Triumph Over Adversity Serving Our Members During the Pandemic March 2021

NEW YORK STATE BAR ASSOCIATION

MAY/JUNE 2021 Journal VOL. 93 | NO. 3 TRIUMPH OVER ADVERSITY SERVING OUR MEMBERS DURING THE PANDEMIC MARCH 2021

MARCH 2020

34% 157 Increase in HOD News Releases & Media Meeting Attendance Advisories Distributed

40K 5 Total CLE Program Software Programs Implemented Registrations (Salesforce, WordPress, Zoom, Microsoft Teams and Basecamp)

4,516 53,793,052 Annual Meeting 2021 Total E-Mails Sent (Virtual) Attendees Thank You! For your dedication, For your commitment, and For recognizing the value and relevance of your membership.

As a New York State Bar Association member, your support helps make us the largest voluntary state bar association in the country and gives us credibility to speak as a unified voice on important issues that impact the profession.

Scott M. Karson Pamela McDevitt President Executive Director

From the NYSBA Bookstore Must-Have Best Sellers Titles Construction Site Personal Injury Litigation, LexisNexis® New York State Bar Association’s Automated Surrogate’s Third Edition NEW RELEASE Forms The third edition includes a new chapter covering OSHA inspections This fully automated set of forms contains all and enforcement actions, including employer requirements in general, the official probate forms as promulgated by the guidance for taking COVID precautions and the impact of OSHA OCA as well as the forms used specifically by the local Surrogate’s Court. violations on civil litigation. Downloadable: 6229E20 | Member $868 | Print: 404721 | eBook: 404721E | 604 pages | Members $135 | List $180 List $1,019 New York Employment Law: The Essential Guide Estate Planning & Will Drafting in New York NEW RELEASE Written and edited by experienced practitioners, Covering a wide range of state substantive and regulatory employment this comprehensive book is recognized as one issues, this title offers clear and succinct responses to more than 450 of the leading references available to New York employment law questions. attorneys involved in estate planning. Includes Forms. Print: 410121 | eBook: 410121E | 560 pages | Members $95 | List $130 Print: 4095C | eBook: 4095CE | 946 pages | Member $185 | List $220 Estate Planning: A Guide to the Basics NEW RELEASE ® This easy-to-read reference is a great resource for the non-attorney LexisNexis NYSBA’s Automated looking to increase their knowledge of estate planning options. Estate Planning System This estate planning system uses document Print: 409321 | eBook: 409321E | 38 pages | Member $15 | List $25 assembly software to empower users to draft wills, trusts and powers of attorneys quickly and easily. Elder Law & Special Needs Planning/Will Drafting, Downloadable: 6270E20 | Member $1,467 | 2020-21 NEW RELEASE List $1,728 This practice guide provides an extensive overview to the practice of elder law, special needs planning and will drafting for attorneys entering Real Estate Titles: The Practice of this field. Real Estate Law in New York, 4th Ed This is an invaluable resource for all real estate Print: 4082121 | eBook: 4082121E | 360 pages | Member $125 | List $165 practitioners. Written and edited by many leading real estate practitioners, this book updates and expands on the landmark publi- Matrimonial Law, 2020-21 NEW RELEASE cation originally edited by Jim Pedowitz. Matrimonial Law provides a step-by-step overview for the practitioner Print: 421020 | eBook: 421020E | 1,723 pages | handling a basic matrimonial case. Member $185 | List $235 Print: 412121 | eBook: 412121E | 472 pages | Member $125 | List $165 LexisNexis® NYSBA’s Automated Residential Real Estate Forms Real Estate Transactions – Residential Property, Discover how easy it is to electronically produce 2020-21 NEW RELEASE dozens of residential real estate forms—for both Real Estate Transactions–Residential Property is a practical, step-by-step downstate and upstate transactions—by using these Residential Real Estate Forms. guide for attorneys representing residential real estate purchasers or Downloadable: 6250E20 | Member $950 | sellers. List $1,118 Print: 421421 | eBook: 421421E | 636 pages | Member $125 | List $165 Probate and Administration of Decedents’ Estates, 2020-21 Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped Probate and Administration of Decedents’ outside the continental U.S. will be based on destination and added to your total. Estates is a practical guide for an attorney who represents a petitioner in a probate or administration proceeding. Print: 419621 | eBook: 419621E | 208 pages | Member $125 | List $165 NYSBA.ORG/PUBS 1.800.582.2452 JournalNEW YORK STATE BAR ASSOCIATION COMMITTEE ON COMMUNICATIONS AND PUBLICATIONS Prof. Michael L. Fox, Chair Kelly McNamee, Vice Chair Prof. Hannah R. Arterian Marvin N. Bagwell Jacob Baldinger Brian J. Barney Mark Arthur Berman Earamichia Brown Hon. Janet DiFiore Daniel H. Erskine Michael W. Galligan Sarah E. Gold Ignatius A. Grande Mohammad Hyder Hussain Prof. Michael J. Hutter, Jr. Hon. Barry Kamins Elena DeFio Kean Paul R. Kietzman Daniel Joseph Kornstein Ronald J. Levine Peter H. Levy Julia J. Martin David P. Miranda Gary R. Mund Marian C. Rice

PUBLISHER Pamela McDevitt Visit the Executive Director NYSBA CHIEF COMMUNICATIONS STRATEGIST Coronavirus (COVID-19) Susan DeSantis

PRODUCTION EDITORS Information Center Pamela Chrysler Alyssa Colton

SENIOR WRITER Get the latest Christian Nolan CONTRIBUTORS Brendan Kennedy Courts Brandon Vogel DESIGN Lori Herzing Latest News and Information Erin Corcoran CLE Programs Christine Ekstrom COPY EDITORS Alex Dickson Informational Webinars (Non CLE) Reyna Eisenstark Howard Healy

NYSBA Updates and Cancellations EDITORIAL OFFICES One Elk Street, Albany, NY 12207 518.463.3200 • FAX 518.463.8844 Wellness www.nysba.org

NYSBA ADVERTISING MCI USA Holly Klarman, Account Executive [email protected] NYSBA.ORG/COVID-19-INFORMATION-UPDATES 410.584.1960 SUBMISSIONS Send articles to [email protected] Review submission guidelines at nysba.org/journalsubmission JournaNEW YORK STATE BAR ASSOCIATION l Contents MAY/JUNE 2021 VOL. 93 | NO. 3

8 A Vision for the Future by Scott M. Karson

In this issue: Departments: 13 Who’s a Parent? The Appellate Division 5 President’s Message Is Divided on the Answer 53 Hilary on the Hill by Joseph Williams by Hilary Jochmans 16 Fighting Misinformation: 56 Attorney Professionalism Forum How New Laws Might Help by Deborah A. Scalise, Tereza Shkurtaj by Gail Ehrlich and Vincent J. Syracuse 20 Amendments to Uniform Rules, Part 2 61 State Bar News in the Journal by David L. Ferstendig 65 Classifieds 26 Go to Bed: The Ethics of Exhausted Lawyering 67 by John Marsella Marketplace 69 2020–2021 Officers 30 New Normal of Remote Lawyering Has Ethical Implications 70 The Legal Writer by Carrie H. Cohen and Chan-young Yang by Gerald Lebovits

33 New York’s New Right of Publicity Law: Protecting Performers and Producers by Judith B. Bass

38 Trials in Fiction and Film: Can Reality Compete? by William B. Stock

42 How Divorce Law in New York State Favors the Spouse With the Financial Advantage by Neil E. Kozek and Hon. Mark C. Dillon

47 Beware the Undesirable Default Rule in International Arbitration Agreements by Robert K. Kry

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 New York State Bar Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. For submissions guidelines: www.nysba.org/JournalSubmission. Material accepted may be published or made available through print, film, electronically and/or other media. Copyright ©2021 by the New York State Bar Association. Single copies $30. Library subscription rate is $210 annually. Journal (ISSN 1529-3769) is published bimonthly (January/February, March/April, May/June, July/August, September/October, November/December) by the New York State Bar Association, One Elk Street, Albany, NY 12207. Periodicals postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes to: Journal, One Elk Street, Albany, NY 12207.

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ACCEPT MORE PAYMENTS WITH LAWPAY LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Synovus Bank, Columbus, GA. 855-759-5284 | lawpay.com/nysba PRESIDENT’S MESSAGE SCOTT M. KARSON

NYSBA’s First Virtual President: How What We Learned in the Pandemic Will Shape the Association’s Future

hen I assumed the presidency of the New York installed as president via Zoom by New York’s distin- WState Bar Association last June, we were roughly guished Chief Judge Janet DiFiore. That honor was three months into the coronavirus pandemic that has repeated several weeks later when I was virtually installed fundamentally changed the way our association, our once again, this time by Senior Associate Judge Jenny profession – and the world at large – operates. Rivera during the June 2020 meeting of our House of At that time, I had no way of knowing how long this Delegates. disruption would last. In fact, by June the pandemic had Zoom meetings, as we all know, became the norm. already lasted longer than I had imagined it would. I have While you have heard me lament that nothing replaces a vivid memory of that day in March 2020 when my law the collegiality and camaraderie of an in-person NYSBA office closed pursuant to the governor’s executive order event, the association has experienced record-setting and I naively told my colleagues at the firm that we’d be attendance for its virtual House of Delegates meetings back in the office within a week! I never considered the and for the two-week all virtual Annual Meeting in late possibility that, one year later, I would hold the distinc- January 2021. Also, NYSBA’s continuing legal education tion of being the association’s first all-virtual president in programs have continued to attract members to engag- its 144-year history. ing and informative webinars, many of them helping What I did know was that everything I thought my lawyers stay updated on COVID-19 and its impact on leadership of the association would entail in the months their practice. leading up to my presidency would be drastically differ- It has also been wonderful to see such a positive reaction ent. But while uncertainty has plagued us all throughout to the association’s message in the public sphere. I have the pandemic, one thing remained certain: NYSBA was attempted to maintain the association’s focus on its bed- resilient and well-prepared. Now, as we contemplate the rock principle, adherence to the rule of law, particularly association’s future, what we learned during the pan- in my statements to the media, which have covered a demic will help lead us to the next chapter, which will broad range of subjects, including criticism of unlawful combine this new reality with the best of our traditional conduct on the part of governments, assailing recurring bar association ideals. The decisions we will have to make incidents of gun violence and criticizing unwarranted going forward are of the utmost importance as we strive attacks on the members of our profession for simply to make sure that the good work we do benefits the doing their jobs. majority of our members. Undoubtedly, my most memorable media moment came First, allow me to take a brief look back at the past year when I was interviewed for an NBC News New York before elaborating on the future. televised report pertaining to the horrific Jan. 6 Capitol My term started in unprecedented fashion when I was riot. The association strongly condemned the violence afforded the unique and unforgettable privilege of being and launched an inquiry pursuant to the association’s

New York State Bar Association 5 Journal, May/June 2021 PRESIDENT’S MESSAGE bylaws to determine whether former President Donald thousands of lawyers and law firms. She then highlighted Trump’s counsel, Rudolph Giuliani, should be removed the work of NYSBA’s COVID-19 Pro Bono Recovery from the membership rolls of the association for his Task Force. The task force – implemented by Immedi- involvement in the riot. Our statement received over one ate Past President Hank Greenberg last year when the million views just on NYSBA’s website alone. pandemic began and continued during my term – has A week after the riot, NYSBA’s involvement in the most recruited over 1,000 pro bono lawyers to assist New pressing national issues continued unabated. Members of Yorkers with various pandemic-related legal problems, the NYSBA Task Force on the Presidential Election were including in the Surrogate’s courts to provide free legal explaining impeachment to hundreds of lawyers only assistance in probate matters to individuals and families 90 minutes after the House voted for impeachment. All who lost loved ones to COVID-19. election season, the chair, veteran election lawyer Jerry While I am so proud of our achievements, it is also Goldfeder, and task force members helped journalists important to recognize what more needs to be done. understand election controversies as soon as they arose. The Task Force on Attorney Well-Being – whose work NYSBA’s message on the pandemic also generated became even more important after the pandemic hit, widespread media attention, especially after NYSBA’s given the impact it has had on our mental and physical Health Law Section recommended that New York health – will be releasing a comprehensive report later consider mandating a COVID-19 vaccine once a scientific this year. Just as important, an in-depth survey conduct- consensus emerged that it was safe, effective and necessary. ed by the task force will provide the most comprehensive NYSBA’s recommendations struck a balance between data on lawyer well-being ever gathered in New York. government’s responsibility to protect the majority of New The report of this task force will be a game changer for Yorkers and safeguarding personal freedoms prescribed attorney well-being in New York and serve as a model for by the Constitution. A story on the recommendation in the rest of the country. the New York Law Journal was the publication’s best read Another task force is investigating why a disproportion- story for months, demonstrating how influential NYSBA ate number of residents died from COVID-19 in nurs- has become. ing homes and long-term care facilities across the state. Another major accomplishment of my tenure was pas- The task force will recommend regulatory and statutory sage of the law NYSBA advanced to simplify the power changes to prevent such loss of life from ever happening of attorney form in New York. When the law was signed again, an issue of the utmost significance given the loss of in December, it represented the collective work of many life from COVID-19 in New York’s nursing homes. And years of NYSBA leadership, and I am proud that it a third task force is examining issues of tort and contrac- became law during my watch. tual liability, as well as immunity from such liability. NYSBA also made history in November when the Unrelated to COVID-19 but also vitally important is LGBTQ Law Section was launched. The group was the work of our Task Force on Racial Injustice and Police converted from a committee to a section, which gives Reform. Created in the aftermath of the horrific mur- all NYSBA members the opportunity to participate. der of George Floyd while in police custody, this task Established in 2008, the Committee on LGBTQ People force remains hard at work to understand the issues that and the Law served as a critical voice for members of the contribute to police misconduct and to provide recom- LGBTQ community and its allies. It was the work of that mendations to policymakers, law enforcement and the committee that led me on behalf of NYSBA to file an judiciary to end harmful policing practices that dispro- amicus brief in the U.S. Supreme Court in Fulton v. City portionately impact persons of color. of Philadelphia, arguing that a religious organization with My presidency has been one of the most rewarding a government contract cannot prevent same-sex couples experiences of my life, virtual though it was. We dem- from becoming foster parents. onstrated once again how vital the work is that the bar When I began my term as president, I encouraged all my association does supporting our most sacred ideals, the colleagues – from seasoned lawyers and leaders of the bar rule of law and democracy itself. But we cannot take for to newly admitted lawyers – to take on pro bono work in granted that such worthwhile endeavors will continue in the coming year, particularly during this time when there perpetuity unless we do what it takes to remain finan- are so many people truly in need of help. You stepped up cially viable. and answered the call. That is why it may be necessary to leave One Elk when In fact, during Chief Judge DiFiore’s “State of Our the lease expires if the New York Bar Foundation, which Judiciary” address, she said New Yorkers “owe a debt of owns the building, does not present the association with gratitude” for the generous pro bono service provided by

New York State Bar Association 6 Journal, May/June 2021 SCOTT M. KARSON a proposal that meaningfully addresses the necessary tap expertise from all over the country, all while increas- repairs, renovations and costs to the association. ing diversity. I hope you will take the time to read the article I have With so many of our members congregated in and written explaining why we must seriously consider mov- around New York City, and at other urban centers ing. Under our current lease, staying at One Elk will across our great state, many lawyers have never stepped cost the association $18 million over the next decade, foot in the Bar Center. That is why we must redirect the more than double what it would cost the association to money we’re spending to operate One Elk to pursuits rent only the space it needs in Albany. In addition, the that will benefit more of our 70,000 members. estimated cost of making necessary repairs and renova- On a personal note, I have been privileged to serve tions to the building will be $4.8 million over the next alongside a group of incredibly talented and hard- three years. working officers, including President-Elect T. Andrew During the pandemic, most of the association’s staff Brown, Secretary Sherry Levin Wallach, who will become worked remotely, and we found that their ability to president-elect in June, Treasurer Domenick Napoletano more easily balance work and family responsibilities and Immediate Past President Hank Greenberg. Their made them more productive than ever. We were only continuing leadership will serve our association and its using half of the 60,000 square feet of space at the Bar members well. I also want to express my gratitude to Center before the pandemic and anticipate that we will the association’s dedicated staff, led by Executive Direc- need much less of it when we return. Allowing remote tor Pamela McDevitt, for their unwavering service to work makes the association attractive to employees NYSBA during these unprecedented times. beyond the Capital Region and gives us the ability to scott m. karson can be reached at [email protected]

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New York State Bar Association 7 Journal, May/June 2021 A Vision for the Future By Scott M. Karson

s we emerge from the forced hibernation of pan- a completely different kind of expansion for our associa- Ademic quarantine, we take stock of personal and tion, requiring it to rebuild technology and digital opera- collective lessons learned, and reassess our vision for the tions and create a “virtual” bar center. In June 2019, future. As part of this reassessment, the New York State then-NYSBA President Hank Greenberg set an ambi- Bar Association, like many law firms and businesses tious goal: the construction of a virtual bar center, where around the country, is rethinking its facilities and staffing attorneys across the street and around the world are just needs. Because of the vision of our leadership, and inno- a click away from accessing association benefits and ser- vative investments in technology made over the last three vices.1 The world and our members were quickly mov- years, our association has been able to continue to seam- ing from physical to virtual platforms, and we embraced lessly serve our members’ needs during the pandemic, state-of-the-art technologies to remain a national and and today is stronger and more effective than ever. global professional leader. Over its almost 150-year history, NYSBA has frequently During the year prior to the pandemic, NYSBA under- adapted to meet the needs of its members, the legal went a digital transformation. Over $2 million was profession and the public. Time and again, we have invested in new technology and expertise. This invest- expanded operations and broadened our outlook, as dic- ment included a new association management system tated by the needs of the day. In the past, change meant (i.e., a member database that connects to CLE registra- expanding our association’s brick-and-mortar presence either through relocation of our headquarters or over- Scott M. Karson became president of hauling our facilities space. Major moves and ambitious NYSBA on June 1, 2020. A partner at Lamb & Barnosky in Melville, he is a commercial and renovations of the Bar Center on Elk Street signaled new municipal litigator with a concentration in beginnings and an expansion of our association’s role as appellate work and chairs his firm’s professional ethics and litigation committees. Karson the leader for lawyers across the state and nation. previously served for three years as treasurer of NYSBA and has also served on the Executive THE VIRTUAL BAR CENTER MEETS Committee as vice president for the Tenth Judicial District. He is former chair and a member of the PANDEMIC CHALLENGES Committee on Courts of Appellate Jurisdiction, former chair of the Audit Committee and serves on the Finance Committee, President’s Committee Today, the digital revolution has transformed the way on Access to Justice and the Committee to Review Judicial Nominations. people communicate and do business. This necessitated He is the former president of the Suffolk County Bar Association.

New York State Bar Association 8 Journal, May/June 2021 tion, section and committee appointments and member vided NYSBA with some security, in that it had retained dues renewal); a completely new website; and the use a group with the required expertise to implement the of new telecommunication hardware and software. The data migration and technological transition. NYSBA completion of the initial stage of this transformation also retained a Chicago-based digital design agency to occurred just weeks before the COVID-19 crisis hit New redesign the website. The remote locations of the staff of York in March 2020. As a result, the association has con- these respective companies were not an impediment to tinued to increase service to members, to reach members the projects, and in fact, the retention of these companies enabled NYSBA to ensure it was able to receive the best possible services for its money, uninhibited by the personnel confines of the Capital Region or New York state boundaries. Over the last five years, to increase efficiencies, the association has reduced its staff by almost one-third, from 125 to 89. Much of this reduction has come from outsourcing the association’s IT and website services. Pre- pandemic, our association was able to operate comfort- ably using about 30,000 square feet, about half the space available at the Bar Center at One Elk. During the pandemic, the majority of association staff worked remotely, and it is likely that we’ll need even less space when our lives and businesses return to normalcy. Permitting staff digitally, and to provide real-time information about to work remotely makes the association attractive to a developments related to the pandemic and legal news broader pool of employees, bringing in greater expertise pertinent to the legal community, throughout this crisis. and diversity beyond the Capital Region. Zoom meet- CLE programming during the pandemic is a testament ings provide our members with efficient and inexpensive to the flexibility of the virtual bar center. The Committee access to section and committee meetings, CLE, House on Continuing Legal Education and the CLE Depart- of Delegates and leadership meetings. ment quickly pivoted to schedule hundreds of CLE webi- As a result of the pandemic, the traditional workday nars throughout 2020 and 2021. NYSBA CLE programs and in-person office requirements have been upended. were a financial bright spot in 2020, despite projections According to some studies and reports, the pre-pan- anticipating both continued declining membership dues demic model may not return in the same form, as many 2 revenue and total revenue over the next decade. CLE employees prefer, at the very least, a hybrid model of net revenue nearly tripled from $614,144 in 2019 to virtual and in-person work and have demonstrated that 3 $1,778,676 in 2020. This record-breaking increase in productivity has not been negatively impacted as a result. revenue was due to the prescient timing of our technological transition. Indeed, the quick move to virtual programming allowed NYSBA members to continue to Over 320,000 attorneys are licensed receive timely updates and developments in the law dur- to practice in New York; more than ing a period of profound change in court operations, emergency orders and indeed major shifts in the func- 67,000, over 20%, live or practice tion of the practice of law itself. Additionally, NYSBA outside the state, and more than was able to quickly adapt to Zoom remote conferencing, including for NYSBA sections, committees and associa- 22,000 live outside the United States. tion governance meetings. The four House of Delegates meetings, held virtually during the pandemic, had record In fact, productivity has improved as workers are able to attendance. According to an April survey of members, fit their work around their personal and familial respon- 63% would like to see virtual programming and events sibilities. Physical office space has become less significant, as the primary option moving forward. as compared to technology, employee expertise and pro- NYSBA outsourced its entire IT department to a duction. As a result of this seismic shift, NYSBA has an Maryland-based company whose employees – working opportunity to reconsider and redesign how and where it remotely – handled the entire data migration of NYSBA’s operates and the manner in which it serves its members. antiquated member data system to Salesforce, the new association management system. Having the flexibility THE BAR CENTER AT ONE ELK STREET to acquire talent from outside the association’s immedi- For the last 50 years, the association’s home has been ate geographic area made the transition easier and pro- at historic One Elk Street. The Elk Street buildings

New York State Bar Association 9 Journal, May/June 2021 are recognized for their cre- ative integration of historic 1,200,000 preservation with modern design. The Bar Center occupies numbers 1 through 6 Elk St., nestled perfectly between the New York Court of Appeals and the Capitol. One Elk creatively combines a new building with 19th century townhouses, weld- ing them together to form a single, functional complex. This unique combination of 19th century architecture and award-winning contemporary design led former New York Times design critic Ada Lou- ise Huxtable to write that the building “is one of the neat- est architectural achievements challenge to provide access throughout the building to in the country. . . . it is a sophisticated triumph in the persons with difficulty walking. This challenge is further most delicate, complex and poorly understood art of the 4 compounded by historical preservation requirements environment: urban design.” When One Elk is full for a that prohibit major structural changes to the front facade House meeting or reception, it has an energy that is elec- of the building on Elk Street. As an association that is tric and alive. Walking its halls during moments of quiet dedicated to, and advocates for, diversity and inclusion, contemplation, one cannot help but feel the comforting our home must be fully and easily accessible to all our weight of its history and be inspired by the greatness of members and guests. those who have passed through its doors. The building has become a proud symbol of the greatness of our asso- Outside consultants have indicated that although One ciation. Elk remains operable, costly renovations are recommended over the next three years. Initial estimates to consoli- In 1969, the association transferred title of the Elk Street date reduced print shop operations, improve handicap properties to the New York Bar Foundation in exchange accessibility, make restrooms accessible, upgrade the for promissory notes, which were subsequently forgiven heating, ventilation and cooling systems, and provide by the association. Initially the foundation, as owner, a centralized ADA-compliant elevator system place the paid for the maintenance and upkeep of the building, cost of such renovations at $4.8 million during the years but was soon unable to keep up with the costs. Under 2022 and 2024. The association’s finance committee the current lease, dating to 1991, the association has has estimated remaining at One Elk under current lease paid all rent, utilities, taxes, housekeeping, maintenance, terms will cost the association approximately $18 mil- internal and external structural repairs for One Elk. The lion over the next 10 years, more than double the cost total cost to the association to rent and maintain One of other suitable space in downtown Albany for the same Elk is more than $1 million per year. The current lease at period.6 One Elk expires at the end of this year, coming at a time when the association is considering how to best allocate As part of lease renewal discussions, the association its resources to deliver improved value and services to its shared details of the proposed renovations and their members. costs with the foundation leadership and sought a commitment from the foundation to contribute funds for Over the past year, the association has retained architects, renovations necessary to keep the Bar Center viable as the engineers and construction consultants to determine association’s long-term home. The foundation advised it the viability of One Elk as the long-term home of the was not “in any position to pay for renovations desired association. These outside experts conclude that the by the association at the One Elk Street property, which building’s heating and ventilation systems are outdated is owned by the foundation.” and will soon be in need of renovation and that the building’s restrooms and elevators need renovation in The foundation has proposed continuing under the cur- order to increase accessibility.5 Since One Elk consists of rent lease term while the feasibility of a joint fundraising multiple, interconnected, independent buildings, it is a campaign is explored. However, any continuation of the

New York State Bar Association 10 Journal, May/June 2021 lease under current terms, even for a short period of time, inventory of association needs and how we can best serve will be costly to the association as current rent and main- our members today and in the future. Staff cutbacks over tenance amounts to almost $100,000 per month and the last five years make it difficult for the association to anticipated renovations will soon be required. It makes justify an increase to the financial burdens of continuing even less financial sense to commit to pay millions for to rent and maintain One Elk, even putting aside the renovations under a short-term lease at One Elk. millions of dollars of anticipated necessary renovations. Although the association is strong financially, it remains so through staffing cuts and other efficiencies. No membership association can expect to cut its way to growth. There is a path for continued growth of our association’s membership, reach and influence, through continued execution of the virtual bar center plan begun two years ago. That plan calls for the use of association resources to attract, and retain as members, New York lawyers out of state and throughout the world. New York is the economic and legal capital of the world. New York law, and New York lawyers and judges, are globally recognized as the gold standard in our profession. The New York State Bar Association is a global force and the most recognized bar association throughout the world.9 Our association is widely regarded as the world leader among bar associations; our reputation is unmatched. Like the association, the foundation has undergone Over 320,000 attorneys are licensed to practice in New changes over the years. Formed in 1950, it was originally York; more than 67,000, over 20%, live or practice intended to raise charitable income for use by the associa- outside the state, and more than 22,000 live outside the tion. Since then, the foundation changed its bylaws and United States. While these attorneys are not physically mission statement to broaden the foundation’s outreach in the state, they have a professional tie to New York; beyond the association, to serve the legal profession and they need New York law and New York connections. In access to justice causes. Today, the foundation proudly short, they need the New York State Bar Association. offers grants to dozens of deserving legal services organi- Since most of our members will never set foot in the Bar zations throughout New York. In 2020, the foundation Center, our investments in technology enable us to better provided grants to over 100 organizations, totaling over attract and serve these members. In order to continue to $600,000, including just over $20,000 to the New York grow we must expand globally, and our association must State Bar Association.7 Despite changes to the foundation’s mission, the association continues to assist the foundation financially. In addition to paying the foundation rent of $300,000 per year, and paying the costs of 4,000,000 maintaining One Elk, the association also provides services and pays expenses to assist the foundation’s business operations. In 2020, the association was involved in providing over $900,000 in rent as well as direct and indirect contributions and services to the foundation.8 A VISION FOR THE FUTURE The fiscal realities associated with One Elk require our leaders to take a serious

New York State Bar Association 11 Journal, May/June 2021 invest in technology and member services necessary to Fifty years ago, the leaders of NYSBA embarked on a meet members’ needs virtually. bold and courageous path to pursue their vision for our Additionally, there has long been a desire for the asso- association. Today our association has again arrived at a ciation to have a satellite location in New York City, crossroads, that arrival hastened by an unforeseen pan- as the majority of in-state NYSBA members are in the demic. As we choose our path forward, we must not be New York metro area. Over the past few years, leaders bound by our affection for the past or our fear of change worked toward that goal, making progress on a midtown in the future. We must have the same courage and vision Manhattan location and a plan that would have provided that our forebears were blessed with 50 years ago. office and meeting space. This plan was deferred due to the COVID-19 crisis. Establishing a nimble footprint 1. See Henry M. Greenberg, Report of President to the House of Delegates (June 2019); plans to improve the association’s technology and website capabilities began during the in Albany, which more appropriately fits NYSBA’s staff- 2018-19 term of Past President Michael Miller. ing and other needs, offers greater flexibility to revisit a 2. See John H. Gross, Report of Chair of the Finance Committee to the House of New York City satellite site that further serves downstate Delegates (Apr. 2021). members. 3. See Domenick Napoletano, Report of Treasurer to House of Delegates (Apr. 2021), at 3. 4. See New York State Bar Association – Rededication November 10, 1990, at 6. The timing of the current lease expiration, and lessons 5. “It should be noted that the current facilities management team is doing an excep- learned from the pandemic, compel us to examine and tional job of keeping the space properly heated and ventilated with extremely old equip- transform how NYSBA does business, maximize its reach ment.” See Metropolis Due Diligence Report – One Elk Street (Feb. 22, 2021). 6. Outside design consultants estimate the association needs about 25,000 square feet and, most importantly, improve how it attracts and serves to house staff, accommodate multiple meeting rooms for members and a large recep- its members in the next decade and beyond. tion room that can fit at least 50 people for CLE and other programs. See Diana Cesta, MADesign – Program Development for New Office Space (Feb. 10, 2021). Our Bar Center is a great symbol of our association, 7. In 2020 the association returned an additional $36,479 to the foundation for pro- one that we are rightfully proud of. But the spirit of our grams that were not completed due to the pandemic. 8. In 2020, the foundation’s business operational costs provided by the association association and its work is not grounded in any physical were estimated at $400,000. This does not include the cost of salaries of the founda- location. The important work of our association and its tion’s two dedicated staff, whose salaries are reimbursed by the foundation. The association also assists the foundation in its fundraising efforts, and last year helped raise causes does not, and will not, waver or diminish depend- approximately $144,000 in contributions in conjunction with renewal of association ing on where we meet, whether it be at One Elk in membership dues, and $82,000 from association sections. 9. See MCI Group, Report for New York State Bar Association – Developing a Albany, or at meetings in Cooperstown, New York City, Membership Growth & Engagement Strategy (Nov. 2018). or even when we meet remotely.

FREQUENTLY ASKED QUESTIONS

WHO OWNS THE BAR CENTER AT ONE ELK STREET? be required to keep One Elk viable as the long-term home of the association, at an estimated cost in excess of $4.8 million over the The New York Bar Foundation is legal owner of the building. next three years. The association transferred title of the Elk Street properties to the foundation in exchange for promissory notes, which were subsequently forgiven by the association. Initially, the founda- WILL IT COST MORE TO LEAVE THAN TO STAY? tion, as owner, paid for the maintenance and upkeep of the No, the cost savings if the association were to move to suitable building, but was unable to keep up with the costs. Since the space in downtown Albany are substantial. The association’s expansion of the Bar Center in 1990, the association has paid all finance committee estimates the cost of remaining at One Elk rent, utilities, taxes, housekeeping, internal and external repairs under current lease terms, including the cost of renovations, will for One Elk. The total cost to rent and maintain One Elk costs be about $18 million over the next 10 years. The cost of renting the association in excess of $1 million per year. The current lease space suitable for the association’s needs including estimated expires Dec. 31, 2021. moving costs will be about $7.5 million over that same time. The association stands to save about $10 million over the next WHY IS THE ASSOCIATION CONSIDERING decade if it moves. LEAVING ONE ELK? The association is considering alternative space because its needs WILL NEW SPACE BE COMPARABLE TO ONE ELK? have changed. One Elk is about 60,000 square feet of total space. No, nothing is comparable to One Elk. The new facilities space Prior to the pandemic, the association had downsized from will likely be in downtown Albany, sufficient to house all of the about 125 to 89 employees and was only using about half of association staff, with meeting rooms for 20 to 30 people and a the available space. Thanks to the vision of past leadership, the large conference room to house at least 50 people sitting for a association has increased its use of technology so that staff can CLE program and almost 100 standing for a reception. More than work remotely and seamlessly. Looking to the future, the asso- 90% of association CLE programs and meetings need to accom- ciation believes that it can attract more diverse and experienced modate fewer than 50 people, so the association will be able to staff if it incorporates remote working for certain positions. It is host substantially all the meetings and programs it hosted pre- estimated that the association needs about 25,000 square feet of pandemic. Meetings in excess of 100 people, like the House of facilities space to be fully functional. In addition to the costs of Delegates, which meets in Albany two times per year, will have renting and maintaining One Elk, the association has obtained to be outsourced. outside consultants who advise that substantial renovations will

New York State Bar Association 12 Journal, May/June 2021 Who’s a Parent? The Appellate Division Is Divide d on the Answer By Joseph Williams

uestion: How many parents can one child have? Cur- CPSA has made it easier than ever for New York families Qrently, the answer depends on where in New York (especially LGBTQ families) to protect and secure their your family is being created. The Appellate Division appears parental status. With the paradigm shifting from a focus to be of several minds on the matter – the Fourth Depart- on biology to a focus on parental intent, parents are able to ment recently ruled that there can only be two parents – build their families how they want to. no matter what – but other Departments have disagreed, Without question, two men can now both be parents authorizing and approving “tri-parentage” arrangements to a child, as can two women. But what about two men wherein three adults have been deemed legal parents of a and a woman? Or two women and a man? Under what child. This has created a split within the Appellate Division, circumstances, if any, can a child have more than two resulting in the application of different standards depending legal parents? on where in New York you are filing your petition. That is exactly the question that was recently addressed by With the recent passage of the Child-Parent Security Act the Fourth Department in Tomeka N.H. v. Jesus R.1 (CPSA), New Yorkers now have more family formation options available to them than ever before. And with the FACTS OF THE CASE creation of streamlined proceedings for establishing parent- In Tomeka, the biological mother became pregnant by the age for children born through assisted reproduction, the biological father. Within weeks of conception (while the

Joseph R. Williams, an attorney with the Albany law firm Copps DiPaola Silverman, practices primarily in adoption, assisted reproduction and surrogacy law, and was actively involved in the drafting and lobbying for the CPSA. He is also the cofounder and director of surrogate services for the New York Surrogacy Center, a surrogacy matching program working with prospective surrogates and intended parents. 13 Journal, May/June 2021 biological mother was still pregnant), the biological father parents who entered into a preconception agreement with told her that he wanted nothing to do with the child. a gestating parent to conceive and parent a child together.4 Shortly thereafter, the biological mother began a roman- However, the court in Brooke S.B. specifically did not opine tic relationship with Tomeka. The biological mother and on what would happen if a couple entered into a post-con- Tomeka agreed, prior to the child’s birth, that they would ception (rather than pre-conception) parentage agreement – raise and parent the child together. as the parties in the Tomeka case did. In fact, the court said: Thereafter, Tomeka acted in every capacity as a parent. “Whether a partner without [a preconception agreement] Tomeka attended ultrasound appointments, put together can establish standing and, if so, what factors a petitioner the nursery, attended the child’s delivery, cut the child’s must establish to achieve standing . . . . are matters left for umbilical cord, and held the child immediately upon another day, upon a different record.”5 birth. They named the child after one of Tomeka’s fam- That left the door wide open for the Fourth Department to ily members and hyphenated her last name to reflect the analyze this issue in Tomeka and make some good caselaw last names of both mothers. They resided together as a regarding establishing parentage based on the intent of the family and shared all parenting responsibilities, including parties and the best interests of the child. Unfortunately, feeding, bathing, changing, nurturing, and playing with that is not what happened. Instead, the Fourth Department the child. Tomeka attended the child’s medical appoint- zeroed in on a footnote in Brooke S.B. which states that the ments, parent-teacher conferences, school dances, and language of DRL § 70 (which authorizes “either” parent to taught the child how to ride a bike. Meanwhile, the file for custody) “clearly limits a child to two parents, and biological father was never in the picture and even denied no more than two, at any given time.”6 Applying this, the he was the child’s father, on the record, during a court Fourth Department held that, because the child already had proceeding. two biological parents, “there simply can be no more,”7 and When the child was two, Tomeka sought to formally adopt Tomeka was out of luck. her. Upon receiving notice of the adoption (and for the This footnote, however, merely constitutes dicta from the first time in the child’s life), the biological father asserted Court of Appeals – not the rule of law created by the case paternity and requested a DNA test. An order of filiation – and the court did not directly address (or even consider) was issued, and the biological father was legally established the question of tri-parentage in Brooke S.B. In the few years as the child’s second parent (in addition to the biological since Brooke was issued, this little footnote full of dicta has mother). Despite this, Tomeka continued to act as a parent been the source of much litigation and much confusion, for the next five years, with the consent and acquiescence of and has been applied (or not applied) with drastically differ- both biological parents. ing results statewide. However, when Tomeka filed for custody when the child was six years old, her petition was dismissed by the Mon- INCONSISTENT APPLICATION roe County Family Court, who held that she did not have While the Fourth Department seems to interpret this dicta standing as a parent to seek custody. Tomeka and the as gospel in Tomeka, the Second Department has taken attorney for the child appealed. The attorney for the child a different (and more sensible approach) in the Frank G. reported that the child considered Tomeka a parent and case.8 In that case, a biological father, biological mother, wanted her to remain a constant presence in her life. Shortly and the biological father’s same-sex partner were all afforded after the family court decision, Tomeka and the biological standing by the Second Department, thus creating a tri- mother ended their relationship and Tomeka was no longer parentage arrangement.9 allowed to see the child. There are also decisions from the New York County Fam- 10 11 THE APPEAL ily Court (in the First Department) and the Suffolk and Westchester12 County Supreme Courts (in the Second On March 20, 2020, the Fourth Department affirmed Department) declaring three parties to be legal parents of a the family court’s decision, holding that Tomeka could child. Specifically, the Suffolk County Supreme Court has not possibly have standing as a parent because Domestic held that “tri-custody is the logical evolution of the Court Relations Law § 70, which authorizes “either parent” to file of Appeals’ decision in Brooke S.B.,”13 and the New York for custody, “simply does not contemplate a court-ordered County Family Court has held that “[t]he parent-child 2 tri-custodial arrangement.” In other words, according to relationships fostered by children . . . who are being raised the Fourth Department, a child can never have three legal in a tri-parent arrangement, should be entitled to no less parents – the law simply does not allow it. protection than children raised by two parties.”14 The Fourth Department cited to the famous Court of At least two courts in the Third Department have approved 3 Appeals case Brooke S.B. v. Allison A.C.C. That case, three-parent adoptions resulting in the child having three which vastly expanded parentage law for same-sex families, legal parents (and the Department of Health has even issued bestowed parental rights upon non-genetic, non-adoptive amended birth certificates with all three parents listed as the

New York State Bar Association 14 Journal, May/June 2021 child’s parents).15 Clearly, the Tomeka decision creates a stark father/sperm donor who has no established relationship division between the Appellate Departments. with the child, or the person who shares a close parent-child Unfortunately, in a decision issued on March 29, 2021, the relationship with the child whose parentage was established Court of Appeals declined to grant leave to appeal in the by some other, non-biological, means? Tomeka case, allowing this department split to stand and If the court selects the biological father (as it did in Tomeka), declining to address the inconsistency created by the court’s that sends a very clear message that Tomeka and all other footnote in the Brooke S.B. decision. non-biological, non-adoptive parents are merely “second class” parents in the eyes of the law – a decision that will IMPACT ON NEW YORK FAMILIES disproportionately impact LGBTQ families. It is important to occasionally take off our “lawyer hats” We contacted the petitioner in this case – Tomeka herself – and remember that these are not just cases – these are real and here’s what she had to say: families. These are real children who are growing up with This has taken quite a toll on me and my daughter the love and support of three parents. However, given its . . . I have suffered greatly waiting to find out whether holding in Tomeka, the Fourth Department has now affir- or not I will be able to see my daughter again. Birthdays matively denounced such relationships and declared that pass, holidays pass, life is passing us by . . . these are they cannot be legally recognized. So, putting our lawyer not just dockets, but actual people and children that hats back on, what happens to these families? What hap- are suffering. My life and my daughter’s life are forever pens to their legal relationships as parents and children? changed and impacted by this situation. And now that the Court of Appeals has declined to weigh in on this issue, does that mean that families in the First and FINAL THOUGHTS Second Departments have different or additional parental The question remains: does that dicta in the Brooke S.B. rights than those in the Fourth? Without question, a family decision mean that under no circumstances a child can created in Buffalo should be treated and regarded the same have more than two parents? Would such a principle be as a family created in Long Island; however, as the caselaw consistent with recent legislative intent for parentage to be currently stands, that is not the case at all. established based on the intent of the parties, rather than Furthermore, this ruling from the Fourth Department has simply based on biology? Would this approach impermissi- the very real effect of creating classes of parentage (at least bly categorize parents into “tiers” of parentage with unequal for parents in the Fourth Department). If a biological or parental rights? And is that type of bright-line rule consis- adoptive parent will always be treated as a legal parent (as tent with our state’s policy of making custody and parentage suggested by the court in Tomeka), those are “first class” par- determinations based upon the “best interests” of children? ents. That means that non-biological, non-adoptive parents Unfortunately, the Court of Appeals has passed on its (like Tomeka) are relegated to “second class” status – only opportunity to answer any of these difficult questions, able to establish parentage so long as two others haven’t leaving it to family law attorneys to make sense of this con- beaten them to it. The Fourth Department’s decision creates flicting precedent and to continue the fight for parentage a “race to the courthouse” to be the first two parties declared equality on behalf of our clients. to be the legal parents. If Tomeka had attempted to establish parentage (i.e., through estoppel or based on parental 1. 183 A.D.3d 106 (4th Dep’t 2020). intent) before the biological father sought a DNA test, she 2. Id. may very well have been declared to be a parent after all. 3. 28 N.Y.3d 1 (2016). At the very least, she would not have been denied standing 4. For example, if a same-sex female couple decided to become pregnant using a sperm donor, both mothers would be recognized as parents under the principles estab- based on the child already having two legal parents. lished in Brooke S.B. Here’s an example from a recent Second Department case 5. 28 N.Y.3d at 28. that illustrates the point: In Joseph O. v. Danielle B., two 6. Id. at 18, n.3. 7. Tomeka N.H., 183 A.D.3d at 111. 16 married women had a child together using a sperm donor. 8. See Frank G. v. Renee P.-F.., 142 A.D.3d 928, (2d Dep’t 2016); In re Giavonna Although both mothers were deemed legal parents pursuant F.P.-G., 142 A.D.3d 931, (2d Dep’t 2016); Renee P.-F. v. Frank G., 161 A.D.3d 1163, to the marital presumption and the principles established in (2d Dep’t 2018). 9. The Court of Appeals denied leave in that case, thereby allowing the “tri-parent- Brooke S.B., the sperm donor later sought to be declared the age” arrangement established by the Second Department to stand. child’s father. Rather than dismissing the sperm donor’s peti- 10. David S. v. Samantha G., 59 Misc. 3d 960 (Family Ct., N.Y. Co. 2018). tion (even though there were already two legal parents), the 11. Dawn M. v. Michael M., 55 Misc. 3d 865 (Sup. Ct., Suffolk Co. 2017). court scheduled a hearing on equitable estoppel. Although 12. Unreported decision. the sperm donor ultimately lost, if the judge had ruled dif- 13. Dawn M. v. Michael M., 55 Misc. 3d at 870. ferently at that hearing, the sperm donor could very well 14. David S. v. Samantha G., 59 Misc. 3d at 966. have been declared to be the child’s father. If there are only 15. In a different decision, the Third Department ruled that three parents cannot “all simultaneously have standing to seek custody” (Shanna O. v. James P., 176 A.D.3d two parents allowed (as the Fourth Department has held), 1334, 1335 (3d Dep’t 2019)). who gets parental rights in a case like this? The biological 16. 158 A.D.3d 767 (2d Dep’t 2018).

New York State Bar Association 15 Journal, May/June 2021 Gail Ehrlich has had careers in public service as both a lawyer and an educator. A 1981 graduate of Boston University School of Law, she was a prosecutor and later, a legislative counsel for a New York City councilmember. In 2003 she changed careers to teach law, history and government at a Bronx high school, where she coached students in moot court and mock trial competitions. Retired from teaching, she joined the Pace Women’s Justice Center as a pro bono lawyer in the Family Court Legal Program aiding victims of domestic violence. She is chair of the NYSBA Committee on Law, Youth and Citizenship.

New York State Bar Association 16 Journal, May/June 2021 Fighting Misinformation: How New Laws Might Help By Gail Ehrlich

n the aftermath of the attacks on the U.S. Capitol ries and in the way they prey on our confirmation bias. Ion Jan. 6, Facebook and Twitter took unprecedented Even more problematically, disinformation touches on steps to ban then-President Trump from their platforms some of the most consequential issues facing our country, for amplifying conspiracy theories that the 2020 election including election integrity, vaccine safety and climate was “stolen.” But banning even the most active spreaders change, to name only a few. As we witnessed with the of disinformation on social media is not likely to solve the Jan. 6 insurrection, disinformation and conspiracy theo- problem, since the platforms themselves are designed to ries can spark physical violence and spur serious attacks promote extremism, disinformation and polarizing views. on our democratic institutions and the rule of law. Disinformation campaigns are increasingly sophisticated With 53% of Americans relying on social media as sourc- in their packaging of false content and conspiracy theo- es of news, the task of differentiating credible sources from disinformation is not always clear-cut. Studies show that fake news often has a greater likelihood of going viral than real news stories and that knowing online content NYSBA Events is false has little impact on people’s decision to share it. Join us on June 3 for “Advocating for the Facebook, for instance, was found to spread fake news Rule of Law,” a CLE program featuring a faster than any other social media site, referring its users keynote address by Jeh Johnson (former to untrustworthy news sites 15% of the time. U.S. Secretary of Homeland Security and partner at Paul Weiss), followed by a panel WHAT CAN WE DO ABOUT discussion. DISINFORMATION? On June 15, the NYSBA Committee on So, what can we do to address the problem of disinfor- Law, Youth and Citizenship is hosting a mation and the threats it poses to our democracy? webinar series called “Stopping the Spread When Twitter banned President Trump from its platform of Misinformation: First Amendment on Jan. 8, online misinformation about the election Considerations From Classroom to Courtroom.” This is presented in partner- plummeted by 73%. However, the deplatforming of ship with the Task Force on Free Expression President Trump by social media companies has not been in the Digital Age and the Committee on without criticism. Many conservatives believe that de- Media Law. platforming public figures like Trump exposes a media bias against right-wing voices, while Sen. Bernie Sanders

New York State Bar Association 17 Journal, May/June 2021 has said he doesn’t feel comfortable with Trump’s ban In fact, every newscast would need to feature a climate from social media out of concern for “how you preserve change denier in discussions on that topic or conspiracy First Amendment rights without moving this country theorists in conversation about the Jan. 6 riot. into a big lie mentality and conspiracy theories.” CIVIC EDUCATION IS KEY As even proponents of President Trump’s ban from Twit- ter and Facebook have acknowledged, these companies’ Given the difficulties in regulating disinformation, any acts of self-regulation are not likely by themselves to solve set of solutions must also include civic education as a the problem of disinformation online. way of building defenses against its spread and harmful effects. Two recent studies of “civic online reasoning” As important as corporate self-regulation will be govern- in a nationally representative sample of students illus- ment policy and oversight. The Biden-Harris Administra- trate some of the challenges our digital era presents for tion, for example, has advocated for repealing Section 230 educators. In 2016 and 2019, researchers at Stanford of the Communications Decency Act, which has allowed University analyzed responses of U.S. students from social media sites to avoid being considered publishers and middle school through college to tasks involving a range therefore not liable for the content found there. Reform of online sources. They found most students struggled to proposals for Section 230 have centered around requiring evaluate video evidence, assess website information, fact- social media companies to meet transparency standards in check article sources and validate social media claims. order to qualify for protections. Alternatively, Congress Middle school students often mistook online ads for might consider removing protections for specific types of news stories. content, such as disinformation or hate speech. In addition, with Democratic majorities in both the House and In order to preserve the rule of law, we need an enlight- Senate, we could see other technology regulations that ened citizenry, capable of discerning fact from fiction, on advance privacy rights. In New York State, the Assembly social and news media outlets and honing their ability to introduced a bill that would require consumers to opt into debate in public forums with fairness and civility. There personal data collection and its uses. are many innovative approaches to fighting misinformation and disinformation on social media and strengthen- Another key area of debate over regulation centers ing the guardrails of informed civic engagement. Democ- around the Fairness Doctrine, which originated in 1949 racyReady NY, for example, has recently called for as part of a series of regulations on broadcast media. implementation of media literacy teaching standards in This policy required that broadcasters covered issues by New York State. There are also excellent national online presenting opposing viewpoints in order to protect the forums like newslit.org, which provide news literacy rights of audiences to diverse sources of information. resources not only for students and educators but for The FCC repealed the Fairness Doctrine in 1987 under everyone who wants to hone their fact-checking skills. President Reagan. Given the complexities of the problem of disinforma- Many advocates have argued for a new Fairness Doctrine tion, the solutions will have to come from many sectors for the digital age. However, while the limited availability acting in concert. Corporations, governments, educators of radio and television channels provided a rationale for and journalists will all have important roles to play in the original Fairness Doctrine, no such scarcity exists determining how to prevent the spread of disinformation today. With the plethora of media outlets, it’s not clear while also addressing the vast public appetite for sharing how a renewed Fairness Doctrine would look in practice, and consuming it. and how it would solve the problem of disinformation.

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New York State Bar Association 19 Journal, May/June 2021 Amendments to Uniform Rules, Part 2 By David L. Ferstendig

David L. Ferstendig, a member of Law Offices of David L. Ferstendig, New York, was a founding officer of the law firm Breindel & Ferstendig. He litigates a spectrum of civil and commercial matters, including breach of contract, products liability, toxic tort, insurance and reinsurance coverage, jewelers’ block, political risk, environmental liability, trade secret, and professional indemnity. He is also an adjunct law professor at Brooklyn Law School and New York Law School. Ferstendig is a member and past chair of the CPLR Committee for NYSBA and is editor of the New York State Law Digest, where this article also appears.

New York State Bar Association 20 Journal, May/June 2021 e continue our analysis of the amendments to are limited to 25, including subparts, and the limit Wthe Uniform Rules for the Trial Courts. applies to consolidated actions. Please Follow the Extensive ESI Guidelines. Efficient Privilege Logs, Meet and Confer. New § 202.20-a: Discovery of ESI from Nonparty. New § 202.20-j: Entitled “Privilege Logs.” The parties should meet and Entitled “Electronically stored information.” This sec- confer at the beginning of the case “and from time to tion provides that parties and nonparties are to follow time thereafter” to discuss the following issues: the the ESI guidelines in the Appendix. scope of the privilege review; the amount of informa- The Guidelines state that they are not intended to tion to be set forth in the privilege log; the use of modify governing case law or replace the Commercial categories to reduce document-by-document logging; Division Rules, the Uniform Rules, the CPLR or “any whether categories of information can be excluded; other applicable rules or regulations pertaining to the and any other relevant to privilege review issues, New York State Unified Court System.” In fact, the including the entry of an appropriate non-waiver

Guidelines are to be construed in a manner consistent order. “To the extent that the collection process and with them. The purpose of the Guidelines is to pro- parameters are disclosed to the other parties and those vide for the efficient discovery of ESI from nonpar- parties do not object, that fact may be relevant to ties, to assess early the potential costs and burdens the Court when addressing later discovery disputes.” on nonparties “in preserving, retrieving, reviewing 202.20-a(a). The parties’ agreements and protocols and producing ESI given the nature of the litigation are to be memorialized in a court order. If the parties and the amount in controversy,” to identify where the cannot enter into an agreement or protocol, the court requesting party will have to defray the nonparty’s ESI is to issue its own order covering the issues noted in costs, and to encourage informal resolution of any (a) above, and the allocation of costs and expenses ESI disputes without court intervention. The parties between the parties. 202.20-a(b). should cite to the Guidelines in their ESI discovery The 10/7 Rule for Depositions. New § 202.20-b: requests. The Guidelines provide that a party seeking Entitled “Limitations on Depositions.” Unless stipu- ESI discovery should engage in early discussions (“as lated by the parties or court ordered, depositions taken early as permissible in an action”) with the nonparty by the plaintiffs, defendants, or third-party defendants regarding ESI and is encouraged to discuss the imple- are limited to 10 and seven hours per deponent. Nev- mentation of a litigation hold. ertheless, the propriety of and timing for non-party ESI discovery requests to a nonparty are to be limited, depositions are subject to any restrictions imposed by taking into consideration certain “proportionality fac- applicable law. Moreover: tors,” such as the importance of the issues at stake, the • For the purposes of both the number and dura- amount in controversy, the anticipated importance of tion of the depositions, the deposition of an the ESI requested, its availability from other sources entity through one or more representatives is to including a party, the ESI’s “accessibility” (as defined be treated as a single deposition, even if more by case law), and the nonparty’s burden and costs. than one person is designated to testify on behalf ESI discovery disputes should be resolved informally of the entity. Nevertheless, “the cumulative pre- without court intervention, initiating motion practice sumptive durational limit may be enlarged by only as a “last resort.” The requesting party and non- agreement of the parties or upon application for party should meet and confer as to the scope of the leave of Court, which shall be freely granted.” ESI discovery, the form and timing of production, • A deposition of an officer, director, principal, or minimizing the costs and burdens (including claw- employee who is also a fact witness (as opposed back issues and the use of advanced analysis screening to a CPLR 3106(d) entity representative) consti- software) and the requesting party’s defrayal of the tutes a separate deposition. nonparty’s production expenses. The proportionality • The court can alter the above deposition limits factors noted above should be considered. If an agree- (number and duration) for “good cause shown.” ment cannot be reached, the party and nonparty “are encouraged” to avail themselves “of the Court System’s • Nothing in this section is to be construed to alter resources,” including requesting a telephone confer- a party’s right to seek appropriate relief under the ence with a law clerk or special referee or the appoint- CPLR or other applicable law. ment of an unpaid mediator. The requesting party is Produce Documents or Object with Particularity. to defray the nonparty’s reasonable production costs, New § 202.20-c: Entitled “Requests for Documents.” pursuant to CPLR 3111 and 3122(d). A CPLR 3122(a) document response must state either Interrogatories Limited to 25. New § 202.20: that the documents will be provided as requested Unless otherwise ordered by the court, interrogatories or the grounds for any objection, with reasonable

New York State Bar Association 21 Journal, May/June 2021 particularity. 202.20-c(a). Each response must state other individuals and provides the matters on which (i) whether the objection is to all or part of the each individual will testify. 202.20-d(d). The subpoe- request, (ii) whether the documents or categories of na is to advise a non-party entity of its duty to provide documents will be withheld, and if so, which objec- the designations. 202.20-d(e). The designated indi- tions apply, and (iii) how the responding party intends viduals must testify about information known or rea- to limit the document production. 202.20-c(b). Each sonably available to the entity. 202.20-d(f). Testimony response must verify whether responsive documents in provided pursuant to this rule can be used against the its possession, custody or control are complete or that entity as per CPLR 3117(a)(2) and applicable eviden- there are no responsive documents to the request (as tiary rules. 202.20-d(g). The rule does not preclude a propounded or modified) in its possession, custody or deposition by any other procedure the CPLR permits. control. 202.20-c(c). A party’s obligation to supple- 202.20-d(h). ment its disclosure under CPLR 3101(h) remains Strict Compliance with Discovery Deadlines. New unaffected. 202.20-c(d). § 202.20-e: Entitled “Adherence to Discovery Sched- The parties are encouraged to use the most ule.” Parties must “strictly” comply with discovery efficient means to review documents, including deadlines in a scheduling order. An application for electronically stored information (“ESI”), that an extension of a deadline must be made “as soon is consistent with the parties’ disclosure obliga- as practicable” and before that deadline has expired. tions under Article 31 of the CPLR and pro- Failure to comply with a scheduling order can result portional to the needs of the case. Such means in sanctions or other CPLR 3126 relief. 202.20-e(a). may include technology-assisted review, including predictive coding, in appropriate cases. The parties Where a party seeks documents as a condition prec- are encouraged to confer, at the outset of discovery edent to a party’s deposition, but the documents are and as needed throughout the discovery period, not produced by the date fixed, the requesting party about technology-assisted review mechanisms they can ask the court to preclude the non-producing party intend to use in document review and production. from introducing at trial the demanded documents. 202.20-c(e). 202.20-e(b). Significantly, Commercial Division Rule Absent good cause, a party cannot use at trial or oth- 13, upon which this new rule is based, contains a erwise any responsive document not produced, for subdivision (c) providing for expansive disclosure of which no objection was made, or if an objection was testifying experts, including a set deadline for identify- made, it was overruled by the court. 202.20-c(f). ing experts, reports and depositions. This is a bridge too far to cross in view of the plaintiffs’ bar’s adamant Deposing Entities on Specific Matters. New opposition to the deposition of experts (and deadlines) § 202.20-d: Entitled “Depositions of Entities: Iden- in personal injury cases. tification of Matters.” It provides for a mechanism to identify specific matters on which to examine Resolving Discovery Disputes Informally. New an entity at its deposition. An entity is defined as § 202.20-f: Entitled “Disclosure Disputes.” “To “a corporation, estate, trust, partnership, limited the maximum extent possible,” parties are to resolve liability company, association, joint venture, public discovery disputes through informal procedures corporation, government, or governmental subdivi- (e.g., conferences), rather than motion practice. sion, agency or instrumentality, or any other legal 202.20-f(a). Prior to contacting the court and absent or commercial entity.” 202.20-d(a). The notice or exigent circumstances, counsel are required to consult subpoena can set forth, with reasonable particularity, in good faith, in person or via a phone conference, the matters upon which the person is to be examined. to resolve discovery disputes. If a discovery dispute 202.20-d(b). If the notice or subpoena does not iden- cannot be resolved, a discovery motion requires the tify a particular person, but sets forth the matters for submission of an affidavit/affirmation of good faith, examination, then at least 10 days before the deposi- providing the date and time of the conference, the per- tion, the entity must designate and identify the indi- sons participating, and the conference’s duration. An vidual, with knowledge, including the name and title unreasonable failure or refusal by counsel to partici- or description, who consents to testify; and, if mul- pate in a conference can relieve the requesting party tiple persons are designated, the matters about which of its obligation to comply with this paragraph and each individual will testify. 202.20-d(c). If the notice can result in sanctions under 22 N.Y.C.R.R. Part 130. or subpoena names a specific individual (including the In such an instance, the moving party must include in individual’s identity, description or title) and includes its affirmation/affidavit details of the moving party’s the matters for examination, the entity is required to efforts to seek a conference and the responses received. produce the designated person, unless it notifies the 202.20-f(b). Counsel’s failure to comply with this rule requesting party at least 10 days before the deposition can result in the discovery motion being denied with- that it will produce another identified individual or out prejudice to renewal once compliance is achieved

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New York State Bar Association 23 Journal, May/June 2021 www.NYSBAInsurance.com or the motion can be held in abeyance until the ing the testimony, and (b) the opposing party can object court’s informal resolution procedures are conducted. to statements in the affidavit and the court is to rule 202.20-f(c). Note that the “affirmation of good faith” has on those objections as if the statements had been made been around for a long time and is already contained and orally in open court. Where an objection is sustained, discussed in § 202.7(a), (b), (c) and (d). the court can direct that that portion be stricken. The Disclosure Conferences by Non-judicial Personnel. submission of a direct testimony affidavit does not affect New § 202.20-g: Entitled “Rulings at Disclosure Con- any rights of cross-examination or re-direct examination ferences.” The rule prescribes procedures governing dis- of the witness. closure conferences conducted by non-judicial personnel. Staggered Court Appearances, Do Not Come All Specifically, it requires that, prior to the conference’s at Once. New § 202.23: Entitled “Staggered Court conclusion, at a party’s request: Appearances.” This rule was promulgated to increase the • all resolutions be dictated into the record, and the court’s efficiency, to reduce attorneys’ time waiting for a transcript submitted to the court to be so-ordered matter to be called and to streamline the litigation pro- or the court can enter an order incorporating the cess. The preamble to the rule stresses that to be success- resolutions; ful, litigants, their counsel and the court need to cooper- ate and adhere to the rules. The rule provides for stag- • the parties submit for the presiding judge’s approval gered court appearances by which each court appearance and signature, a writing setting forth those resolu- for oral argument on a motion will be assigned either tions; or a specific time or a time interval, solely in the court’s • the parties can prepare an outline of the material discretion. 202.23(a). To permit the court to address all terms of the resolutions and, within one business matters and to avoid the appearance of holding ex parte day of the conference, jointly submit a stipulated communications, even parties who believe that they may proposed order, memorializing the resolutions. If not be directly involved in the specific matter before the the parties cannot agree on the form of the pro- court must nevertheless appear on the assigned date and posed order, they are to advise the court so that the time, unless the court expressly excuses them. 202.23(b). court can direct an alternative course of action. Attorneys who receive notification of a specific date and Pretrial Memoranda, Exhibits, Binders and Jury time for an appearance are required to notify all other parties via e-mail (to take into account the possible Instructions. New § 202.20-h: Entitled “Pre-Trial failure of the court notification system). Parties are to Memoranda, Exhibit Book and Requests for Jury Instruc- exchange e-mail addresses when the action is commenced tions.” At the pre-trial conference or at another time set and are to keep those e-mail addresses current. 202.23(c). by the court, each side is to submit a pre-trial memoran- Requests for adjournments are to be in writing to the dum, no longer than 25 pages (and serve it pursuant to court and all parties and transmitted “in such manner as CPLR 2103(e)). No memorandum in response is permit- the court may direct, so as to be received no later than 48 ted. 202.20-h(a). On the first day of trial, or at another hours before the hearing” and are to advise whether the time set by the court, counsel is required to submit an other parties consent. 202.23(d). indexed binder, notebook, or electronic equivalent of trial exhibits for the court’s use, a copy for each attorney Good Faith Consultation Before Preliminary and on trial, and originals in a similar binder or notebook Compliance Conferences. New § 202.11: Entitled for the witnesses. Plaintiff’s exhibits are to be numeri- “Consultation Prior to Preliminary and Compliance cally tabbed; defendants’ alphabetically. 202.20-h(b). In Conferences.” Before a preliminary or compliance con- a jury trial, on the first day of trial or at another time set ference, the parties’ counsel are to consult, and to make by the court, counsel must provide case-specific requests a good faith effort to reach an agreement prior to the to charge and proposed jury interrogatories. A charge conference on the following matters: from the New York Pattern Jury Instructions (PJI) can • resolution of the case (in whole, or in part); be referenced by its PJI number. Submissions should be by hard copy and electronically, as directed by the court. • discovery, including ESI, and any other issues to be 202.20-h(c). With respect to trial memoranda, there is discussed at the conference; some overlap between this rule and § 202.35(c). • the use of alternative dispute resolution; and Nonjury Trial Direct Testimony by Affidavit. New • the voluntary and informal exchange of information § 202.20-i: Entitled “Direct Testimony by Affidavit.” that the parties agree might help early settlement. In a non-jury trial or evidentiary hearing, the court can Settlement Conferences, Pretrial Conferences and require that direct testimony of a party’s own witness be Undisputed Expert Testimony. § 202.26: The entire submitted in affidavit form, provided that (a) the court existing rule (subparagraphs a–g) was replaced with cannot require submission of a direct testimony affidavit three subdivisions and retitled “Settlement and Pretrial from a witness not under the control of the party offer-

New York State Bar Association 24 Journal, May/June 2021 Conferences.” Subsection (a), entitled “Settlement Con- Can We Have Agreement on Exhibits at Trial? New ference,” provides that a court can schedule a settlement § 202.34: Entitled “Pre-Marking of Exhibits.” Prior to conference when a case is certified as ready for trial or trial, counsel must consult in a good faith attempt to after the discovery cutoff. Attendance is required for agree on exhibits to be offered into evidence without counsel and the parties “who are expected to be fully objection. Before the trial begins, each side is to mark prepared to discuss the settlement of the matter.” Sub- its non-objectionable exhibits, subject to court approval. section (b), entitled “Pre-Trial Conference,” requires that Those exhibits to which there is no consent are to be before trial, counsel is to confer in a good faith effort to marked for identification only. Counsel should consult identify matters not in contention, resolve disputed ques- the part clerk for guidance if the trial exhibits are volumi- tions without court intervention, and discuss settlement. nous. At the earliest possible time, the court is to rule on Where such a conference is scheduled, or otherwise objections to contested exhibits. Exhibits to be used only before opening statements, counsel must be prepared to for credibility or rebuttal purposes but not previously discuss disagreements between the parties and settlement. demanded do not have to be pre-marked. The court can require the parties to prepare a written Witness Lists, Order of Witnesses, and Length of stipulation of undisputed facts. Finally, subsection (c) is Testimony. New § 202.37: Entitled “Scheduling Wit- entitled “Consultation Regarding Expert Testimony.” It nesses.” When a trial commences or at another time provides that before and during trial, the court can direct directed by the court, each party is to provide the court that counsel consult in good faith to identify aspects of and opposing counsel with a written list identifying their experts’ anticipated testimony not in dispute. The witnesses intended to be called at trial, and the order court can further direct that any agreements reached be and length of their testimony. The time estimates for reduced to a written stipulation. testimony are advisory, and the court can permit further Please Tell the Court if the Case is Over. § 202.28: testimony exceeding the estimate. Separately, counsel is Entitled “Discontinuance of Civil Actions and Notice to provide to the court only a list of rebuttal or credibility to the Court.” The amendment totally replaces the exist- witnesses. For good cause shown, and in the absence of ing rule. The prior rule talked about filing stipulations substantial prejudice, a court can allow a party to call a within 20 days of discontinuance. The amended version, witness not previously identified. subsection (a), provides that where an action is settled, discontinued, or otherwise disposed of, “counsel” is to immediately advise the assigned judge or court part by submitting a copy of the stipulation or a letter to the part clerk together with notice to the assigned judge’s chambers by phone or email. The subsection notes that the notification above is in addition to the filing of the stipulation with the county clerk. 202.28(a). Note that CPLR 3217(d) provides that notices and stipulations of discontinuance are to be filed by the defendant with the county clerk. Subsection (b) of § 202.28 now provides that counsel and self-represented litigants are under a  COURT &LITIGATION 370 Lexington Ave. continuing obligation to notify the assigned judge in Suite 1101  writing “as promptly as possible” if an action is settled, BANKRUPTCY &DEPOSITORY New York, NY 10017 discontinued or otherwise disposed of, the case or  TRUSTS &ESTATES 212-986-7470 motion has become wholly or partially moot, or if a party 212-697-6091 Fax  has died or filed a bankruptcy petition. INDEMNITY &MISCELLANEOUS

Settlement Conference Before Another Judge. New  LICENSE &PERMITS [email protected] § 202.29: Entitled “Settlement Conference Before a Justice Other Than the Justice Assigned to the Case.” Counsel can jointly request at any time during the action that they be permitted to proceed with a settlement conference before another justice or judge. The request is to be made to the assigned justice, who in his or her discre- SURETY BOND SPECIALISTS tion can grant the request upon finding that “a separate settlement conference would be beneficial to the parties www.LevineCompany.com and the court and would further the interests of justice.” When granted, the assigned judge is to make arrangements for the designation of a “settlement judge.”

New York State Bar Association 25 Journal, May/June 2021 John Marsella is an assistant district attorney with the Monroe County district attorney’s office and an adjunct professor of ethics. He received his B.A. in political science from the University of Rochester in 2008 and his J.D. from American University, Washington College of Law in 2013.

New York State Bar Association 26 Journal, May/June 2021 Go to Bed: The Ethics of Exhausted Lawyering By John Marsella

uring my first week of fatherhood, I was not feel- estimated insufficient sleep leads to somewhere between Ding my sharpest and 3 a.m. diaper changes were $280 and $411 billion in annual economic loss in the getting the best of me. After years of late-night filings United States. Can an attorney competently ink billion- to meet expedited deadlines and sleepless nights dur- dollar deals, prepare defenses for clients facing a lifetime ing long trials, I thought I had been preparing for this in jail, or handle other high stakes matters while operat- moment my whole career. I was sorely mistaken. My ing on just a few hours of sleep? wife, board-certified in neurology and sleep medicine, That question is not easy to answer. In fact, there is a explained to me in no unclear terms that I was not built large body of case law addressing the singular question of to operate on a few hours of sleep. No one is. I was expe- how to deal with attorneys who sleep through criminal riencing sleep deprivation. trials. In New York, sleeping during the course of a trial Insufficient sleep affects huge numbers of attorneys. The is “reprehensible” but alone does not warrant a finding of adversarial process, tremendous levels of responsibil- ineffective assistance of counsel.1 In the Fourth Circuit, ity, and mountains of work make attorneys particularly an attorney sleeping every day of his trial for “30 minutes susceptible to sleep related disorders. The International at least” was a little too egregious for the court’s liking.2 Classification of Sleep Disorders has found that insuf- The court in Ragin deemed defendant’s counsel’s repre- ficient sleep syndrome occurs when an individual per- sentation was so insufficient it violated the defendant’s sistently fails to obtain the amount of sleep required to Sixth Amendment right to effective counsel.3 maintain normal levels of alertness and wakefulness. Falling asleep while driving in New York carries a rebut- 4 THE PREVALENCE OF SLEEP ISSUES AND table presumption of negligence. If falling asleep behind the wheel is negligent, what do we consider falling asleep THE EFFECTS OF SLEEPLESSNESS ON on the job? Ethically, lawyers are obligated to provide COMPETENT REPRESENTATION competent representation to their clients and numerous After another long night that was short on sleep, I attorneys have faced discipline as a result of insufficient couldn’t help but feel nervous about the trials I would be sleep. In New Hampshire an attorney who suffered from prosecuting just around the corner. Sure, forgetting the sleep apnea was suspended for three years due to his inat- reason I went to the grocery store because I was exhausted tention to litigation matters and numerous missed dead- was a bit embarrassing, but what if I missed a deadline, lines.5 In Virginia an attorney was caught sleeping and overlooked important legal authority, or dozed off during snoring on the job, and his denials and lack of candor in a court appearance? Sleep loss and sleep-related disorders relation to the incident led to a six-month suspension. In have been linked to many catastrophes, including the 2018 a Minnesota attorney asked for leniency during his Chernobyl nuclear explosion, the Exxon Valdez oil spill, disciplinary proceeding because of his sleep deprivation and the Challenger space shuttle tragedy. A recent study and high levels of stress.6 The court found the attorney’s

New York State Bar Association 27 Journal, May/June 2021 substantial sleep deprivation may be considered as a light plays an important role in regulating your melato- mitigating factor but upheld his indefinite suspension nin and circadian rhythm. Getting light in the morning from the practice of law. In many attorney disciplinary can help with alertness. If natural light is not an option, matters, sleep disorders contribute to performance issues light therapy may help you maintain normal sleeping that lead to findings of misconduct. patterns. There’s no way to calculate how many wrongful convic- 4. Avoid blue light at night. tions, dismissed cases, or botched contracts are attribut- As a corollary to getting light in the morning, avoid able to lack of sleep, but the scientific research is clear. light in the evening. The blue light from our computer Sufficient sleep plays an important role in our health screens, cell phones, and electronic devices mimics that and well-being, cognitive performance, and workplace of the morning sun and prevents our body from prepar- productivity. The problem of insufficient sleep is wide- ing for sleep. Stop screen time a few hours before bed- spread, and it doesn’t only affect new parents, trial time. If you can’t pry yourself away from evening screen attorneys, or attorneys cramming to hit their billable time, use blue-light-blocking glasses or night-time light hour requirement. A recent Centers for Disease Control blocking modes or apps on your electronics. and Prevention study declared that more than a third of American adults are not getting enough sleep regularly 5. Avoid depressants. and that insufficient sleep is a public health problem. Perhaps that glass of wine or beer helps you relax at the This is particularly true for attorneys in high stress roles. end of the evening. Be careful; alcohol may help you fall It’s time for us to change the way we think about exhaus- asleep, but it interferes with deep restorative sleep and tion and fatigue in the office. can leave you drowsy and in a perpetual state of exhaustion. THINKING RESPONSIBLY ABOUT SLEEP AND THE PRACTICE OF LAW 6. Keep the bed and the office separate. Your bed should be a place for sleeping, not finalizing As attorneys, we can no longer blindly applaud our col- motions or responding to emails on your phone. If you league’s 3:00 a.m. emails or indiscriminately celebrate spend a significant amount of time in bed doing other that attorney who burns the candle at both ends. It’s activities, especially stressful ones, you may create a nega- time to adopt policies that promote good sleep hygiene tive association with your bed that can lead to further for yourself and that foster healthy habits in your col- sleep issues. leagues. Doing so does not have to come at the expense of accountability or high achievement. In fact, the 7. Keep a consistent schedule. opposite is likely true. The American Academy of Sleep Try to keep a consistent sleep schedule throughout the Medicine identifies attention deficits, increased errors, week. Many attorneys live by the “work hard, play hard” forgetfulness, distractibility, lack of concentration, and mantra. If you live for the weekends, try to keep your poor decision-making as some of the primary effects of weekend bedtime and risetime within one hour of your sleep deprivation. We should be doing everything we can normal schedule. Major discrepancies between your to minimize these effects. As rates of burnout, depression weekday and weekend sleep schedule can cause you to and anxiety in our profession continue to increase, it is feel exhausted, lead to “social jetlag” and contribute to important for us to start adopting better, more healthy anxiety about Monday mornings. habits and attitudes. So here are some tactics any sleep- deprived attorney can try: 8. Finally, be proactive and trust the professionals. If you’re constantly feeling tired during the day or too 1. Know yourself. exhausted to perform daily activities, you should speak to Each individual has a unique circadian rhythm. Whether your primary care physician or seek a referral to a sleep you’re a night owl or early bird, plan your day according- specialist. If you’re waking up and you still don’t feel ly so you can knock out important work when you know rested, you may be suffering from sleep apnea or other you’ll be most effective. Take a break when you need it. sleep disorders. The consequences of long-term sleeplessness can be devastating on your health, well-being, and, 2. Put down that caffeine. if left unchecked, your career. Medical professionals can Try to avoid any caffeine after 4 p.m. as caffeine can stay help you get back on track. in your system for hours. Sometimes that cup of coffee you need to power you through your afternoon tasks can 1. See People v. Tippins, 173 A.D.2d (1991). later keep you up at night. 2. See U.S. v. Ragin, 820 F.3d 609 (4th Cir. 2016). 3. Id. 3. Get some light. 4. See Spivak v. Heyward, 248 A.D.2d 58, 60 (1998). Whether you’re in the corner office or a dimly lit cubicle, 5. Mesmer’s Case, 173 N.H. 96 237 (2020) it’s easy to lose track of night and day in the office. Sun- 6. In Re Petition for Disciplinary Action Against Adam William Klotz.

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New York State Bar Association 29 Journal, May/June 2021 New Normal of Remote Lawyering Has Ethical Implications

By Carrie H. Cohen and Chan-young Yang

New York State Bar Association 30 Journal, May/June 2021

New York State Bar Association 30 Journal, May/June 2021 he “new normal” of remote lawyering has serious mation . . . obtained during or relating to the representa- Timplications related to the legal profession’s ethical tion of a client,” absent informed client consent or other mandate to serve clients competently and confidentially, applicable exceptions.3 An attorney thus “shall make rea- even under such unprecedented circumstances. Set forth sonable efforts to prevent the inadvertent or unauthor- below is a discussion of the ethical implications of the ized disclosure or use of, or unauthorized access to,” such new paradigm of remote legal representation in light of confidential information.4 Comment 16 to this Rule the duties of competence, confidentiality, and supervi- further specifies that these reasonable efforts should safe- sion under the New York Rules of Professional Conduct guard against (1) inadvertent or unauthorized disclosure and recommendations of specific measures that lawyers by the attorney or other persons participating in the rep- working remotely should consider in order to comply resentation or otherwise subject to the attorney’s supervi- with such duties. sion, and (2) unauthorized access by third parties.5 The attorney also may have to implement special security RELEVANT NEW YORK RULES OF measures beyond the scope of this Rule, if required by PROFESSIONAL CONDUCT client demands or by court orders or other laws.6 Lawyering from home implicates at least three impor- Notably, unauthorized disclosure or access is not in tant Professional Rules and corresponding duties: Rule itself a Rule violation, as long as the attorney has made 1.1 on the duty of competence; Rule 1.6 on the duty reasonable efforts to preserve confidentiality.7 Comment of confidentiality; and Rules 5.1 and 5.3 on supervisory 16 lists the following nonexclusive factors to evaluate responsibilities. Under these Professional Rules, attorneys the reasonableness of such efforts: (1) the sensitivity of in a remote work environment must conduct themselves the information; (2) the likelihood of disclosure without in the following manner: additional safeguards; (3) the cost of employing addition- • evaluate the benefits and risks of the remote-work al safeguards; (4) the difficulty of implementing these technology they use to work on client matters and safeguards; and (5) the adverse impact of these safeguards to store and transmit confidential information on the lawyer’s ability to represent clients (e.g., software 8 (Rule 1.1); rendered excessively difficult to use). • make reasonable efforts to safeguard confidential Accordingly, attorneys working from home must consid- information against unauthorized disclosure by the er the above factors and make reasonable efforts to ensure attorneys or their supervisees and against unau- that any unauthorized persons, such as family members thorized access by third parties, such as household or social visitors, do not access confidential documents members (Rule 1.6); and stored in a home office or overhear confidential communications. • if managing or supervising others, make reasonable efforts to ensure that other attorneys and non-attor- Supervisory Responsibilities neys comply with the above Rules (Rules 5.1 and Under Rule 5.1 (“Responsibilities of Law Firms, Part- 5.3). ners, Managers and Supervisory Lawyers”), a law firm Duty of Competence Under Rule 1.1 (“Competence”), an attorney should provide “competent representation to a client,” which requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”1 Carrie H. Cohen is a partner in the New York office of Morrison & Foerster and a mem- To maintain the requisite knowledge and skill, an ber of the firm’s investigations and white-collar attorney should “keep abreast of the benefits and risks defense practice where she co-chairs the associated with technology the lawyer uses to provide Workplace Misconduct Investigations Task Force. She was the chair of NYSBA’s Domestic services to clients or to store or transmit confidential Terrorism and Hate Crimes Task Force and of information.”2 In other words, attorneys should, at mini- the Commercial and Federal Litigation Section, and currently serves on NYSBA’s Racial Injustice mum, educate themselves about the pros and cons of the and Police Reform Task Force. home-office technology used in storing client data and communicating confidential information, and update Chan-young Yang is a litigation associ- their technological knowledge so as to competently ate in the San Francisco office of Morrison & Foerster. This article first appeared in handle client information while working from home. NYLitigator, a publication of NYSBA’s Commercial and Federal Litigation Section Duty of Confidentiality (NYSBA.ORG/COMFED). Under Rule 1.6 (“Confidentiality of Information”), an attorney “shall not knowingly reveal confidential infor-

New York State Bar Association 31 Journal, May/June 2021 and individual lawyers with management responsibility • avoiding the installation or use of smart devices that shall make “reasonable efforts to ensure” that all attorneys may access and record nearby conversations (e.g., in the law firm comply with the Rules, which encompass Amazon Alexa, Google voice assistant) in locations the duties of competence and confidentiality.9 Similarly, where work-related communications may take an attorney with direct supervisory authority of another place; attorney shall make reasonable efforts to ensure that • using secure video-teleconferencing technology with 10 attorney’s compliance with the Rules. Further, under rigorous security protocols (e.g., password-protected Rules 5.1 and 5.3 (“Lawyer’s Responsibility for Conduct meetings, targeted invitation); and of Nonlawyers”), a supervisory attorney (or a managing attorney at a law firm) may be found liable for a Rule vio- • employing methods of encryption or password pro- lation incurred by his or her supervisee (or an employee tection for written electronic communications that at the law firm), regardless of whether the supervisee is an contain particularly sensitive information or data. 11 attorney or non-attorney. CONCLUSION Consistent with these Rules, law firms, managing partners, and supervisory attorneys must make reasonable It is increasingly important to recognize the vital insti- efforts to ensure that their employees and supervisees tutional role law firms play in ensuring that individual (whether lawyers or not) who work from remote loca- lawyers comply with their professional duties in this new tions maintain the confidentiality of client information era of remote lawyering. Indeed, the Professional Rules and communications. require that law firms and managing partners make reasonable efforts to facilitate such compliance. They EXAMPLES OF BEST PRACTICES may do so by providing their employees with necessary technological assistance and training on remote legal In light of the above Rules, what specific measures of representation. Further, as noted earlier, lawyers are only “reasonable efforts” may attorneys implement while required to make “reasonable efforts” to comply with the working from remote locations? Consider the below Professional Rules. The “reasonableness” of certain con- examples of best practices recommended by the Penn- fidentiality safeguards depends on balancing factors such 12 sylvania Bar Association’s Formal Opinion 2020-300 as the actual cost or difficulty of implementing such safe- and the New York State Bar Association’s Cybersecurity guards. Firm-wide institutional support is crucial in this 13 Alert. regard, because it would render technologically feasible First, attorneys should enhance the physical and online – hence more “reasonable” – certain security measures security of their workspace by taking the following (e.g., firm-wide VPN or data backup infrastructure) that actions: would otherwise be unreasonably costly to attorneys at • using a Virtual Private Network (VPN) to create a the individual level. But, even small firms and solo prac- private remotely accessed digital workplace, where titioners would be wise to be aware of the ethical consid- only authorized persons can access client data; erations of working remotely and take steps to safeguard their clients’ confidential information. • avoiding public internet or free Wi-Fi susceptible to the risk of unauthorized access by hackers or mal- 1. Rule 1.1(a). ware installation; and 2. Comment 8 to Rule 1.1. 3. Rule 1.6(a). Confidential information consists of “information gained during or • securing laptops and devices with encryptions, relating to the representation of a client, whatever its source,” that is (1) protected by strong passwords, multi-factor authentication, fre- the attorney-client privilege, (2) likely embarrassing or detrimental to the client if dis- quent software updates, firewalls, and anti-virus and closed, or (3) requested to be kept confidential by the client. Id. 4. Rule 1.6(c) (“A lawyer shall make reasonable efforts to prevent the inadvertent or malware software programs. unauthorized disclosure or use of, or unauthorized access to, information protected by Rules 1.6, 1.9(c), or 1.18(b)”). Rules 1.9(c) and 1.18(b) address information protected In addition, attorneys should maintain the privacy of with respect to former and prospective clients. confidential communications that take place in their 5. Comment 16 to Rule 1.6. home office by engaging the following conduct: 6. Id. 7. Id. • maintaining a dedicated private area within the 8. Id. home office where conferences and conversations 9. Rules 5.1(a) and 5.1(b)(1). with clients or regarding client matters are held; 10. Rule 5.1(b)(2). • making reasonable precautions to ensure that family 11. Rules 5.1(d) and 5.3(b). 12. See Ethical Obligations for Lawyers Working Remotely, Pennsylvania Bar residents or visitors do not overhear ongoing client- Association Committee on Legal ethics and Professional Responsibility Formal Opinion related communications or have access to written 2020-300 (Apr. 10, 2020). correspondence; 13. See Cybersecurity Alert: Tips for Working Securely While Working Remotely, Technology and the Legal Profession Committee of the New York State Bar Association (Mar. 12, 2020).

New York State Bar Association 32 Journal, May/June 2021 New York’s New Right of Publicity Law: Protecting Performers and Producers

By Judith B. Bass

New York State Bar Association 33 Journal, May/June 2021 hen New York’s new right of publicity law also prohibits the use of a deceased individual’s voice and Wbecomes effective on May 29, 2021, a number image in advertising and for purposes of trade.”6 of new protections will become codified in New York that SAG-AFTRA’s decades-long efforts to enact a post- will benefit performers and celebrities, as well as their mortem right of publicity bill in New York were not in 1 estates. Significantly, however, these changes should not isolation.7 SAG-AFTRA has characterized these efforts negatively impact the film, television, theater, newspaper as “an incredibly important 34-year campaign by the and publishing communities, nor the photographers, art- performance community giving families the right to pre- ists and others working in New York who regularly utilize vent unwanted commercial exploitation of their deceased the images of performers to tell their stories, report the loved ones.”8 SAG-AFTRA’s Government Affairs Public news or otherwise. The balance struck by the law is com- Policy (GAPP) Committee has targeted working with mendable and a tribute to the drafters and organizations lawmakers and other “stakeholders” to “modernize laws” who worked for many years to implement this new law. to safeguard its members’ image and voice rights in a The right of publicity bill was passed at the end of July number of states.9 Many states currently have a post- 2020 unanimously in the New York State Senate and mortem right of publicity, and there is currently a wide with only one dissenting vote in the New York State variety of what those laws provide.10 One of the first such Assembly. The compromise language in the bill was a laws was enacted in California in 1999.11 result of “years of negotiations primarily between the Significantly, the new legislation leaves intact New York Motion Picture Association (MPA) and SAG-AFTRA, Civil Rights Law §§ 50 and 51, New York’s longstanding facilitated by Deputy Senate Majority Leader Mike Gia- “Right of Privacy” law.12 Those sections prohibit the use naris (D-Queens), and with input from news organiza- “for advertising purposes, or for the purposes of trade” of 2 tions, broadcasters and others.” After passage, the MPA the name, portrait or picture of any living person without sent a letter to Gov. Andrew Cuomo, urging him to sign obtaining his or her prior written consent. Those found the bill: to be in violation of § 50 are guilty of a misdemeanor. The Bill that awaits your signature represents the Under § 51, an equitable action may be maintained successful culmination of nearly two decades of nego- against the person, firm or corporation using such per- tiations between legislators of both parties, MPA, son’s name, portrait, picture or voice within the State of SAG-AFTRA, and numerous other stakeholders in New York. the media, entertainment, and First Amendment communities. As with any legislative compromise, no The new legislation adds a new § 50-f to the New York party got everything it sought. However, we believe Civil Rights Law entitled “Right of Publicity.”13 It applies that the Bill strikes the right balance in adequately to deceased individuals who die on or after the effective protecting against harmful, unauthorized exploita- date of the law and who are domiciled in New York tion of an individual’s name, image, voice, and like- State at the time of death. Violations are compensable by ness, while respecting the First Amendment rights damages equal to the greater of $2,000 or the amount of of the MPA’s members, news organizations, artists, compensatory damages suffered by the injured party, plus and others who engage in constitutionally protected 3 profits attributable to such use, and punitive damages. speech. The legislation applies to two categories of deceased per- On the same day that the bill was signed by Governor sons: “deceased personalities” and “deceased performers.” Cuomo, SAG-AFTRA issued a press release applauding 4 Under § 50-f(2)(a), the bill provides for a right of New York for enacting the “milestone” bill. In par- action on behalf of “deceased personalities” for the use ticular, SAG-AFTRA noted that the bill would help to of their names, voices, signatures, photographs or like- ensure that “New York’s protection against the use of a nesses for commercial purposes without consent, i.e., on living person’s image and voice, including their ‘digital or in products, merchandise or goods, or for purposes avatar and digital voice’ in advertising and trade, remains of advertising those goods. A “deceased personality” is firmly intact, and will continue the trend of protecting defined as a person “whose name, voice, signature, pho- against uses in expressive works unless the use is clearly 5 tograph or likeness has commercial value at the time of permitted by the First Amendment.” The press release his or her death or because of his or her death . . .” The went on to say, “The bill, for the first time in 36 years, right of action extends for 40 years after the death of the

Judith B. Bass is a media and entertainment attorney, a member of the Executive Committee of the New York State Bar Association’s Entertainment, Arts & Sports Law Section (EASL), co-chair of EASL’s Committee on Literary Works and Related Rights, and a member of the NYSBA Media Law Committee. She is the co-author of “Digital Publishing: E-Books, Self- Publishing and Other Models,” a chapter in Siegel on Entertainment Law (NYSBA, 2018). This article also appears in a forth- coming issue of EASL Journal, (vol. 32, no. 1), the publication of the EASL Section (NYSBA.ORG/EASL).

New York State Bar Association 34 Journal, May/June 2021 deceased personality. Persons claiming to represent the digital replica was very important to SAG-AFTRA. In rights of a deceased personality are required to register particular, its website advises members that “digital repli- with the New York Secretary of State before any claim cas” are creating “new challenges that existing rules are ill can be made. equipped to handle.”17 “Digital replicas” are described as Under § 50-f(2)(b), the bill provides for damages for “intentional, realistic clones – produced by any number the use of a “deceased performer’s digital replica” in a of technological means – of an individual’s face, body, or 18 “scripted audiovisual work as a fictional character” or voice.” It provides the following specific examples of in the “live performance of a musical work” without potential “digital replica misuse”: consent when the use “is likely to deceive the public • An audio publisher clones an actor’s voice to con- into thinking it was authorized.” A “deceased performer” struct an audiobook narration. is defined as a person who “for gain or livelihood was • A video game company creates a digital replica of a regularly engaged in acting, singing, dancing, or playing sports broadcaster to announce a football game. a musical instrument.” A “digital replica” is defined as a computer-generated, electronic performance in which • A hologram company projects a living or deceased the person did not actually perform “that is so realistic musician before a live, paying audience. that a reasonable observer would believe it is a perfor- • An ad agency or brand creates a replica of a mance by the individual.” The use will not be considered deceased performer for a commercial. “likely to deceive” if there is a conspicuous disclaimer • A creator uses “deepfake” algorithms to depict non- provided in the credits of the scripted audiovisual work consenting individuals as nude or performing sex and any related advertisement saying it has not been acts in motion pictures.19 authorized. A “digital replica” does not include remaster- ing or reproduction of a sound recording or other audio- The new New York law directly addresses the issue of visual work. digital replicas, but only of those who are in the category of “deceased performers”; accordingly, digital replicas On the SAG-AFTRA website, there is the following advi- of live performers are not included in the law’s protec- sory to SAG-AFTRA members: tions. In addition, the law only addresses a digital replica Digital Image Rights and Right of Publicity. of a person who “for gain or livelihood was regularly Your image is valuable. Your voice is valuable. Your engaged in acting, singing, dancing, or playing a musical fan base is valuable. Your performance is valuable instrument.”20 Digital replicas of deceased persons who . . . . Unfortunately, companies might wish to steal were not performers are outside the ambit of the law. To your likeness for merchandise, advertisements, or to comply with the law, a producer utilizing a digital replica produce video games, live concerts, or movies. This of a “deceased performer” has to provide a “conspicuous denies you the fruit of your hard work and can poten- disclaimer” in the credits of the scripted audiovisual work tially harm your legacy. Union contracts and state and any related advertisement saying that the perfor- and federal laws, including the right of publicity, give mance has not been authorized.21 media artists the opportunity to consent to and be compensated for specific uses of a likeness. Of the examples cited by SAG-AFTRA, the hologram of But the current status of the law is antiquated in the deceased musician would be covered, but not of the light of new technologies that enable unprecedented living musician. In addition, a digital replica of a living exploitation of your likeness – both during and after actor’s voice in an audiobook narration would likely not your lifetime. The “Right of Publicity” is a state run afoul of the law, nor would the digital replica of a intellectual property right (much like a copyright) sports broadcaster announcing a game. Using a replica of vested in you and your heirs in order to protect the a deceased performer for a television commercial without right to use your likeness . . . . The right of publicity consent, however, would not be permissible under both safeguards meaningful income streams and provides this section and § 50-f (2)(a). you a certain level of autonomy, financial reward and control in the marketplace.14 SAG-AFTRA’s other main concern that was addressed in the legislation is the distribution of digitally created A key SAG-AFTRA initiative promoted on the website 15 sexually explicit images, sometimes known as “deep- as well is called “#ProtectMyImage.” This stated desire fakes,” without clear written approval from the performer on the part of SAG-AFTRA to protect its members from depicted. The example noted above of a “deepfake” misappropriation and unconsented commercialization that depicts nonconsenting individuals in the nude or of their images both “in life and now post mortem” is performing sex acts in motion pictures is governed by clearly a key motivation behind SAG-AFTRA’s legislative 16 the new law and is not limited to deceased individuals. efforts. Under a separate section of the new law, § 52-c, a private The inclusion in the New York law of a section deal- right of action has been created for “unlawful dissemina- ing with the unauthorized use of a deceased performer’s tion or publication of a sexually explicit depiction of an

New York State Bar Association 35 Journal, May/June 2021 individual.”22 A “depicted individual” is defined as “an without permission, such as for the purpose of satire, individual who appears, as a result of digitization, to be parody, commentary, criticism, biographical films giving a performance they did not actually perform or to and documentaries or other newsworthy or educa- be performing in a performance that was actually per- tional purposes.28 formed by the depicted individual but was subsequently These statements are at the heart of what makes the new altered” to be in violation of the section. Digitization New York right of publicity law acceptable to almost all means to “realistically depict the nude body parts of parties. Indeed, there are explicit so-called “expressive the depicted individual, computer-generated nude body works exceptions” to the prohibited uses in each of the parts as the nude body parts of the depicted individual, sections of the legislation: or the depicted individual engaging in sexual conduct • With respect to the right of action for deceased . . . in which the depicted individual did not engage.”23 personalities, pursuant to § 50-f(2)(d)(i), it is not Damages for dissemination of sexually explicit mate- a violation if the use of a deceased personality’s rial include injunctive relief, compensatory and punitive name, voice, signature, photograph or likeness is in damages and attorney’s fees. a play, book, magazine, newspaper or other literary Interestingly, when an earlier version of the New York work, a musical work, art work or other visual work bill proposed by two lawmakers in 2019 granted “digi- (like photography), or in a work of political, public tal rights to their persona” to individuals portrayed in interest, educational or newsworthy value, includ- motion pictures, video games, pornographic videos ing for purposes of comment, criticism, parody and other media, SAG-AFTRA made some very strong or satire, or in an audio or audiovisual work that statements criticizing the MPA and the Entertainment is fictional or nonfictional entertainment (or an Software Association (ESA) for their positions opposing advertisement or commercial announcement of any the bill. In a scathing article entitled “Malicious Porno- of the foregoing).29 graphic Deepfakes Aren’t Just Free Speech,” which first • With respect to the deceased performers’ digital appeared in the New York Daily News on June 18, 2019, replica right, under § 50-f(2)(d)(ii) it is not a viola- the president of SAG-AFTRA declared that the “deep- tion if the work is a parody, satire, commentary, fake technologies” that “use artificial intelligence to turn criticism, or a work of political or newsworthy existing images into fictional live-action performance” value, including a documentary, docudrama, histor- are not “just another form of free speech.”24 The article ical or biographical work “regardless of the degree goes on to say as follows: of fictionalization except in a live performance of Even when presented with the most abhorrent, a musical work.”30 Notably, the wording referring indefensible use of digital human technologies, these to “a live performance of a musical work” leaves corporations [the MPA, the ESA and the trans- open the question of whether an unconsented holo- national media corporations that are their member gram of a deceased performer appearing in a live companies] wrongly invoke the First Amendment, which already has long been balanced against other stage play would run afoul of the law, even if the competing interest(s) like libel, fighting words, fraud, play would otherwise fall within the exceptions. In privacy and intellectual property rights, in their § 50-f (2)(d)(iii), the law also specifically provides efforts to persuade legislators.25 that it is not a violation if the use of the name or likeness is in connection with a news, public affairs The SAG-AFTRA position appears eventually to have or sports program, or in any political campaign.31 been accepted by the MPA and ESA with certain safeguards built in for the media. In the legislation that has • Finally, with respect to the right of action for sexu- now been enacted, § 52-c provides that the depicted ally explicit depictions, under § 52-c(4)(a) there is individual has a cause of action against the distributor of no liability for disclosure or dissemination of sexu- the depiction unless the depicted individual has signed ally explicit material if such disclosure is (i) in the an agreement consenting to the disclosure of the depic- course of reporting unlawful activity, exercising law tion; a disclaimer is not sufficient.26 enforcement duties, or in hearings, trials or other legal proceedings; or (ii) the material is a “matter Possibly in exchange for these compromises, SAG- of legitimate public concern, a work of political or AFTRA on its side explicitly acknowledged even in its newsworthy value, or commentary, criticism” or press release about the passage of the legislation that cer- otherwise protected constitutionally, provided that tain uses of its members’ likenesses are “clearly permitted 27 such material is not newsworthy “solely because the by the First Amendment.” In addition, on the SAG- depicted individual is a public figure.”32 AFTRA website, it provides as follows: The inclusion of language in the New York right of pub- It is important to note that content creators have critical First Amendment rights to use your likeness licity bill that carves out expressive works is a key strategy

New York State Bar Association 36 Journal, May/June 2021 and accomplishment of the MPA. Indeed, according to on both sides, the new New York right of publicity bill Ben Sheffner, senior vice president and associate general should actually mitigate these concerns and prove to be a counsel, copyright and legal affairs of the MPA, the lan- positive addition to New York’s laws. Even though some guage of the first state statute that incorporated a specific parts may need to be tested by the courts, the new law statutory exemption for expressive works, the California will likely prove to be protective of the commercializa- Post Mortem Statute, California Civil Code 3344.1, tion of performers’ image rights after death, limit the use was actually negotiated between the MPA and SAG- of digital replicas without consent, and stop the abusive AFTRA.33 Sheffner explains what the MPA believes is practices of creating deepfakes. The new law should also the best way to protect the ability to tell stories based on not stand in the way of productions and other content or inspired by real people and real events: based on or inspired by stories about real people, both There are various ways, various possibilities. One living and deceased, continuing to be produced and dis- option is via the courts, to make the best First tributed in New York. Amendment arguments you can, and hope the decision comes out in your favor. We do that. But it is 1. https://www.nysenate.gov/legislation/bills/2019/s5959. our contention that the best way is to return to the 2. Ben Sheffner, New York Enacts Post-Mortem Right of Publicity and Related statute and have specific carve outs for expressive Legislation, MLRC MediaLawLetter (December 2020), 17. A subcommittee of NYSBA’s works, which would include books, movies, televi- Media Law Committee (on which this author served) also provided comments on the bill. sion shows, plays, songs, newspaper articles, news 3. Letter of September 30, 2020 from Vans Stevenson, Senior Vice President, State broadcasts, et cetera.34 Government Affairs, Motion Picture Association, to The Honorable Andrew M. Cuomo, Governor of New York State. The inclusion of that expressive works language in the 4. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra- New York legislation now becoming law is a key factor in applauds-new-york-gov-cuomo-signing-right-publicity-protections. 5. Id. achieving an appropriate balance of the interests of both 6. Id. Emphasis added. sides. Sheffner noted in his 2019 article that, by his cal- 7. https://www.sagaftra.org/sag-aftra-statement-passing-new-york-assembly-bill- culations, “about 47% of the Best Picture nominees over a8155-b/. the last five years, were about or inspired by real people 8. Id. 35 9. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital- and events.” He goes on to say as follows: “Consider image-rights-right-publicity. what movies would have been threatened if the rule is 10. See, e.g., Rothman’s Roadmap to the Right of Publicity, https://www.rightofpublici- that you cannot make a movie or TV show about some- tyroadmap.com. 11. Cal. Civ. Code § 3344.1. 36 body unless you get their permission.” In addition, the 12. N.Y. Civil Rights Law §§ 50–51 (2014). alleged falsification and fictionalization of living people 13. https://www.nysenate.gov/legislation/bills/2019/s5959. in movies and other programming has been asserted by 14. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital- image-rights-right-publicity. some plaintiffs as violative of § 51 and is an issue that 15. Id. 37 is being dealt with in a variety of court proceedings. 16. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra- With this new legislation, it appears that similar claims applauds-new-york-gov-cuomo-signing-right-publicity-protections. 17. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital- on behalf of deceased individuals will have to get past image-rights-right-publicity. the expressive works exceptions embodying First Amend- 18. Id. ment protections in the statutory language. 19. Id. 20. Id. CONCLUSION 21. Id. 22. N.Y. Civil Rights Law § 52-c (S.5959-D/A.5605). For those who worked for decades to pass right of pub- 23. Id. licity legislation in New York, there has long been a 24. https://www.sagaftra.org/malicious-pornographic-deepfakes-aren’t-just-‘free-speech’. concern, on the one hand, that many unauthorized uses 25. Id. 26. https://www.nysenate.gov/legislation/bills/2019/s5959. of performers’ images, such as commercialization after 27. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra- death, creation of digital replicas in movies and other applauds-new-york-gov-cuomo-signing-right-publicity-protections. content, and the dissemination of deepfakes throughout 28. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital- image-rights-right-publicity. the internet, would not be curtailed. On the other hand, 29. https://www.nysenate.gov/legislation/bills/2019/s5959. there has been a continuing concern on the part of media 30. Id. Note that a “live stage play” is not included. and entertainment companies that the passage of any 31. Id. postmortem right of publicity would negatively impact 32. Id. 33. Ben Sheffner, Why Movie Studios Care About Right of Publicity, 42 Colum. J.L. & and restrict the production of audiovisual and other Arts 341 (2019). content and the dissemination of news in New York 34. Id. about real people and events. As a result of some skill- 35. Id. ful negotiating by the parties in interest, the assistance 36. Id. 37. See, e.g., Porco v. Lifetime Entertainment Servs., LLC, 147 A.D.3d 1253 (3d Dep’t of committed legislators, and reasonable compromises 2017).

New York State Bar Association 37 Journal, May/June 2021 Trials in Fiction and Film: Can Reality Compete? By William B. Stock

William B. Stock is a long-time member of the New York State Bar Association. He was admitted to the bar in 1984. Now retired from the practice of law, he is studying English literature.

New York State Bar Association 38 Journal, May/June 2021 eality and fiction are not the same. Fiction repre- The influence of fiction on the trial process does not end Rsents an author’s shaping, focusing and changing there. Besides the “CSI effect” there is the “Perry Mason reality to tell a story. Trouble comes when fictional trial moment”5 school of fiction in which there is always a scenes start to impact real trials. trial with a climax that reveals a dramatic secret.6 A ficti- Memorable fiction and drama involving lawyers usually tious attorney, Mason never lost a case, and he invariably contain a trial scene. There are obvious reasons for this: won his trials by breaking a witness down on the stand or trials are invariably depicted as exciting dialectic battles. triggering someone out in the audience to stand up and (One seldom comes upon a novel about a lawyer who confess, much like Claudius in Hamlet. This writer has prepares wills.) Trials have always been popular in litera- personally seen a New York State Court system instruc- ture. Yet the reality is that many people find actual trials tional video for prospective jurors that featured a clip boring and few look forward to being summoned to jury from the old Perry Mason TV show wherein someone duty.1 Real trials are seldom as exciting as fictitious ones. suddenly rises to his feet and confesses during a trial. It is immediately followed by a stern injunction that this More unsettling, fiction, particularly in the form of never happens in real life. If there were no problem, there ubiquitous television dramas, can actually have a negative would have been no need for such a warning. impact on the legal process. Two phenomena appear to be the most responsible: the “CSI effect” and the “Perry So, there is some disquieting evidence that “law is imitat- Mason moment.” ing art” and has been for some time. One scholar, Alek- sandra Kocelko, has found that “[a]ttorneys do believe From Sherlock Holmes down to the present day, people television shows have impacted what a juror expects, enjoy stories of crimes solved by logic. However, today, and in turn work to craft their presentations more like what Holmes used to do with his reasoning to catch a television program. Additionally, jurors who watch criminals is now usually portrayed as being done infal- legal television shows more frequently are more likely to libly in laboratories with microscopes and the like. A believe the depictions on these shows are accurate.”7 prime example of this is CSI: Crime Scene Investigation. In “The ‘CSI Effect:’ Does It Really Exist?” Douglas E. Kocelko further notes that: Shelton observes: Attorneys understand how essential it is to understand what is going through a jury’s mind. Even if CSI: Crime Scene Investigation has been called the their expectations are wholly inaccurate and based most popular television show in the world. Not only on created for TV entertainment purposes. . . A civil is CSI so popular that it has spawned other versions plaintiff’s attorney stated that the top thing they do that dominate the traditional television ratings, it has in order to hold people’s attention is simple, “keep also prompted similar forensic dramas, such as Cold 8 Case, Bones, and Numb3rs. According to one 2006 it short.” weekly Nielsen rating: Another writer neatly lists “6 Myths Hollywood Has You 9 • 30 million people watched CSI on one night. Believing About Jury Trials.” For the proposition that “Trials are Suspenseful and Interesting” Brett MW in an • 70 million watched at least one of the three CSI shows. article on the website Reelrundown.com, gives a “Hol- lywood” version and another entitled “Reality”: • 40 million watched two other forensic dramas, Hollywood Without a Trace and Cold Case.2 They are called courtroom dramas for a reason: they Shelton then asks, “How many of those viewers reported are dramatic. We have seen the situations before. for jury duty the next day?” Every time a witness is testifying you can hear a pin Among the finding presented by this study was the con- drop in the courtroom. The suspense is unbearable. clusion that the more prospective jurors watched shows Testimony is riveting and someone could drop a like CSI, the more they wanted to see forensic evidence bombshell at any moment. And when they do drop before they would convict. However, forensic evidence is that bombshell there are gasps from the audience not perfect,3 despite the fact that many seem to think it is. and the judge has to demand “Order in the Court.” So dramatic. So suspenseful. You can cut the tension In an article in The Baltimore Sun, Allison Klein wrote with a knife. that: Reality As shows such as CSI: Crime Scene Investigation have Trials are boring. It’s true that you can usually hear a become America’s most-watched programs, lawyers pin drop but it’s because everyone has fallen asleep. and scientists have noticed an unintended conse- Audience members fall asleep. Defendants fall asleep. quence: Jurors increasingly expect to encounter in the Even judges fall asleep! courtroom what they’ve seen on television – DNA, fingerprints or other irrefutable scientific evidence Most witness testimony is spent establishing time- of guilt.4 lines or simple facts necessary for proving a point of

New York State Bar Association 39 Journal, May/June 2021 law. There are no Perry Mason moments and noth- of Queeg’s actions. Finally, Queeg cracks under pressure ing results in gasps from the audience after a lawyer and Maryk seizes control of the ship in a typhoon. breaks someone down and gets them to confess. . . . (emphasis in original) But was Queeg really crazy? At Maryk’s court martial, an excellent prosecutor methodically tears the evidence TRIALS IN FICTION against Queeg to shreds and uses it to point the finger of mental instability at Maryk himself. All seems lost. But John Grisham’s The Rainmaker10 is a perfect example of a then, in comes Greenwald, a brilliant defense attorney, legal thriller. It is the story of a young lawyer just out of who in effect rehabilitates all the evidence and turns law school, who, within a few months after passing the the testimony of the prosecutor’s lead psychiatrist back bar, has somehow set up his own firm and for his first against him. trial finds himself taking on a huge insurance company in a bad faith action.11 With the exception of one tiny After asking Queeg’s psychiatrist a series of seemingly matter, the law in the novel is correct. The only problem innocuous questions about his mental state which elicit with The Rainmaker is that it is preposterous. A sensible, answers indicating Queeg has some problems, neophyte lawyer with no trial experience who came upon Greenwald suddenly switched from his fumbling a big case would refer the matter to more experienced manner to clicking preciseness. “Doctor, you’ve testi- counsel or would at least partner with a more knowledge- fied that the following symptoms exist in the com- able attorney. There is even an ethical requirement to do mander’s behavior: rigidity of personality, unreason- so. I also refuse to believe that a new lawyer would be able suspicion, withdrawal from reality, perfectionist able to take on and defeat experienced opposing counsel anxiety, an unreal basic premise, and an obsessive who represents “the powers of darkness.” By the way, sense of self-righteousness.” while trying the big case the young lawyer finds the time Dr. Landeen looked startled. “All mild, sir, all to meet the love of his life. well compensated.” A similar comment could be made about Grisham’s first “Yes, Doctor. Is there an inclusive psychiatric big hit, The Firm.12 The hero is a lawyer fresh out of Har- term – one label – for that syndrome?” vard who unwittingly goes to work for a law firm that . . . . fronts for the Mafia. He routinely works 80 hours a week “I know what you’re driving at, of course. It’s a while conducting a one-man sting operation against his paranoid personality, but that is not a disabling afflic- employers and simultaneously planning his escape. Hav- tion.” ing worked such hours in my early career, I can attest this “What kind of personality, Doctor?” is physically impossible. “Paranoid.” Presumed Innocent13 by Scott Turow is an excellent book. “Paranoid, Doctor? It delves deeply into the soul of the accused, a high- ranking assistant district attorney who finds himself “Yes, paranoid.”16 on trial for the murder of a fellow attorney with whom Finally, Captain Queeg himself is put on the stand where he’d had an affair. A trial is supposed to be a “search for he is subject to relentless questioning by Greenwald. the truth.”14 However, in Presumed Innocent the truth There is no “Perry Mason moment” in Caine, but instead appears to be the last thing anyone wants to emerge at Queeg is so unable to handle Greenwald’s relentless ques- the trial: the prosecutors have one agenda, while the tioning that he pulls out his two steel balls and descends judge has another. into a defensive stream-of-consciousness monologue.17 There is one thing that makes the premise of this book Maryk is acquitted. unbelievable. The protagonist is being prosecuted by the Without Queeg’s madness and the trial, the book would same D.A.’s office he worked for. If such a trial actually have had no climax and it probably would have been a took place, the judge would probably assign the pros- forgettable love story. Yet it has a life separate from its ecution to outside counsel to avoid any appearance of legal machinations and hence The Caine Mutiny should prejudice. not be classified as a legal thriller. It is a sturdy tale of The Caine Mutiny also has a famous trial scene,15 but men at war that has been in print for over 60 years. Mutiny is primarily a sprawling novel about World War Perhaps the best depiction this writer has found of II with many subplots. The plot obviously closest to the the realities of an actual trial is Harper Lee’s To Kill a author’s heart is the love story in the book. By now, most Mockingbird. The time is Alabama in 1935 – not the people know about Captain Queeg, his two steel balls best of times to be a poor Negro18 accused of raping a and his increasingly erratic behavior on a mine sweeper white woman – and the narrative is told from the per- in World War II. As his actions become more and more spective of the young daughter of his defense attorney, bizarre, Maryk, his executive officer, begins to keep a log Atticus Finch, who observes, “So far, things were utterly

New York State Bar Association 40 Journal, May/June 2021 dull: nobody had thundered, there were no arguments Lastly, when there is a sudden confession to the murder between opposing counsel, there was no drama; a grave on the witness stand, the judge raps her gavel and tells disappointment to all present, it seemed.”19 the defendant that her case is dismissed and that she is free to go. In reality, the judge would at the least have Caine and Mockingbird share two important similari- first called a bench conference. In its defense, while the ties: they were written by non-lawyers and the books trial scene in Legally Blonde may be insulting to a lawyer’s could survive as valid stories if the trials could somehow intelligence, the film is never boring and it has its share be removed from them. Perhaps that is the difference of laughs. between a regular writer of fiction and a writer of legal fiction. The former looks upon life as a totality with law The desire to exaggerate court proceedings for dramatic only being a part of it while a legal writer begins with purposes is not rare. People want their food seasoned. what he or she knows – the law – and adds life to fill in However, if life is imitating art and trial attorneys are the details. If true, this would explain why non-lawyer reformulating trials strategies to avoid the “Perry Mason authors keep the law in perspective better than the writ- moment” and jurors are expecting reality to conform to ers of legal thrillers. the “CSI Effect,” then something must be done to warn them against them being unduly influenced by popular TRIALS IN FILM culture. Popular fiction could reform itself, but, given Since many people get their knowledge of life from film, our constitutional freedom of speech, that is unlikely to a consideration of how the lawyer’s life is depicted on the happen. The only answer, then, is that lawyers and judges screen is called for.20 must take even greater care to ensure that justice is done in a real world that must live up to imaginary expecta- 21 My Cousin Vinny is a very funny movie, and, surpris- tions. This could include an addition to the Pattern Jury ingly, it is accurate on certain aspects of legal proce- Instructions to tell jurors to disregard law as portrayed 22 dure. But, on some points it is spectacularly wrong. For in the media as well as add voir dire questions on what example, Vinny lies to a judge about his credentials as a television shows potential jurors watch, and how realistic lawyer and acts in such a vulgar, buffoonish manner in they believe them to be. court that it is hard to believe that any judge would let him continue as counsel. Also, the plaintiff is somehow The law is a strong yet flexible thing. It can find a way to allowed to introduce a surprise expert witness. cope with this problem. The Verdict23 with Paul Newman, is a treasure trove of 1. John Oliver, Juries. Episode of HBO’s Last Week Tonight, available on YouTube. legal errors. The most serious occurs when the lawyer- 2. Donald E. Shelton, The “CSI Effect”: Does It Really Exist? (March 16, 2008), nij. hero breaks into someone’s mailbox to read the address ojp.gov: https://nij.ojp.gov/topics/articles/csi-effect-does-it-really-exist. 3. John Oliver, Forensic Science. Episode of HBO’s Last Week Tonight, available on on an envelope. That is a federal offense. But that is YouTube. almost a side issue: Paul Newman is offered a settlement 4. Allison Klein, Art Trips Up Life: TV Crime Shows Influence Jurors, The Baltimore by the defendants and he rejects it without consulting his Sun (July 25, 2004). 5. There is a Wikipedia article with this heading. clients. That is a serious ethical breach that would sub- 6. Bonnie Kistler, Disorder in the Court: Classic Fictional Trials That Subverted the ject an attorney to professional discipline. However, my Truth, www.crimereads.com. 7. Aleksandra Kocelko, The Effect of Legal Television Shows on the Trial Process (2011) favorite error is when the opposition cites an imaginary (unpublished honor’s thesis, American University. Quoting preliminary abstract). case – with a decimal point in the citation – to support 8. Id. at pp. 44–45. their position. 9. Brett MW, 6 Myths Hollywood Has You Believing About Jury Trials, Reel Rundown, Nov. 13, 2020, https://reelrundown.com/misc/6-Myths-Hollywood-Has-You-Believe- Legally Blonde24 can be best described as a farce. It does About-Jury-Trials. 10. John Grisham, The Rainmaker (1995). not depict realistic human beings, and the legal doings 11. A bad faith action is one where an insurance company is sued for wrongfully deny- are absurd. A first-year Harvard law school student ing a claim. claims to be a lawyer to get someone out of a tight situa- 12. John Grisham, The Firm (1991). 13. Scott Turow, Presumed Innocent (1987). tion. Impersonating a lawyer is a crime. Later, while still 14. People v. Marks, 127 Misc. 2d 591 (Sup. Ct., N.Y. Co. 1985). a law student, the heroine abruptly takes over the defense 15. Indeed, it later became a successful play on Broadway, The Caine Mutiny Court in a murder case in the middle of the trial itself. Her Martial. 16. Herman Wouk, The Caine Mutiny (2003). authority for doing so is a presumably imaginary court 17. In doing so, he eerily foretells Presidents Nixon and Trump. rule. Further, no judge would ever permit a substitution 18. I am using this word to be true to the language of the book. of counsel at that point, especially in a murder trial. The 19. Harper Lee, To Kill a Mockingbird 195 (2001) (1960). 20. Many of the ideas in this section came from a Continuing Legal Education class heroine addresses the jury in the middle of the trial, given by the New York City Bar Center, “Lights, Camera, Ethics!” originally screened something that is not permitted, and then elicits a con- November 5, 2020. fession on the stand with a lengthy, compound question 21. My Cousin Vinny (1992). 22. See Legal Eagles: My Cousin Vinny on YouTube. that would have had any prosecutor on his or her feet 23. The Verdict (1982). shouting “Objection!” 24. Legally Blonde (2001).

New York State Bar Association 41 Journal, May/June 2021 How Divorce Law in New York State Favors the Spouse With the Financial Advantage

By Neil E. Kozek and Hon. Mark C. Dillon

New York State Bar Association 42 Journal, May/June 2021 n theory, divorcing couples in New York State have v. Prichep.3 In Charpie, the Appellate Division, First Iaccess to equal justice under the law, regardless of Department, held that courts must consider the relative how much, or how little, money each spouse has. This financial circumstances of both parties when deciding principle is clear in both statutory and case law in all four interim fee applications to prevent the titled spouse from appellate departments. However, money talks. The mon- using resources against the non-titled spouse in a manner ied spouse can afford not only to hire the best legal talent that affects the action’s equitable outcome.4 In Prichep, but also to pay the legal costs of extending the litigation the Appellate Division, Second Department, noted that in hopes of gaining a favorable outcome in the case. while counsel fee awards should be controlled by the While New York has enacted statutes designed to ensure equities of each particular case, significant disparities in an even economic playing field, the statues – DRL § 237 the parties’ financial circumstances generally warrant an and CPLR 5519(a)(2) and (3) – clash with one another, award of interim counsel fees to the non-monied spouse often to the detriment of the non-monied spouse. We rather than deferring the award of professional fees to believe this clash was an unintended consequence of an trial.5 The state Legislature clearly understood, as DRL otherwise admirable attempt by the Legislature to assure § 237(a) was amended in 2010 to create a “rebuttable spousal parity. We also believe it is time, past time really, presumption” that interim counsel fees be awarded to the for the Legislature to correct this imbalance. less monied spouse on a timely and ongoing basis subject This article examines the factors that led to the clash to the court’s discretion and the circumstances of the case between DRL § 237 and CPLR 5519(a)(2) and (3), what (2010 N.Y. Laws, ch. 239, § 1). the consequences have been for divorcing couples, and Undermining the public policy goals of DRL § 237 in what the Legislature might do to end the conflict. certain cases is CPLR 5519(a)(2) permitting a party, ordered to pay a sum of money, to obtain an automatic THE COMPETING PROVISIONS OF DRL stay of that obligation by posting an undertaking in the § 237(A) AND CPLR 5519(A) amount of the sum owed, pending appeal of the order. DRL § 237(a) mandates an award of interim counsel Similarly, where an order directs the payment of money fees by a monied spouse to a non-monied spouse. The in fixed installments, a stay may be awarded upon post- purpose of the statute, as explained by the Court of ing an undertaking in a sum set by the court, pending Appeals in O’Shea v. O’Shea, is “to redress the economic appeal (see CPLR 5519(a)(3)). While CPLR 5519 has disparity between the monied spouse and the non- obvious utility to parties aggrieved by trial judgments monied spouse. Recognizing that the financial strength pending appeal and secures those judgments by the post- of matrimonial litigants is often unequal – working more ing undertakings, the use of CPLR 5519’s stay provisions typically against the wife – the Legislature afforded trial against the payment of interim matrimonial counsel fee judges with discretion to compel more affluent spouses awards causes actual prejudice to non-monied spouses, to pay legal expenses of the needier one [so that] the depriving them of much needed resources for whom matrimonial scales of justice are not unbalanced by the DRL § 237 was designed to assure. This is particu- weight of the wealthier spouse’s wallet.”1 larly true currently, during which an increase in appeals coupled with judicial vacancies at each of our Appellate Public policy dictates less-monied spouses should not Departments is at its height. The appellate process is pro- be disadvantaged in their divorce litigations as seen in tracted. In complex matrimonial litigation, both spouses 2 the often-cited cases of Charpie v. Charpie and Prichep need competent counsel, and attorneys cannot afford to represent non-monied litigants without compensation.

Neil E. Kozek is a partner at the law firm RELEVANT LEGISLATIVE HISTORY of Kramer Kozek in White Plains, N.Y., concen- trating in matrimonial litigation, collabora- CPLR 5519 was enacted in 1962 as part of the omnibus tive divorce, and mediation. He is a fellow of both the New York Chapter of the American conversion of our state’s practice statutes from the former Academy of Matrimonial Lawyers and Civil Practice Act (CPA) to the CPLR. The predecessor International Academy of Family Lawyers. statutes relevant here, primarily CPA §§ 594 through 598-a, were enacted in 1945.6 CPA § 594, which permitted the stay of an order pending appeal upon the posting Mark C. Dillon is a justice of the New of an undertaking, expressly excluded appeals of “tempo- York Supreme Court, Appellate Division, rary alimony orders” from the procedure.7 Interim main- Second Department, an adjunct professor of New York practice at Fordham Law School, tenance and interim counsel fees, while distinct from one and a contributing author of CPLR Practice another, are nevertheless equally related to the financial Commentaries published in McKinney’s Consolidated Laws of NY Annotated. needs of the less-monied spouse during matrimonial litigations. Arguably, no rationale exists for staying interim

New York State Bar Association 43 Journal, May/June 2021 maintenance or interim counsel fees, both designed to THE IMPACT UPON NON-MONIED SPOUSES permit the non-monied spouse to survive pendente lite. The impact of this incongruity is clear in both high net Upon the enactment of CPLR 5519 in 1962, the lan- worth as well as more modest matrimonial litigations. guage excepting interim maintenance awards from the Often, one spouse typically controls the finances and statutory stay provisions was omitted for reasons that may hold title to the vast majority of the family’s assets. A are unexplained by a review of the statute’s Bill Jackets dynamic is created where although the non-titled spouse annotating the legislative history and basis for statutory has an “equitable interest” in the assets acquired during modification. Decisional authorities nevertheless carried the marriage, a non-titled spouse has no access to those forward the rule that CPLR 5519(a)(2) and (3) could not resources during the pendency of the divorce. Under those be used to stay the payment of interim maintenance or circumstances, unless the titled spouse voluntarily advanc- child support.8 The looser language of CPLR 5519(a)(2) es funds for counsel fees and litigation expenses, such and (3) in making no exception for interim maintenance, as valuation experts, appraisers, and accountants, non- unlike its predecessor, preceded the appellate pronounce- titled spouses are required to make expensive and often ments of O’Shea, Charpie and Prichep, and other similar time-consuming applications to the Supreme Court for reported cases, as well as the language of DRL § 237(a) orders directing transfers of funds for those costs. In many that interim counsel fees be presumptively awarded. In instances, the legal costs incurred in this motion practice other words, the purpose to be served by DRL § 237(a) can be as expensive as the ultimate awards. However, attor- of infusing non-monied spouses with interim counsel ney fees and litigation costs are often advanced “without fees was not yet considered when enacting the broad prejudice and subject to reallocation” at the conclusion of language of CPLR 5519(a)(2) and (3) permitting stays the case, which specifically advises the non-monied spouse of interlocutory payments pending appeal, in exchange that he or she might ultimately be charged with those fees for a mere undertaking. As a result, there is currently a and expenses. This has been referred to by some courts as disconnect between the well-purposed public policy of having “skin in the game.”9 Neither party is prejudiced by DRL § 237(a) that presumptively favors the payment of the awards of counsel fees pendente lite when subject to interim counsel fees to non-monied spouses and CPLR later reallocation. These awards depend upon the sound 5519’s procedures permitting monied spouses to post discretion of the trial courts and the size of the marital an undertaking, appeal the order, avoid paying counsel estate being divided. fees pending appeal, and thereby perpetuate the ongoing Even non-monied spouses in high net-worth matri- economic imbalance between monied and non-monied monial actions are adversely affected. DRL § 237(a) spouses to the detriment of non-monied litigants. provides no specific definition for the “less-monied

New York State Bar Association 44 Journal, May/June 2021 spouse,” and the concept is not necessarily limited to receiving periodic infusions of pendente lite professional marital estates of modest or average value. A multimil- fees from the more monied spouse.12 lion-dollar marital estate, in which both parties would retain millions of dollars by way of equitable distribu- RECOGNITION OF THE PROBLEM IN tion, for example, would typically result in each party WECHSLER V. WECHSLER AND KARG V. paying its own fees, absent extraordinary reasons to KERN assign fees to a party engaged in overly aggressive or Some courts have recognized the discrete problems posed unnecessarily protracted litigation tactics.10 by CPLR 5519 stays of interim counsel fee awards. It is clear, however, that when one spouse has free and The non-monied spouse, faced with an automatic or unbridled access to substantial financial resources, discretionary stay of an interim counsel fee award, may often multiple millions of dollars when the bulk of move in the trial court to vacate the stay, as in Wechsler the marital estate is titled to one spouse, and the other v. Wechsler.13 There, Justice Judith Gische, while then

The delays of successive rounds of motions, adjournments, discovery, trials and appeals can span years during which non-titled spouses are without a share of the marital estate. spouse has comparatively minimal access, the latter is presiding in the Matrimonial Part of the Supreme Court, at a cognizable disadvantage and, arguably, should be New York County, noted that the husband had filed two considered a “less-monied spouse.” The titled spouse post-stay applications for additional experts to value an has no impediments to hiring and paying prominent asset based on different valuation dates, never claiming experienced attorneys from prestigious and expensive that he could not afford the expense. Meanwhile, his law firms, and forensic experts, private investigators, CPLR 5519(a) stay of the wife’s pendente lite counsel fee valuation consultants, economists, vocational experts, award restricted her ability to pay her own profession- real estate appraisers and others, costing hundreds of als, raising concern that “the outcome of [the] divorce thousands and even millions of dollars, without affect- litigation [be] influenced by one party’s greater ability ing lifestyle one iota. The non-titled spouse may not to bankroll it”14 The court vacated the stay as unneces- share that same luxury. Former Presiding Justice Gail sary to protect the husband’s rights, even were he to Prudenti of the Second Department said it best in succeed on appeal. Following precedent of the Court of Prichep: Appeals in Frankel v. Frankel,15 Gober v. Gober,16 Charpie When an action for a divorce is commenced, it is v. Charpie, supra, and others, Justice Gische concluded: often the case that most of the marital assets available By appealing a decision awarding a non-monied for the payment of legal fees are possessed or con- spouse interim counsel fees, and then bonding the trolled by one of the spouses, usually the husband. In award to stay enforcement pending appeal, a mon- order to ensure that the parties will have equal access ied spouse can compromise a nonmonied spouse’s to skilled legal representation, the Domestic Rela- ability to litigate the ongoing case proceeding at the tions Law authorizes awards of interim counsel fees to trial level. The effect of the stay is to prevent the the nonmonied spouse during the course of the liti- non-monied spouse from receiving money to pay gation. Because of the importance of such awards to professionals as the case continues. Thus, the mon- the fundamental fairness of the proceedings, we hold ied spouse achieves indirectly what it could not do that an application for interim counsel fees to the directly, depriving the nonmonied spouse of the abil- nonmonied spouse in a divorce action should not be ity to pay for representation while the case is ongo- denied – or deferred until after the trial, which func- ing. Since appeals need not be perfected for up to tions as a denial – without good cause, articulated by nine months in the First Department (22 NYCRR § a court in a written decision.11 600.11), this strategy may be used to obtain an unfair Similarly, CPLR 5519 should not function to deny litigation advantage that the underlying interim necessary pendente lite counsel fees in matrimonial liti- award was intended to prevent in the first place. gation to spouses with less access to funding than the Ten years later, in Karg v. Kern,17 the First Department titled spouse. Even though the non-titled spouse may affirmed the vacatur of an automatic stay of interim be living an affluent lifestyle, keeping pace with litiga- matrimonial counsel fees. The court held that the CPLR tion strategies against a spouse with virtually infinite 5519 stay “prevent[ed] an even playing field in the resources can prove nearly impossible. The less-monied litigation”18 and that the defendant could potentially spouse is not required to exhaust finite assets before

New York State Bar Association 45 Journal, May/June 2021 recoup the award from the plaintiff’s eventual share of is for the Legislature to examine whether the current lan- equitable distribution. Karg made clear the precedent of guage of CPLR 5519(a)(2) and (a)(3) appropriately fits the First Department – that enforcement of pendente lite within the context of family law matters, given clear judi- counsel fees should not be stayed pending appeal pursu- cial precedents and legislative intent to vest non-monied ant to CPLR 5519. spouses with sufficient resources to defend costly and often The Second, Third and Fourth Departments have no imbalanced matrimonial litigations. The authors here sub- reported decisions that meaningfully examine the inter- mit that the dictates of CPLR 5519 were never intended play between the DRL § 237(a) and CPLR 5519(a)(2) to apply to pendente lite professional fee applications in and (3) and, unlike the First Department, have not dis- matrimonial/family law matters. The prejudice engen- cussed how or why interim counsel fee awards continue to dered by a stay of pendente lite counsel fees to non-monied be stayed pending appeal. spouses is far too great and is in stark contrast to the clear body of New York state case law and statutory authority THE IMPACT UPON RETAINING COUNSEL in the DRL. Failing that, non-monied spouses unable to A significant public policy impact is spawned from the ten- endure the effect of appellate stays must unfortunately rely sion between DRL § 237(a) and CPLR 5519(a). Stays of upon motions to vacate the stays pending appeal, and the interim counsel fee awards frustrates non-monied spouses willingness of courts to grant them when grounds exist for retaining and maintaining representation by attorneys of doing so. A second solution is that trial courts create par- comparable caliber to those representing monied spouses. ity more freely when awarding pendente lite counsel fees in The more significant the marital estate, the more incentive matrimonial litigation when one spouse is quite clearly in for a titled spouse to protract the case. The delays of succes- a far superior economic position, exerting control over the sive rounds of motions, adjournments, discovery, trials and process simply because that spouse can afford to do so. All appeals can span years during which non-titled spouses are else being equal, the provisions of CPLR 5519(a), which without a share of the marital estate. Attorneys are often are of general applicability, should perhaps yield to the disinclined to represent clients without access to funds even more specific provisions of DRL § 237(a) when deciding in high net-worth matrimonial actions. This is especially the vacatur motions, lifting such stays of enforcement of concerning when litigation promises to be complicated, counsel fee awards in matrimonial action. protracted, and expensive, while creating the potential for extraordinary and mounting accounts receivable that 1. O’Shea v. O’Shea, 93 N.Y.2d 187, 190 (1999). plague a firm’s balance sheet, and, in extreme cases, chal- 2. 271 A.D.2d 169 (1st Dep’t 2000). lenge a small firm’s continued viability.19 As noted in 3. 52 A.D.3d 61 (2d Dep’t 2008). Justice Scheinkman’s Practice Commentaries, “The concern 4. See Charpie, 271 A.D.2d at 271–72. is that attorneys and other needed experts would not elect 5. See Prichep, 52 A.D.3d at 65. to represent spouses who could not afford to pay for their 6. See 11 N.Y. Jud. Council Rep. 273–93 (1945). services absent the power of the court to charge the adverse 7. See Finkelstein v. Finkelstein, 286 A.D. 965 (1st Dep’t 1955). 20 8. See Du Jack v. Du Jack, 243 A.D.2d 908 (3d Dep’t 1997); McKiernan v. party with the responsibility for payment.” This concern McKiernan, 223 A.D.2d 917 (3d Dep’t 1996); Greene v. Greene, 71 Misc. 2d 708 (Sup. is heightened if CPLR 5519(a) continues as a tactic to Ct., Westchester Co. 1972). deprive non-monied spouses of funds needed to compete 9. See Sykes v. Sykes, 41 Misc. 3d 1061, 1063 (Sup. Ct., N.Y. Co. 2013). with the demands of a protracted matrimonial litigation. 10. See Wyser-Pratte v. Wyser-Pratte, 68 A.D.3d 624 (1st Dep’t 2009) (upholding denial of request for counsel fees since equitable distribution will provide wife with adequate funds to pay her attorney); Grumet v. Grumet, 37 A.D.3d 534 (2d Dep’t 2007) (reduc- SOLUTIONS ing the award of counsel fees to wife by half in light of the wife’s receipt of a large distributive award and the fact that she possesses substantial assets sufficient to enable In 2017, and again in 2020, the NYSBA Committee on her to pay a significant portion of her litigation expenses); Meshholam v. Mesholam, 25 A.D.3d 670, 672 (2d Dep’t 2006) (overturning counsel fee award to wife as an abuse the CPLR was presented with a legislative solution to of discretion in part due to wife’s “significant resources resulting from the equitable distribution of marital property”); Sykes v. Sykes, 41 Misc. 3d 1061 (ordering the release the conundrum discussed in this article. An amendment of marital funds to pay counsel fees where the wife would receive approximately $10 was proposed to slightly modify CPLR 5519 in matters million as her share of equitable distribution and despite the husband’s greater earnings, finding that the financial circumstances of the parties were not disparate enough to jus- to add the words “Except in actions brought pursuant tify husband paying a portion of wife’s fees). to the DRL and FCA.” In matrimonial and family law 11. See Prichep v. Prichep, 52 A.D.3d at 62. matters this modification makes sense regarding pendente 12. See id. at 66. lite applications. The CPLR Committee suggested the 13. 8 Misc. 3d 328 (Sup. Ct., N.Y. Co. 2005). proposed amendment be examined by the NYSBA Family 14. Id., 8 at 332. Law Section instead (even though the proposed amend- 15. 2 N.Y.3d 601 (2004). ment would be to the CPLR). Since COVID-19 in spring 16. 282 A.D.2d 392 (1st Dep’t 2001). 2020, no further efforts have been made to amend the 17. 125 A.D.3d 527 (1st Dep’t 2015). statute. Those efforts should be addressed. 18. Id. at 529. 19. See Frankel v. Frankel, 2 N.Y.3d 601, 605, n. 1. Obviously, the best way to address the unintended conse- 20. See Alan D. Scheinkman, Practice Commentaries, McKinney’s Cons. Laws of NY, quence created by the conflict between these two statutes Book 14, DRL 237:1 at 9 (2010).

New York State Bar Association 46 Journal, May/June 2021 Beware the Undesirable Default Rule in International Arbitration Agreements

By Robert K. Kry

New York State Bar Association 47 Journal, May/June 2021 ew York is the hub of international commerce in the Where the arbitral seat and the choice of law clause point NUnited States. It is therefore also a key jurisdiction in different directions, serious complications can arise if a for lawyers drafting and invoking international arbitration party later challenges the validity of the arbitration clause. agreements. Recent developments in the United States and No one doubts that the choice of law clause governs the overseas have complicated this area of practice by adopt- parties’ substantive obligations under the contract. It is ing an undesirable default rule for the law that governs also generally accepted that the law of the seat governs the the validity or effectiveness of an international arbitration procedures for any arbitration.1 But it is far less clear what agreement. Fortunately, many of the problems can be law governs the construction and validity of the arbitration avoided by making a modest change to the language of clause. Where the contractual relationship breaks down, standard arbitration clauses. one party may seek to avoid arbitration or challenge a In the past, lawyers drafting arbitration clauses have not resulting award by contesting the validity or existence of typically focused on this issue. Although most lawyers the arbitration agreement. What law applies to those chal- appreciate the need for a general choice of law clause in lenges is a critical issue. a contract, few pause to consider the law that governs the According to one school of thought, the contract’s general arbitration clause specifically. Until recently, moreover, choice law of law clause should apply to the arbitration the need to address that narrower issue was far less acute. clause, just as it applies to any other provision in the con- Recent developments, however, significantly alter the tract. Another commonly held view is that the law of the consequences of overlooking this issue and warrant much arbitral seat should govern. Which law applies can have closer attention when drafting an arbitration clause. major implications for whether the arbitration proceeds and whether any resulting award is enforceable. Courts ARBITRATION CLAUSES AND CHOICE OF and commentators have debated that question for decades. LAW PROVISIONS Recent developments in the United States and England, Parties to international commercial contracts often insist however, mark a significant change in the legal landscape. on an arbitration clause to ensure a neutral forum for THE NEW YORK CONVENTION dispute resolution. Parties may legitimately fear that, if a dispute arises, the other party will seek “hometown jus- Where a party seeks to enforce an arbitral award in a tice” by trying to litigate in its own country’s home courts. country different from the one where it was rendered, the Those concerns are particularly acute for investor-state New York Convention ordinarily governs whether courts agreements, where the counterparty is often the foreign of that country must recognize and enforce the award.2 government itself. That Convention has its own built-in choice of law clause for disputes over the validity of the arbitration agreement International commercial contracts also typically include that formed the basis for the award. Article V.1(a) permits choice of law clauses that specify what law governs the denial of recognition where the arbitration agreement “is contract. Sometimes that clause may refer to the same not valid under the law to which the parties have subjected jurisdiction as the arbitral seat – i.e., the place of arbitra- it or, failing any indication thereon, under the law of the tion specified in the arbitration clause. Often, however, it country where the award was made.”3 does not. For example, where a foreign investor agrees with a developing country’s government to build infrastructure Unfortunately, that provision is ambiguous regarding the in that country, the choice of law clause often points to relevance of a general choice of law clause in the broader the host country’s law. It is sensible and convenient for contract. Is a general choice of law clause sufficient to the parties’ substantive obligations to be interpreted under “subject” the arbitration clause to that law? Or does the the law of the place where the contract will be performed, Convention require a choice of law clause specific to the even if the parties agree to arbitrate disputes in a neutral arbitration provision? Might the selection of the arbitral third country. seat itself be an implied choice of law for the arbitration clause, even in the face of a general choice of law clause that points somewhere else? The Convention does not say. Commentators have taken diverging views. Albert Jan van Robert K. Kry is a partner at MoloLamken. He represents both claimants and respondents den Berg, a leading authority on the New York Conven- in arbitration-related disputes in New York, tion, opined that the “better view” is that “the choice of Washington, D.C., and other federal courts around the country. He represented the claim- law clause for the contract in general is not sufficient as 4 ants in two of the cases discussed in this article, choice of law for the arbitral clause.” He relied on the OJSC Ukrnafta v. Carpatsky Petroleum Corp., 957 fundamentally distinct purpose of an arbitration clause. F.3d 487 (5th Cir. 2020), and Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018). “The main contract and the arbitral clause have different objects: the main contract concerns the relationship between the parties as to the substance; the arbitral clause

New York State Bar Association 48 Journal, May/June 2021 is concerned with the procedure for settling disputes aris- Meanwhile, in OJSC Ukrnafta v. Carpatsky Petroleum ing out of the main contract.”5 In his view, the selection Corp., Carpatsky, a Texas oil and gas company, entered of the arbitral seat also amounted to an implied choice of into a joint venture to develop gas reserves in Ukraine law: “[I]f a contract contains a general choice of law clause with Ukrnafta, an oil and gas company indirectly majority and provides in the arbitral clause that arbitration is to be owned by the Ukrainian government.14 The joint activity held in a country with a different law, the latter indication agreement included a Ukrainian choice of law clause but must be deemed to prevail over the former.”6 also an arbitration clause providing for arbitration at the Other authorities weighed in on both sides. Gary Born Stockholm Chamber of Commerce, a popular venue for 15 agreed that a “general choice-of-law clause in [the] under- contracts with parties in former Soviet republics. After lying contract” should not determine the law for the a dispute arose over Ukrnafta’s refusal to allow Carpatsky arbitration clause, and that the “default rule . . . is the law to participate fully in the venture, Carpatsky brought an of the arbitral seat, not the law governing the underlying arbitration. Ukrnafta responded by obtaining rulings from contract.”7 He relied on the “presumptively separable” sta- its local Ukrainian courts that the agreement was ineffec- tus of arbitration clauses: Arbitration clauses are severable tive under Ukrainian law because Carpatsky had changed and thus enforceable even if a party contests the validity of from a Texas corporation to a Delaware corporation before the broader contract.8 By contrast, Redfern & Hunter, a signing the contract. The Stockholm tribunal went ahead 16 leading English treatise, took the opposite view: “Since the regardless and awarded Carpatsky around $150 million. arbitration clause is only one of many clauses in a contract, After Ukrnafta preemptively sued Carpatsky in Texas, it would seem reasonable to assume that the law chosen Carpatsky moved to confirm the award. The district court by the parties to govern the contract will also govern the entered judgment for Carpatsky.17 On appeal, a key issue arbitration clause.”9 was what law governed Ukrnafta’s challenge to the arbitration clause. Carpatsky argued that Swedish law applied UNITED STATES DEVELOPMENTS because the agreement designated Stockholm as the seat of Recent case law in the United States illustrates how the law arbitration. The Swedish courts, it noted, had upheld the governing an arbitration clause can be a significant focus agreement under Swedish law. Ukrnafta responded that of litigation. Ukrainian law governed due to the contract’s choice of law clause, and Ukrainian courts had found that no agreement Balkan Energy Ltd. v. Republic of Ghana In , the Govern- was formed. The Fifth Circuit took a third approach: It ment of Ghana sought to address a severe power shortage held that the dispute was fundamentally a question of Car- by contracting with the local subsidiary of an English patsky’s capacity to enter into the arbitration agreement, company, Balkan Energy, to refurbish an unused power 10 and as such, was governed by the law of Delaware, Car- barge. The power purchase agreement contained a gen- patsky’s domicile. Under Delaware law, Carpatsky’s change eral choice of law clause stating that the contract was gov- of domicile had no impact on the arbitration clause.18 erned by Ghanaian law, but it also included an arbitration clause requiring settlement of any disputes by the Perma- While those cases were unfolding, the American Law nent Court of Arbitration in The Hague, Netherlands.11 Institute was deliberating over the same question in the After the parties’ relationship broke down, Balkan Energy Restatement of the U.S. Law of International Commercial brought an arbitration. The Government responded by and Investor-State Arbitration, a project spearheaded by obtaining an injunction from its local Ghanaian courts Reporter George Bermann of Columbia Law School.19 purporting to restrain the arbitration. The arbitration The Restatement adopts a position favoring the general clause, the Government claimed, was invalid because the choice of law clause over the arbitral seat: power purchase agreement was not ratified by parliament. In determining the validity of [an] arbitration agree- The arbitral tribunal proceeded with the arbitration any- ment . . . a court applies the law to which the parties way and rendered an award for Balkan Energy.12 have subjected the arbitration agreement or, if no such law has been selected, . . . the law identified in the Balkan Energy then sought to enforce its award in the U.S. general choice-of-law clause in the underlying contract District Court for the District of Columbia. The Govern- or, in the absence of such a clause, . . . the law of the ment of Ghana opposed recognition on the ground that seat of arbitration.20 the lack of parliamentary ratification rendered the arbitration agreement invalid under Ghanaian law. The district The Reporter’s note acknowledges that “[c]ommentators 21 court disagreed. Citing van den Berg, the court held that are divided on this approach.” It opines that the Restate- the arbitration clause’s validity should be determined by ment’s approach “facilitates a consistent interpretive frame- the law of the arbitral seat. Because Ghana did not claim work for the entire contract, and best reflects the parties’ 22 that the arbitration clause was invalid under Dutch law, intent.” The American Law Institute approved the pro- the court enforced the award.13 posed final draft on May 20, 2019, and expects to publish the Restatement in late 2021.

New York State Bar Association 49 Journal, May/June 2021 UNITED KINGDOM DEVELOPMENTS [I]t is natural to interpret . . . a governing law clause, in the absence of good reason to the contrary, as Similar disputes have unfolded in other jurisdictions. applying to the arbitration clause for the simple rea- England, in particular, has seen major legal developments son that the arbitration clause is part of the contract in recent years. which the parties have agreed is to be governed by In two cases, XL Insurance Ltd. v. Owens Corning23 and the specified system of law.32 C v. D,24 English courts considered disputes involving The court perceived several advantages to that approach, so-called “Bermuda Form” insurance contracts. Dissatis- including the complexity of applying different laws to fied with how American judges and juries were deciding different parts of the same contract. Although an arbi- insurance disputes, certain foreign insurers began insist- tration clause is severable, the court reasoned, it is still ing on London arbitration clauses when writing policies part of the broader contract. The general choice of law for American companies, even while retaining New York clause should therefore presumptively apply.33 choice of law clauses. When disputes arose over the validity The court then turned to the fact pattern before it in or effect of those arbitration clauses, courts had to decide which the contract did not contain a general choice of whether New York or English law governed. In both XL law clause. In that circumstance, the court held, the Insurance and C v. D, the courts chose English law on the law of the seat – in that case, England – should gov- basis of the arbitral seat.25 ern.34 A third case, Sulamérica Cia Nacional de Seguros S.A. v. Enesa Engenharia S.A., took a different approach.26 That WHERE THINGS STAND case was an insurance dispute arising out of a hydroelec- The foregoing developments represent a significant tric project in Brazil. The insurance contracts contained shift in momentum. Previously, van den Berg and Born Brazilian choice of law clauses but also London arbitration probably could have claimed to represent the dominant clauses. The Brazilian insured parties tried to avoid arbitra- view on whether the law governing an arbitration clause tion on the ground that, under Brazilian law, the insurers is the law of the arbitral seat or the law of the general could not invoke the arbitration clauses without their choice of law clause. The Restatement and Enka cast consent. The court opined that “an express choice of law serious doubt on that status. governing the substantive contract is a strong indication of the parties’ intention in relation to the agreement to arbi- Regardless of which side has the better legal argument, trate” that should ordinarily govern absent factors pointing the Restatement/Enka position is undesirable from the the other way.27 In that particular case, however, the court perspective of arbitration policy. The law governing the did find countervailing factors – Brazilian law would have arbitration agreement matters principally because it rendered the arbitration clauses totally ineffectual. The is the law that applies when one party wants to avoid court thus applied English law despite its general rule.28 arbitration by challenging the validity or effectiveness of the arbitration clause. The same considerations that That disarray led the U.K. Supreme Court to take up justify a neutral arbitral forum to resolve disputes also the issue in Enka Insaat Ve Sanayi AS v. OOO Insurance favor a neutral legal regime to determine whether the 29 Co. Chubb, a case decided in October 2020. The arbitration will proceed. central issue in Enka was “which system of national law governs the validity and scope of the arbitration Parties that agree to arbitrate disputes in a neutral third agreement when the law applicable to the contract country typically do so because one or both of the par- containing it differs from the law of the seat of the ties does not trust the home courts of the other party arbitration.”30 A Russian insurer had sued a Turkish to render impartial justice. Rules that invite interven- construction company in Russia after a fire caused tion by the parties’ home courts impede that goal. The severe damage at a Russian power plant. The construc- Restatement/Enka rule has precisely that effect. General tion company sought an anti-suit injunction in Eng- choice of law clauses often point to one of the parties’ land on the basis of a London arbitration clause in the home states, particularly in foreign investment con- construction contract. The contract did not contain a tracts. In those circumstances, a rule that determines general choice of law clause, but the parties agreed that the validity or effectiveness of the arbitration clause by Russian law applied to the broader contract based on looking to the general choice of law clause is a recipe the close connection to that country.31 for mischief. It invites one of the parties to resort to its home courts to challenge the arbitration agreement The court began by addressing what rule should apply or the resulting award, and it invites those courts to when the parties do include a general choice of law intervene by attempting to enjoin the arbitration or by clause in the contract. The court adopted a rule favor- refusing to recognize the award. ing the general choice of law clause over the arbitral seat: National court rulings are not necessarily binding on an international arbitral tribunal even where the court pur-

New York State Bar Association 50 Journal, May/June 2021 ports to apply its own country’s laws.35 Nor are those by tying the governing law to the neutral forum speci- rulings necessarily binding in proceedings to enforce fied in the contract. The Restatement/Enka rule has the an award in other jurisdictions.36 At a minimum, opposite effect.37 however, home court rulings will have a much stronger claim to deference when they purport to interpret and THE DRAFTING SOLUTION apply their own country’s laws. If an arbitration clause Fortunately, all is not lost. The rule that the Restate- is governed by Egyptian law, and Egyptian courts hold ment and Enka adopt is only a default rule that applies that the arbitration agreement is invalid under Egyptian where the parties have not specifically selected the law law, a court in another jurisdiction deciding whether to that governs the arbitration clause. Where a contract recognize the award is more likely to be receptive to a includes a choice of law clause that specifically applies challenge to the agreement’s validity. At the very least, to the arbitration clause, there is no need to debate the Egyptian court rulings will seriously complicate and whether the contract’s general choice of law clause or protract any enforcement proceedings. the arbitral seat is the better indication of the parties’ That sort of regime undermines the goals of interna- intent. The parties have made their intent clear by tional arbitration. Where parties provide for arbitration explicitly selecting the law for the arbitration clause.

Where parties have gone to the trouble of providing for arbitration in a neutral third country, it is highly undesirable for the enforceability of that arbitration clause to depend on one of the contracting parties’ own legal regimes as interpreted by that party’s own home courts.

in a neutral third country, they do so because they want The Restatement and Enka both acknowledge that disputes adjudicated impartially. That includes disputes parties may contract around their default rule in that over whether the arbitration should proceed at all. A manner.38 general choice of law clause in the broader contract does To be sure, it is not common practice to include not detract from that objective in the least. In investor- a specific choice of law clause that applies only to state contracts, for example, parties often include gen- the arbitration clause. As Professor Born observes: eral choice of law clauses pointing to the law of the host “[P]arties in practice virtually never expressly choose state because the investment contract will be performed the law governing their arbitration agreement. Instead, in that country, and it is convenient for that country’s commercial parties ordinarily include only a general laws to govern the parties’ substantive obligations. choice-of-law clause in their underlying contract.”39 That does not mean the host country’s laws should also It is hard to blame them. Although most contracting determine whether that state can avoid an agreement to parties appreciate the benefits of a general choice of law resolve disputes in a neutral forum. clause, few are prescient enough to consider whether to A default rule that favors the law of the arbitral seat exclude particular contractual provisions, like an arbi- helps avoid home court resistance or intervention. If tration clause, from that general choice of law. More- an American company and an Italian company agree over, so long as the arbitral seat supplied the governing to arbitrate in London, and the London tribunal holds law for the arbitration clause, there was no obvious that the arbitration agreement is valid and binding reason to specify an exception to the general choice of under English law, courts in other countries are unlikely law for the arbitration clause – that law would not apply to think twice about enforcing an award merely because to the arbitration clause anyway. The Restatement and Italian or American courts assert that the English tri- Enka now put the consequences of failing to address bunal misinterpreted English law. The law of the seat this issue explicitly into much starker relief. rule helps avoid unwarranted home court intervention

New York State Bar Association 51 Journal, May/June 2021 The Restatement and Enka provide good reason to 5. Id. reevaluate the traditional drafting practice. Where par- 6. Id. 7. 3 Gary B. Born, International Commercial Arbitration § 26.05(C)(1)(e)(i)(1)–(2), at ties have gone to the trouble of providing for arbitration 3463–69 (2d ed. 2014). in a neutral third country, it is highly undesirable for 8. 3 id. § 26.05(C)(1)(e)(i)(1), at 3464–65; see also Buckeye Check Cashing, Inc. v. the enforceability of that arbitration clause to depend Cardegna, 546 U.S. 440, 445 (2006). on one of the contracting parties’ own legal regimes 9. Alan Redfern & Martin Hunter, Law and Practice of International Commercial Arbitration § 2-86, at 125 (4th ed. 2004). as interpreted by that party’s own home courts, rather 10. 302 F. Supp. 3d 144 (D.D.C. 2018), appeal dismissed by stipulation, No. 18-7061, than on the legal regime of the neutral forum selected 2018 WL 5115572 (D.C. Cir. Oct. 12, 2018). as the arbitral seat. Parties should therefore contract 11. Id. at 147. around the Restatement/Enka default rule by explicitly 12. Id. at 147–49. selecting the law of the arbitral seat for the arbitration 13. Id. at 152–53, 157, 159. The court also held in the alternative that the award should be enforced even if Ghanaian law applied. Id. at 153–54. clause. 14. 957 F.3d 487 (5th Cir. 2020). This proposal is not hard to implement. It amounts 15. Id. at 493–94. simply to this: In any international business agreement 16. Id. at 494–95. that includes both a general choice of law clause point- 17. Id. ing to Country A and an arbitration clause providing 18. Id. at 497–98. 19. Restatement of the U.S. Law of International Commercial and Investor-State for arbitration in Country B, the parties should include Arbitration (proposed final draft Apr. 24, 2019). within the arbitration clause a provision – which need 20. Id. § 4.10(c); see also id. cmt. c. only be a single sentence long – stating that all ques- 21. Id. reporter’s note c. tions relating to the arbitration clause, including any 22. Id. disputes over the validity, existence, or effectiveness 23. (2001) 1 All E.R. (Comm.) 530. of that clause, are governed by the laws of Country 24. (2007) EWCA Civ. 1282. B. After the Restatement and Enka, adding this one 25. See XL Insurance, (2001) 1 All E.R. (Comm.) at 540–43; C v. D, (2007) EWCA Civ. 1282, §§ 21–29. sentence could greatly improve the enforceability of the 26. (2012) EWCA Civ. 638. arbitration clause. At a minimum, this sentence could 27. Id. § 26. help avoid time-consuming and costly litigation if a 28. Id. §§ 30, 32. party later attempts to contest the arbitration clause. 29. (2020) UKSC 38. Neither the American Law Institute nor the U.K. 30. Id. § 2. Supreme Court issues decisions that are binding in 31. Id. §§ 10, 13–19, 147–148. New York or any other U.S. jurisdiction. Nonetheless, 32. Id. § 43. Id. the Restatement and Enka will surely be cited as per- 33. §§ 53, 61, 170(iv)–(v). 34. Id. §§ 120, 145, 170(viii), 171. suasive authority. Moreover, arbitration enforcement 35. See, e.g., Carpatsky Petroleum Corp. v. OJSC Ukrnafta, No. SCC V 124/2007, Final disputes often wind up in multiple countries, so it is Award § 208 (Arb. Inst. of Stockholm Chamber of Commerce Sept. 24, 2010) (arbitral important to take a global view. Careful lawyers – in tribunal “does not consider itself bound by the decisions of a national court”). 36. See, e.g., Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi New York and elsewhere – would do well to pay atten- Negara, 500 F.3d 111, 124 (2d Cir. 2007); cf. Animal Sci. Prods., Inc. v. Hebei Welcome tion to these developments when drafting or litigating Pharm. Co., 138 S. Ct. 1865, 1873 (2018). international arbitration agreements. In this instance, 37. Enka mitigates that result to some extent by suggesting that a “validation principle” could weigh against applying the general choice of law clause where “there is ‘at least a the law of international arbitration has taken a small serious risk’ that a choice of that law would ‘significantly undermine’ (the arbitration) agreement.” (2020) UKSC 38, §§ 95–109. Nonetheless, a rule favoring the law of the step backward. But the problem is easy to avoid with seat has advantages over that validation approach. The law of the seat rule ensures that only a minor change in how arbitration agreements are a neutral legal regime applies to questions relating to the arbitration clause even when they fall short of rendering that clause completely ineffective. In addition, some courts typically drafted. may hesitate to adopt what they perceive to be a result-oriented pro-claimant rule. The law of the seat rule is a neutral choice of law rule that helps ensure that disputes over 1. See, e.g., Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi the arbitration clause are resolved impartially. It does not attempt to stack the deck in Negara, 364 F.3d 274, 291 (5th Cir. 2004). favor of a preferred result. 2. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 38. See Restatement of the U.S. Law of International Commercial and Investor-State 10, 1958, 21 U.S.T. 2517. Arbitration, supra note 19, § 4.10(c); Enka, (2020) UKSC 38, § 170(iv). 3. Id. art. V.1(a), 21 U.S.T. at 2520. 39. 3 Born, supra note 7, § 26.05(C)(1)(e)(i)(1), at 3464. 4. Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation 293 (1981).

New York State Bar Association 52 Journal, May/June 2021 HILARY ON THE HILL Democrats Tackle the Environment

s spring flowers are growing and cherry blossoms through the Capitol. There is anything but unity within Aare blooming in Washington, Congress and the the Democratic majority in the House as to what should administration are turning their focus to environmental be included in an environmental legislative package, or if and infrastructure policy. Both issues were major focal it should be one massive proposal or broken down into points of Joe Biden’s presidential campaign, but now face smaller, more digestible, and therefore passable, bills. an uphill battle on Capitol Hill. While starting as distinct And across the aisle, many Republicans consider the bill legislative packages, environmental and infrastructure a nonstarter with mandates and regulations that they initiatives may become intertwined in their legislative say will crush the U.S. economy, push jobs overseas and journey from proposed bill to enacted legislation. For weaken national security. the purposes of this article, we will consider each issue as Included in the 1,000+ page, $565 billion, CLEAN separate and distinct policy matters involving both ends Future Act are provisions to, among other things: of Pennsylvania Avenue. • Set a national interim goal to reduce greenhouse gas In March, House Democrats unveiled the most expansive pollution by no less than 50% below 2005 levels by climate legislation ever to be considered in Congress. It is no later than 2030. expected it will take several months for the issue to move

Hilary Jochmans is the policy director for the New York State Bar Association and a member of the House of Delegates. She is also the founder of Jochmans Consulting, a boutique government affairs business. Previously, Jochmans was the director of the New York State Governor’s Office in Washington for both Andrew Cuomo and David Paterson. She has spent a dozen years on Capitol Hill working in the House and Senate.

New York State Bar Association 53 Journal, May/June 2021 • Declare a national goal for the U.S. to achieve a standards for disclosing direct and indirect Green House 100% clean economy by no later than 2050. Gas (GHG) emissions of a covered issuer and any fossil • Establish a federal clean energy standard. fuel related assets and specify requirements for climate scenario analyses.” • Modernize electricity infrastructure and create a 21st century power grid. In the meantime, the SEC is already proceeding with setting up mandatory climate disclosure rules for publicly • Reauthorize the Low Income Home Energy Assis- traded companies. Gary Gensler is expected to advance tance Program (LIHEAP) through FY 2031. this rulemaking process early in his tenure as SEC chair. • Direct the EPA Administrator to provide awards During his campaign, President Biden called for com- for up to 100% of the replacement costs of zero- panies to disclose any climate risks and greenhouse gas emission school buses. emissions within their supply chains. For some climate activists, these disclosures are merely a first step in • Place a temporary pause on new permits for facili- regulating financial companies’ environmental practices. ties that produce plastics, or the raw materials used They seek further defined and enforceable green com- to produce plastics. mitments from Wall Street. Republicans in Congress • Require the Secretary of Energy to establish a com- have said any required disclosure is political overreach prehensive, nationwide program to improve educa- and outside the scope of the SEC’s powers. tion and training for energy-related jobs to increase In the international arena, President Biden has undertak- the number of skilled and trained workers. en several environmental initiatives since taking office. • Establish that it is the responsibility of the federal On Inauguration Day, he announced the United States government to ensure the impacts of climate change would be returning to the Paris Accord, an international are identified and considered when developing and framework for addressing greenhouse gas emissions to implementing national security doctrine, policies limit the rise in global temperatures along with support and plans. for developing nations and transparent and robust cli- A key theme of the legislative package is a focus on mate goals. NYSBA has been supportive of U.S. involve- environmental justice, which the Environmental Protec- ment in the accord. When President Trump announced tion Agency defines as “the fair treatment and meaning- his intention to remove the U.S. from the agreement, ful involvement of all people regardless of race, color, then-NYSBA President Sharon Stern Gerstman wrote to national origin, or income, with respect to the develop- Trump to register the Association’s objection to his deci- ment, implementation, and enforcement of environ- sion to have the U.S. withdraw from the monumental mental laws, regulations, and policies.” The proposed agreement. In addition, Biden is also hosting a Climate legislation codifies the interagency working group on Summit on Earth Day, and the United States will be an environmental justice to coordinate federal efforts to alle- active participant in the November G20 meeting with a viate disproportionate impacts of pollution and requires focus on sustainable finance. relevant federal agencies to integrate environmental jus- The other major policy initiative advancing in Washing- tice into their respective missions. In addition, it requires ton this spring is an infrastructure package. The proposal community considerations to be taken into account includes both physical and human infrastructure pieces. when renewing or granting certain permits. Legislative proposals includes both physical and human In his first public statement as the U.S.’s top environ- infrastructure pieces. Speaker Nancy Pelosi has said the mental regulator, EPA Chief Michael Regan declared House will consider comprehensive legislation before the that environmental justice would be at the core of any Fourth of July. decision-making at his agency. He will appoint a senior The physical infrastructure piece will likely include environmental justice advisor and dedicate resources to traditional components such as investments in roads, ensure “every person in the United States has the right to bridges, public housing, schools and manufacturing. It is clean air, clean water and a healthier life no matter how expected that the human infrastructure piece will include much money they have in their pockets, the color of their investments in child care, paid leave, community college skin or their zip code.” education and broadband expansion and access. The role of the private sector in climate solutions is While there is general agreement that funding for broad- also addressed in the legislation. The bill would require band to close the “digital divide” – the chasm between companies regulated by the Securities and Exchange those who can afford and have access to the internet at Commission to disclose potential risks and any proposed home and those who do not – will be included in an mitigation strategies posed by climate change. The SEC infrastructure package, it is unclear what the specifics would have to issue disclosure rules within two years will look like. One option is a proposal to authorize and these rules would have to include “specific reporting over $100 billion for building or expanding broadband

New York State Bar Association 54 Journal, May/June 2021 networks, subsidies to help low income Americans afford monies are divided 80% for highways and 20% for their internet bills and for implementing Next Genera- transit systems. They argue that this formula puts urban tion 911 services, such as those that utilize text messages residents, who are much more likely to rely on public in lieu of phone calls. Another nearly $100 billion pro- transportation than personal automobiles, at a disad- posal also includes provisions specifically for broadband vantage and further exacerbates social injustice. How- expansion in unserved and underserved communities. ever, other Democrats, who represent rural communities, Increased broadband access is a federal priority for want to keep the status quo formula funding in place as NYSBA. The pandemic and resulting stay-at-home it benefits their constituents. We can see this dichotomy orders left millions of Americans working, educating play out across the country, but also within the bounds

and socializing in a virtual world. It has become abun- of New York State. Urban centers’ transportation needs dantly clear that broadband service is an important com- are quite different from rural areas’ needs in the Empire munications tool that has become vitally necessary for State. educational purposes and medical care, as well as access Rural representatives, who are often Republican, recog- to justice. There is a significant lack of technology infra- nize the need for substantial investments in developing structure in vast portions of New York State, while many broadband for their areas, which often do not have any parts of the state have limited broadband availability and access to high speed internet. They also tend to represent some areas are completely without any broadband service more rural and suburban areas that rely on highways and whatsoever. Appropriate funding is critical for the expan- cars for transportation needs. sion of a 21st century digital infrastructure sufficient to When Department of Transportation Secretary Pete But- provide adequate broadband access to all areas of the tigieg appeared before Congress on proposed infrastruc- nation. ture legislation, he testified, “I believe that we have at this The division in Washington over infrastructure is not so moment, the best chance in any of our lifetimes to make much partisan as it is geographical. While there are the a generational investment in infrastructure that will help usual differences between Democrats and Republicans us meet the country’s most pressing challenges today and on the role of government and spending priorities, the create a stronger future for decades to come.” major divide in infrastructure is urban vs. rural. This sentiment can be applied to climate change leg- Urban representatives typically are supportive of invest- islation as well. While we do not have a crystal ball to ments in transit infrastructure, which their constituents predict the future of these legislative proposals, it is clear use more than highway spending. For example, some that the political climate is right for these debates, and members in the Democratic caucus seek to change the the electorate is engaged and watching closely what their Highway Trust Fund’s allocation formula. Currently, representatives will do.

New York State Bar Association 55 Journal, May/June 2021 ATTORNEY PROFESSIONALISM FORUM

The Attorney Professionalism Committee invites our readers to send in comments or alternate views to the responses printed below, as well as additional hypothetical fact patterns or scenarios to be considered for future columns. Send your comments or questions to: NYSBA, One Elk Street, Albany, NY 12207, Attn: Attorney Professionalism Forum, or by email to [email protected]. This column is made possible through the efforts of the NYSBA’s Committee on Attorney Professionalism. Fact patterns, names, characters and locations presented in this column are fictitious, and any resemblance to actual events or to actual persons, living or dead, is entirely coincidental. These columns are intended to stimulate thought and discussion on the subject of attorney professionalism. The views expressed are those of the authors, and not those of the Attorney Professionalism Committee or the NYSBA. They are not official opinions on ethical or professional matters, nor should they be cited as such.

TO THE FORUM: I have suspicions about who the client may be. I narrowed it down to two individuals; one client owes me I am an attorney of 12 years, admitted to practice in a great deal of money, while the other client possesses a New York State and about five years ago, I became a sole criminal record. Yet both discharged me as their attorney practitioner. In order to reach potential clients, I cre- without explanation. ated a website to promote my services and to showcase my biography, pro bono work, testimonials and more. Needless to say, no matter who posted the negative Recently, however, it came to my attention that a former review, I am worried that my previously unblemished client had posted an extremely negative review of me and reputation is going to be subject to disparagement for- my staff on the Yelp website: ever. Continuing to work has been difficult during the age of COVID-19. With the pandemic shutting every- “Attorney Stones and her staff are rude and beyond incom- one in, I rely now, more than ever, on my website, as petent. They overcharged for ‘legal’ work that I could have well as my internet presence, to obtain business and grow done myself – and honestly should have – because I am no my reputation. I am concerned about these statements – better off than I was before their ‘help,’ if anyone would even they pop up whenever my name is run through a search dare to call it that! It really makes me wonder if she actually engine. went to law school. She needs to be canceled immediately. Highly do not recommend!!” I would like to resolve this without getting myself involved with the Grievance Committee. Am I ethically - Inda Limbo

New York State Bar Association 56 Journal, May/June 2021 permitted to respond in defense of my reputation? What the consequences that may arise from using the internet can I say and how do I counter this negative review? for purposes such as discussing a case on a blog or website. Very truly yours, When posting and maintaining an online presence, you Styx N. Stones must not only provide truthful and accurate information, but there are many other requirements that you should DEAR ATTORNEY STONES, not ignore. Specifically, you should review the New York Given your name, we are certain that you will appreciate Rules of Professional Conduct at 22 N.Y.C.R.R. § 1200 the old adage: “Sticks and stones may break my bones, but (RPC), and in particular, the applicable attorney advertis- words will never hurt me.” If it were not for the damaging ing Rules: Rules 1.0 (a)(c) and (i); Rule 7.1; 7.3; 7.4 and impact that a negative internet or social media posting 7.5. Best practices for attorney advertising are a subject for may do to your reputation, our advice might be to simply another Forum so for now we will refer you to these Rules, ignore it. However, as we say below, there are ways to as well as the many NYSBA Ethics Opinions issued over respond in a professional manner, but saying less actually the past 10 years, which can be found at: https://nysba. counts for more, especially when caught in the crossfire of org/category/ethics-opinions. what can be characterized as internet warfare. OPTIONS FOR RESPONDING TO A BAD However unpleasant, you should consider yourself for- REVIEW tunate that this is the only dissatisfied client that you have encountered during your 12 years of practice. The Turning to your question, what should a lawyer do when “occasional” dissatisfied or high maintenance client is a clients, opposing parties and others engage in internet sad fact of life. Over the years, we have tried in this Forum warfare by making negative comments in social media, to offer practical and proactive guidance as to dealing websites, blogs lawyer-rating services or other online ven- with the problem client, maintaining/restoring the client- ues with the intent to malign a reputation? attorney relationship and terminating the representation Some lawyers tackled the problem by suing for defama- should that become necessary. See Vincent J. Syracuse, tion. We do not opine as to whether this is a good idea or Maryann C. Stallone, & Alyssa C. Goldrich, Attorney what New York law and/or precedent provides as to the Professionalism Forum, N.Y. St. B.J., April 2020, Vol. parameters of a successful defamation action. However, 92, No. 3 (https://www.thsh.com/uploads/Dealing-With- just last year the Minnesota Court of Appeals denied The-Difficult-Client-And-Breakdowns-In-The-Attorney- the appeal, dismissing the Minneapolis lawyer Jeffrey C. Client-Relationship.pdf.) and Attorney Professionalism Brown’s lawsuit against an unhappy litigant for defama- Forum, N.Y. St. B.J. September/October 2020. Vol. 92, tion over a negative online review stating, inter alia, that No. 7 (https://www.thsh.com/uploads/Atty-Prof-Forum- Brown “need [sic] to go back to law school.” Yet, according SeptOct2020-The-Problematic-Client-and-When-is-it- to the court, the statement posted on Brown’s Google My time-to-Withdraw.pdf). Business account was deemed “vague” and informal due to Unfortunately, it appears to be too late for you to repair its placement on a platform notorious for what was called the relationship with your former client, so we will do our a “repository for opinions.” Jeffrey C. Brown Pllc v. Gold best to provide you and our readers with information as to Star Taxi and Transp. Serv. Corp., A19-1812, 2020 WL how to best deal with the situation at hand: Inda Limbo’s 4743502 (MN Ct. of Appeals Aug. 17, 2020), aff’d, No. negative internet posting. 27-CV-19-3939 (Bjorkman, J.). New York lawyers have also filed defamation lawsuits based on negative online As an attorney with an unblemished record, it is surely postings. See, e.g., P.D. & Assoc. v. Richardson, 64 Misc. 3d disconcerting to see your reputation maligned by a former 763, 104 N.Y.S.3d 876 (Sup. Ct., Westchester Co. 2019); client’s online rant, especially since in these times negative Morelli v Wey, 2016 N.Y. Misc. LEXIS 4706, 2016 NY social media posting may remain on the internet forever. Slip Op. 32487(U) (Sup. Ct., N.Y. Co. December 16, When a search of your name reveals a negative internet 2016). posting, you can either ignore it or do something to lessen its impact. Hopefully, we can offer you advice as to how to Resisting the temptation to sue, there are those who may protect your interests ethically and professionally. want to fight fire with fire by responding in kind to the negative review. Before hitting the “Send” button with a Websites and other social media platforms can be invalu- viscerally stinging and, perhaps justified, response, a law- able resources allowing us to have a public “online pres- yer needs to be mindful that doing so without understand- ence” by posting positive information promoting our areas ing the parameters of his or her ethical and professional of practice, legal services, and accomplishments, which obligations can create potentially huge risks leading to have the potential to reach clients. We note that when additional problems that may be far worse than a negative using these platforms, we lawyers need to be mindful of internet posting. This is especially so if the lawyer discloses our ethical obligations. Thus, we must be fully aware of client confidential information or uses uncivil or intem-

New York State Bar Association 57 Journal, May/June 2021 ATTORNEY PROFESSIONALISM FORUM perate language that may adversely reflect on their fitness tion of wrongful conduct” or “to establish or collect a to practice law. As we have noted in a prior Forum, the fee,” Inda Limbo’s words appear to be carefully chosen, obligation of a lawyer to protect a client’s confidential i.e., “Attorney Stones and her staff are rude and beyond information is one of a lawyer’s principal responsibilities. incompetent. They overcharged . . .’” but did not come See Vincent J. Syracuse, Carl F. Regelmann & Alexandra right out to say that you or any of your employees or Kamenetsky Shea, Attorney Professionalism Forum, N.Y. associates have conducted wrongful, or even unethical, St. B.J., January/February 2019, Vol. 91, No. 1 (https:// conduct. It is also unclear as to whether the fees were www.thsh.com/uploads/Handling-Confidential-Client- paid or whether Inda Limbo is contesting your fees. So, Information-JanFeb-Journal_2019.pdf). Thus, before any response should not mention “information gained proceeding, lawyers must be mindful that if they use during or relating to the representation of a client, what- confidential client information, they may run afoul of ever its source, that is (a) protected by the attorney-client Rule 1.6 and inter alia, Rule 1.2 (g); Rule 3.1(b); and privilege, (b) likely to be embarrassing or detrimental to Rule 8.4(h). See also, 22 N.Y.C.R.R. § 1200 Appendix the client if disclosed, or (c) information that the client A - Standards of Civility. has requested be kept confidential.” Further, you are RPC Rule 1.6 provides in pertinent part: unsure as to who the client really is – “Inda Limbo” is obviously a fictitious name. Thus, even though you may (a) A lawyer shall not knowingly reveal confidential believe that you have narrowed it down to two clients, information, as defined in this Rule, or use such infor- the information you mention is likely to be detrimental mation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: to one of them if revealed – one former client “owes you a great deal of money” and the other client “possesses a (1) the client gives informed consent, as defined in Rule criminal record.” Indeed, based on the information you 1.0(j); provided you have no way of knowing whether it is actu- (2) the disclosure is impliedly authorized to advance ally a third client or someone who may not have even the best interests of the client and is either reasonable been a client that published the negative commentary. under the circumstances or customary in the profes- Even assuming arguendo that the posting is an allegation sional community; or that constitutes wrongful conduct, you risk revealing (3) the disclosure is permitted by paragraph (b). confidential information about the wrong client. “Confidential information” consists of information If you do learn and confirm who actually published the gained during or relating to the representation of a negative social media posting in question, you must still client, whatever its source, that is (a) protected by the be careful to limit what you say. Specifically, Rule 1.6’s attorney-client privilege, (b) likely to be embarrassing Comment [14] indicates that are limited parameters for or detrimental to the client if disclosed or (c) informa- the disclosure, and provides: tion that the client has requested be kept confidential. “Confidential information” does not ordinarily include Paragraph (b) permits disclosure only to the extent (i) a lawyer’s legal knowledge or legal research or (ii) the lawyer reasonably believes the disclosure is neces- information that is generally known in the local com- sary to accomplish one of the purposes specified in munity or in the trade, field or profession to which the paragraphs (b)(1) through (b)(6). Before making a information relates. disclosure, the lawyer should, where practicable, first seek to persuade the client to take suitable action to obviate (b) A lawyer may reveal or use confidential informa- the need for disclosure. In any case, a disclosure adverse tion to the extent that the lawyer reasonably believes to the client’s interest should be no greater than the necessary: . . . lawyer reasonably believes necessary to accomplish the (5) (i) to defend the lawyer or the lawyer’s employ- purpose, particularly when accusations of wrongdoing in ees and associates against an accusation of wrongful the representation of a client have been made by a third conduct; or party rather than by the client. If the disclosure will be (ii) to establish or collect a fee; . . . made in connection with an adjudicative proceeding, the disclosure should be made in a manner that lim- RETAINING CLIENT CONFIDENTIALITY its access to the information to the tribunal or other persons having a need to know the information, and Here, given Inda Limbo’s animus and purposeful ano- appropriate protective orders or other arrangements nymity, it is unlikely that contacting her would result in should be sought by the lawyer to the fullest extent getting consent allowing you to post a response. While practicable. [Emphasis added]. you may be tempted to argue that there appears to be Likewise, you must be mindful of the RPCs Rules regard- an exception at Rule 1.6 (b)(5)(i) and/or (ii) because a ing civility or the lack thereof, which provide no excep- lawyer may reveal a confidence “to defend the lawyer or tion or justification for rude or intemperate behavior, the lawyer’s employees and associates against an accusa-

New York State Bar Association 58 Journal, May/June 2021 ATTORNEY PROFESSIONALISM FORUM whether appearing before a court or talking to the media. mal nature, is not ‘controversy between the lawyer and The applicable RPC Rules provide in pertinent part: the client’” within the meaning of Rule 1.6(b)(5), and Rule 1.2 (g): A lawyer does not violate these Rules by therefore does not allow disclosure of confidential infor- being punctual in fulfilling all professional commit- mation relating to a client’s matter. As stated in New ments, by avoiding offensive tactics, and by treating with York State Bar Association Ethics Opinion 1032 (2014), courtesy and consideration all persons involved in the “[u]nflattering but less formal comments on the skills legal process . . . . of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the Rule 3.1 (b): A lawyer’s conduct is “frivolous” for purpos- practice of a public profession and may even contribute es of this Rule if: . . . (2) the conduct has no reasonable to the body of knowledge available about lawyers for purpose other than to delay or prolong the resolution of prospective clients seeking legal advice.” In analyzing the litigation, in violation of Rule 3.2, or serves merely to issue ABA Opinion 496 also states: harass or maliciously injure another; or . . . The main ethical concern regarding any response a 8.4 (h): A lawyer shall not engage in any other conduct lawyer may make to an online review is maintaining that adversely reflects on the lawyer’s fitness as a lawyer. confidentiality of client information. The scope of In at least one case, a lawyer was censured for making the attorney-client privilege, as opposed to confidentiality, is a legal question that this Committee will not negative out-of-court public statements to the media address in this opinion. As this Committee itself con- about a judge. See Matter of Golub, 190 A.D.2d 110 (1st cluded in ABA Formal Ethics Opinion 480 (2018), Dep’t 1993). (Attorney censured for reckless comments to lawyers cannot blog about information relating to the press about a Supreme Court Justice after an adverse clients’ representation without client consent, even decision against his client in a highly publicized case. The if they only use information in the public record, court characterized the comments as “unprofessional, because that information is still confidential.” undignified, discourteous and degrading to the Judge NYSBA’s Ethics Opinion 1032, also specifically advised: and the court.”) Notably, lawyers may also be subject to civil sanctions in a matter before the court for engaging “Given the facts as presented, we need not con- in frivolous conduct that is “undertaken primarily to . . . sider whether a negative website posting might waive other kinds of confidentiality. Rather, we assume for harass or maliciously injure another.” See the New York present purposes that confidentiality has not been Rules of Court at 22 N.Y.C.R.R. § 130.1-1. waived. It suffices to say that the mere fact that a It is, therefore, critical to understand how to properly former client has posted critical commentary on a respond to negative postings to avoid engaging in inter- website is insufficient to permit a lawyer to respond net warfare that may lead to unintended consequences, to the commentary with disclosure of the former cli- including further damage to your reputation, grievances ent’s confidential information.” and ultimately disciplinary proceedings. There are several Certain jurisdictions give lawyers more leeway when bar association advisory opinions that offer some guid- responding to negative internet postings. For instance, ance that may help put you on a proper course. San Francisco Ethics Opinion 2014-1 (2014) states, “a lawyer may respond to online review by client if the mat- ETHICS OF RESPONDING ter has concluded and the lawyer discloses no confiden- The American Bar Association (ABA) recently issued tial information in the response; if the client’s matter is Formal Opinion 496 on Jan. 13, 2021, “Responding ongoing, lawyer may not be able to respond at all.” Even to Online Criticism,” which largely followed but also so, no matter what jurisdiction the lawyer may practice expanded upon the earlier NYSBA Ethics Opinion 1032 in the consensus is that lawyers must adhere to Rule of (2014). ABA 496 provides practical and proactive advice as Professional Conduct 1.6 (a) – “a lawyer shall not reveal to how a lawyer may professionally and prudently respond information relating to the representation of a client to online criticism, but NYSBA 1032 limits its advice to unless the client gives informed consent.” the inquiry as to whether the inquirer could reveal confi- As to what a lawyer should do, we recommend that you dential information to counter a negative internet posting review ABA Formal Ethics Opinion 496 which provides by a former client. Nonetheless, both Opinions emphasize much needed practical guidance with basic guidelines that no matter what the response may be, lawyers cannot as to the best practices to help evade unwanted conflict, reveal confidential client information to do so. See also, specifically internet warfare. We summarize the ABA’s Nassau County Bar Opinion 16-1 (2016), which largely recommendations with a few notes of our own below. followed and cited NYSBA 1032. 1. Consider not responding or ignoring a negative The ABA’s Ethics Opinion 496 (2021) states that online posting to avoid more visits to the posting “. . . alone, a negative online review, because of its infor- and/or invite a further negative response from an already unhappy client. New York State Bar Association 59 Journal, May/June 2021 ATTORNEY PROFESSIONALISM FORUM

2. Before responding, deduce whether the negative an attorney and member of the Bar. Engaging in internet comments implicate a formal complaint against warfare may be a bad idea that will end up backfiring. you or your firm. Again, ABA Model Rule 1.6(b) Sincerely, explains which circumstances may be considered The Forum by “formal” and justifiable to release client confidential Deborah A. Scalise information. We do not recommend guessing as ([email protected]) to what constitutes formal allegations. See NYSBA Tereza Shkurtaj1 Opinion 1032 and Nassau County 16-1 for a discus- ([email protected]) sion of what constitutes a formal allegation. January Vincent J. Syracuse 13, 2021. ([email protected]) 3. If the comments/statements malign your reputation, you may ask that the website host or search engine QUESTION FOR THE NEXT FORUM remove the negative post from their site/platform. 4. If they refuse to remove the comments, you can TO THE FORUM: respond by acknowledging that your professional I am the founder and managing partner of a boutique obligations restrict you from replying to commen- criminal defense firm. An old law school classmate of mine tary. who works for a not-for-profit public defender’s office 5. If the comment cannot be removed, you may also that represents criminal defendants as part of the county’s collect testimonials from satisfied clients, which you assigned counsel program recently contacted me to tell can add (with their permission) to your website and/ me that the county has defunded the public defender’s or have clients post their own positive reviews on office and is moving to an alternate program. While many that or other similar service-rating sites. By doing so, of their pending cases are being transferred to the new the negative review in question will be overshadowed alternate program, the program has limited capacity, and by a myriad of positive experiences. See RPC’s Rules he asked that I take on one of the outstanding client mat- 7.1(d)(3) and 7.1(e)(4) regarding the requirements as ters pro bono. I am always looking for an opportunity to to testimonials. help the underserved community through pro bono work 6. If the poster is a former or current client, you may and would be interested in taking on the matter, provided request to resolve the feud privately or offline in I am ethically permitted to do so. Do I have any ethical order to prevent future or additional comments. obligations with respect to taking on such representation? 7. If you know, for sure, the poster has never been a cli- In addition, my firm has been asked to represent another ent of yours, you may simply respond by stating that criminal defendant for the limited purpose of preparing you have not represented the poster in any prior, or for her upcoming trial. Given that I anticipate that the current, matter. pro bono matter will substantially monopolize my time in the foreseeable future, I’d like the matter to be handled by 8. Do not use uncivil language. See RPC’s Rules 1.2(g); an of counsel attorney at my firm. The engagement agree- 3.1; 8.4(h) and the New York Rules of Court Rule ment would be limited in scope to obtaining a pretrial 130.1-1. disposition and state that representation of the client at Therefore, to avoid engaging in internet warfare lawyers trial requires the client to separately engage the of counsel can either ignore the negative internet posting, or if attorney for that purpose and we would pay him a flat they choose to respond, the response should be circum- fee for his services. Is such a limited scope retainer and spect to comport with the RPCs relating to confidential flat fee payment permissible under the ethical rules? If so, information and/or civility. It may be best to ignore the are there any special precautions I must follow to make comments/statements posted online and not to engage in sure our firm is complying with the rules of professional “internet warfare.” conduct? In conclusion, Styx N. Stones, if you think that the old Sincerely, adage mentioned earlier is inapplicable because the words Amy Advocate posted on the internet will, in fact, hurt you and your reputation – you may choose to respond. However, Attor- ney Stones, be mindful of the Rules and advice discussed and explored throughout this Forum’s response to you 1. Ms. Shkurtaj is employed at Scalise & Hamilton, PC. She is a senior at Fordham University, double majoring in journalism and digital technology and emerging media. concerning your ethical and professional obligations as She will graduate this May and hopes to attend law school in the fall.

New York State Bar Association 60 Journal, May/June 2021 NEW YORK STATE BAR ASSOCIATION State Bar News How a Group of Lawyers Came Together for a Year Despite Isolation By Christian Nolan Then, O’Hara said, it became two months, then six months, and now it’s year ago, as the worldwide been a year. At the one-year anniver- A coronavirus pandemic spread sary roundtable, Coreno and O’Hara to New York, Libby Coreno, co-chair announced to the group that April 1 of NYSBA’s Task Force on Attorney would mark their final session. The Well-Being, and Dr. Kerry O’Hara, a duo would be returning to the podcast clinical psychologist, were preparing format. to launch a five-part NYSBA podcast “It’s been an amazing journey to just be series to help lawyers with wellness able to watch this group of people grow issues. and change over time,” said O’Hara. Life had been turned upside down “Things that a group of lawyers a year Libby Coreno and Dr. Kerry O’Hara ago never would’ve spoken about or and lawyers were no exception. They While the group had many concerns talked through, a year later it’s seamless. were wondering how they would pay particular to their profession, other It’s a great community.” the bills, pay their staff or work exclu- stresses were very much in tune with sively from home. About 40 people attended the first vir- society at large. There were fears about “Suddenly people were facing a lot of tual session a year ago, Coreno recalled. going back to courthouses or law offic- change, by themselves in new situa- Many have continued the entire year. es when the COVID-19 infection rate tions,” Coreno recalled. “How could That number has stayed fairly consis- declined in the summer. There were we create a space for people to discuss tent, though for some weeks attendance also worries about how to handle what that in a way that was confidential has been closer to 70, depending on surely was not going to be the normal and safe?” whether there has been a guest speaker. holidays, especially as the infection And from that thought NYSBA’s Coreno recalls the discussion the first rates increased again. Lawyer-to-Lawyer Wellness Round- week being centered around lawyers O’Hara said the lawyers in the group table was born. accepting that some things are out developed a camaraderie and built a of their control. Only Coreno and Held every Thursday at 4 p.m. for trust. She said the group began advo- O’Hara were on camera that week. She the past year, attorneys met via Zoom cating for and helping one another. said that the second week she allowed and confidentially discussed their The group knows who everyone is and the lawyers in attendance to also appear challenges, feelings and fears as they where they work, but there are ground on camera if they desired. In time, the navigated their way through the pan- rules: nobody can tape or videotape lawyers’ comfort with Zoom grew, and demic. The first roundtable was held the discussions to respect each other’s quickly everyone appeared on camera. March 26, 2020, and on Thursday, privacy. March 25, 2021, the group celebrated Generally, Coreno would introduce “But they really got to know each its one-year anniversary. a topic and “Dr. Kerry,” as the group other over the course of the year,” said calls her, framed it from a psychologi- Before the first roundtable, Coreno O’Hara. cal standpoint. Then they would ask and O’Hara admitted that they had Coreno explained that a lot of wisdom the group what it meant to them. no idea who would show up or how has been passed around amongst the Sometimes the lawyers would use the long it would last. various age groups, including senior raise your hand feature and would lawyers and those who just graduated “None of us back then could ever want to come on live; other times they law school. She said their fears are dif- have anticipated what actually trans- direct messaged Coreno or O’Hara, ferent but there is “so much kindness.” pired,” said O’Hara. “We’ll judge it especially with a personal question, or by if anybody shows up. If they do, they would chat with each other in the For example, when the pandemic first we’ll do it for a month.” group on Zoom. started and court hearings became Continued on pg. 62 New York State Bar Association 61 Journal, May/June 2021 State Bar News

Governor Signs Chapter Amendment as Part of New Power of Attorney Law By Christian Nolan statutory short form power of attor- Residents of nursing homes and long- ney within 10 business days. term care facilities found it nearly ov. Andrew M. Cuomo has Lastly, it makes technical changes impossible to fill out during the pan- Gsigned the much-anticipated to the statutory short form sections demic when an attorney was not chapter amendment legislation as part relating to the designation of multiple present. Its rigid requirement that of the new power of attorney law that agents. According to the bill, the wit- the exact language of the statute be goes into effect June 13. nesses cannot be an agent, successor incorporated in the document meant that the form could be invalidated for Cuomo, who signed the chapter agent or a permissible recipient of harmless errors. amendment bill March 25, negoti- gifts under the power of attorney. ated the agreement with lawmakers The announcement of the new power The new law, which creates a pre- when signing the original New York of attorney law (A.5630-A/S.3923-A) sumption in favor of the validity of State Bar Association advanced power in mid-December 2020 was a major a power of attorney form, makes of attorney bill in December. victory for NYSBA, which long advo- rejection of the document less likely because it allows language that sub- The chapter amendment, considered cated for the reform on members’ stantially conforms with the statute a compromise because it created an behalf. rather than requiring the form to additional burden on the execution A power of attorney is one of the incorporate the exact wording. It also of the power of attorney, requires that most widely used legal documents, discourages banks and other financial two disinterested witnesses sign the allowing people who fear they will no institutions from improperly refusing power of attorney form. longer be able to manage their own to accept the form by allowing a judge The chapter amendment also exempts financial affairs to transfer that power to impose penalties and attorney fees the state Department of Health, to someone else. Doing so avoids against institutions that unreasonably including Social Services districts in the need for a time-consuming and refuse to accept a consumer’s valid the administration of the Medicaid expensive guardianship proceeding power of attorney form. program or other public health insur- when a person becomes incapacitated. Additionally, the reforms in this leg- ance programs, from the requirement The current power of attorney form islation eliminate the Statutory Gifts that third parties honor or reject a proved to be too complex, costly Rider. and difficult for individuals to use.

How a Group of Lawyers Came Together for a Year Despite Isolation Continued from pg. 61 virtual appearances, this became a sharing of resources, the group does we thought it would last a month. I’m intimidating for many seasoned law- not give one another advice or “solve amazed it’s lasted this long. I don’t yers, especially those who are not as each other.” think we ever expected that.” technologically savvy. Coreno said the “We talk a lot about creating a validat- She said other roundtables have popped more junior lawyers were willing to ing environment,” said Coreno. “Val- up around the country. As the task show them what to do or provide idate someone’s experience – ‘That force works on a report about what bar them a link to a video that could help sounds hard for you,’ ‘I hear you’ associations can do to address attorney them. – instead of what lawyers tend to do: well-being, ideas like the roundtable Meanwhile, the young lawyers were problem solve, argue, fix or explain. may be in there. worried about how the pandemic We’re not in court. . . . Validate them “It’s been such a remarkable experi- would impact their job prospects or in their humanness.” ence,” said O’Hara. “We didn’t com- what law firm culture would be like For Coreno and O’Hara, the group felt mit to a year of it; it just happened during the pandemic. Coreno said the like “a community should feel,” and because it was needed. For the lawyers senior lawyers would try to help the they looked forward to each and every involved in this, it was bigger than any- younger lawyers with those concerns. Thursday. thing we could have imagined when it In general, Coreno said the group “I don’t think we thought it would get started.” acknowledges and listens. Unless it is to a year,” said Coreno. “I don’t think New York State Bar Association 62 Journal, May/June 2021 THE NEWS IN THE JOURNAL

Overcoming the COVID-19 Funk: An Attorney With Depression Shares His Experience

By Brandon Vogel depression. He spent his nights rumi- The renewed vigor for his work led to nating on thoughts and waking up some workaholic tendencies for the efore the COVID-19 pandem- not feeling rested. “It was a constant next decade, and he later found him- Bic, attorney Joseph Milowic III’s feeling of, Will this day end?” self in depression ruts and with less tol- daily routine consisted of taking the He sought medical treatment and erance for his antidepressants. “I was train from Queens to Manhattan, was misdiagnosed with prediabetes. just trying to work through the funks.” spending the bulk of his day working “They did not know I was dealing When it became more persistent, and in his Quinn Emmanuel office alone, with depression,” said Milowic, who at his wife’s urging, he visited a thera- and then going home. Since the pan- later founded the Lawyers Depression pist, who helped him with his thought demic, the introverted Milowic has Project. patterns and setting boundaries, and a found joy and peace of mind in a He regularly checked his glucose and new psychiatrist, who found the right home/work environment that sup- medicine for him. Meditation also has ports his natural temperament. routinely pricked his finger, but his health worsened. “I was losing inter- helped him focus on the moment. “I like being home with my family est in everything. I felt hopeless. I felt “Now I am very much into prioritizing and my dog,” said Milowic, who now everything was meaningless.” my self-care and my well-being and works from his living room table. Not I prioritize my peace of mind, family having a commute and having more Anxiety kicked in and he experi- and love at the top,” said Milowic, a time to walk his dog, exercise and see enced panic attacks more regularly. self-professed “work in progress.” “I his daughter and wife has been good Just hearing a ding on his computer am trying to do things aligned with for him. from a new email would cause him to my values that bring me pleasure and lose focus and become anxious. joy that are important to me.” But for every Milowic, there is another lawyer whose current environment After a year of experiencing symptoms Milowic acknowledged that COVID- is not supportive. and self-reflection, he deduced that the 19 is likely easier for introverts, who problem was his job, which came with prefer quiet and small groups, than “There is a spectrum of what attorneys long hours and litigation work he did extroverts who recharge by socializing. are experiencing because of COVID not enjoy. in the category of funk that ranges Elena Rand, an “introvert shamelessly from stress to suicidality, frankly,” said He emailed his diabetes specialist to disguised as an extrovert,” observed Elena F. Rand (LawScope Coaching), announce he found everything “mean- that there is a huge difference between a former litigator and also a licensed ingless” and was quitting his job the chronic destructive isolation and being psychotherapist. next day. Milowic’s specialist heard an introvert. She explained that intro- his cry for help and responded that verted people get a kick by recharging, Milowic and Rand examined how to he needed to come in and see a psy- enjoying pensive time and resting. In help attorneys of all temperaments chiatrist. meetings, extroverts are more likely to on the recent CLE webinar “Avoid- talk and blurt out answers as introverts ing the Funk: Strategies for Surviv- It turned out to be a turning point for think the answers. “A piece of reflec- ing Working From Home During him. tion is key to their being able to func- COVID and Beyond.” The psychiatrist quickly checked all tion,” said Rand. Milowic shared his personal story of the boxes on major depression. Ini- She noted that extroverts are “a lot how he deals with depression and tially unaware of this condition, Milo- of the people who are really, really obstacles in his life and career. wic was relieved to know he had “something diagnosable.” His doctor struggling.” They tend to engage with As a “fear-driven and perfection- prescribed him an antidepressant to people as a way of energizing. “They motivated” young associate, Milowic alleviate the symptoms. Within weeks, thrive and become their best selves in went through a number of different he felt better, stopped ruminating on the context of other people.” symptoms, including exhaustion and negative thoughts and found meaning Continued on pg. 65 lethargy, that he did not realize were in his work and life.

New York State Bar Association 63 Journal, May/June 2021 State Bar News Legal Community Mourns Loss of Judge Paul G. Feinman By Christian Nolan “With his passing, we have lost his wisdom and keen sense of justice,” said he New York legal community NYSBA President Scott M. Karson. Twas saddened by the passing of “We have also lost a champion of the state Court of Appeals Associate Judge rights of our LGBTQ citizens. On a per- Paul G. Feinman at the age of 61. sonal note, I am grateful to have had the privilege of getting to know Judge Fein- The news of Judge Feinman’s death on man, when he appeared before NYSBA’s March 31 came just eight days after the Committee to Review Judicial Nomina- sudden announcement of his retire- tions, through his service as chair of the ment for health reasons. New York State Justice Task Force and at “Judge Feinman served with excellence many law-related functions. at every level of our judiciary, and “I would like to express my sincere his broad experience, knowledge and clerk to Appellate Division Associate condolences, and those of the entire wisdom earned him the respect and Justice Angela Mazzarelli and a staff bar association, to his husband, family, warm personal regard of his judicial attorney for the Legal Aid Society. He friends and colleagues,” Karson added. colleagues,” said Chief Judge Janet graduated from the University of Min- DiFiore in a lengthy statement. “Judge Christopher R. Riano, chair of NYS- nesota Law School in 1985. Feinman was a meticulous, disciplined BA’s LGBTQ Law Section, said Judge Prior to his nomination to the Court and humble jurist who weighed the Feinman’s death was “heartbreaking” as of Appeals, a 17-member committee of legal interests at stake in each case with he was a friend to so many in the legal the State Bar Association found Judge great integrity in order to arrive at the community and an advocate for the Feinman “well qualified,” its highest correct and just result. His scholarly, LGBTQ community. He said Judge rating, after examining his “professional well-written opinions reflect a deep Feinman’s work within the state court ability and experience, character, tem- knowledge of the law balanced with a system was “a testament to the impor- perament, and possession of the special generous humanity and commitment tance of ensuring LGBTQ representa- qualities necessary or desirable for the to justice. tion at all levels of our courts.” judicial office sought.” “Judge Feinman had enormous respect In addition to replacing Judge Feinman, Judge Feinman has also been active in for the Court of Appeals as an institu- another seat on the Court of Appeals the New York State Bar Association. He tion,” continued DiFiore. “Even as his will soon be vacant with the announced was the presiding member of its Judicial illness progressed, his productivity and retirement of Judge Leslie Stein. A Section in 2012–2013 and a member the quality of his writings and contribu- third judge, Eugene Fahey, will reach of its House of Delegates in 2013–14. tions never suffered. And no one could the mandatory retirement age this year, Judge Feinman also served as a chair of want for a warmer or more caring col- which would require him to step down the New York State Justice Task Force, league than Paul Feinman.” at the end of 2021. a past president of the International DiFiore also described Judge Feinman “As there are now multiple open seats Association of LGBT Judges and a past as “a tireless and resolute champion of on the New York Court of Appeals, I president of the Association of Supreme LGBTQ rights, a trailblazing pioneer hope that Judge Feinman’s trailblazing Court Justices of the State of New York. for LGBTQ lawyers and judges and career only serves to ensure future seri- Attorney Kevin Baum said he interned an incredibly dedicated mentor who ous consideration of openly LGBTQ for Judge Feinman during the summer inspired countless judges, attorneys and candidates by the Commission on Judi- after his first year of law school when law students.” cial Nomination,” said Riano. Judge Feinman was still a justice of the Judge Feinman joined the Court of Judge Feinman, who had succeeded Supreme Court in the City Part. Appeals as an associate judge on June Associate Judge Sheila Abdus-Salaam “I’m deeply saddened by this,” said 21, 2017 after the state Senate con- after she died in April 2017, also spent Baum. “. . . Beside being the first firmed his appointment from the gov- 20 years on the bench with the state openly LGBTQ judge on the New York ernor. His nomination was historic, as Supreme Court, the Civil Court of Court of Appeals, he was a warm caring he was the first gay judge on the state New York City and as an associate mentor and a brilliant jurist. He will be Court of Appeals. justice of the Appellate Division, First missed.” Department. He also was principal law New York State Bar Association 64 Journal, May/June 2021 CLASSIFIEDS

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Overcoming the COVID-19 Funk: An Attorney With Depression Shares His Experience Continued from pg. 63 For extroverts, Rand recommends fight or flight. We are either procras- Lawyers should also have designated having a structured day, which tinating or fighting with each other.” times to pause or reflect. It can alle- includes designated start and end Being compassionate with others and viate anxiety when dealing with a times. “I think that’s a really impor- ourselves is essential, said Rand. Set- full inbox of contentious emails. It tant first step. You don’t have to be ting boundaries is important, but is acceptable to respond, “I will get orthodox about it, but aspirational.” you should know that you will give back to you shortly,” rather than react Rand emphasized that stress is not something up to meet that end. “If immediately. just mental, but a biochemical pro- you need to take a walk because your Having sent a few emails he wishes he cess occurring within our bodies. “It mind and health depend on it, find hadn’t this last year, Milowic agreed is a physical reaction to a perceived a way to articulate a gently crafted with Rand’s advice. “You don’t always threat,” said Rand. “We are either in boundary to do that.” know what is happening in the other lawyer’s life.”

New York State Bar Association 65 Journal, May/June 2021 CLASSIFIEDS

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New York State Bar Association 68 Journal, May/June 2021 2020-2021 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

Scott M. Karson First District Weiss, Mira B. Sixth District Santiago, Mirna M. * Alcott, Mark H. †* Younger, Stephen P. Adigwe, Andria Scheinkman, Hon. President Baum, Simeon H. Eberle, Aaron Kyle Alan D. Second District Melville Ben-Asher, Jonathan Gutenberger Grossman, Seiden, Hon. Adam Chambers, Hon. Berkey, David L. Kristin E. Shampnoi, Elizabeth Cheryl E. T. Andrew Brown Berman, Mark Arthur Lanouette, Ronald Jean Cohn, Steven D. Billings, Hon. Lucy Joseph, Jr. Shapiro, Jay President-Elect Fallek, Andrew M. Bloom, Allan S. Lewis, Richard C. Starkman, Mark T. Rochester Gayle, Armena D. Boston, Shelia †* Madigan, Kathryn Grant Tarson, Derek Grimaldi, Judith D. Chandrasekhar, Jai K. May, Michael R. Tesser, Lewis F. Domenick Napoletano Jimenez, Hon. Sergio Chang, Vincent Ted Miller, Rachel Ellen Triebwasser, Hon, Jonah Treasurer Kamins, Hon. Barry Cohn, David Welch, Kelly M. Klass, Richard A. Seventh District Brooklyn Dean, Robert S. Lugo, Betty Bascoe, Duwaine T. Tenth District Eng, Gordon Middleton, Tyear Brown, T. Andrew Abneri, Michael D. Sherry Levin Wallach Farber, Michael S. Napoletano, Domenick Buholtz, Eileen E. Bladykas, Lois Filabi, Azish Secretary Richter, Aimee L. * Buzard, A. Vincent Christopher, John P. Filemyr, Edward J. IV White Plains Richman, Steven H. Galvan, Jennifer L. DiFalco, Michael Drew Finerty, Margaret J. Yeung-Ha, Pauline Getz, Jon P. England, Donna Henry M. Greenberg First, Marie-Eleana Kammholz, Bradley P. Fishberg, Gerard Third District Immediate Past President Foley, Jenifer J. Kelley, Stephen M. Genoa, Hon. Marilyn Barclay, Kathleen Anne Albany * Forger, Alexander D. Kendall, Amy K. Good, Douglas Fox, Glenn G. Bauman, Hon. Harold J. Lawrence, C. Bruce Gross, John H. Freedman, Hon. Helen E. Burke, Jane Bello * Moore, James C. † Karson, Scott M. VICE-PRESIDENTS Friedman, Richard B. Donovan, Hon. Ryan T. Moretti, Mark J. Kretzing, Laurel R. First District Graves-Poller, Barbara Fernandez, Hermes Nussbaum, Carolyn G. Leo, Hon. John J. Jeane Gerbini, Jean * Palermo, Anthony Robert Leventhal, Steven G. Diana S. Sen, New York Hack, Jay L. Gold, Sarah Carol A. Sigmond, New York Paperno, Jill * Levin, A. Thomas Hamid, Jyotin R. †* Greenberg, Henry M. Ryan, Kevin F. Levy, Peter H. Second District Harvey, Peter C. Griesemer, Matthew J. * Schraver, David M. Lisi, Gregory Scot Aimee L. Richter, Brooklyn Heller, Meredith Stacy Hartman, Hon. Denise A. Schwartz-Wallace, Amy E. Markowitz, Michael A. Hoffman, Stephen Heath, Hon. Helena Third District * Vigdor, Justin L. Meyer, Jeffrey A. Holtzman, Robert N. Kean, Elena DeFio Mulry, Kevin P. Robert T. Schofield IV, Albany Eighth District Jaglom, Andre R. Kearns, Deborah S. Penzer, Eric W. Bennett, Ericka N. Fourth District †* James, Seymour W., Jr. Kehoe, Peter R. Pessala, Hon. Elizabeth D. Doxey, Deborah Anne Jones, Shawndra Kelly, Matthew J. Poster-Zimmerman, Marne Onderdonk, Albany * Doyle, Vincent E., III Kapnick, Hon. Barbara R. Kretser, Hon. Rachel Lynn D. Fifth District Effman, Norman P. Kenney, John J. Matos, Maria Purcell, Craig Arthur * Freedman, Maryann Jean Marie Westlake, Syracuse Kiernan, Peter J. McDermott, Michael * Rice, Thomas O. Kobak, James B. Jr. Philip Saccomando Sixth District †* Gerstman, Sharon Stern Robinson, Hon. LaBarbera, Anne Louise †* Miranda, David P. Derrick J. Richard C. Lewis, Binghamton Kimura, Jennifer M. * Lau-Kee, Glenn Onderdonk, Marne L. Rosenthal, Elisa Strassler Meyer, Harry G. Seventh District †* Leber, Bernice K. Rivera, Sandra D. Tambasco, Daniel Mohun, Hon. Michael M. Mark J. Moretti Rochester Lessard, Stephen Charles Ryba, Hon. Christina L. Taylor, Zenith T. Lindenauer, Susan B. Schofield, Robert T., IV O’Connell, Bridget Eighth District Maureen Welden, Clifford M. MacLean, Ian William Silverman, Lorraine R. Wicks, James M. Norman P. Effman, Warsaw Martin Owens, Deborah Teff, Justin S. O’Donnell, Thomas M. Redeye, Lee M. Eleventh District Ninth District McElwreath, Suzanne Woodley, Mishka Russ, Hugh M. III Alomar, Hon. Karina Hon. Adam Seiden, Mount Vernon McNamara, Christopher * Yanas, John J. †* Miller, Michael Saleh, David J. Cohen, David Louis Fourth District Tenth District Millett, Eileen D. Sweet, Kathleen Marie Gutierrez, Richard M. Betz, Edward Allen Donna England, Centereach Minkoff, Ronald C. Young, Oliver C. Katz, Joshua Reuven Breding, Alice M. Newman, Charles M. Rivera, Jorge Luis Eleventh District Coffey, Peter V. Ninth District Nolfo, Matthew J. Samuels, Violet Coseo, Matthew R. Battistoni, Jeffrey S. David L. Cohen, Kew Gardens O’Connell, Diane E. Ventura, Hon. Lourdes M. Gilmartin, Margaret E. Beltran, Karen T. Twelfth District Owens, John A. Jr. Wimpfheimer, Steven Horan, Michael Timothy Caceres, Hernan Paul, Deborah Taylor, Zenith T. Michael A. Marinaccio, White Plains Meyer, Jeffrey R. Calderón, Carlos M. Pitegoff, Thomas M. hirteenth istrict Montagnino, Nancy K. Capone, Lisa Twelfth District T D * Pruzansky, Joshua M. Peterson, Scott Carbajal-Evangelista, Hill, Renee Corley Jonathan B. Behrins, Staten Island Radding, Rory J. Pleat, Tara Anne Natacha Millon, Steven E. Rangachari, Rekha Simon, Nicole Marie Cohen, Mitchell Y. * Pfeifer, Maxwell S. Riano, Christopher MEMBERS-AT-LARGE OF THE Sise, Hon. Joseph M. Degnan, Clare J. Sheldon, Adam J. Russell, William T., Jr. Enea, Anthony J. Stanclift, Tucker C. Thirteenth District EXECUTIVE COMMITTEE Safer, Jay G. Forger, Alexander D.

Scott, Kathleen A. Fifth District Fox, Prof. Michael L. Behrins, Jonathan B. Mark Arthur Berman Sen, Diana S. Doerr, Donald C. Frumkin, William D. Cohen, Orin J. Crawford, Allyn J. John P. Christopher † Shishov, Natasha Engel, Paula Mallory Griffin, Mark P. Shoemaker, Paul T. Fennell, Timothy †* Gutekunst, Claire P. Lamberti, Anthony J. Margaret J. Finerty Sigmond, Carol Ann Fogel, Danielle Kessler, Leonard Marotta, Daniel C. Jean F. Gerbini Silkenat, James R. Mikalajunas Kirby, Dawn Mcginn, Shelia T. * Getnick, Michael E. Skidelsky, Barry Lara-Garduno, Nelida Out of State Sarah E. Gold Hobika, Joseph H., Jr. Slavit, Ira S. Levin Wallach, Sherry Alsina, Neysa LaRose, Stuart J. Richard M. Gutierrez Smith, Asha Saran Marinaccio, Michael A. Bahn, Josephine Radick, Courtney S. Sonberg, Hon. Michael R. Milone, Linda A. * Bracken, John P. Andre R. Jaglom Reed, Prof. LaVonda †* Standard, Kenneth G. Morrissey, Mary Beth Gilbreath Sowell, Karen Nichelle Ronald C. Minkoff Stoeckmann, Laurie Muller, Arthur J., III Grady, Colleen M. * Richardson, M. Swanson, Richard P. Mukerji, Deepankar William T. Russell, Jr. Catherine Harper, Susan L. van der Meulen, Robin A. * Ostertag, Robert L. Shafer, Robert M. Jochmans, Hilary Mirna M. Santiago Warner, S. Andre Palermo, Christopher C. Spicer, Graeme Ravin, Richard L. Tucker C. Stanclift Waterman, Hon. Pappalardo, John A. Vaughn, Anthony, Jr. Kathleen Westlake, Jean Marie Perlman, David B. Wolff, Brandon Lee Reed, Michael Hyden

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

New York State Bar Association 69 Journal, May/June 2021 THE LEGAL WRITER Thoughts on Legal Writing From the Greatest of Them All: Ernest Hemingway By Gerald Lebovits

Gerald Lebovits ([email protected]), an acting Supreme Court justice in Manhattan, is an adjunct at Columbia, Fordham, and NYU law schools. For her research, he thanks Nia Goodman (Columbia Law School), his judicial fellow. The next issue of the Journal will contain Judge Lebovits’s final Legal Writer column. With that, he will have published his column in every edition of the Journal for the last 20 years.

New York State Bar Association 70 Journal, May/June 2021 GERALD LEBOVITS

rnest Miller Hemingway is one of the greatest writ- Eers the world has known. Born in 1899 in Oak Park, Illinois, Hemingway began his career at the age of 17 as a journalist for the Kansas City Star. After World War I began, he joined a volunteer American Red Cross ambulance unit in Italy, where he made many observations on which he’d rely for his future novels. After he was injured in the Second Battle of the Piave River,1 he returned to the United States to continue his work as a journalist for Canada’s Toronto Star. He covered international political events, such as the Greek Revolution. During this time, Hemingway realized that the truth of a story is often hidden beneath its surface.2 As a journalist, he concentrated primarily on the immediate events to create a “spotlight” focus around them.3 That focus required succinctness and concision due to space constraints in printed newspapers. After becoming comfortable with this style, Hemingway applied it to his works of fiction with great success. He found that the fewer the details, the more powerful the stories.4 The novels he wrote using this style have become classics of American literature. His first successful work, The Sun Also Rises, described his experiences as part of a group of American expatriates in Paris. His second book, A Farewell to Arms, depicted an American ambulance worker’s disappointment in World War I and his role as a deserter. He used his experiences as a reporter in Spain as the background for his novel For Whom the Bell Tolls. One of his later works, The Old Man and the Sea, told the story of a lonely fisherman’s journey.5 Hemingway’s protagonists often included tough, courageous characters who go against the grain and disagree with modern society. This archetype became known as “Hemingway Code Hero,” defined as “a man who lives correctly, following the ideals of honor, courage and endurance in a world that is sometimes chaotic, often stressful, and always painful.”6 Some believe that these protagonists were an extension of Hemingway himself, who may have used his novels to tell stories about a fic- tionalized version of himself. As a young writer, he discovered what would become his signature writing technique, the iceberg theory, which had a profound impact on 20th-century fiction writing.7 Also known as the theory of omission, the iceberg theory is a minimalistic style of writing in which the writer focuses on the surface elements of the story – the tip of the iceberg – without going into detail about the underlying themes, the rest of the iceberg submerged in the ocean. Hemingway believed that readers should glean the meaning of a story implicitly, rather than explicitly stated by the writer. Musing about his own theory, Hemingway

New York State Bar Association 71 Journal, May/June 2021 THE LEGAL WRITER wrote that “[i]f a writer of prose knows enough about START AND FINISH WRITING IN “FLOW” what he is writing about, he may omit things he knows, According to psychologist Mihály Csíkszentmihályi, flow and the reader, if the writer is writing truly enough, is an optimal state of consciousness in which we feel and will have a feeling of those things as strongly as if the perform our best.14 Csíkszentmihályi describes the men- writer had stated them.”8 His approach to writing has tal state of flow as “being completely involved in an activ- been adopted by many legal writers, including Justice ity for its own sake. The ego falls away. Time flies. Every Anthony Kennedy, who has taken after Hemingway by action, movement, and thought follows inevitably from excluding adverbs from his legal writing.9 the previous one, like playing jazz. Your whole being is Throughout his writing career, spanning from the 1920s involved, and you’re using your skills to the utmost.”15 to the 1950s, Hemingway published seven novels, six While he never mentioned “flow” by name, Hemingway collections of short stories and two nonfiction books. For alluded to the concept in what he considered the most his work, Hemingway won the Pulitzer Prize for Fiction important thing he’d learned about writing: not to write too much at a time. He advised writers that the time to stop for the day is when things are going well and you know what’s coming next.16 The stopping point, he To ensure that a piece of described, occurs amid flow. He advised writers to stop writing is cohesive, Hemingway at this point every day to prevent getting stuck or expe- recommended rereading your riencing writer’s block.17 Hemingway wrote that he had “learned already never to empty the well of [his] writing, work from the beginning every but always to stop when there was still something there day before attempting to continue. in the deep part of the well.”18 Knowing when to stop is a valuable skill that can help prevent burnout as well as writer’s block. Working in in 1953 and the Nobel Prize in Literature in 1954. For flow promotes deep concentration, motivation, and over- his service as a World War I correspondent, he received a all satisfaction and gratification.19 Bronze Star in June 1947 at the U.S. embassy in Cuba.10 He committed suicide in 1961 at age 61. THINK ABOUT WRITING ONLY WHEN WRITING Hemingway’s works feature themes of love, war, travel, wilderness and loss, recurring themes in American litera- Having boundaries is a crucial part of life. But respecting ture.11 During his career, he gave advice to aspiring writ- boundaries is difficult. Writers often spend lots of time ers on how to improve their craft. Much of his advice was thinking about their works when they aren’t writing. about fiction writing, but it also applies to legal writing. Hemingway warned against this, urging writers not to think about their work in between writing sessions.20 He BEGIN WITH ONE TRUE SENTENCE believed that doing so would allow the subconscious to In his memoir A Moveable Feast, Hemingway discussed continue to work on the piece all the time. On the other his writing process and how he would start writing hand, he believed that if writers consciously think or worry about the piece, they’ll kill it, and their brain will something new. When he got stuck at the beginning of a 21 piece, he made sure not to worry, assuring himself instead be tired before even beginning to write. that he had written before and would write again. All he He expanded on this idea in A Moveable Feast, in which had to do was write one true sentence, the truest sentence he wrote about the need to read a different book after he he knew. He found this easy because there always was at had finished writing for the day. He found that without least one true thing he knew or had heard someone else reading to distract himself he’d lose the thing he was say. This trick helped him stay true to his declarative, writing before he could continue the next day. He also lean and simple writing style.12 spoke highly of using exercise, not only as a distraction, Legal writing is composed of many true sentences. It’s but to wear out the body and create fatigue. In referring difficult in any writing, legal or otherwise, to know where to the “well of his writing,” Hemingway preferred to let it be refilled at night from the springs that fed it: his or how to start. Hemingway asserted that beginning with 22 one true sentence allows a writer to “cut the scrollwork subconscious. or ornament out and throw it away,” shifting the focus of This tip will help prevent burnout in lawyers, while also the writing to the truth of the matter at hand.13 contributing to a healthy work-life balance.

New York State Bar Association 72 Journal, May/June 2021 GERALD LEBOVITS

REREAD AND REWRITE WHAT YOU’VE adjectives, and conclusions, and using positive language WRITTEN to make a point.30 Other writers at the time used flowery, descriptive language and complicated syntax. Hemingway To ensure that a piece of writing is cohesive, Hemingway did the opposite, and he was rewarded for it. He wrote to recommended rereading your work from the beginning 23 his editor in 1945 that “[i]t wasn’t by accident that the every day before attempting to continue. He noted the Gettysburg address was so short. The laws of prose writ- importance of editing while reading, instructing writers ing are as immutable as those of flight, of mathematics, to cut out everything they can. According to Hemingway, of physics.”31 His goal in writing was to write what he the best way to gauge the quality of your writing is by saw and felt in the best and simplest way.32 Hemingway what you can throw away. If what you’re able to remove is allowed his readers to think for themselves instead of tell- still important and compelling in its own right, then your 24 ing them in complex and fancy language what to make of writing is good. his writing, saying that “the first and most important thing Hemingway was a proponent of rewriting the work from of all, at least for writers today, is to strip language clean, the beginning each day, until the work became too long to lay it bare down to the bone.”33 to continue doing so.25 This helped him bring his ideas together and gave him another opportunity to edit as he 1. The Legal Writer’s paternal grandfather also fought in that battle, but for the Austro- wrote. He described the first draft of anything as terrible, Hungarian army. 2. Michael Reynolds, The Young Hemingway 17 (1998). explaining that he rewrote A Farewell to Arms over 50 3. Jeffrey Meyers, Hemingway: A Biography 98–99 (1985). 26 times before he felt it was complete. 4. Id. Hemingway advised writers not to get too discouraged 5. Horst Frenz, Ernest Hemingway Biography (1969), https://www.nobelprize.org/prizes/ during this process, which he described as mechanical literature/1954/hemingway/biographical. 6. Philip Young, Ernest Hemingway 36–37 (1952). work that can’t be avoided. He acknowledged the diffi- 7. Reynolds, supra note 2, at 17. culty of the writing process and even believed it’s the hard- 8. Ernest Hemingway, Death in the Afternoon 19 (1932). est work there is. He believed that writing takes courage 9. Ed Whelan, Justice Kennedy and Ernest Hemingway National Review, Oct. 9, 2014, and that the hardest part about it is finishing what you’ve https://www.nationalreview.com/bench-memos/justice-kennedy-and-ernest-hemingway- started.27 ed-whelan. 10. Frenz, supra note 5. PERSEVERE AND STAY POSITIVE 11. Frederic Svoboda, The Great Themes in Hemingway 155 (2000). 12. Ernest Hemingway, A Moveable Feast 12 (1964) (hereinafter Feast). Hemingway encouraged writers not to succumb to their 13. Id. own negative thoughts about their writing. He compared 14. Alayna Kennedy, Flow State: What It Is and How to Achieve It. HuffPost, Apr. 5, writing to war and writers to soldiers. It’s the writers’ 2017, https://www.huffpost.com/entry/flow-state-what-it-is-and_b_9607084. responsibility to see their work through. Once writers have 15. Id. 16. Ernest Hemingway, Monologue to the Maestro: A High Seas Letter, Esquire, Oct. 1, begun writing, Hemingway believed, it’s not only counter- 1935, at 21, https://classic.esquire.com/article/1935/10/1/monologue-to-the-maestro productive but also cowardly to worry whether they can (hereinafter Monologue). finish. He argued that the writer has no choice but to go 17. Id. on, making worrying a senseless act and a waste of time. 18. Hemingway, Feast, supra note 12, at 26. 19. Bryan Collins, 3 Surprising Benefits of Flow State, Forbes, Mar. 31, 2020, https:// Hemingway did recognize, however, that people don’t www.forbes.com/sites/bryancollinseurope/2020/03/31/3-surprising-benefits-of-flow- state/#798825d73627. always have control over their thoughts, positive or nega- 20. Hemingway, Monologue, supra note 16. tive. He advised writers to catch themselves if they think 21. Id. negatively and actively change or reframe that thought. 22. Hemingway, Feast, supra note 12, at 26. In doing so, writers will learn how to write and find their 23. Hemingway, Monologue, supra note 16. 28 own process. 24. Id. 25. Id. BE BRIEF 26. Id. The simplest piece of advice Hemingway gave to writ- 27. Arnold Samuelson, With Hemingway 180 (1981). ers may also be the most difficult one to implement. 28. Id. Hemingway, known for his succinct, direct, unadorned 29. Ernest Hemingway, On Writing 89 (1984) (hereinafter On Writing). 30. Joan Didion, Last Words, New Yorker, Oct. 26, 1998, https://www.newyorker.com/ prose, encouraged other writers to emulate his style. In magazine/1998/11/09/last-words-6. his story fragment On Writing, Hemingway described 31. Hemingway, On Writing, supra note 29, at 87. disliking writers who, in his words, “never learned how to 32. Id. say no to a typewriter”29 Hemingway often opted for one- 33. U.S. Air Force, Air Force Writing 9 (1966). syllable words and short sentences, leaving out adverbs,

New York State Bar Association 73 Journal, May/June 2021 Periodicals ADDRESS CHANGE – Send To: Member Resource Center New York State Bar Association One Elk Street Albany, NY 12207 (800) 582-2452 e-mail: [email protected]

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