to men- and fractiousness have the potential be considered for amendment but tion spawning litigation of the most to produce unpredictable results, as many others that should not. Thus, for vexatious kinds. Conservatives and happened in the Republican Party example, if it were possible to limit the traditionalists rightly should worry Presidential nomination process this subject matter of a constitutional con- about what kinds of fad-of-the-day past year, so no one should be under vention to the judiciary and the elec- material or extreme provisions could any illusion that the delegates will be tion of the legislature, I could support make their way into a constitution,

NYSBA Journal | June 2017 | 39 POINT OF VIEW while liberals and progressives would pret and enforce the law.7 Try to imag- on both sides to try to make the impos- be well advised to consider that they ine a government and court system sible decisions between things like free might lose things for which they’ve trying to cope with numerous new exercise of religion and equal protec- fought hard over the years. constitutional mandates. tion. As a final comment regarding a One immediately thinks of what hap- Especially if there is some likelihood constitution, I certainly would remind pened in 1787 in Philadelphia, when a of a reduction in federal spending on readers that it would be counter-pro- meeting called to amend the Articles of entitlement programs, it may become ductive to try to include provisions that Confederation produced the U.S. Con- necessary for states to consider how have the effect of attempting to nullify stitution – a monumental achievement and the extent to which they can step federal law or to violate it, even though that has withstood the test of time. The into the breach. I may be the last person in the current environment I have no two are not comparable. Those deliber- to suggest a tax increase, but if federal doubt that support could be found for ations were conducted in comparative taxes are reduced as the current admin- certain elements of this.9 secrecy, while with today’s technology istration has promised, states may have there would be intense and round-the- to decide for themselves how to bal- Electoral Reform clock leaks, scrutiny and political pres- ance the competing priorities of making Turning to electoral reform,10 I offer sure despite any desire or even adopted themselves attractive to business versus the following observations as sugges- rule to the contrary unless the conven- raising the level of state revenues and tions for constitutional amendments. tion were to convene on the far side of spending to compensate for lost fed- Dr. Dullea’s suggestion for a uni- Mars rather than in Albany as man- eral aid. If the Affordable Care Act is cameral legislature has merit but expos- dated by the constitution. repealed, it will be open to each state es a serious conundrum. New York to decide, as Massachusetts did over a State is heavily Democratic, as opposed Alternatives to a Constitutional decade ago, whether to have its own to Republican.11 Separately, there is a Convention similar mandatory state health care pro- serious divide between the needs and There are many important matters gram. Even many people who have viewpoints of those upstate and those that can be handled incrementally, by objected ferociously to the imposition of downstate, and even within each of statute and by discrete and focused Obamacare on a national level may be those geographic groupings between constitutional amendments, more inclined to believe that on a more geo- those in large cities such as New York, appropriately than in a constitutional graphically limited scale, for a state that Buffalo and Syracuse, and those in rural convention. As far back as the 1970s, is relatively homogeneous politically, districts and suburban counties such as Justice William Brennan saw that the such a program could be acceptable. Nassau and Westchester. There is some Warren Court had become the Burger In my view, taxation levels and overlap in the fault lines that demar- Court and suggested in a law review particular uses of funds are important cate these various distinctions, but they article that the individual rights and issues that nonetheless generally do are not identical. It has long been the protections that the U.S. Supreme not rise to the stature of constitution- case, indeed embarrassing almost to Court might no longer find in the fed- al principle, and yet I am concerned the point of astonishment, that through eral Constitution could still be found in that a constitutional convention would creative gerrymandering the control of state constitutions, even with identical be unable to avoid the temptation to the legislature has been split so that one language, by state judges whose deci- enshrine in a constitution a right to rent house (the Assembly) is controlled by sions on that score were unreviewable control (even though the current New Democrats and one house (the Senate) by more parsimonious federal courts.5 York City system makes one think that by Republicans. Obviously, if we were That is still a salutary goal, well within the nickname “Empire State” refers to to go to a unicameral legislature, this the traditions of federalism. But it is not the Ottoman Empire) or a universal kind of power dispersion would not be without controversy and risk; the more right to affordable health care (what- possible. novel and ground-breaking the right, ever “universal” and “affordable” I am not suggesting that this artifi- the greater the potential for things to mean) or any number of other “rights” cial balance should be maintained for go awry. For example, the New Jersey demanded by every interest group. its own sake, but I do believe that lop- Supreme Court, in the Mount Laurel Lest anyone consider this overblown, I sidedness and single-party rule should case and its progeny,6 found a state recently saw two news stories cheek by not necessarily be encouraged. Hence, constitutional right requiring munici- jowl on the same page, one reporting I have a few suggestions regarding a palities to allow their fair shares of discussion in the legislature of a bill unicameral legislature that could at low- and moderate-income housing. to make New York a “sanctuary state” least represent an attempt not to end This has led to decades of litigation and the other describing a pledge by up with a body permanently domi- over what a fair share is and how Mayor De Blasio of more housing for nated by whichever party has greater it should be calculated, as well as New York City.8 strength in the state in any given era. dysfunction in the state agency and I am also quite concerned that a con- As a first cut and relatively simple machinery that was supposed to inter- vention would be pressed by partisans example, half the seats could be elected

40 | June 2017 | NYSBA Journal POINT OF VIEW from districts drawn in one way, and of gerrymandering, and if my sug- word, in the same sense as “corner- half elected from districts drawn in gestion of having different districting ing the market”), surely understands a completely different way, and half plans superimposed upon each other is that there is zero chance of reform of each group would be up for re- adopted, that will further minimize the unless cozy interest groups are taken election every two years. As a result, potential for shenanigans. As a further on directly. at least there is some possibility that check, in order to test for whether the the representation would reflect dif- results have some rational relationship Conclusion ferent allocations and combinations of with what would happen absent overt As I noted above, the question of voter orientations and power. Voters or covert exercise of inappropriate whether to have a constitutional con- themselves might become more politi- considerations, a computer-modeled vention is not necessarily a liberal- cally aware since they would be in one statistical test can be employed, as I versus-conservative issue. There are district in one cycle and in a different suggested almost 40 years ago in a law rights and protections enshrined in but partially overlapping district in the review note.13 the current New York Constitution alternate cycle two years later. What about term limits? There are and in the many amendments that To take this one step further, I would arguments both ways, which I need have been added and interpretations suggest, for example, 40 percent sin- not rehash here. But I will stress that of the courts that could be swept away gle-member seats from districts drawn there are good reasons to avoid hav- in a plenary convention and unpre- one way, 40 percent single-member ing a legislature composed of people dictable and undesirable results that seats from districts drawn another way for whom that is their only profession. could emerge. My suggestion is that and 20 percent from, say, five to seven Accordingly, I would encourage the we focus not on the excitement of re- much larger districts spanning the adoption of as limited as possible a doing what we first did in Kingston in state that each elect several representa- schedule of plenary legislative meet- 1777 but on the several matters most tives at large. This would serve a state ings in Albany, at which all the mem- in need of serious reform. n like New York even better than hav- bers are expected to be present, and ing all single-member seats because at then allow the members to conduct 1. Dullea, We the People: A Constitutional Conven- tion Opens the Door to Reform, 89 NYSBA Journal least some of the larger districts would their own regular businesses and pro- No. 2, p. 32 (Feb. 2017). likely be more diverse politically than fessions, obviously subject to conflicts 2. This provision states: the single-member districts, so that of interest requirements and limita- At the general election to be held in the these 20 representatives might be more tions. With modern communications year nineteen hundred fifty-seven, and likely to represent coalition politics and the relative accessibility of Albany every twentieth year thereafter, and also at such times as the legislature may by and regional thought and bring dif- to the rest of the state, the legislature law provide, the question “Shall there ferent orientations and priorities to could legally stay in session as neces- be a convention to revise the constitu- the legislature. However, certain U.S. sary without the members having to be tion and amend the same?” shall be submitted to and decided by the electors of Supreme Court precedents look with present continuously in Albany. the state; and in case a majority of the a dim eye on at-large voting to the electors voting thereon shall decide in extent that it can dilute minority vot- The Judiciary favor of a convention for such purpose, the electors of every senate district of ing strength, so a great deal of care will What I have to add to Dr. Dullea’s the state, as then organized, shall elect be required.12 analysis concerning the court system three delegates at the next ensuing gen- I thoroughly disagree with the prop- is more succinct. New York State does eral election, and the electors of the state voting at the same election shall elect osition that the redistricting should be have a bizarre and convoluted court fifteen delegates-at-large. The delegates done by an independent commission. system, as anyone who has ever had so elected shall convene at the capitol on Punting the task to an independent to memorize the necessary informa- the first Tuesday of April next ensuing after their election, and shall continue commission does not necessarily make tion for the bar exam can attest, start- their session until the business of such redistricting non-partisan; it can leave ing with the unusual nomenclature convention shall have been completed. it as partisan as ever but in the hands in which “Supreme Court” is a lower . . . The convention shall determine the rules of its own proceedings, choose of supposed grandees who have utter- level trial court. It will take a great its own officers, and be the judge of ly no accountability to the voters. No, deal of targeted effort and a well-craft- the election, returns and qualifications as long as districts are required to be ed amendment to counter the solidly of its members. In case of a vacancy, by death, resignation or other cause, contiguous and reasonably compact entrenched and vested interests that of any district delegate elected to the (i.e., to look more like Colorado than certain parties have in the way the convention, such vacancy shall be filled like Croatia, more like a circle than court system is set up and in the way by a vote of the remaining delegates representing the district in which such like a curlicue) and as long as they that business takes place. For example, vacancy occurs. If such vacancy occurs are largely as coterminous as is fea- anyone familiar with how judges are in the office of a delegate-at-large, such sible with existing political and physi- selected,14 or how lucrative the busi- vacancy shall be filled by a vote of the remaining delegates-at-large. Any cal divisions, there is relatively little ness is in the surrogates’ corner of proposed constitution or constitution- mischief that can be done in the way the court system (corner is the right al amendment which shall have been

NYSBA Journal | June 2017 | 41 POINT OF VIEW

adopted by such convention, shall be 9. The entire subject of sanctuary cities and back to 1969, when John Lindsay was reelected submitted to a vote of the electors of states, for example, raises this issue. States cannot Mayor of New York City on the Liberal Party line the state at the time and in the manner be compelled to be arms of federal law enforce- alone after losing his bid for re-nomination by provided by such convention, at an elec- ment, but states and cities that destroy evidence, the Republican Party, to recall a major New York tion which shall be held not less than refuse to turn over information properly compelled officeholder who won without the Democratic or six weeks after the adjournment of such by valid process or create “safe houses” for illegal Republican endorsement. convention. Upon the approval of such immigrants to facilitate their evasion of detection 12. As far back 44 years ago, the Supreme Court constitution or constitutional amend- will have crossed a line to illegality. One hopes invalidated multi-member districts in two urban ments, in the manner provided in the that mayors and other elected officials understand counties in Texas. White v. Regester, 412 U.S. 755, last preceding section, such constitution this, but the rhetoric has become heated enough 765–70 (1973). For a review of the early cases on or constitutional amendment, shall go to suggest that at least some do not understand it this matter (also known as “at-large voting”), see or do not care. Regardless of what happens on the into effect on the first day of January Group Representation and Race-Conscious Apportion- next after such approval. ground from time to time, it would be madness for ment: The Roles of States and the Federal Courts, 91 a state to include in a constitution any language 3. See, e.g., the discussion of multi-member dis- Harv. L. Rev. 1847, 1848–49 & nn. 13–16 (1978). In that could be construed along these lines. State tricts in note 12 infra. a touch of irony, perhaps, any convention called legalization of marijuana, as long as it remains ille- under the current New York Constitution would 4. Even during the Civil War, there was wide- gal under federal law, raises a similar set of issues. be composed entirely of at-large delegates, three spread philosophical agreement on certain things, 10. Even in the case of electoral reform I have from each of the 63 Senate districts and 15 elected including the role of state and local government. concerns about what could happen in a plenary statewide. See note 2 supra. Back in 1938, of course, The post-Reconstruction period in the former Con- constitutional convention. Anything associated when the current State Constitution was adopted, federacy is a sordid part of American history, but with certain outlandish and offensive representa- no one would have had any inkling that such otherwise it could never have unfolded the way it tion theories that, for example, require that a certain a feature would attract any scrutiny. One could did. And consider it a small matter if you like, but percentage of the representatives come from this or expect a challenge to be filed under the Lincoln surely attached significance to common that racial or ethnic group, or to be women, should U. S. Constitution and section 2 of the Voting bonds and shared understandings in his Second be explicitly out of bounds. An ounce of prevention Rights Act of 1965 within minutes after any certi- Inaugural Address on March 4, 1865 when he is worth a pound of cure, for these approaches are fication of a positive vote on the ballot question. stated regarding the parties to the conflict: “Both surely unconstitutional as a matter of federal law. I have not researched precedents to determine read the same Bible and pray to the same God, and whether scrutiny of at-large voting has been each invokes His aid against the other.” 11. Information from the New York State Board extended to state constitutional conventions, but of Elections as of November 1, 2016 indicates that 5. William J. Brennan, Jr., State Constitutions and given how the districts have been constructed at party enrollment was approximately as follows: the Protection of Individual Rights, 90 Harv. L. Rev. least in part with a view to the overall composition 489 (1977). Democrat ...... 6.2 million of the Senate, and especially as to the statewide 6. See S. Burlington County NAACP v. Mount Republican ...... 2.8 million districts, the potential for such a challenge cannot be dismissed as fanciful or remote. Laurel Twp., 67 N.J. 151, appeal dismissed & cert. Other parties ...... 0.8 million denied, 423 U.S. 808, (1975) (generally referred to Blank ...... 2.7 million 13. See supra note 12, at 1871–72. as “Mount Laurel I”); S. Burlington County NAACP 14. See In re Wilson v. Davis, 2015 N.Y. Slip Op. v. Mount Laurel Twp., 92 N.J. 158 (1983) (generally Total ...... 12.5 million 06633 (2d Dep’t, Aug. 19, 2015), for a 4-0 opinion of referred to as “Mount Laurel II”). See https://www.elections.ny.gov/NYSBOE/ the Appellate Division that matter-of-factly states 7. See, e.g., In re Adoption of N.J.A.C. 5:96 & 5:97 by enrollment/county/county_nov16.pdf. the law and seems dry and almost inconsequential N.J. Council on Affordable Housing, 221 N.J. 1 (2015). The smaller parties often nominate candidates for until one realizes how hard the law makes it for an 8. The Wall Street Journal, Feb. 14, 2017, at A10A. the major offices who are also nominated by the outsider to get onto the ballot and to challenge a Democratic or Republican Party. I have to reach denial of ballot access.

“Moments in History” is an occasional sidebar in the Journal, which will feature people and events in legal history. Moments in History The Danger Zone in Tort Law On August 25, 1924, New York City’s major newspapers reported an explosion that had taken place the preceding day at a Brooklyn train station. Headlines ranged from “Fireworks Blast Rocks Picnickers” to “Bomb Blast Injures 13 in Station Crowd.” Coverage of the incident faded quickly, but one ensuing lawsuit garnered a unique place in legal history. On the platform of the Long Island Railroad’s East New York station in Brooklyn, Helen Palsgraf was waiting with her two daughters for the Sunday train to the beach. A man carrying a package raced to catch a departing train. A conductor extended a man to help the man aboard, and another pushed him from the platform. As the man boarded, his package fell. The train struck the package, causing its contents – fireworks – to explode. The force toppled the large penny scale, which hit Mrs. Palsgraf. She brought suit against the railroad, alleging negligence by the conductors in causing the package to drop and setting the dangerous evetns in motion. She prevailed at trial but the N.Y. Court of Appeals vacated the award and dismissed the suit. The decision, authored by then Chief Judge Benjamin Cordozo, concluded that the conductors weren’t negligent toward Mrs. Palsgraf even if they were negligent to the man with the package. Therefore the railroad didn’t’ owe her any duty as to an unseen peril caused by a passenger more than 30 feet away. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is the risk to another or to others within the range of apprehension,” Cardozo wrote. “Nothing in the situion gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.” Excerpted from The Law Book: From Hammurabi to the International Criminal Court, 250 Milestones in the History of Law (2015 Sterling Publishing) by Michael H. Roffer.

42 | June 2017 | NYSBA Journal POINT OF VIEW BY EVAN A. DAVIS Why I Favor Calling a Constitutional Convention

am grateful for this chance to a majority “yes” vote this November, lature and the governor is devoid of share my views as a lawyer who is that New York State government independence. To the contrary, it is Isupports taking advantage of the has become broken to an unacceptable designed to fail. opportunity provided once every 20 extent, and a constitutional conven- Two of the governor’s appointees years to have a constitutional convention is both a reasonable way and, as to the current ethics agency can veto tion. This constitutional provision for already noted, the only way to make an investigation of the governor or his an automatic vote every two decades the needed changes. top staff members even if the other 12 has been used in the past to great members want to pursue the matter. transformational effect. It can be so What Are the Problems and Similarly, the three appointees of either used again. It must be, because the How Might Constitutional Change the Speaker or the Senate Majority legislature is unwilling to make badly Fix Them? Leader can veto an investigation of needed reforms and a convention is I describe below the four reasons for any member of their party who is a the only way the people can correct the a “yes” vote that are most compelling legislator or a legislative employee that situation. Under the “normal” process, to me. My standard is that the change the other 11 members think needs to be the people can’t adopt amendments is important and fit for a Constitution, undertaken. Also, the ethics enforce- unless they have been twice agreed to that it will likely have broad public ment agency has no power to sanction in each house of the legislature. support and that it is unlikely that both any member of the legislature or leg- As stewards of the law, it is impor- houses of the legislature will concur in islative employee. That decision is left tant for lawyers to worry about the proposing it to the people under the entirely to the legislature. state of our state governance. I go so usual non-convention constitutional I believe it is time to put a strong and far as to believe that we are ethically amendment process. independent ethics enforcement mech- bound to work to secure the integrity anism into the Constitution. The mem- of the process by which statutory and Ethical Behavior and bers should be appointed by all three regulatory law is made in the same Law-Making Integrity branches of government, including the way we are bound to work to secure I start with ethics. We are a profes- judiciary, and operate by majority vote. access to justice and the integrity of sion with strong ethical standards that The mechanism should have the same the judicial system that develops the are actually enforced. The result is sanction powers that the Constitution common law. widespread voluntary compliance and provides for the Commission on Judi- My views are naturally shaped by a generally strong culture of ethical cial Conduct with respect to judges. my experience. I have worked at all behavior. As lawyers, we also know The commission is also appointed by three levels of government – local, that ethics is the first line of defense all three branches. state and federal – and in all three against corruption, because compli- Ethical behavior by public servants branches – as counsel for five years to ance with ethical standards to deter is not simply an abstract question of Governor Mario Cuomo, as a task force breaches of the public trust requires moral behavior. It speaks directly to leader for the House Judiciary Com- more than compliance with the crimi- the fundamental principle that govern- mittee’s Inquiry into the Impeachment nal law. ment will be of, by and for the people. of President Richard Nixon and as a According to Siena Research Insti- It concerns the basic question of whose law clerk to Judge Harold Leventhal tute polling, the public overwhelm- interests government will serve. and Justice Potter Stewart. I have also ingly sees corruption as a problem I also believe it is time for a consti- been active through both the State in Albany. Corruption is a bipartisan tutional convention to consider anoth- and New York City Bars in matters of problem and a problem in both the attorney ethics and served as President legislature and the Executive Branch. It of the New York City Bar Association. is also unending, with no sign of being Evan A. Davis is a Senior Counsel at Cleary It is my belief that the health and brought under control. Gottlieb Steen & Hamilton LLP in New York productiveness of a society is greatly While the public is calling for strong City. He is the manager of the Committee for a impacted by the integrity of the way ethics enforcement mechanisms, the Constitutional Convention, a group campaigning in which its people are governed. The reality in Albany is just the opposite. for a “yes” vote this November on the conven- basic reason I support a convention The latest version of an ethics enforce- tion question. call and am actively working to secure ment agency agreed to by the legis-

NYSBA Journal | June 2017 | 43 POINT OF VIEW er constitutional change that reinforces efforts involve sophisticated micro- and the creation of safe districts to the principle that it is the people’s targeting and social media. Even the maintain party control. interests that must be served: requir- limits that nominally exist can be cir- Safe districts for one party or the ing legislators to work full-time. When cumvented by forming a one-person other are a polarizing force in legisla- government officials have significant limited liability corporation since each tive politics. This is because the real outside employment two problems such corporation gives the contributor race is in the primary which, with arise. First, there is the question of a new alter ego able to make contribu- New York’s closed primary system, is whether the needs of their business tions afresh. a race in a spectrum of ideology that is and its clients are taking precedence. There are several ways in which a not representative of the populace as Second, doing business with a govern- convention might propose addressing a whole. Also, people who live in safe ment official is an easy but hard-to- this problem. One is to consider having districts are disadvantaged because it prosecute way to hide improper pay- the new independent ethics enforce- is common knowledge in Albany that ments from those seeking preference ment agency set the contribution limits marginal (i.e., competitive) districts and the favorable exercise of official based on the standard that they should have a special claim to the majority’s authority. not be so large as to create an appear- best efforts to assist their incumbent Currently there is no limit on the ance of “give to get” corruption. members at higher risk of losing. outside income of legislators, even Some people say that there is no though most members of the legis- Voting and Electoral Fairness such thing as independent redistrict- lature do not work full time. There Number two on my list is electoral ing. When judges have had to draw will be an even greater need to work reform. Low turnout is a special prob- district lines with the help of a special full time if we amend the Constitu- lem in New York. We consistently rank master, they have done a good job at tion as we should to require the dili- near the bottom in turnout in every following instructions about how a gence that ought to be part of the type of election – presidential, state- legislative district should be construct- process by which our laws are enacted. wide office, municipal office, general ed. There is every reason to think that There is currently no requirement for and primary. And conspicuously New a properly constituted independent hearings or committee reports in the York is way behind in taking the steps panel could do an equally good job of normal course of business, and these other states have taken to improve applying the principles of fair redis- assurances of public input and care- turnout. We don’t have early voting, tricting specified in law. ful consideration are not followed in which exists in 32 states; the ability to practice. Even the need to prepare for vote by mail for convenience, which Local Government floor debate is obviated by having the exists in 27 other states; or same-day There is a need to fix the Local Govern- debate that counts held in secret in registration, which is allowed in 14 ment Article in the State Constitution. party conferences. If you add to these states plus the District of Columbia. While the article purports to protect basic requirements of legislative dili- Many people are surprised that one local governments against the use of gence the jobs of community outreach, reason we don’t have these rights is special bills directed at a single local- public civic education and constituent that they are barred by the Constitu- ity, judicial decisions have undermined service, being a state legislator would tion. Article II, the Suffrage Article, these protections. For example, a bill definitely be a full-time job. says that you can only get a mail bal- limited to cities with a population of Finally, I think it is important that lot if you are sick or out of your home more than one million is considered we view large campaign contributions county on Election Day. It provides a general rather than a special bill, as an ethical issue. From my own expe- that registration must be at least 10 even though the population of New rience, I can say that the largest sources days before Election Day. A plausible York’s second largest city, Buffalo, is of conflict of interest in Albany are reading is that Article II bars even 261,000; as a result, the bill will never these large campaign contributions. in-person early voting prior to Elec- apply anywhere except New York City This is because under current law there tion Day. A constitutional convention whose population is more than eight are effectively no campaign contribu- could propose sweeping away all these million. This is exactly the mechanism tion limits. The majority legislative obstacles. It could go further and affir- Albany recently used to override the leaders, who have almost complete matively require these measures that city’s local legislation to deter the use power to block legislation, can col- make it easier to vote. of plastic bags with a five-cent fee. lect contributions for their members Then there is the problem of ger- Another way to override the autonomy at more than $100,000 a clip. There are rymandering. New York’s Assembly of a local legislature with a special bill no limits on the amount that may be and Senate districts are grotesquely is through the nearly unlimited defer- contributed to a political party for all- gerrymandered. Just take a look at ence the courts currently give to the important and expensive field opera- the district maps on the State Board of doctrine of substantial state concern. tions to identify supporters and get out Elections website. This gerrymander- The Constitution could be amended to their vote. More and more today these ing reflects both incumbent protection limit this doctrine and make it much

44 | June 2017 | NYSBA Journal POINT OF VIEW harder procedurally to pass these spe- late division unless you are already an by changing the phrase “civil rights” cial bills targeted at local initiatives. elected Supreme Court Justice. Does to “equal rights.” The Local Government Article does this unnecessarily restrict the pool of not address the issue of unfunded well-qualified candidates who either Why Is a Constitutional Conven- mandates which arise when the state have not held judicial office or who tion a Reasonable Way to Amend imposes costs on local governments for hold a judicial office by appointment? the Constitution? which it is unwilling to pay. A candi- However, my choice is the need to The Convention Is Likely to Be date for unfunded mandate relief is the add a strong and inclusive equal rights Progressive but Moderate state’s practice of imposing a high (by provision to our Bill of Rights that will It is likely that the Convention will comparison with other states) share of help to unite and secure equal oppor- be a reasonably moderate body that the cost of public assistance, including tunity for our diverse population. We honors New York’s traditional pro- Medicaid, on local governments. While have strong civil rights laws, but they gressive values, what Mario Cuomo the voters rejected the proposals of the are crafted for specific contexts such called “The New York Idea.” Because 1967 Constitutional Convention which as housing, employment and public its delegates are elected largely in Sen- were presented on an all-or-nothing accommodations. We need an over- ate Districts, it is reasonable to expect a basis, one of those proposals was state arching constitutional commitment to roughly equal number of Republicans assumption of the cost of public assis- equality. and Democrats just as in the Senate tance so that the overburdened com- Such an overarching provision was itself. That body recently showed its munities where public assistance aid added to our Constitution as a result commitment to progressive values by was most needed would not have their of the 1938 Constitutional Convention, approving a plan of free tuition at burden increased by taxation to fund but it applies only to discrimination SUNY and CUNY for families earning that aid. on the basis of race and religion. There less than $125,000. Finally, there is the question of local was no consideration of including dis- government consolidation. At one crimination against women in 1938 The Convention Is Advisory Only time, I lived in the village and town of when only six out of 178 delegates The advisory structure of the conven- Cornwall, New York in Orange Coun- to the convention were women. This tion process limits the incentive to try ty. The town and village both had a fire omission was corrected by the 1967 to use it to make change that is not department, and when I had a kitchen Convention even though only 10 out broadly popular. Such change won’t fire, both fire departments responded. of 186 delegates were women, but the happen for the simple reason that two It was a winter day, and my driveway proposals of that convention were not separate things would have to occur, was icy. The two fire trucks skidded adopted. From all that appears, no del- both of which are unlikely. The first into one another. This became for me egate to either convention was openly unlikely thing is that a majority, 103 a homey illustration of the duplica- gay and no consideration was given delegates, will support a break from tion and waste that the proliferation to covering discrimination based on New York’s traditions as reflected in of units of government has caused in sexual orientation or identity. our Constitution. The second unlikely New York. Times have changed; we need to thing, which arises from the fact that provide equal rights for women, those the convention is advisory only, is Equal Rights for All of diverse sexual orientation or identity that the people of New York would Choosing my fourth topic is difficult and all others targeted by a prejudice approve of such a break in the required because there are several candidates. of inferiority including discrimination statewide referendum. For an audience of lawyers, court based on ethnicity, national origin, dis- If we consider these two votes as reform is an obvious topic. We cur- ability or citizenship. independent variables, an assumption rently elect State Supreme Court Jus- We also need to deal with the fact supported by the people’s historical tices in 11 large multi-member districts that the Court of Appeals in 1949 willingness to reject convention pro- and provide ballot access only though stripped even the limited 1938 provi- posals, then the chance of a measure the judicial nominating conventions sion of any real force. The Court held becoming law is the chance that it will which all agree are tightly controlled that because the term “civil rights” was receive the support of 103 delegates by the party organizations. Is this the not defined in the provision, it was not multiplied by the chance it will be best way to secure a well-qualified self-executing and would, therefore, approved in the statewide referendum. and diverse bench? We currently have not support a cause of action against, On this basis, the chances are remote of 11 different trial courts provided for in one case, the open and official policy measures that retreat from our tradi- in the Constitution. This can result in of Stuyvesant Town not to rent to Afri- tions becoming law. the same matter having to be heard in can Americans. Judge Stanley Fuld Because these chances are very low, several courts. Does this waste of time said that his dissent in that case was it follows that independent expendi- and money make any sense? Currently the most important decision he ever ture money supporting these more you can’t be appointed to the Appel- wrote. We can fix this problem simply Continued on Page 47

NYSBA Journal | June 2017 | 45 CONTRACTS BY PETER SIVIGLIA

Peter Siviglia ([email protected]) has practiced law in New York for more than 50 years, representing clients both domestic and foreign, public and private. He has served as special counsel to other firms on contract matters and negotiations. Peter is the author of Commercial Agreements - A Lawyer’s Guide to Drafting and Negotiating, Thomson Reuters, supplemented annually; Writing Contracts, a Distinct Discipline, Carolina Academic Press; Exercises in Commercial Transactions, Carolina Academic Press; and Contracts and Negotiating for the Business Person, Carolina Academic Press. He has also written numerous articles on writing contracts and other legal topics, many of which have appeared in this Journal.

Boilerplate: Assignment Clauses1

Les Préludes A merger or consolidation involv- C. Successors in Interest A. Your writing is your mind walk- ing a party, regardless of whether On the other hand, in many cases it ing naked across the page. that party is the surviving entity, may be of no consequence to allow B. What the wheel is to the world will constitute a transfer. parties to transfer their interests in a of mechanics, grammar is to the world Any transfer of obligations under contract to successors to their business of writing – especially the writing of this agreement will not release the and assets. In those situations, a para- contacts. transferor from its responsibility to graph along the following lines would In the realm of contracts, the term perform those obligations regard- replace the merger paragraph under “boilerplate” refers to standard provi- less of whether they arose before item A above but not the succeeding sions routinely included in contracts. or arise after the transfer or assign- paragraph: I recoil at the use of that term because ment.2 Notwithstanding the foregoing, it carries with it an anaesthetic that Any transfer or assignment in vio- a party may transfer and assign numbs critical and analytical faculties lation of this Section will be null its rights and obligations under essential to good contract preparation. and void. this agreement to a successor to Boilerplate, though, requires the same all or substantially all of its busi- diligent scrutiny as any other provi- B. Change in Control ness and assets provided the succes- sion in a contract. A change in the control of a party does sor assumes all of the transferor’s The assignment clause – or, more not constitute a transfer of the contract; obligations under this agreement to the point, clauses restricting the yet, in the context of a particular trans- regardless of whether they arose right to assign – provides a worthwhile action, such as a license of intellectual before or arise after the transfer. study. property, it may be appropriate to treat a change in control as a transfer – espe- D. Rights to Payment A. Basic Prohibition on cially when a new owner of the licens- Sometimes a party entitled to a pay- Assignment ee may, itself, be a potential licensee of ment or a stream of payments under A basic prohibition on assignment the intellectual property. In such cases the contract may require the right to might read along the following lines: a provision along the following lines assign those payments to a lender Neither party may transfer or would be appropriate: providing project financing or working assign any of its rights or obliga- A change in control will constitute capital. Two examples are manufactur- tions under this agreement without a transfer. “Control” means the ers of capital equipment and construc- the written consent of the other. ability, either directly or through tion companies. In these cases a provi- Any transfer or assignment in vio- one or more entities, to control or sion along the following lines would lation of this Section will be null determine the management of a be appropriate: and void. corporation, partnership, limited Notwithstanding the prohibitions But even that basic clause, I submit, liability company, or other entity, on assignment contained in this requires some refinement along the fol- whether by election of those mem- Section, PARTY A may assign to a lowing lines: bers who can determine the deci- lender or provider of other cred- Neither party may transfer or sions of the board of directors or it facilities to PARTY A, subject assign any of its rights or obliga- other governing body or by any always to the terms and conditions under this agreement without other means. tions of this agreement, PARTY the written consent of the other. A’s rights to payment under this agreement.

46 | June 2017 | NYSBA Journal E. Leases and Licenses [Consider whether to add a provision F. Conclusion Sometimes it may be appropriate to regarding changes in control like the Assignment clauses, as well as all restrict one party’s right to transfer, one under item B above.] other boilerplate, must be assessed such as a lessee of equipment or a Any transaction violating any of critically and crafted carefully in order licensee of intellectual property, but not the provisions of the preceding to “approriatize” them to the par- the other party’s right. For example: paragraph will be null and void. ticular transaction and the parties (a) Lessee will not (i) sell, assign, (b) Lessor may, subject to the terms involved. n transfer, lease, pledge or other- of this Lease, sell, transfer, assign wise encumber the Equipment or or encumber any of its rights in 1. Portions of this article are based on materi- als found in Commercial Agreements, infra. Heck, any of Lessee’s rights under this or to the Equipment or under this I learned to recycle from the Great Ones: Bach, Lease or any of Lessee’s rights in Lease. Beethoven, and Vivaldi. or to the Equipment, or (ii) per- The assumption by any entity of 2. Though this clause has no application to a mit any of its rights under this any of Lessor’s obligations under merger or consolidation, it will apply to an asset acquisition. Lease or in or to the Equipment this Lease will not release the to be subject to any lien, charge Lessor from its responsibility to or encumbrance of any nature. perform those obligations regard- Lessee’s merging or consolidating less of whether they arose before with one or more entities, regard- or arise after the assumption. less of whether Lessee is the sur- Well, I hope the foregoing is helpful. vivor, will constitute a transfer. So . . .

Point of View Continued from Page 45 POINT OF VIEW radical agendas that lack broad sup- out partisan positions in the expectation on the state’s ability to sit as a port in New York won’t be wasted on tion that they have no real chance in court of correction for local legislative New York constitutional convention the other house. People have to work initiatives or to spare the state from races. together. raising the revenue needed to fund its mandates. With regard to an inclusive Delegates Will, as a Whole, Be Less Why Is the Convention the Only Equal Rights Amendment, New York Partisan Than Legislators Way to Achieve These Reforms? has not seen fit to correct even the con- The convention that was held in 1967 The last time that there was an auto- spicuous omission of women let alone was presided over by the Speaker of matic vote to call a convention was the omission of gays and immigrants. the Assembly. Even with that partisan- in 1997. The New York City Bar Asso- As they say, enough is enough. The ship, Speaker Travia was not able to ciation favored a “no” vote saying that 20-year automatic vote provision in maintain the partisan party discipline the opportunities for needed reform our Constitution was designed pre- that he had maintained in the legisla- through the normal process had not be cisely for the situation we face today. ture. Only 13 of the 186 delegates were exhausted. Now, 20 years later, despite It should be used. n legislators. The others were people great effort, those reforms in areas such who had little incentive for compli- as ethics, court reform, voting, home ance. As the League of Women wrote it rule and equal rights have not been its 1973 report on the 1967 convention, achieved. Unlike legislators, many dele- The reality is that if we wait for gates looked upon their roles as state government to cure itself, it will Follow a “one time effort.” Unworried never happen. The unfortunate fact about reelection, seniority rights is that the legislature has become an NYSBA on and future committee assign- entrenched interest that much prefers ments, they were less susceptible the status quo to curative change. It Twitter to party discipline. Public officials does not want effective ethics enforce- and judges, accustomed to running ment, fairly drawn election districts, Stay up-to-date on the latest their own show, did not readily voting by new people who might favor news from the Association accept dictation from the chair. someone other than the incumbent, The fact that the convention is a court reform taking away the effective unicameral body also reduces parti- power of party leaders to pick Supreme www.twitter.com/nysba sanship, because people may not stake Court Justices, or any effective restric-

NYSBA Journal | June 2017 | 47 MEET YOUR NEW OFFICERS

Sharon Stern Gerstman Michael Miller President President-elect Sharon Stern Gerstman, of Michael Miller of New Buffalo, New York, took York City (Law Office office June 1 as president of Michael Miller), who of the 72,000-member New became president-elect York State Bar Association. of the Association on Gerstman is of coun- June 1, 2017, is currently sel to Magavern Magav- vice-president of the First ern Grimm in Buffalo. She Judicial District. Miller, a concentrates her practice solo practitioner for more in the areas of mediation than 30 years in Manhat- and arbitration, and appel- tan, focuses primarily on late practice. estates and trusts. A 35-year member of the State Bar, Gerstman previ- He is a past president of the New York County Law- ously served as Treasurer and on the Executive Commit- yers Association, a past chair of the NYS Conference of tee as an Eighth Judicial District vice-president. She is a Bar Leaders (NYSCBL), and has been a member of the member of the House of Delegates, Finance Committee, House of Delegates of both NYSBA and the ABA. CPLR Committee, Dispute Resolution Section, and Torts, Among many NYSBA activities, Miller was a found- Insurance and Compensation Law Section. ing member of the Elder Law Section, serving as its first She was chair of the Committee on Civil Practice Law newsletter editor, executive committee member and chair and Rules and the Special Committee on Lawyer Adver- of multiple committees. tising and Lawyer Referral Services. She previously Over the years, Miller developed award-winning pro co-chaired the Task Force on E-Filing and the Special bono programs recognized by NYSBA, NYSCBL and the Committees on Lawyer Advertising and Strategic Plan- ABA. ning. She also served on the American Bar Association’s Among his many awards, Miller received the ABA’s Board of Governors for three years and is a member of the Pro Bono Publico Award, its highest award for pro bono ABA’s House of Delegates. service, for his leading role in the legal relief efforts in the A resident of Amherst, Gerstman graduated from aftermath of the 9/11 attacks. Brown University and earned her law degree from the Beyond Bar activities, Miller served as an election University of Pittsburgh School of Law. She received a supervisor in war-torn Bosnia and interviewed Kosovo master’s degree from Yale Law School. refugees for evidence of war crimes.

48 | June 2017 | NYSBA Journal Sherry Levin Wallach Scott M. Karson Secretary Treasurer Sherry Levin Wallach, Scott M. Karson of Mel- who became secretary ville was re-elected Trea- of the association on surer of the 72,000-mem- June 1, 2017, practiced in ber New York State Bar Westchester County the Association for 2017–18. past 15 years as a partner Karson is a partner in her law firm Wallach of Lamb & Barnosky of & Rendo, LLP. She is the Melville. He concen- immediate past chair of trates his practice on trial the State Bar’s Criminal and appellate litigation, Justice Section and just including municipal, com- completed a term as vice mercial, real property title, president from the 9th Judicial District on the NYSBA land use and zoning and personal injury litigation. He Executive Committee. has argued more than 100 appeals in the state and federal Wallach concentrates her practice on criminal appellate courts. defense and plaintiff personal injury in state and federal Karson served a three-year term as vice president of courts. She is a past chair of the NYSBA’s Membership the State Bar for the Tenth Judicial District (Nassau and Committee and is serving her third four-year term in its Suffolk counties), is a member of the State Bar’s House House of Delegates. Wallach is co-founder of the Young of Delegates and is the former chair of the Association’s Lawyers Section’s Trial Academy where she continues to Audit Committee. He is a member and former chair of serve on its faculty as a team leader and lectures on cross the Committee on Courts of Appellate Jurisdiction, and examination. serves as a member of the President’s Committee on Wallach is the membership chair of the NYSBA Trial Access to Justice, the Committee on Leadership Devel- Lawyers Section, a member of the NYSBA’s Task Force opment and the Committee to Review Judicial Nomina- on Gun Violence and the Committee on Mandated tions. He is a past president of the Suffolk County Bar Representation. She is a frequent lecturer at CLE pro- Association and is the delegate of the Suffolk County Bar grams on topics ranging from trial practice to the han- Association to the American Bar Association House of dling of DWI cases. Delegates. She is a past chair of the NYSBA Young Lawyers Section Karson is vice chair of the Board of Directors of Nas- and sits on the board of directors of the Westchester sau Suffolk Law Services, the principal provider of civil County Bar. She also serves on the Westchester and legal services to Long Island’s indigent population. Putnam County 18B panels, which provide criminal Karson graduated from the State University of New defense for indigent people. York at Stony Brook and earned his law degree cum laude from Syracuse University College of Law. He is a resident of Stony Brook.

NYSBA Journal | June 2017 | 49 NEW MEMBERS WELCOMED

First District Peter Feher Louis J. Labriola Adam Luis Santiago Lev Eugene Breydo Stephane Abitbol Anna Naomi Feldberg Alicia Eunji Lee Steven Jacob Saracco Brian Brown Griffin Thomas Almy Dane Gerard Ferre Evan Jordan Levine Taylor James Sarkaria Stephen Alexander Brown Michael Alexander Altman Jaryn Samantha Fields Woo-jong Lim Alexandre John Sauveplane- Alexandra Clark Kamil Ramzi Ammari Jeremey Stuart Foster Amanda Lee Liverzani Stirling Charli Cleland Christopher Clark Antonacci Kaitlin Eleanor Fox Kazarae Lowe Charlotte May Savino Dael Cohen Alyssa Eve Anzalone- Daniel A. Funt Abigail M. Lowin Rachel A. Scall Samuel J. Cohen Newman Isabela Mazzola Garcez Salome Makharadze Jordon Jon Scarlett Fatmata Conteh Michelle Arbour Lacey G. Garner Aino Mäkisalo Jeffrey Wolf Schatz Shea Elizabeth Cunningham Gregory Alexander Amanda Laurel Gayer Andrew Charles Marmer Jennifer Meredith Schein Elizabeth Ann Davis Arutiunov Rod Neema Ghods Fabiola Marrufo Daniel Alan Schwaibold Abraham Dayon Ariel G. Atlas Dov Byron Gold Stephanie Aron Marshak David Zachary Schwartz Katrina Michelle Dibbini Sabrina Arielle Baum Tesla M. Goodrich Jillian Marie Martynec Jennifer Danielle Schwartz Anna Grace Dimon Martin Bayersdorfer Jesse Altmeyer Gooley Thomas Joseph Mccartin Jennifer Elizabeth Seeba John Thomas Dixon Alexander Becker Kimberly R. Greer Peter John McElligott Sara Shahmiri Dana Marie Dohn Jonathan Evarts Berger Sam Sharon Griffith Lauren Nicole McGlockton Sheran Sharafi Burton Loring Eggertsen Benjamin Zoltan Bergmann Brian L. Grossman Shane Elliott Meckler Camille Maria Shepherd Offer Joseph Egozy Thomas Arthur Bird Jacquelynn Justine Guzman Amber Jacqueline Meek Dana Emily Sherman Yvonne Ngozi Elosiebo Jillian R. Bledsoe Katherine Hannah Peter Jack Melampy Jae Hyong Shim Juan Camilo Estremera Christina Anne Bogdanski Julia Lee Harvey Eli Aaron Meltz Jennifer Luise Shufelt Kerry Joseph Ferrell Claire Elaine Bornstein Kristi Ann Hayek Thomas Edward Middleton Matthew Jason Silberman Nakesha Isabelle Figaro Andrew Hussein Bouriat Darell D’Angelo Hayes Christopher Paul Milione Rebecca Diane Stratman Steven Ronan Fisher Heather Nicole Brocksmith Kimberly Anne Heessels Teronse Miller Stacker Anthony John Ford William Michael Brophy Allison M. Heimann Akansha Mishra Jacqueline Elizabeth Suarez Roxanne Jamaila Garcia- Justin Edward Brown Alexander Charles Herrick Marbel Leonel Munoz Ayah K. Sultan Quinonez Samuel Henry Bruce Jeesun Hong Jack Brennan Neff Garrett Joseph Sweeney Claire Gavin Geoffrey Raymond Megha Hoon Jade Ercelle Newby Michael Thomas Sweeney Christopher Gonnella Butterworth Micah Horwitz Bryce Wallace Newell Ji Eun Tak Thomas Gerard Greene Christian Calderon Elahe Hosseini Jeffrey Ng Kathleen Yunyun Tang Matthew J. Grier Golda Genevieve Salazar Michelle Christine Hranka Vincenzo Andrews Novelli Bradley Michael Tarrash Ivan Guillot Boyer Calonge Casey Natasha Huntington Maria Nudelman Adam Lewis Tate Inbal Hasbani Julian Andres Cardona Rex Michael Hupy Zana Operta Samuel Henry Taterka Brittany Louise Hazelwood Jennifer Turnbull Carl Andrew Duy Nam Huynh Gabriel Orazi Edward Anthony Tavella James Wrasman Hurder Jackie Leanne Carleton Pippa S. Hyde Sharon Samuel Ourien Hazel Milan Thakkar Jarvis Kwaku Idowu Jasmine Chean Masayuki Ishibashi Lashawn Antwanise Christy Tirtatunggal Jessica Gabrielle Itin Andrew Lyall Chesley Mohammad Mehdi Oxendine Peter Martin Torstensen Malaika Aisha Jabali Katherine Bichlan Chew Jaberiansari Tapan Rajen Oza Gregory Adam Uffner Elizabeth Biedenharn Jordan Gina Marie Chiappetta Nicholas James Jackson Brett Allen Pailet Robert Anthony Wallace Sarah Frances Josey Jennifer Collins Melanie Dale Jolson Stephanie Minji Park Michael Andrew Wasil Paul Lawrence Kennedy Thomas R. Commons Djuan Broshea Jones Guillermina Passa Ronnie Weinstein Gina Kim Alexander Myles Connelly Inji Jung Luis Paternina Robert Lowell Wentworth Colleen King Mark William Connolly Joseph Jack Kammerman Langhorne Stuart Perrow Rachel Caitlin Wilcox Sarah Lucia Klein-Cloud Anthony Bernard Crawford Daniel J. B. Kane Jonathan Jerome Perry Samuel James Willie Kimberly Joy Kodis Matthew Russell-James Jonathan Stewart Kaplan Morgan Lager Petkovich Marco Yu-hin Wong Ara Arthur Kokshanian Crorey Rachna Kaur Kapur Carla Andrea Pierini Yoonji Woo David Gebhart Krone Gary Anthony Crosby Andrew Karter Anna M. Plavin Jessica Wu Joshua Kurz Richard James D’Amato Adam Spencer Kassner Andrew John Podgorny Yujing Wu Alexandra Kuykendall Alexander Rudy Michael Nathaniel D’Orchimont Sima Kazmir Jessica Leigh Polebaum Brittany Marie Llewellyn Wysolmerski Aaron Joseph David Michael Paul Keskey Michael Martin Polka Jana Jett Loeb Jeffrey Xu Sophie Davin Reshma Khanna Sara C. Purvin William Lopez Ruiz Mike Seung Yi Alexa Leigh Davis Laure Romaine Kieffer Kevin Joseph Quaratino Evan Peter Maass Sunha Yoon Nicholas DeLisa Ryan Neil Kilpatrick Juan Cristobal Quevedo Charles Joseph Mahoney Gutierrez Natalie Youkel Zachary Evan Denkensohn Dohee Kim Yishaya Marks Erick Shane Rabin Rachel Lea Zamata Margaret Patricia Diamond Heesu Kim Nakia Tenisha Martin Leila Ravi Victor Alejandro Zapana Jiakun Ding Inae Kim Arnold Mashiyev Rachel Joyce Rendeiro Allison Lee Zimmerman Cole G. Dumond Jeehoon Kim Ayat Masoud Kenneth Andrew Rich Evan Gerad Zuckerman Allison B. Eitman Sye Myung Kim Viktoriya Melik Hovsepyan Ryan Seth Rott Joseph Michael Elks Nathan Kiratzis Daniel Andrew Meyer George Hong Liu Rowe Second District Joel V. Ernst Julia Catherine Koch Daniel Christian Gizele Frances Rubeiz Casey Evan Armstrong Montgomery Rogers Jason Bailey Ervin Paul Benjamin Koepp Samuel Rudik Israel Augenstein Marta Mychak Joshua Adam Esses Nishan Kottahachchi Elizabeth Ann Ruocco Amina Ayad Farrukh Nuridinov Margo Estrada Michelle Lisa Krozy Tina Puja Sahgal Steven J. Ballew Christina Alane O’Connell Adam Ezrapour Samantha Joh Kwartler

50 | June 2017 | NYSBA Journal Meghan Shawna O’Malley Kathy Coleman Weinberg Amanda Iannuzzi Hung An Kim Jasmine Weg Matthew Owen O’Neill Carolina Kaling Wu Brian Jasinski Sapna Kishnani Maxwell Kendall Weiss Morgan Leigh Otway Harpreet Kaur Matthew Nicholas Klein Jessie C. Workman Guillermina Carolina Passa Seventh District Michele Marie Kinney Frank Edward Kulbaski Zhoufeng Xu Jordan Michael Pate Matthew Anthony Doscotch Karen La Grega Benjamin Alexander Jia Zhu Amanda Brooke Pearlstein Stephanie Levine Kussman Jonathan Andrew Perez Eighth District Caitlin Locurto Kenneth Silkit Kwan Twelfth District Amy Pimer Claudia S. Schultz Lauren N. Maloney Kimberly Lynn Landgrover Alexander L. Eaton E. Dean Harris Porter Aaron VanNostrand Dana Mangiacapra Elizabeth Maria Bergman Nicole Marie Klingler Gerald Eames Porter Mark Matteini Lanza William Christian Tock Alyssa Marie Lebron Jessica Grace Ranucci Ninth District Jessica A. McGovern Arthur Lee Ariane Rockoff-Kirk Hana Appel Anthony James Menna Thirteenth District Ingrid Nicole Rosario Sharleen Araula Bailon Danielle Mietus Shin-yen Lee Matthew Robert Brehm Myeisha Andrea Rouff George Matthew Beauzile Scott Michael Mishan Matthew R. Lerch Joseph Anthony Caneco Dylan Lorenzo Ruffi Rabin Bhattacharya Christopher John Moro Yuxin Li Noel Cheung Jorge L. Sanchez Alexandra C. Downey Christina Julie Nankervis Zhutian Li Alexandra Michele Farin Aja-fullo Lamin Sanneh Sean Michael Egan Zachary Nastro Staci Lofton Raymond Huynh Matthew Alexander Peter Alfredo Fernandez Michael Ace Pantzer Jennifer Lauren Lundgren Robert Michael Iodice Skrzynski Frank H. Foster Elizabeth Anna Parvis Samantha Leigh Lyons Zachary Aaron Kaufman Lillian Virginia Smith Marc E. Foto Christopher Joseph Pedraita Helen Ivania Martinez Anthony John Mangona Alan Taylor Smurthwaite Sally H. Ghabour Claire Persico Brianna Nikai McRae Robert Marotta Georgia Stasinopoulos Terrence Griffiths Nikkia Rose Pew Hilary Kei Nakasone Zachary M. Nastro Richard Adam Stern Stephen Paul Illions Erika Hannah Rosenblum Out of State Doasheena Porchetta Sullivan Zoe Kheyman Robyn Rothman Serena Newell Satoshi Abe Katharine Elizabeth Jongbin Augustine Lee Stephani A. Schendlinger Christina Nguyen Michael Brent Adamson Suominen Jason Meneses Thaxsheni Sivarajah Joseph Thomas Niczky Holden Stanley Agnew-Pople Courtney Elizabeth Svoboda Jessica M. Milanowski Jordan Sean Slavens Maria Nikolaou Christina Marie Albertson Lucas Farrell Tesoriero Patricia Anne Monroe Shelbey Tamayo David Michael O’Leary Kristian Ellie Alfonso Kimberly Marie Thomas Stephanie Nicholas Page Blair Traxler Anne Maguire O’Malley Umera Ali Elizabeth Jean Thorne Michael Pesin-Virovets Lisa Victoria Vega Daisuke Oshita Scott Brian Allison Melissa Darlene Tidwell Catherine Russo Matthew Walker John Edward Overbeck Brian Richard Anderson Laura Escalona Trumbull Jaclyn Sayegh Taylor Mackenzie Way Nicholas Palazzolo Joseph Caleb Anderson Juwairiyyah K. Ubaid Anastasia Shishkina Chelsea Ella Weisbord Alysha Chantel Preston Eri Julia Andriola Jack Charles Underwood Anastazia Sienty Thomas S. Wolinetz Miguel A. Rodriguez Blessing Adaeze Anosike Benjamin James Weiland Gregory S. Slotnick Scott P Yakaitis Matthew J. Routh Brandon Leon Arey Alyssa Lee Wolfe Max William Spaeth Wing Yi Yung Alanna Rose Sakovits Diego Jose Arredondo Katherine Maeve Wyman Gavin Strube Ashley Christine Zangara Ruchi Sharma Heather Underwood Ashe Danyang Zhao Harjot Singh Joseph Attias Michael Jonathan Zoltan Xiang Siow Tenth District Eleventh District Abigail Joy Avoryie Taniesha Shivaun Allen Joenni Abreu Katherine Elizabeth Smith Yi Ba Third District Daniel J. Amodio Mohammed Ahsan Alvi Catherine Song Monica Babula Chase R. Evans Julia Marianela Ansanelli Nathalie Jill Kun Baker Blair Springer Tyler Stephen Badgley Steven D. Flack Pryanka Arora Anna B. Berkovich Albert Vetere Eliza Staige Bailey Cianna Freeman-Tolbert Helen Elizabeth Barefield Michael Colin Brett Antonio Alberto Vittiglio Wonyoung Bang Alexander James Gancayco Ariel Joseph Ben-Saull Jeffrey Martin Carr Christina M. Vittiglio Nathaniel Kent Bascom Aurora Heller Pushpa Urmila Bhat Katherine B. Chu Alexa Ann Voskerichian Phyllis Jo Baunach Toni Lupo Michael George Birkmier Andrew Sup Chung Alicia Serena Walker Escarlata Baza Nunez Elisha Lorelle Rapp Daniela Dina Campoli Aryn Ashley Conrad Jinling Wang Nairuby Lorrene Beckles Andrew David Tabenkin John Capitani Samantha Danielle Croffie Kevin Wang Joshua Andrew Berman Constantine Caviris Rolando Cubela Christophe Wassaf Alexander David Bernstein Fourth District Stephen C. Childs Madiba Keneisha Dennie Juliet Colleen Cook Charles John Collins Lauren Mae Desrosiers Erin Patricia Delancey Samuel Harrison Cushner Sandeep Singh Dhaliwal Kendra Deane Sena Catherine Elizabeth Davies Christina Salamon Dumitrescu In Memoriam Joseph V. Dolisi Fifth District Johnathan Drapan Deirdre Egan Naji’a Tameez Jillian Mary Enright Morio D. Feldman Willard H. DaSilva Daniel Eugene Pamela Frederick New City, NY Sixth District Rebecca Marie Gangi Spencer Logan Feldman Lambert Leon Ginsberg Andrew K. Aubert Christina Ford Jacob Glazeski Troy, NY Maria Briana Beltran Michael Giammarusco Tony Guan Lee D. Unterman Stephanie L. Carusillo Kimberly Gitlin Thomas J. Hand New York, NY Monchai Chuaychoo Maxwell Jake Glass Hooney Heoh Ian S. Lamont Joshua George Goldshlager Devin Horzempa Herbert N. Wallace Walter L. Rudberg Michael Steven Grant Lawrence Huang Poughkeepsie, NY Donghoo Sohn Danielle Greco Max Hartley Hulme

NYSBA Journal | June 2017 | 51 Cheyenne Autumn Elizabeth James Gaskill Simpson Noah Stefan Beuge Jennifer Ann Fiegel Beezly James Kiernan Moore Maria Rose Sinatra Marissa Bonnici Matthew Francis Finamore Hakmin Kim Nicole Mormilo Jacob Galler Singer Noelle Mahtab Boostani Daniel Thomas Finnegan Si Hyun Kim Karen Nast Chelsie Lauren Smith Jesse Aaron Boretsky David Jonathan Fisher Young Jun Kim Hiroyuki Natori Naina Soni Daniel Peter Boyle Kellie Welch Fisher Sereyrath Kiri Justin Mungai Ndichu Peter Nash Stavros Michael P Brady Daniel Joseph Fitzpatrick Kevin Christopher-John Klein Jena Rose Neuscheler Samuel Alexander Steinman Peter Michael Bratton Maria Matilde Flores Eric James Konopka Marissa Rose Florio Da Kui Gertrude Ndazoue Ngamga Christopher D. Stewart Sarah Margaret Bricknell Kamtchoum Brian Michael Frankoski David Laurence Kurtz Katherine Elizabeth Stock Michelle Ciatta Browne Julaphan Nimkarn Zhenghao Fu Sun Hee Kwak D. Charles Stohler Jessica Ruth Lobis Reinmar Nindler Buckwalter Misato Fukushima David Alexander Lappin Taylor Rose Stoneman Wei-min Ning Raymond Ambrosio Andrew Selcraig Furlow Kimberly Hope Larkin Reid Perry Swayze Aviva Shari Novak Buenaventura Christopher James Fusick Lucy Larkins Patrick Clayton Swiber Augustine Emenike Okoye Yousef Ali Bugaighis Marc Anthony Galeotti Florence Lasry Leonardo Mario Tamburello Bretta Oluyede John Patrick Burns Lucia Garralda Michael Louis Laurino Wenxuan Tang Yuichiro Omori Goktug Can Burul Jeffrey S. Geltman Hillary Diana Lebeau Yi Tao Nao Ono Nadia Zoulikha Candelon Paul Richard Genender Francis James Leddy Yongqi Tao Travis Luis Pantin Katherine Elizabeth Canning Mary Katherine George Corey Alexander Lederman Erol Gokhan Tolay Dae Hwan Park Katherine Rose Canny Jeffrey Michael Gerace Eui Joon Lee Philip Ret Treesh David Shin Woong Park Narline Casimir Brian Thomas Giblin Jae Eun Lee Shukti Trivedi Gina Park Megan Elaine Catli Stephanie Michelle Glass Jong Cheol Lee Pamela Usta Yabrudy Johann Arshis Pavri Joseph Clarke Celentino Maria Kamille Chua Go Ronald Lee Kelsey Alexandra Danita Lynne Pearsall Erica Cui Wen Chan Ledina Gocaj Seung Hyun Lee Vanoverloop John Stephen Pennington Sarah Elizabeth Chappell Alina Aleksandrovna Scott Bryan Lepene Elizabeth Mary Vasily Maria Piva Feng-nian Chen Goncharova Kenneth I. Levin Gerard C. Vince Pekka Sakari Pohjankoski Jieying Chen Maribel Goodman Samantha Noelle Lewis Odean L. Volker Viviana Puchi Yanqun Chen Roger Christopher Gousse Rongxuan Li James D. Walker Sara Valentina Pulido Velasco Lawrence Chinsky Andrew Michael Grenell Yixi Lian Bart D. Wall Jewel Christina Quintyne Narae Choo Glenna Elsbeth Grinnell Lanqi Liang Xing Wan Sylvie Rampal Melissa Cloonan Andrew D Grubin Russell Lane Lichtenstein Emily Yunfan Wang Robert Henry Rankin Adam David Cole Albertine Rachel Guez Sharon Lin Linlin Wang Jessica Cassandra Repond Laura Joan Coleman Simin Guo Zir-wei Lin Xingyu Wang Michael J. Revness Michael M. Collins Max Harrison Hacker Chang Liu Yixiao Wang Mark H. Richard Edwin Daniel Colon Aya Hagiwara Jinghui Liu Zhuo Wang David Skinner Rintoul Jennifer Lee Commander Matthew Charles Halldorson Linxu Liu Danielle Amber Ward Ariel Michelle Risinger James Conroy Douglas M. Halsey Qiong Liu Samuel Thomas Wegleitner Anita Rivkin-Carothers William Collins Coppola Anna Isabella Yousif Hamati Xiaoxiao Liu Rachel Weichselbaum Antonin Immanuel Zorn Na S. Crabtree Sami Hamida Ziwei Liu Ryan Thomas Weiss Robbason Robert Charles Creighton Yuling Han Gabriel Marcos Lopez Kaitlin Elizabeth Welborn Jaclyn Marie Roeing Deirdre Juliana Cunnane Kathryn Morgan Hannah Salomon Bernard Louis Amy Nicole Westergren Seung Whan Roh Gabriel Jackson Daly Niamh Bernadette Hargan Yurui Lu Kristen Diane White Alex Giscard Romain Hamza S. Dawood Mehwish Hassan Ana Paula Luna Pino Joshua Dominique Williams Schawn-paul Rotella Lauren Frisch Dayton Hui Ying, Gillian Hauw Ker Ting Debbie Lyn Aubree Nicole Winkler Giovanni M. Ruscitti Kelly Decker Macallistre Janson Henry Jane Beasley Mackie Ting Wu Charles Scott Rybny Morris Francis Defeo Jeffrey Robert Higel Jordan Calazan Manalastas Weixiao Wu Lakeraj Kumar Sagar Kathleen Elizabeth Degnan Masayuki Horiike Elizabeth Ashley Mandle Yin Wu Midori Sagawa Steven Harry Del Mauro Kathryn Nobuko Horwath Alexandria Grace Martin Yue Wu Alan Sakar Nicole Helene Delaura Julie Tiny Houth Christopher O. Massenburg Yin Xie Alejandro Salazar-Hinojosa Adam Anthony Desipio Robert Vance Hoy Eiko Matsubara Jing Yang Keith George Salhab Charles Desmeules Shuyao Huang Edwin N. McClure Rebecca Isabella Yergin Albert M. Saltz Alpha Yaya Diallo Douglas T. Hudson Liam George Mcclure Oluwagbohunmi Simeon Fumiko Sano Yerokun Lemay Diaz Lea Hufnagel Casey Brennan McCormack Lauren Nicole Schaal Jiayin Yu Lauren Elizabeth Downes Saori Ikeda Ephraim Alexander Davide Federico Schiavetti Jin Whoan Yu Stephanie Ann Downes Ignatius Michael Daza Ingles McDowell Alec Benjamin Schwartz Mel David Zahnd Benjamin Joseph Drai Hengzhe Jiang Kevin Joseph McEleney David Albert Schwartz Rong Zhang Brandon Michael Duck Pei Jiang Adrienne L. Meiring John R. Scott Xinzhu Zhao Stephen Lee Earnest Heather Marie Johnston Ruoting Men Matthew Thomas Sears Zhiyan Zheng Connor John Edwards Anshul Kalra Javier Jose Mendez Scott Robert Seedall Weiyue Zhu Michael Gordon Eleneski Alexander Sam Kaplen Rodriguez Hui Shangguan Yujing Zhu David Edward Epstein Tanya Shree Kapoor Yi Meng Tara Lynn Shaw Lauren Michelle Zitsch Kaitlyn Turo Ericson Milana S. Karayanidi Ethan R Merel Elias M. Shebar John Carl Zwisler Yueqian Fan Nobuhiro Kawanaka Todd C. Meyers Michael James Shortt Margherita Farina Michael G. Kebede Umberto Milano Jinxu Shu John S. Favate Keith Joseph Kehrer Amanda Lynn Minikus William D. Shultz Barry Peter Fernald Anjlee Khurana Jessica Victoria Mlinar Lauren Regina Simone

52 | June 2017 | NYSBA Journal BOOK REVIEW BY STEPHEN P. YOUNGER Business and Commercial Litigation in Federal Courts, 4th Edition Editor-in-Chief Robert L. Haig

he breadth and clarity of the cedure, alternative dispute resolution, how social media fits into the discov- fourth edition of Robert L. trial and appellate practice. It also cov- ery framework under Federal Rules of THaig’s Business and Commer- ers a plethora of substantive legal areas Civil Procedure 26 and 34. The chapter cial Litigation in Federal Courts (4th related to business and commercial liti- also discusses how social media inter- ed. Thomson Reuters 2016) make it a gation, from agency to warranties and plays with the rules of evidence at trial, major contribution to legal scholarship a wealth of other matters in between. and delves into issues involving jurors and an essential resource for the active There are also chapters on topics that and employees. The chapter also pro- commercial litigator. The fourth edi- you would not necessarily anticipate vides analysis of ethical issues, includ- tion comprises 14 volumes and con- to be covered in a treatise, but that ing “friending” a judge and commu- tains 25 new chapters. It constitutes are extremely useful to a litigator in nicating with clients through social 4,400 more pages than the previous the federal courts. For example, David media. At the end of the chapter, there edition. The treatise as a whole comes Boies and Stephen Zack authored a are model interrogatories, requests for in at 17,142 pages of text, yet it remains chapter on litigation technology, which admission, requests for production of remarkably user-friendly. This work covers everything from pretrial issues documents, and deposition questions. will prove extremely valuable both (such as electronic filing) to the use of Also, among the 25 new chapters in to the new associate in need of an graphics at trial. For any conceivable the Fourth Edition are chapters on civil introduction to an area of practice and topic that one might encounter during justice reform, cross-border litigation, to the experienced litigation partner federal court practice, there is a chapter mediation, arbitration, securitization desiring to review a complex field (or that can be consulted. and structured finance, and marketing learn about a new one). Each chapter begins with an intro- to potential business clients. In addition to Mr. Haig, 296 princi- duction outlining the framework of Not only is Business and Commer- pal authors, including 27 judges, con- the section. Following the introduc- cial Litigation the most comprehen- tributed to the treatise. In the foreword, tion is a discussion of applicable legal sive treatise of its kind, it reads with Mr. Haig estimates that the authors and principles with helpful case analysis, the clarity of a travel guidebook. It their law firms invested more than $80 explanations of statutory provisions, explains difficult topics like patents million in billable time, at their hourly and practical legal advice. Each chap- and the Foreign Corrupt Practices Act billable rates, in preparing the four edi- ter concludes with a section entitled in simple and easy-to-understand lan- tions of this book. This effort shows. “Practice Aids,” which includes pro- guage without sacrificing any of the The breadth and scope of the treatise cedural checklists and sample forms. complexity or nuance of the subject. is remarkable, and each chapter ben- The checklists assist attorneys in plan- As a result, the most recent edition of efits from the insights of the distin- ning a strategic course of action while Mr. Haig’s book is a valuable resource guished practitioners and judges who the sample declarations, letters, com- for the busy attorney who needs a authored it. For example, Judge Shira plaints, and jury instructions, to name quick introduction or a helpful review A. Scheindlin, an expert on e-discovery a few, provide a valuable resource for of an area of federal commercial litiga- who authored several groundbreaking practitioners. tion or to delve more deeply into a opinions on that topic during her time As one example, Chapter 67 entitled topic. Business and Commercial Litiga- on the bench, contributed a chapter, “Social Media,” which is new to the tion deserves a place on every com- along with Jonathan Redgrave, on the Fourth Edition, is typical of the treatise. mercial litigator’s bookshelf. n discovery of electronically stored infor- The chapter is written by two practic- mation. This chapter could be used as a ing attorneys with years of litigation reference when practitioners encounter experience, Paul C. Curnin and Alexis e-discovery issues, but also could be S. Coll-Very. The chapter contains per- Stephen P. Younger is a partner at Patterson read in full by associates who are new tinent information about how social Belknap Webb & Tyler LLP. Sam Yospe, an associ- to the world of e-discovery. media can factor into all facets of liti- ate at Patterson Belknap, assisted in preparing The book covers topics that you gation. First, the chapter discusses the this book review. would expect, such as federal civil pro- discovery of social media, including

NYSBA Journal | June 2017 | 53 ATTORNEY PROFESSIONALISM FORUM

Dear Forum, an obligation to “exercise reasonable most prestigious law firms, including I keep hearing stories of hackers care to prevent . . . others whose Cravath Swaine & Moore LLP and breaking into the computer networks services are utilized by the lawyer Weil Gotshal & Manges LLP. See Nicole of law firms to steal confidential from disclosing or using confidential Hang and Robin Sidel, Hackers Breach customer information. I am the information of a client.” This standard Law Firms, Including Cravath and Weil managing partner of a 50-attorney of reasonableness should be familiar to Gotshal, Wall Street Journal (March 29, firm and I must say this is keeping most practicing attorneys, but may not 2016). The FBI has warned that law me up at night. I would appreciate be especially helpful for ensuring client firms will continue to be targeted for some guidance on what a law firm’s confidentiality in an era of cutting-edge cyberattacks because they have access ethical obligations are with respect technological evolution, where there is to their clients’ most sensitive and to guarding against the consequences a limited history of what constitutes valuable information, and are viewed of a cyberattack. Do we have any “reasonable care.” Nevertheless, “the by hackers as relatively easy targets. obligations with respect to the various reasonable person . . . is called upon . See Simshaw and Wu, supra. vendors we hire? . . when a problem arises that needs to Whatever their size, sector or Sincerely, be solved objectively,” and attorneys location, attorneys and law firms Sleepless in New York have no choice but to grapple with have an ethical obligation to institute their responsibilities to clients on the and maintain sound cybersecurity Dear Sleepless in New York: issue of cybersecurity. (John Gardner, protocol, and to ensure that third-party Cloud computing and the rise of The Many Faces of the Reasonable Person, vendors do the same. The NYRPC mobile devices have changed the way NYU Law Review, http://www. commentary is unambiguous – “to companies of all kinds do business, law.nyu.edu/sites/default/files/ maintain the requisite knowledge and including law firms. Along with these upload_documents/The%20Many%20 skill, a lawyer should . . . keep abreast technological leaps have come a variety Faces%20of%20the%20Reasonable%20 of the benefits and risks associated of cybersecurity issues affecting both Person.pdf). with technology the lawyer uses to lawyers and clients alike. A failure Complying with these obligations provide services to clients or to store to take reasonable steps to preserve can be an increasingly daunting or transmit confidential information.” the confidentiality of client data can challenge when “new technologies (Comment 8 to NYRPC 1.1 (emphasis be more than bad business; it can create new threats to the confidentiality lead to ethical violations and even of client data.” See Drew Simshaw and potential liability. Attorneys have a Stephen Wu, Ethics and cybersecurity: The Attorney Professionalism Committee professional obligation to maintain the Obligations to Protect Client Data, invites our readers to send in comments confidentiality of client information National Symposium on Technology or alternate views to the responses (New York Rules of Professional in Labor and Employment Law printed below, as well as additional Conduct (NYRPC 1.6(a)), and to (March 15, 2015). Indeed, the security hypothetical fact patterns or scenarios to make reasonable efforts to prevent the of digital data has become an issue be considered for future columns. Send inadvertent or unauthorized disclosure of national significance. As FBI your comments or questions to: NYSBA, of that information (NYRPC 1.6(c)). Director at the time Robert Mueller One Elk Street, Albany, NY 12207, Attn: Under NYRPC 1.6, attorneys have recognized in March 2012 “there are Attorney Professionalism Forum, or by two distinct duties to preserve the only two types of companies: those email to [email protected]. confidentiality of client information. that have been hacked and those that This column is made possible through First, NYRPC 1.6(a) prohibits attorneys will be.” American Bar Association, the efforts of the NYSBA’s Committee on from knowingly revealing a client’s Cybersecurity: Ethically Protecting Your Attorney Professionalism. Fact patterns, confidential information, or such other Confidential Data in a Breach-A-Day names, characters and locations presented information that may disadvantage World (April 27, 2016). in this column are fictitious, and any resem- the client, unless: (1) the client gives Law firms are not immune from blance to actual events or to actual persons, informed consent (as defined in Rule cyberattacks. Indeed, in March of 2016, living or dead, is entirely coincidental. These 1.0(J)); (2) the disclosure is impliedly a Russian cyber-criminal targeted columns are intended to stimulate thought authorized to advance the client’s nearly 50 large law firms in an attempt and discussion on the subject of attorney interest and is reasonable under the to obtain the confidential financial professionalism. The views expressed are circumstances; or (3) the revelation fell information of several of their largest those of the authors, and not those of the into one of the specified exceptions clients. See Claire Busher, Russian Cyber Attorney Professionalism Committee or of subsection (b) (e.g., necessary to Criminal Targets Elite Chicago Law Firms, the NYSBA. They are not official opinions prevent a crime, bodily harm, etc.). Crain’s (March 29, 2016). Hackers on ethical or professional matters, nor Attorneys’ second duty under NYRPC managed to breach the computer should they be cited as such. 1.6 is more ambiguous – attorneys have networks of some of the world’s

54 | June 2017 | NYSBA Journal added).) As commentators have foreseeable attempts at infiltration; and NYSBA Committee on Professional recognized, “the requirement to protect (3) the lawyer periodically reviews the Ethics itself has acknowledged, client information is, in essence, an security protocol in place to ensure “lawyers can no longer assume that information security obligation,” and that it is still adequate and reasonably their document systems are of no the New York State Bar Association up to date. It should be noted that interest to cyber-crooks” and that is (NYSBA) and the American Bar in the scenario presented in Opinion particularly true where there is outside Association (ABA) have provided No. 842, the solo practitioner’s online access to the internal system by third attorneys with some guidance on data storage system was password- parties, including law firm employees how attorneys can go about satisfying protected, and the data stored on the working at other firm offices, at home this obligation. See Simshaw and Wu, system was encrypted. These are the or when traveling, or clients who supra. types of steps that might satisfy an have been given access to the firm’s The NYSBA Committee on attorney’s obligation under NYRPC document system. Professional Ethics has issued several 1.6(c) and which, depending upon Unfortunately, Opinion No. 1019 ethics opinions setting forth the scope the circumstances, may represent provides attorneys little in the way of of attorneys’ obligations to maintain the bare minimum of what an detail as to how they can work remotely the confidentiality of clients’ electronic attorney is required to implement in without compromising their own data under the NYRPC, and what terms of technical specifications in ethical obligations in the process. The steps attorneys can take to ensure they order to satisfy his or her duty of Opinion directs attorneys to Comment satisfy their obligations. For instance, reasonableness. However, because the 17 to NYRPC 1.6, which provides in September 2010, the NYSBA nature of cybersecurity is changing that attorneys are not obligated to Committee on Professional Ethics rapidly, attorneys “should periodically “use special security measures if the issued Ethics Opinion No. 842, which reconfirm that the provider’s security method of communication affords a dealt primarily with the use of outside measures remain effective in light of reasonable expectation of privacy.” online storage providers – commonly advances in technology.” Opinion No. “The key to whether a lawyer may referred to as “cloud computing” – 842. use any particular technology is to store client data. Opinion No. 842 In August 2014, the NYSBA whether the lawyer has determined noted that the storage of client data Committee on Professional Ethics that the technology affords reasonable “in the cloud” implicated NYRPC 1.6 issued Ethics Opinion No. 1019, protection against disclosure.” NYRPC (confidentiality of information), and addressing issues of confidentiality No. 1019, ¶ 5. However, “because of dealt with an inquiry concerning a arising from attorneys accessing their the fact-specific and evolving nature solo practitioner’s use of cloud storage firm’s electronic files remotely. Working of both technology and cyber risks, systems to preserve client data in the remotely has become an everyday [it] cannot recommend particular event that something was to happen to occurrence for most attorneys, who steps that would constitute reasonable his own personal computer. have grown accustomed to the precautions to prevent confidential NYSBA Committee on Professional convenience of being able to service a information coming into the hands of Ethics Opinion No. 842 unequivocally client’s needs at a moment’s notice, and unintended recipients.” (Id. ¶ 10.) As a states that in this era of cloud from anywhere in the world with an result, attorneys would be wise to err computing, “[a] lawyer must take Internet connection. However, a 2014 on the side of caution when accessing reasonable affirmative steps to report by the Department of Homeland client information remotely, and to guard against the risk of inadvertent Security found that “online tools that look to other resources for technical disclosure by others who are working help millions of Americans work from guidance. under the attorney’s supervision or home may be exposing both workers Fortunately, there are a number of who have been retained by the attorney and businesses to cybersecurity cybersecurity resources available to to assist in providing services to the risks.” Michael Roppolo, Work-from- attorneys that may provide further client.” In today’s world, that means home remote access software vulnerable guidance on best practices. Specifically, taking certain precautions to preserve to hackers: Report, CBS News (July 31, the ABA has published a handbook to the confidentiality of a client’s digitally 2014). In order to access files remotely, help lawyers and their firms cope with stored information. For example, attorneys often log on to unsecure the emerging cybersecurity threat. attorneys entrusting confidential Wi-Fi networks or “hotspots,” which See Jill D. Rhodes & Vincent Polley, information to a third party such as a can expose both the attorney and the The ABA Cybersecurity Handbook, cloud service provider should ensure firm’s files to malware – software ABA Cybersecurity Legal Taskforce that: (1) the service provider has an designed by hackers that can infiltrate (2013). In addition, on May 11, 2017, enforceable obligation to preserve remote desktops and whose capabilities the ABA Standing Committee on confidentiality and security; (2) the include logging keystrokes, uploading Ethics and Professional Responsibility service provider employs available discovered data, updating malware issued Formal Opinion No. 477, technology to thwart reasonably and executing further malware. As the which provides a non-exhaustive

NYSBA Journal | June 2017 | 55 list of best cybersecurity practices anyone. The ACC Model Controls (March 6, 2017). The new regulatory for attorneys. Among other things, therefore suggest the encryption of requirements will apply to law firms the committee recommends that client data while in transit, as well as as third party service providers, attorneys: (1) understand the nature encryption of all information stored and will require firms to show that of the cybersecurity threat, including a on outside counsel’s systems, servers they have assessed their information careful consideration of the sensitivity and mobile devices. The ACC Model safeguard protocols. The regulations of a client’s information and whether Controls also mandate the reporting also require that any agreements with a particular client is at a higher risk of any data security breach to the law firms contain representations that for attack; (2) understand how the client within 24 hours of discovery the firm has cybersecurity policies and firm’s electronic communications are of the breach (ACC Model Controls procedures regarding the encryption created and stored, so that a lawyer § 3.2). of nonpublic information in place. may assess and manage the risk of The failure to employ basic Law firms that represent financial inadvertent disclosure; (3) understand data-security measures can have services or health care clients will and use reasonable security measures, drastic consequences, including be most affected, but firms of all such as the use of secure internet the imposition of civil liability for shapes and sizes would do well to access methods; (4) train non- professional malpractice. In the wake familiarize themselves with these lawyer support staff in the handling of the data breach at Cravath, Weil new regulatory requirements. of confidential client information; Gotshal and other large firms in March In addition to the imposition of (5) clearly and conspicuously label 2016, a plaintiffs’ law firm planned to civil and regulatory liability, a firm’s confidential client information as initiate a class action lawsuit against reputation may suffer significant “privileged and confidential”; and (6) them for their failure to preserve the damage as a result of public, and conduct due diligence on third-party confidentiality of client information. potentially embarrassing, data vendors providing digital storage and See Aebra Coe, BigLaw in Crosshairs as breaches. Moreover, in light of the communication technology. While the Firm Plans Data Breach Litigation, Law ethical guidance provided by the utility of specific security measures 360 (March 31, 2016). In New York, NYSBA and ABA ethics committees, may vary depending upon particular former clients filed a complaint against attorneys could very well be the circumstances, compliance with these their attorney following a “spoofing subject of disciplinary proceedings if types of practices will go a long way attack” which caused them to wire they fail to adequately secure client toward attorneys’ ongoing attempts to nearly $2 million to hackers, instead data. While we are currently unaware comply with their ethical obligations of counsel. See Millard v. Doran, Index of any disciplinary proceedings while storing and using client’s No. 153262 (Sup. Ct. N.Y. County initiated in New York as a result of digital information, or when working 2016). The former clients alleged that an attorneys being the subject of a remotely. the attorney’s maintenance of her law cyberattack, such cases may arise as Moreover, the Association of firm email account on America Online more and more data is stored online, Corporate Counsel, a bar association constituted professional negligence and and the number of cyberattacks that promotes the interests of a breach of her fiduciary obligations increase. Attorneys would therefore in-house counsel, has also issued a in light of AOL’s track record of be wise to familiarize themselves set of guidelines for outside counsel’s vulnerability to hacking attacks. In with the applicable ethical guidelines protection of confidential client another case, a client brought suit even and be proactive with respect to information. See Model Information prior to the occurrence of an actual securing their client’s confidential Protection and Security Controls for data breach, citing the clear gaps in information. Outside Counsel Possessing Company the firm’s cybersecurity protocols. See Sincerely, Confidential Information, Association of Jason Shore and Coinabul v. Johnson N& The Forum by Corporate Counsel (the “ACC Model Bell, Docket No. 1:16-cv-or04363 (N.D. Vincent J. Syracuse, Esq. Controls”). The ACC Model Controls Ill. April 15, 2016). ([email protected]) provide detailed recommendations In addition, on March 1, 2017, Maryann C. Stallone, Esq. for the handling of confidential client the New York Department of ([email protected]) data, with a particular emphasis on Financial Service, which supervises Richard W. Trotter, Esq. (Trotter@ encryption. Encryption is the process banks, insurance companies and thsh.com) of converting digital information into other financial service entities, Carl. F. Regelmann, Esq. a code, to prevent unauthorized access issued a new set of regulations (23 ([email protected]) by outside parties. One commentator NYCRR 500 et seq.), imposing new Tannenbaum Helpern Syracuse & has compared sending unencrypted information safeguard requirements. Hirschtritt LLP data over the internet to mailing a See Kenneth Rashbaum, Cybersecurity postcard without an envelope – it can for Law Firms: Business Imperatives be accessed and read by just about Update 2017, New York Law Journal Continued on Page 60

56 | June 2017 | NYSBA Journal BECOMING A LAWYER BY LUKAS M. HOROWITZ Lukas M. Horowitz, Albany Law School Class of 2019, graduated from Hobart William Smith in 2014 with a B.A. in history and a minor in political science and Russian area studies. Following graduation, he worked for two years as a legal assistant at Gibson, McAskill & Crosby, LLP, in Buf- falo, New York, and with the New York Academy of Trial Lawyers hosting CLE programs. Lukas can be reached at [email protected].

“It. Is. Finished.”

ue the longest exhale of my my life that seemed, at the same time, ment has on the decision rendered life! to last both 30 seconds and 10 hours. by a court. Some students suggested C I believe I got to launch into my care- 50 percent, others 30. The realistic I was once told that cupcakes are fully prepared opening for about 45 answer according to the professor? muffins that believed in miracles. I seconds before I was asked my first Five, maybe 10 percent. Often times, certainly feel like a cupcake, for my question. And then maybe seven sec- the judges know their decision prior to first year of law school is complete. My onds more before being asked a second hearing arguments, either because this sanity is still intact (for the most part) question. I think you get the picture. is a case similar to one that has been and life moves forward. You begin to answer one question. In ruled on in the past, or, having read the There should be a disclaimer for law the middle of that question, you are record beforehand, they have already school: Eyesight will deteriorate. I feel asked a second. As you attempt to come to a decision. I was surprised to like a bat trying to find Waldo, under- answer that question, you are asked a learn that there is already a draft deci- water. That may be a little dramatic, third, all the while remembering that sion prepared before the judges hear but things do look a little fuzzier. you do, in fact, need to finish answer- oral argument. That five or 10 percent, Here are a few things that I have picked up along the way throughout this first year of school: 1) read, re- It takes a true linguistic ninja to navigate read, then re-re-read. Generally speak- successfully through appellate questioning ing, reading a rule or statute once is just not enough. 2) Eat a cookie, save a to be able to actually change the life. You would be surprised at what a cookie can do when you’re staring into decision of the case. a contracts book at two in the morning, not knowing if you are still reading ing that initial question. As the nine however, is intriguing. It takes a true a contracts book or a newly created minutes passed in the blink of an eye, linguistic ninja to navigate successfully language that has yet to be deciphered. leaving me feeling mentally battered, through appellate questioning to be 3) Talk it out. If you can put it into a at the same time I experienced an able to actually change the decision of sentence verbally, you have a solid adrenaline rush. Had I, in some sick the case. This is a skill I hope to have handle on what it is you are learning. way, actually enjoyed the onslaught of the opportunity to develop and refine. 4) There are only so many hours in a questioning I had just endured in front All and all, friends, the first year day and days in a week. Do what you of my classmates? I did! That being of law school, while challenging, was can, but get enough sleep. 5) Make said, I cringe when I imagine what it manageable, and, surprisingly, enjoy- sure you pace yourself when celebrat- is like to have to do that, for 20 or 30 able. That being said, I am several ing the conclusion of your first year. minutes, or more, in front of a panel of days into my first summer internship, Unlike studying for law school exams, judges, knowing all the while that the and am not missing class at all. Wish celebrating does not require cramming. outcome of your case could be hanging me luck, and I hope everyone enjoys Right before finals, I took part in in the balance. their summers. Until next time. n oral arguments for my lawyering class. An interesting aspect of oral argu- I was drilled with questions more dif- ment is its ability to change the out- ficult than those posed by my mother come of a case. In class, we discussed upon a post-curfew arrival at home just that. Our professor asked, gener- when in high school. Nine minutes of ally, how much weight an oral argu-

NYSBA Journal | June 2017 | 57 The Legal Writer 7. It’s clear that the witness is ardess,” and “fireman,” use “police Continued from Page 64 biased. officer,” “chair,” “letter carrier,” “flight 8. It can be said with certainty that attendant,” and “firefighter.” If you see 6. No juror will be placed on a because of plaintiff’s injuries, the suffixes “-man” or “-ess,” delete panel if neither the defense nor he’ll never walk again. them. If you see masculine terms using the prosecution don’t object. 9. It’s obvious that the witness is the word “man,” delete them. Use 7. The most successful lawyers lying under oath. “one” to make the sentence gender don’t spend fewer than seven 10. Those sitting in the courtroom neutral. Example: “To boldly go where hours at work a day. should turn their phones off for no man has gone before.” Becomes 8. How much my client made last all intents and purposes. “To boldly go where no one has gone year is not insignificant in this before.” Use gender-neutral paral- case. Gender Neutrality lel language: If you use “man,” use 9. What my client said is that she Gender neutrality in writing is a rela- “woman.” If you use “husband,” use shouldn’t be misunderstood. tively new, and important, phenom- “wife.” Make your subjects agree with 10. No decision will be made unless enon. Not only is sexist writing offen- their predicates. Avoid the inelegant both sides provide all the neces- sive, but it focuses the reader on style “he or she,” “s/he,” or alternating sary information. rather than content. There’re four ways between “he” and “she.”

Exercises: Gender Neutrality Rewrite the following sentences. Not only is sexist writing offensive, 1. New Jersey is New York’s sister but it focuses the reader on style state. 2. A judge can’t be biased. She rather than content. must be impartial. 3. Madam Justice Ruth Bader Gins- burg has been a United States Metadiscourse to rephrase gendered language. The Supreme Court Associate Justice Metadiscourse is writing about your first is to use plural forms, which allow since 1993. writing. A phrase like “for all intents you to replace “he” and “she” with 4. He who’s comfortable speaking and purposes” is metadiscourse; it “they.” Example: “If he doesn’t appear in public should be a litigator. takes up space without adding any- in court, the trial will still go forward.” 5. Ben did what any man would thing substantive. Omit these phrases. Becomes “If they don’t appear in court, have done: he told the truth. Other examples of metadiscourse: “the the trial will still go forward.” The sec- 6. The man and wife robbed banks fact of the matter is,” “it is submitted ond is to eliminate the pronoun; that across the country. that,” and “as a matter of fact.” might require you to rearrange the sen- 7. A good lawyer takes her job seri- tence. Example: “He who isn’t a morn- ously. Exercises: Metadiscourse ing person should find a different line 8. The waitress was hesitant to tes- Rewrite the following sentences. of work.” Becomes “Anyone who isn’t tify. 1. It is well settled that the defen- a morning person should find a differ- 9. A convicted con man will be dant knew what she was doing ent line of work.” The third is to repeat arraigned tomorrow. before she stabbed the victim. the noun. Example: “A court officer will 10. “I now pronounce you man and 2. The judge told the jury, “It escort you to the jury room. He will do wife!” should not be forgotten that so once all the jurors are assembled.” Now that you’ve completed the court is ending early today.” Becomes “A court officer will escort you exercises (we hope you didn’t peek 3. Please be advised that cellphone to the jury room. The officer will do so at the answers), study the Legal Writ- use is prohibited. once all the jurors are assembled.” The er’s answers and compare them with 4. The defense attorney concluded, fourth is to use a second-person pro- yours. “The fact of the matter is that at noun like “you,” “your,” or “yours.” In the next issue of the Journal, the the time of the crime, my client Example: “She who has patience should Legal Writer will continue with more was at home with his grandma.” work in Family Court.” Becomes “If exercises. 5. It’s come to our attention that you have patience, you should work in only the defendant breached the Family Court.” Answers: Passive Voice contract. Another way to be gender neutral is 1. This sentence contains a blank 6. The point I’m trying to make is to use “person” rather than “man” and passive. We don’t know who that the defendant is entitled to “woman.” Rather than using “police- asked the jurors about their summary judgment. man,” “chairman,” “mailman,” “stew- professional history. Corrected

58 | June 2017 | NYSBA Journal version: The attorneys asked the Answers: Negative Answers: Metadiscourse jurors about their professional 1. This sentence contains a negative 1. The phrase “It is well settled history. word “unless,” which frames it that” adds no meaning to the 2. The sentence doesn’t state who as a negative sentence. Corrected sentence. Corrected version: The found the defendant not guilty. version: An opening statement defendant knew what she was Corrected version: After the jurors will be convincing if it’s given doing before she stabbed the vic- deliberated for 10 days, they with a smile. Better version: An tim. found defendant Rosen not opening statement given with a 2. The phrase “it should not be guilty. smile is convincing. forgotten” is metadiscourse. It 3. This sentence contains a single 2. This sentence contains a negative occupies space while not adding passive. It’s written in object, combination, “rarely ever,” that anything. Corrected version: The verb, subject formation. Corrected you should stay away from. Cor- judge told the jurors, “Court is version: Judge Packer wrote the rected version: Most cases settle ending early today.” decision. before trial. 3. This sentence contains the 4. This sentence is written in the 3. This sentence contains a negative phrase “please be advised that,” single-passive voice. It follows word: “not.” Corrected version: an example of metadiscourse. the object, verb, subject format. John ran away and hid from the Corrected version: Cellphone use Corrected version: The jury heard police. is prohibited. testimony from multiple eyewit- 4. Rather than “barely,” a negative 4. The metadiscourse in this sen- nesses. word, phrase the sentence in the tence is “the fact of the matter 5. This sentence contains a blank positive. Corrected version: The is that.” Corrected version: The passive. We don’t know who only evidence in this case was defense attorney concluded, “At instructed the jury. Corrected ver- witness testimony. the time of the crime, my client sion: The judge instructed the 5. This sentence contains a nega- was at home with his grandma.” jury not to speak about the case tive expression. Rephrase is 5. The phrase “it’s come to our until jury deliberations. positively. Corrected version: The attention that” adds nothing 6. This sentence contains a blank plaintiff’s injuries were minor. to the sentence and should be passive. We don’t know who 6. This sentence has a negative deleted. Corrected version: Only proposed the short recess. Cor- combination. Corrected version: A the defendant breached the con- rected version: Counsel proposed juror will be placed on a panel if tract. that the court break for a short the prosecution and the defense 6. The phrase “the point I am try- recess. consent. ing to make is that” is unneces- 7. This sentence contains two blank 7. This sentence contains both sary to the sentence and weak- passives. We don’t know who “don’t” and “less than.” ens the conclusion. Corrected reached the conclusion (conclud- Rephrase in the positive. Cor- version: Defendant is entitled to ed) or who’ll accept the settle- rected version: The most success- summary judgment. ment. Corrected version: Plaintiffs ful lawyers spend seven or more 7. The phrase “it’s clear that” is concluded that they won’t accept hours at work a day. unnecessary. Corrected version: any settlement under $200,000. 8. Rather than write “not insignifi- The witness is biased. 8. This sentence contains a blank cant,” which is a double nega- 8. The opening phrase can be passive. We don’t know who tive, phrase it in the positive. deleted without changing the killed Max. Corrected version: Corrected version: How much my meaning of the sentence. Correct- Ryan killed Max with a butcher client made last year is signifi- ed version: Because of plaintiff’s knife. cant in this case. injuries, he’ll never walk again. 9. This sentence is written in the 9. Instead of writing “shouldn’t 9. The phrase “it’s obvious” is single-passive voice. It’s written be misunderstood,” which is a unnecessary. Omit it. Corrected in object, verb, subject formation. double negative, phrase it in the version: The witness is lying Corrected version: The defendant positive. Corrected version: My under oath. shot the victim. client said she should be under- 10. “For all intents and purposes” 10. This sentence contains a blank stood. adds nothing essential to the passive. We don’t know who 10. Rather than starting the sentence sentence. Delete it. Corrected ver- asked the lawyers to keep quiet. with a negative “no,” write this sion: Those sitting in the court- Corrected version: The court offi- sentence in the positive. Corrected room should turn their phones cers asked the lawyers in the version: A decision will be made off. courtroom to keep quiet. only when both sides provide all the necessary information. Continued on Page 60

NYSBA Journal | June 2017 | 59 Attorney Professionalism Forum The Legal Writer 6. The language in this sentence Continued from Page 56 Continued from Page 59 isn’t parallel. Corrected version: The husband and wife robbed QUESTION FOR THE Answers: Gender Neutrality banks across the country. NEXT ATTORNEY 1. Use gender-neutral terms. 7. Don’t fix gender issues by inter- Unless someone is really a sister nal disagreement. Corrected ver- PROFESSIONALISM FORUM or brother, replace “sister” or sion: Good lawyers take their “brother” with “sibling.” Cor- job seriously. Or: A good lawyer I recently started a solo practice and rected version: New Jersey is New takes work seriously. my practice is growing slowly. A friend York’s sibling state. 8. To use gender-neutral terms, recently asked me to appear for him 2. This sentence isn’t gender neu- avoid the suffix “-ess.” Replace in court when his per diem attorney tral. It uses the female pronoun. “waitress” with “waiter” or had a last minute emergency. I realized Making the noun plural is one “server.” Corrected version: The that while my practice is still growing, way to make the sentence gen- waiter (or server) was hesitant to making occasional appearances as a der neutral. Corrected version: testify. per diem attorney might be a good Judges can’t be biased. They 9. Replace “con man” with “con way to bring in some additional must be impartial. Better version: artist” to make the sentence fees. In hindsight, after making the A judge can’t be biased. A judge gender neutral. Corrected version: appearance on behalf of my friend, I must be impartial. A convicted con artist will be realized I never did a conflict check 3. This sentence isn’t gender neu- arraigned tomorrow. and didn’t have a written arrangement tral. It uses a term reserved for a 10. Use gender-neutral parallel lan- as to my representation, and I am sure female. Eliminate “Madam.” Cor- guage. Corrected version: “I now my friend’s client didn’t know who I rected version: Justice Ruth Bader pronounce you husband and was. Although I don’t think anyone Ginsburg has been a United wife!” n was concerned about this in the least, States Supreme Court Associate did I act improperly? I can’t imagine Justice since 1993. Gerald Lebovits ([email protected]), an act- attorneys that appear on a regular 4. This sentence isn’t gender neu- ing Supreme Court justice in Manhattan, is an basis as per diem attorneys run conflict tral. Eliminate the pronoun. Cor- adjunct at Columbia, Fordham, and NYU law checks on a daily basis. But if I do rected version: Anyone comfort- schools. He thanks judicial interns Alexandra this going forward, what rules do I able speaking in public should Dardac (Fordham University) and Tamar Rosen need to consider when appearing as a be a litigator. (Benjamin N. Cardozo School of Law) for their per diem attorney. For example, do I 5. This sentence should substitute research. need to have formal relationships with “man” for “person” or “human.” each of the attorneys or firms that I Corrected version: Ben did what appear for? Are there certain types of any person would have done: he cases I should reject if I am asked to told the truth. appear? When I worked for my prior firm, I occasionally would show up for a conference expecting to resolve a discovery dispute only to discover that the opposing attorney sent a per diem attorney with no knowledge of the case or authority to act. It would drive me crazy. Am I exposing myself to professional liability even though I was just asked to show up for a routine conference? Any advice would be appreciated. Yours truly, Attorney Foraday

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62 | June 2017 | NYSBA Journal 2017-2018 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

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† Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | June 2017 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Legal-Writing Exercises: Part I

t’s easy to read about how to sign your sentence has a single passive 10. The lawyers in the courtroom improve your legal writing. The is if you see the word “by.” Example: are requested to keep quiet. Ihard part is putting down your “The summary-judgment motion was thoughts in written form. Some believe faxed by the attorney.” Use single pas- Negatives that the most difficult part about legal sives to connect sentences or end a sen- Sentences written in the negative writing is knowing every rule of style, tence with emphasis. A double passive, might appear acceptable, and there’s grammar, and punctuation. They’re also known as a blank or nonagentive nothing grammatically incorrect with wrong. The hardest part is clarity, passive, hides the subject. Example: them. But they aren’t preferred. It’s tone, organization, making every syl- “The summary-judgment motion was always better to write in the positive. lable count, applying law to fact, and faxed.” In that example, the reader It looks and sounds better, and it’s connecting with readers through hon- doesn’t know who faxed the motion. easier to understand. Avoid negative est, understated, and readable writing. When you omit the subject, the actor prefixes or suffixes like “dis,” “ex,” But to write well, you’ll have to learn is unknown. The passive voice con- style, grammar and punctuation ─ one ceals information, is vague, and places rule at a time, and the sooner, the bet- emphasis wrongly. Write in the active The active voice is ter. voice unless you’re using the double more effective than This multi-part series is designed passive deliberately to emphasize the to help you exercise your legal-writing object rather than the verb or you don’t the passive voice. skills. In Part I, the Legal Writer will know or care who the subject is. review some of the most important “ill,” “ir,” “-less,” “mis,” “un,” and concepts in legal writing, including the Exercises: Passive Voice “non.” Eliminate negative combina- passive voice, writing in the positive, Rewrite the following sentences. tions: “never unless,” “none unless,” metadiscourse, and gender neutrality. 1. The jurors were asked about “not ever,” and “rarely ever.” Negative Below are exercises to test you on their professional history. words to exclude from your writing the concepts you’ve learned, or which 2. After the jury deliberated for include “barely,” “except,” “hardly,” you already know. Edit the sentences: 10 days, defendant Rosen was “neither,” “not,” “never,” “nor,” “pro- Change the words, rearrange them, found not guilty. vided that,” and “unless.” add or delete them. After you’ve edit- 3. The decision was written by ed the sentences, look at the answers Judge Packer. Exercises: Negative at the end of this article to determine 4. Testimony was heard by the jury Rewrite the following sentences. whether you’ve edited them correctly. from multiple eyewitnesses. 1. An opening statement won’t be 5. The jury was instructed not to convincing unless it’s given with Passive Voice talk about the case until jury a smile. The active voice is more effective than deliberations. 2. Most cases rarely ever go to trial. the passive voice. The active voice 6. It’s been proposed that the court 3. Not only did John run away is simpler, clearer, shorter, and more break for a short recess. from the police, but he also hid. direct. In passive sentences, the for- 7. The conclusion reached is that 4. There was barely any evidence mat is object, verb, subject. Active any settlement under $200,000 in this case except for witness sentences follow a different format: won’t be accepted. testimony. subject, verb, object. Example: “The 8. Max was killed with a butcher 5. The plaintiff’s injuries weren’t attorney faxed the summary-judgment knife. major. motion.” If the structure is object, verb, 9. The victim was shot by the subject, then it’s a “single passive.” A defendant. Continued on Page 58

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