Skills the First Secret Service the Law Practice Management Issue Edited by Marian C

SEPTEMBER 2016 VOL. 88 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION

Also in this Issue Enhance Your Bowing Out Ethically Firm Economics “Non-Lawyering” Get in the Cloud Define a New Practice Skills The First Secret Service The Law Practice Management Issue Edited by Marian C. Rice NEW YORK STATE BAR ASSOCIATION

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Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8369 NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Hannah R. Arterian Syracuse Marvin N. Bagwell Westbury Brian J. Barney Rochester Mark A. Berman New York City Katherine W. Dandy White Plains Janet M. DiFiore Albany Elissa D. Hecker Irvington Michael J. Hutter Albany Barry Kamins Brooklyn Paul R. Kietzman Latham Daniel J. Kornstein New York City Ronald J. Levine New York City Julia J. Martin Syracuse Marian C. Rice Garden City As a New York State Bar Association MANAGING EDITOR Daniel J. McMahon member you recognize the value and Albany e-mail: [email protected] ASSOCIATE EDITOR relevance of NYSBA membership. Nicholas J. Connolly Tarrytown

For that, we say thank you. PUBLISHER David R. Watson Executive Director

NYSBA PRODUCTION STAFF EDITOR Kate Mostaccio DESIGN Your commitment as members has made NYSBA the Lori Herzing largest voluntary state bar association in the country. Erin Corcoran COPY EDITORS Alex Dickson You keep us vibrant and help make us a strong, Reyna Eisenstark effective voice for the profession. Howard Healy EDITORIAL OFFICES One Elk Street, Albany, NY 12207 (518) 463-3200 • FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Fox Associates Inc. 116 West Kinzie St., Chicago, IL 60654 312-644-3888 FAX: 312-644-8718 New York: 212-725-2106 Los Angeles: 805-522-0501 Detroit: 248-626-0511 Phoenix: 480-538-5021 Atlanta: 800-440-0231 Claire P. Gutekunst David R. Watson Email: [email protected] President Executive Director EUGENE C. GERHART (1912 – 2007) Editor-in-Chief, 1961 – 1998 CONTENTS SEPTEMBER 2016 ENHANCE YOUR “NON-LAWYERING” SKILLS The Law Practice Management Issue 10 Edited by Marian C. Rice

13 Bowing Out Ethically Ending the Attorney-Client Relationship Before the Matter Is Completed by Matthew K. Flanagan 21 What Lawyer-Managers Should Do When Firm Economics Are Less Than Ideal by Joel A. Rose DEPARTMENTS 24 Tacking Right (or Left) Seasoned Litigator Finds New, Fulfilling 5 President’s Message and Profitable Practice 8 CLE Seminar Schedule by Donna Drumm 18 Burden of Proof Successful Managing Partners Practice by David Paul Horowitz 28 44 Tax Alert EI-Based Leadership by Robert W. Wood by Carol Schiro Greenwald 48 New Members Welcomed 34 Get Your Head in the Cloud 54 Attorney Professionalism Forum by Deborah E. Kaminetzky 61 Index to Advertisers 36 Practical Pointers on Home Construction 61 Classified Notices Contracts and Projects 63 2016–2017 Officers by Robert Kantowitz 64 The Legal Writer by Gerald Lebovits 40 Protecting the President The New York Lawyers Who Served in Abraham Lincoln’s First “Secret Service” by James P. Muehlberger

The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2016 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $30. Library subscription rate is $210 annually. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

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Joint Initiative with WBASNY Will Assist Victims of Domestic Violence “Our groundbreaking partnership with the Women’s Bar Association of the State of New York will help victims of domestic violence and their children get the legal relief, safety and stability they need.”

omestic violence has reached Association (NYSBA) and the Women’s an epidemic level in New York Bar Association of the State of New York Dand across the country. Domes- (WBASNY) have joined forces to create tic violence is ongoing, purposeful the NYSBA/WBASNY Domestic Vio- behavior aimed at exerting power and lence Initiative. Building on work done Expanding Pro Bono Service – To control over one’s intimate partner, and by and working closely with WBASNY expand the existing pool of volunteer can be psychological, physical, sexu- and its chapters and NYSBA Sections attorneys and opportunities for volun- al or economic in nature. Nationally, and committees, our partnership will teer service to victims of domestic vio- almost 25% of women and over 9% leverage our combined resources and tap lence, the Initiative will seek to collabo- of men have suffered sexual violence our extensive membership around the rate with bar associations throughout by an intimate partner and over 22% state to collaborate with and assist exist- the state to help address the legal needs of women and 14% of men have been ing legal services providers and bar asso- of domestic violence victims in their subjected to at least one act of severe ciation and law firm programs, help in jurisdictions, partner with local service physical violence in an intimate rela- recruiting and training volunteer attor- providers to jointly educate the legal tionship, according to a government neys, and expand pro bono programs community, and help recruit volunteers survey. New Yorkers statewide experi- serving domestic violence victims. and provide pro bono legal services to ence domestic violence without regard The Initiative will be chaired by victims. The Initiative also will help to gender identity, race, sexual orienta- two longtime advocates for victims of develop pro bono models that can be tion, religion, ethnicity, age, disability domestic violence, Judy Harris Kluger, brought to underserved communities. or educational or economic status. Executive Director of New York City- Legislative Advocacy – The Initia- Domestic violence victims often based Sanctuary for Families, and tive also will examine and make rec- have few resources and desperately Amy Schwartz-Wallace, Senior Staff ommendations concerning pending or need legal help in obtaining orders of Attorney at Empire Justice Center in proposed legislation that seeks to pro- protection against their abusers and in Rochester. The Initiative will include tect domestic violence victims. Where addressing collateral issues including representatives from legal services pro- we find common ground, NYSBA and housing, child support, custody and viders, bar association and law firm WBASNY will use our bully pulpit and visitation, and divorce. High-quality pro bono programs, the private bar, our lobbying power to advance those civil legal assistance plays an invalu- the state court system, and law school. recommendations in Albany. able role in protecting and empower- Providing Education and Train- Our groundbreaking partnership ing victims and their children. But the ing – The Initiative will help educate with WBASNY will help victims of need dwarfs the available resources. attorneys around the state concerning domestic violence and their children Despite the tremendous efforts by legal domestic violence and help ensure that get the legal relief, safety and stability services lawyers and the many hours pro bono and civil legal services attor- they need. We will be back to you later of pro bono service by members of the neys have access to the comprehen- this year to let you know how you can private bar, there continues to be an sive training they need to effectively help fight the scourge of domestic vio- urgent need for legal representation of address the broad range of issues faced lence in our state. n domestic violence victims. by individuals and families affected To assist and support legal services by domestic violence, including those providers and increase access to justice from diverse and traditionally under- Claire P. Gutekunst can be reached for victims, the New York State Bar served communities. at [email protected].

NYSBA Journal | September 2016 | 5 There are millions of reasons to do Pro Bono.

Each year millions of low income New Yorkers face civil legal matters without assistance. Women seek protection from abusive spouses. Children are denied public benefits. Families lose their homes. All without benefit of legal counsel. They need your help. If every attorney volunteered at least 50 hours a year and made a financial contribution to a legal aid or pro bono program, we could make a difference. Please give your time and share your talent.

Call the New York State Bar Association today at 518-487-5641 or go to www.nysba.org/probono to learn about pro bono opportunities.

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Risk Management 2016 From the Printed Page to the Silver Screen: An (9:00 a.m. – 1:00 p.m.) Overview of Licensing Comic Book Properties to the Film and Television Industries September 16 Syracuse (12:15 p.m. – 1:30 p.m.) September 23 Rochester October 9 New York City September 30 Buffalo October 7 Albany Medical Marijuana in New York October 14 Long Island (9:00 a.m. – 1:00 p.m., live & webcast) October 28 New York City October 14 New York City November 18 Westchester

Abstracts and Title Issues Digital Evidence in Family Law (9:00 a.m. – 1 p.m., live & webcast) (9:00 a.m. – 1:00 p.m.) October 20 Albany September 21 Buffalo September 22 Syracuse Handling and Taking Depositions September 23 Albany (9:00 a.m. – 1:00 p.m.) November 30 Long Island October 27 Long Island December 2 New York City October 28 Syracuse November 2 Albany Legal Ethics in the Digital Age November 3 Buffalo, New York City (9:00 a.m. – 1:00 p.m., live & webcast) September 29 New York City Bridging the Gap – Winter 2016 November 30 – December 1 Henry Miller – The Trial Albany, Buffalo (video conf.) October 5 Long Island New York City (live) October 19 Albany November 29 New York City Labor Law Claims, Coverage and Litigation December 14 Syracuse From Panel to Publisher: An In-Depth Look at December 15 Long Island, Albany Transactional Law for Comic Book Creator Clients December 16 Buffalo, New York City (12:15 p.m. – 3:15 p.m.) October 6 New York City

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Enhance Your “Non-Lawyering” Skills The Law Practice Management Issue

Edited by Marian C. Rice t’s been many (many, ouch!) decades since September brought with it the simultaneous dread and Iexcitement of a new school year. Despite the passage of time, September is still a good month to take stock of the direction your law practice is taking. Has your firm grown? Do you need to update your practices and procedures to adapt with the changes the past year has Enhance Your brought? Is a new hire a good idea? Are your equipment or office leases coming up for renewal? Do you need hardware/software upgrades? The list is endless. NYSBA’s Law Practice Management (LPM) Committee is here to help. Our goal is to direct the attention of the “Non-Lawyering” Skills many, many talented NYSBA members to resources that will bump up their skills in managing the practice of law. The Committee is dedicated to providing resources that enable attorneys to obtain the information needed The Law Practice Management Issue to manage their practices and get back to the primary goal of representing clients. Through materials located on the NYSBA website, the LPM Committee provides Edited by Marian C. Rice lawyers, law firm managers and legal professionals with information on practice management trends, marketing, client development, legal technology and finance. Whether you’re a solo practitioner or a managing partner at a national law firm, you’ll find law practice management materials designed to meet your day-to-day practice needs. Checklists, best practices, publications and continuing legal education programs provide up-to- date information and practical tips to help you efficiently manage your law practice. Check out our offerings on the NYSBA website and please let us know of any topic you would like to see addressed. Law practice management has endless facets and we are pleased to showcase some diverse topics designed to enhance your “non-lawyering” skills in this issue of the Journal. Got a problematic client but find that “breaking up is hard to do”? Knowing when it is time to cease representing a client is almost as important to the successful practice of law as obtaining the clients in the first place. Matt Flanagan of the law firm Catalano, Gallardo & Petropoulos, LLP provides us with guidance on how to properly and ethically exit the attorney-client relationship in both litigation and non-litigation contexts. I was lucky to find my niche area of practice – representing lawyers – very early in my career. Although law schools have had their difficulties in recent years, there are few educations that prepare a person for a wide array of careers better than a law degree. Many attorneys, however, test the waters in different aspects of the profession before landing in a position where they find satisfaction. Donna Drumm’s experience spans all aspects of the legal profession, from practicing attorney to bar executive director to entrepreneur. Her thoughtful article provides valuable information on how to reevaluate the options available to attorneys and find the position best suited for an individual’s interests and talents. Many years ago, the Wall Street Journal published an article detailing a study that found that as a whole,

NYSBA Journal | September 2016 | 11 human beings are wired as optimists – except those implosions. Management consultant Joel A. Rose of Joel practicing law. It seems that, in general, lawyers are A. Rose & Associates, Inc. tackles the special difficulties skeptics. The article concluded with the memorable quote confronting management in hard economic times and “[i]n law, pessimism is prudence.” After all, aren’t we offers guidance on steering the firm to profitability. trained to identify and protect our clients from taking An issue of the Journal addressing the multi-facets of on unknown risk? We take the facts, apply the law and law practice management would not be complete without argue the conclusions. There’s no room for emotion in mention of the technology hurdles lawyers are expected this equation – or is there? to master as part of their duty of competence under Rule

Law practice management has endless facets.

In her article examining the role of emotion in 1.1 of the Rules of Professional Conduct. Haven’t yet leadership, marketing guru Carol Schiro Greenwald been able to wrap your brain around the concept of the details the real-life experiences of six successful and “cloud”? Debra Kaminetzky of Kaminetzky & Associates, effective managing partners: Jeffrey Citron, managing P.C. offers a bird’s-eye view of the risks and benefits partner of Davidoff Hutcher & Citron, LLP; Robert associated with moving your files to the cloud. I promise Danziger, partner at Danziger & Markhoff, LLP; P. it won’t be over your head. Daniels Hollis III, managing partner, Shamberg Marwell And finally, stay tuned for the always useful and Hollis Andreycak & Laidlaw, P.C.; Mark Mulholland, instructive Attorney Professionalism Forum by Vincent former managing partner at Ruskin Moscou Faltischek, J. Syracuse, Chair of Tannenbaum Helpern Syracuse P.C.; Mark Landis, managing partner at Phillips Nizer, & Hirschtritt LLP’s Litigation & Dispute Resolution LLP; and Michael Solow, managing partner at Kaye Practice. This month, Vince tackles the conundrum of Scholer, LLP. These talented leaders charted the course of how to handle an adversary who simply makes things their law firms in difficult times by promoting emotional up. intelligence–based leadership skills based upon the Stop by the LPM page on NYSBA’s website when works of Dr. Larry Richard, the principal consultant you have the chance and let us know if you have at LawyerBrain LLC, and the recently released paper suggestions as to how we can help you better manage “Cognitive Emotion and the Law” by Harold Anthony your practice. n Lloyd. Not sure what I’m talking about? Good. You are going to love Carol’s article, which weaves Richard’s Marian C. Rice, current Co-Chair of NYSBA’s Law Practice Management findings with the real-life experiences of these modern Committee and past President of the Nassau County Bar Association, is day leaders. the chair of the Attorney Liability Practice Group at the Garden City law How to develop, promote and nurture leadership firm of L’Abbate, Balkan, Colavita & Contini, LLP and has focused her skills is an important topic of LPM. Few law firms fail practice on representing attorneys in professional liability matters for more than 35 years. because their lawyers are not talented. Lack of direction from the top is the most frequent cause of law firm

12 | September 2016 | NYSBA Journal Bowing Out Ethically Ending the Attorney-Client Relationship Before the Matter Is Completed By Matthew K. Flanagan

he N.Y. Rules of Professional Conduct require “without material adverse effect on the interests of the cli- attorneys to “carry through to conclusion all mat- ent.”2 “General inconvenience” to the client is not enough ters undertaken for a client,”1 but few attorneys, if to stand in the way of the attorney’s withdrawal.3 Some T 4 any, need to be told that. Attorneys who are retained to adverse effect on the “client’s legal interests” is required. perform a task generally want to see the task through to Whether there is an “adverse effect” on the client will its completion. often turn on the timing of the withdrawal. If, for exam- There are times, however, where that becomes impos- ple, a statute of limitations is about to expire, or some sible. The client may stop paying; the attorney may have other deadline is imminent, the client’s legal interests health problems or other issues that prevent him or her may be jeopardized by the attorney’s withdrawal. from completing the matter; a conflict of interest may If there is no material adverse effect on the client, then arise; or there may be a breakdown in the relationship terminating the attorney-client relationship is a fairly easy with the client that makes it impossible for the attorney task when litigation is not involved. The attorney or firm to see the matter through to its completion. In such situ- need not file a formal motion to be relieved. A simple let- ations, the attorney will need to withdraw from the rela- ter or email to the client will do. The client’s documents tionship, even though the client may want the attorney to and property should be returned, along with any part of finish the task he or she was hired to do. the fee which has not been earned.5 The Rules of Professional Conduct allow an attor- The correspondence terminating the relationship ney to withdraw, but the attorney should do so with should highlight any upcoming deadlines. An attorney care, since the client who feels abandoned may be more who withdraws from representation must “avoid fore- inclined to file a grievance or malpractice action against seeable prejudice to the rights of the client, including the attorney. The client who feels abandoned will also be giving reasonable notice to the client [and] allowing time more inclined to refuse to pay the attorney for the work for employment of other counsel.”6 Specific deadline performed before the representation ended. dates should be referenced, particularly if the dates are This article will discuss the proper way for disengag- approaching quickly. In one case, a firm that was consulting from a representation in situations where the matter ed regarding a medical malpractice action was sued for has not been completed and the client has not found a notifying the client a “mere” 33 days before the expiration new attorney to take over. It will also discuss the ways of the statute of limitations that it would not file an action in which proper disengagement can assist the attorney in on her behalf. The court found a question of fact as to defending malpractice or breach of fiduciary claims that whether the firm was negligent in not calling the client’s may be brought by the former client, and it will address attention to the specific number of days remaining before mechanisms available to attorneys to protect their right to the statute of limitations expired.7 be compensated for the work they have done. Matthew K. Flanagan is a partner at Catalano Gallardo & Petropoulos, I. Termination of the Attorney-Client Relationship in LLP. He is a skilled litigator with extensive trial and appellate experience a Non-Litigation Context in the area of legal malpractice defense, professional liability and general Unless there are some grounds for mandatory with- litigation. He has successfully argued numerous appeals in the Appellate drawal from representation (such as when the lawyer is Divisions for the First, Second and Third Departments, and New York’s discharged or the lawyer’s physical and mental condition highest court, the Court of Appeals, and is a frequent lecturer regarding impairs the lawyer’s ability to represent the client), the legal malpractice prevention and defense, and ethics and professional primary inquiry in determining whether an attorney can liability. withdraw is whether withdrawal can be accomplished

NYSBA Journal | September 2016 | 13 The importance of documenting the termination of Although the rules in the federal and state courts dif- the relationship cannot be overemphasized. In addition fer somewhat, the courts apply similar considerations in to confirming the attorney’s compliance with the Rules determining whether to allow an attorney to be relieved of Professional Conduct, documenting the termination from representing a party in a pending litigation. The may prove crucial in establishing a statute of limitations courts look to (1) the reasons for withdrawal and (2) the defense if a malpractice or breach of fiduciary duty action impact on the proceeding.14 is brought against the attorney by the former client. The statute of limitations on a malpractice claim against A. Reasons for, and Timing of, Withdrawal the attorney will in most cases begin to run when the Rule 1.16(b) discusses situations in which an attorney relationship has been concluded,8 and the easier it is to must withdraw from representation, such as when the establish the end date of the relationship, the easier it may lawyer is discharged or the lawyer’s physical and mental be to succeed with a statute of limitations defense. Addi- condition materially impairs the lawyer’s ability to rep- tionally, by documenting the end of the attorney-client resent the client,15 and Rule 1.16(c) discusses situations relationship, the attorney-defendant may be able to sever in which the lawyer may withdraw from representing a the causal connection between his or her alleged malprac- client, such as when the client insists on taking action tice and the former client’s damages. Many a malpractice with which the lawyer has a fundamental disagreement, action has been dismissed where the attorney was able or when a client “deliberately disregards an agreement or to establish that there was ample time, after the end of obligation to the lawyer as to expenses or fees.”16 the relationship, for the former client or his or her new The most common reason for withdrawal is the client’s attorney to do that which the first attorney did not do.9 failure to pay the attorney’s bills. It may not be enough, As one leading treatise notes, “[a] lawyer’s failure to act however, to say simply that the client has not paid. Some is not a cause of the loss if there was adequate time for the courts have drawn a distinction between “mere nonpay- client or successor lawyer to pursue the client’s claim.”10 ment and deliberate disregard of financial obligation.”17 If the client does not have sufficient time to retain a The latter, but not the former, would justify an attorney’s new attorney to complete the task that the first attorney withdrawal, particularly where the withdrawal is sought was hired to do, then withdrawal may not be deemed early in the litigation. The ideal showing on a motion to permissible under Rule 1.16. One of the challenges in be relieved from representing a non-paying client is of withdrawing in the non-litigation context is selecting the “[a] solvent client who simply elects not to pay an obliga- right time to withdraw. tion to an attorney.”18 A representation may “require more work or sig- II. Termination of the Attorney-Client Relationship nificantly larger advances of expenses than the lawyer in a Litigated Matter anticipated when the fee was fixed,” but that alone is not Where litigation is involved, a lawyer cannot withdraw grounds for withdrawal.19 It is expected that the attorney, from employment in the matter without the court’s per- who is better able to assess the expense of the representa- mission (unless, of course, the attorney is replaced by tion at the outset, will bear some responsibility if his or another attorney, a situation which we are not addressing her assessment turns out to be wrong.20 here).11 In New York’s state courts, CPLR 321 governs Other circumstances warranting an attorney’s with- how attorneys withdraw in a pending litigation. That sec- drawal include “irreconcilable differences,”21 although tion provides that “[a]n attorney of record may withdraw not every disagreement establishes good cause for with- or be changed by order of the court in which the action is drawal. For example, a disagreement as to whether to pending, upon motion on such notice to the client of the accept a settlement offer does not, by itself, amount to a withdrawing attorney, to the attorneys of all parties in the “fundamental disagreement.”22 action or, if a party appears without an attorney, to the Likewise, an attorney’s belief that the client’s claim is party, and to any other person, as the court may direct.”12 frivolous will not necessarily justify permitting the attor- The federal counterpart, in the Southern and Eastern ney to withdraw, particularly where the judge disagrees Districts of New York, is Local Rule 1.4, which provides that the claim is frivolous, as happened recently in a case that “an attorney who has appeared as attorney of record in the Northern District.23 The few courts which have for a party may be relieved or displaced only by order addressed attorneys’ claims that they cannot continue to of the court and may not withdraw from a case without prosecute an action because it lacks merit have expressed leave of the court granted by order.” In seeking such an concern about addressing the merits of the action in the order, the attorney must establish (1) “satisfactory reasons context of a motion to be relieved.24 As one state court for withdrawal”; (2) “the posture of the case, including its judge noted: “It seems clear that an application to with- position, if any, on the calendar,” and (3) “whether or not draw is no more appropriate a vehicle for judicial deter- the attorney is asserting a retaining or charging lien.” The mination of the merits of a claim or defense than it is to local rules of the Northern and Western Districts of New resolve an insurance coverage dispute.”25 That particular York similarly require a showing of “good cause.”13 judge allowed the attorney to withdraw based on a show-

14 | September 2016 | NYSBA Journal ing of “a change in circumstances since commencement herself defending a Judiciary Law § 487 claim based on of the representation that has led to a reassessment of the statements made in the motion to be relieved. merits of plaintiff’s claim,” but only after noting that he 2. Be Mindful of Client Confidences was satisfied that the attorney was acting in good faith.26 Rule 1.6, which governs the confidentiality of information A client’s filing of a grievance against the attorney will received from the client, does not expressly authorize also justify withdrawal from representation in a civil liti- the disclosure of confidential information in order to gation, but not necessarily in a criminal matter.27 In crimi- allow an attorney to be relieved from representation,33 nal matters, courts are concerned that the defendants will yet the attorney may not be able to support the request file grievances against one attorney after the next in order to withdraw without disclosing confidential communica- to delay the trial.28 tions. For example, if an attorney is seeking to withdraw

A representation may “require more work or significantly larger advances of expenses than the lawyer anticipated when the fee was fixed,” but that alone is not grounds for withdrawal.

With regard to the timing of the motion to withdraw, because the client insists on presenting a claim that the the simple rule, well known to most, is: the sooner before attorney deems frivolous, the attorney cannot establish trial, the better. Generally, where discovery has not yet the grounds for withdrawing without disclosing his com- been completed and the case is not on the verge of trial, munications with the client. withdrawal will be permitted.29 The Comments to Rule 1.16 provide something of a solution. In seeking to withdraw, the attorney who wants B. Things to Remember in Moving to Be Relieved to avoid disclosing confidential information should sim- In addition to setting forth sufficient grounds to justify ply state: “Professional considerations require termina- withdrawal, and ensuring that the motion is made as tion of the representation.”34 If that does not work (and long before trial as possible, the attorney moving to be it seems that there is a good chance that it will not), relieved should remember to (1) be accurate and (2) be then, according to a recent New York State Bar Associa- mindful of client confidences. tion ethics opinion, the attorney may go further and, in 1. Be Accurate response to a court order requiring it, disclose confiden- Factual statements made in support of the order to tial information in order to justify withdrawal from the show cause to be relieved should be fully documented representation.35 The opinion cautions, however, that the and completely accurate, as the statements can give rise disclosure should be limited to the extent necessary to to claims under Judiciary Law § 487, which prohibits accomplish the withdrawal, and that the attorney should attorneys from engaging in deceit or fraud in connection request an in camera examination of the confidential infor- with a pending court action. Two recent cases illustrate mation.36 this point. In one case, the plaintiff alleged that the defen- Motions to be relieved should, whenever permitted, dant attorneys, although fully paid under the terms of be filed under seal or with a request to present the rea- the retainer agreement, claimed otherwise in order to be sons for withdrawal in camera. This is routinely done in relieved from the representation.30 The court held that the federal courts,37 and the local rules for the U.S. District allegation was sufficient to state a claim under Judiciary Court for the Western District of New York require that Law § 487. In another case, the former clients claimed the attorney seeking to withdraw request to submit the that the attorney violated Judiciary Law § 487 by offer- reasons for withdrawal in camera.38 This is so even when ing “fabricated grounds” in support of an order to show the dispute relates to the party’s unpaid legal fees, a mat- cause to be relieved.31 The plaintiffs alleged that the attor- ter which does not necessarily implicate privileged com- ney asserted a “conflict with plaintiffs regarding strategy munications.39 Where unpaid fees are the issue, it should and a lack of trust,” rather than “the true reason,” which, be sufficient to let the other side know that the attorney is according to the plaintiffs, was “an unfounded belief withdrawing because of a fee dispute, but in the Western that plaintiffs could [not] or would not pay future legal District not even that is required. bills.”32 Likewise, in state court, where, under CPLR 321, the Accurate and substantiated assertions in the order to motions to be relieved are required to be made by order show cause will assist any attorney who finds himself or to show cause, documents can be submitted for in camera

NYSBA Journal | September 2016 | 15 review. In fact, in some cases, attorneys have been criti- A cost-benefit evaluation should be performed before cized by courts for not doing so.40 the lien is asserted. Even if the lien is rightfully asserted, Needless to say, the attorney should, even in in camera and ultimately validated, the validation may come in a submissions or documents submitted under seal, avoid malpractice or breach of fiduciary action which will cost disparaging the client, who will be entitled to review the attorney in deductible payments under his or her law- those submissions. yers’ professional liability insurance policy or increased insurance premiums in the future. III. Protecting Your Right to Be Paid for the Work Performed B. Charging Liens An attorney who seeks to be relieved does not forfeit Charging liens are authorized by Judiciary Law § 475, his or her right to be paid for work performed prior to which provides, in relevant part, that “the attorney who the withdrawal. In seeking to be relieved, an attorney appears for a party has a lien upon his client’s cause of can request that the court issue an order finding that the action, claim or counterclaim, which attaches to a verdict, attorney is entitled to either a charging lien or a retaining report, determination, decision, judgment or final order lien. Another mechanism employed by attorneys to be in his client’s favor.”47 These liens can only be asserted paid for work performed is a judgment by confession. by the attorney of record, although the attorney or firm The lien is important for two reasons. First, it is a step need not be the attorney of record when the settlement is toward getting paid for work performed. Second, it may obtained or the verdict or judgment is rendered.48 provide the attorney with a collateral estoppel defense Until recently, charging liens were limited to situations in the event he or she is later sued for malpractice by in which an action was commenced, and would not apply that client. An order finding that an attorney is entitled if a claim was settled pre-litigation through alternative to his or her fee necessarily decides that the attorney did dispute resolution or negotiations, but recent amend- not commit malpractice.41 And this is so even where the ments to Judiciary Law §§ 475 and 475-a change that. order simply establishes the attorney’s entitlement to a Now, it no longer matters that a claim is resolved without lien, without specifying the amount.42 ever being placed into litigation. Under the amendments, The two forms of liens, as well as judgments by con- attorneys can be entitled to charging liens even where the fession, are discussed below. former client’s litigation is resolved through alternative dispute resolution or otherwise settled before an action A. Retaining Liens is filed. Although Rule 1.16(e) provides that, in terminating the Like retaining liens, charging liens can be forfeited relationship with the client, the attorney must “deliver[ ] if the attorney withdraws without good cause.49 Some to the client all papers and property to which the client federal courts have suggested that the showing of “good is entitled,” the comments to the rule acknowledge that cause” needed to establish the withdrawing attorney’s a lawyer “may retain papers as security for a fee.”43 The entitlement to a charging lien is greater than the show- reference is to retaining liens, which “give an attorney the ing of “satisfactory reasons” needed to withdraw from right to keep, with certain exceptions, all of the papers, a pending action in the Southern and Eastern Districts documents and other personal property of a client which under Local Rule 1.4.50 Thus, in those courts, an attorney have come into the lawyer’s possession in his or her can be permitted to withdraw, but might not be found professional capacity as long as those items are related entitled to a charging lien. The more exacting standard to the subject representation.”44 A client can overcome invites a greater showing of the reasons to withdraw, and the retaining lien and secure the release of the file by perhaps a greater disclosure of confidential information. demonstrating exigent circumstances, which may include The greater disclosure is authorized by Rule 1.6(b)(5)(ii) indigence.45 of the Rules of Professional Conduct, which permits the An attorney who withdraws without good cause use of confidential information to “establish or collect a will be deemed to have forfeited his lien,46 and before fee,” but the disclosure must be limited to the extent rea- asserting a retaining lien, the attorney should thoroughly sonably necessary to accomplish that goal. review Rule 1.16 and ensure that good cause exists. There is risk in asserting a retaining lien. If there is no C. Judgments by Confession litigation pending, the attorney will not be able to obtain Although they have not been encouraged, there is no rule a court order confirming his or her entitlement to the barring the use of confessions of judgment with respect to retaining lien, and a court may later find that the lien, if legal fees. However, the client must understand “that the ever there was one, was waived. Depriving the client of amount is to be agreed upon or fixed by the court,” and the file may have adverse consequences for the client, and confessions of judgment cannot be used for prospective if the lien is wrongfully asserted, the attorney may end up or unearned fees.51 Moreover, in matrimonial matters, being liable for those consequences. confessions of judgment cannot be obtained to secure a fee unless the retainer agreement so provides, notice has

16 | September 2016 | NYSBA Journal 16. See 22 N.Y.C.R.R. 1.16(c). been given to the other spouse, and court approval has 17. See Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP v. Hirsch, 52 been obtained. 2010 WL 2667198 (E.D.N.Y., June 23, 2010). The client should be given “a complete and full expla- 18. See id. (quoting U.S. v. Stein, 488 F. Supp. 2d 370, 374 (S.D.N.Y. 2007)). nation of the character, effect and purpose” of the judg- 19. 22 N.Y.C.R.R. 1.16, Comment [8A]. ment by confession, including the adverse effect on his 20. See id. or her credit history, and if there is any doubt as to the 21. See, e.g., Winkfield, 2013 WL 371673, at *1. client’s ability to understand its effect, it should not be 22. 22 N.Y.C.R.R. 1.16, Comment [7A]. obtained.53 The client should also be advised of his right 23. Hexemer v. General Electric Co., 2014 WL 5465813 (N.D.N.Y., Oct. 28, 2014). to arbitrate any fee claim under Part 137 of the Rules of 24. See Hexemer, 2014 WL 5465813, at *5; Diaz v. New York Comprehensive Car- the Chief Administrator. diology, PLLC, 43 Misc. 3d 759, 762 (Kings Co. 2014). When obtained appropriately and with the client’s 25. Diaz, 43 Misc. 3d at 762 (citing McDonald v. Shore, 100 A.D.3d 602, 603 (2d informed consent, the judgment by confession can have Dep’t 2012)).] the same res judicata effect in a subsequent malpractice 26. See id. at 765. action as an order establishing an attorney’s retaining lien 27. Compare Davidson v. Scully, 2000 WL 9512 (S.D.N.Y., Jan. 6, 2000) or charging lien.54 (“Absent extraordinary circumstances, no law firm should be required to continue to represent a client who has filed a grievance against one of its attorneys.”) and Cahill v. Donahoe, 2014 WL 3339787 (W.D.N.Y., July 3, 2014) IV. Conclusion (“[T]he filing of a grievance against an attorney does not create a per se con- Neither the client nor the attorney walks away fully flict between the attorney and client.”). content when the attorney-client relationship ends before 28. See U.S. v. Polanco, 2013 WL 5126661, at *5 (E.D.N.Y., Sept. 12, 2013). the job that the attorney was hired to do is finished, but 29. See, e.g., Kariminian v. Time Equities, Inc., 2011 WL 1900092 (May 11, 2011). sometimes the relationship has to end, and the Rules of 30. Cohen v. Kachroo, 115 A.D.3d 512 (1st Dep’t 2014). Professional Conduct account for that. The attorney’s 31. Brady v. Friedlander, 121 A.D.3d 431 (1st Dep’t 2014). withdrawal must be done properly in order to avoid 32. See id. prejudice to the client and to avoid the chances of the 33. See 22 N.Y.C.R.R. 1.6. attorney later being found to have breached his or her 34. 22 N.Y.C.R.R. 1.16, Comment [3]. professional obligations to the client. The attorney has 35. NYSBA Comm. on Professional Ethics Formal Op. 1057 (June 5, 2015). additional incentive to withdraw properly where litiga- The opinion quotes Rule 1.6(b), which permits an attorney to “reveal or use tion is involved; if a motion to withdraw is denied, the confidential information [when] the lawyer reasonably believes necessary . . . attorney will be forced to persist in a litigation in which (6) when permitted or required . . . to comply with other law or court order.” he or she wants no part. n 36. See id. 37. Team Obsolete, Ltd. v. A.H.R.N.A. Ltd., 464 F. Supp. 2d 164, 165 (E.D.N.Y. 1. See 22 N.Y.C.R.R. 1.3, Comment [4]. 2006) (“[D]ocuments in support of motions to withdraw as counsel are routinely filed under seal where necessary to preserve the confidentiality of the 2. 22 N.Y.C.R.R. 1.16(c)(1). attorney-client relationship between a party and its counsel.”). 3. See Simon’s Rules of Professional Conduct Ann., 2016 Ed., at 950 (Thomson 38. See Local Rule 83.2(d)(1), Local Rules of Civil Procedure, U.S. District Reuters 2016). Court, Western District of New York. 4. See id. 39. Harrison Conference Services, Inc. v. Dolce Conference Services, Inc., 806 F. 5. 22 N.Y.C.R.R. 1.16(e). Supp. 23 (E.D.N.Y. 1992). 6. Id. 40. Taveras v. General Trading Co., Inc., 2010 WL 10934082 (N.Y. Co. July 6, 2010). 7. See Burke v. Law Offices of Landau, Miller & Moran, 289 A.D.2d 16 (1st Dep’t 2001). 41. See Molinaro v. Bedke, 281 A.D.2d 242 (1st Dep’t 2001). 8. See, e.g., Farage v. Ehrenberg, 124 A.D.3d 159, 163–64 (2d Dep’t 2014) 42. See Wallach v. Unger & Stutman, LLP, 48 A.D.3d 360 (2d Dep’t 2008). (although a cause of action for legal malpractice is deemed to have accrued 43. 22 N.Y.C.R.R. 1.16, Comment [9]. when the malpractice occurred, the statute of limitations may be tolled under the continuous representation doctrine until the attorney’s ongoing represen- 44. See Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., tation concerning a matter out of which the claim arose is completed). 370 F.3d 259 (2d Cir. 2004). 9. See, e.g., Perks v. Lauto & Garabedian, 306 A.D.2d 261 (2d Dep’t 2003); 45. Karimian v. Time Equities, Inc., 2011 WL 1900092 (S.D.N.Y., May 11, 2011). Albin v. Pearson, 289 A.D.2d 272 (2d Dep’t 2001); Kozmol v. Law Firm of Allen L. 46. Corby v. Citibank, N.A., 143 A.D.2d 587, 588–89 (1st Dep’t 1988) (citing Rothenberg, 241 A.D.2d 484 (2d Dep’t 1997); and C&F Pollution Control, Inc. v. Goldman v. Rafel Estates, 269 App. Div. 647, 649 (1st Dep’t 1945)). Fidelity & Casualty Co. of New York, 222 A.D.2d 828 (3d Dep’t 1995). 47. Judiciary Law § 475 (McKinney 2016). 10. See Mallen, Legal Malpractice 2016 Ed., § 8.25, at 1047. 48. See Klein v. Eubank, 87 N.Y.2d 459 (1996). 11. 22 N.Y.C.R.R. 1.16(d). 49. See Kariminian, 2011 WL 1900092, at *4. 12. See CPLR 321(b)(2). 50. See id. (citing cases). 13. See Local Rule 83.2(b), Local Rules of Civil Procedure, U.S. District Court, 51. See Katlowitz v. Halberstam, 284 A.D.2d 306, 307 (2d Dep’t 2001). Northern District of New York, and Local Rule 83.2(d)(1), Local Rules of Civil Procedure, U.S. District Court, Western District of New York. 52. 22 N.Y.C.R.R. 1400.5(a). 14. See Winkfield v. Kirschenbaum & Phillips, P.C., 2013 WL 371673 (S.D.N.Y., 53. See NYSBA Op. 474 (1977). Jan. 29, 2013). 54. See Hoffenberg v. Hoffman & Pollok, 288 F. Supp. 2d 527, 537 (S.D.N.Y. 15. See 22 N.Y.C.R.R. 1.16(b). 2003).

NYSBA Journal | September 2016 | 17 BURDEN OF PROOF BY DAVID PAUL HOROWITZ David Paul Horowitz ([email protected]) is a member of Geringer, McNamara & Horowitz in New York City. He has represented parties in personal injury, professional negligence, and commercial cases for over 26 years. In addition to his litigation practice, he acts as a private arbitrator, mediator and discovery referee, and is now affiliated with JAMS. He is the author of Bender’s New York Evidence and New York Civil Disclosure (LexisNexis), as well as the most recent supplement to Fisch on New York Evidence (Lond Publications). Mr. Horowitz teaches New York Practice at Columbia Law School and lectured on that topic, on behalf of the New York State Board of Bar Examiners, to candidates for the July 2016 bar exam. He serves as an expert witness and is a frequent lecturer and writer on civil practice, evidence, ethics, and alternative dispute resolution issues. He serves on the Office of Court Administration’s Civil Practice Advisory Committee, is active in a number of bar associations, and served as Reporter to the New York Pattern Jury Instruction (P.J.I.) Committee. The “New” Deposition Rules, Ten Years On

Introduction as a substitute for testimony at trial,”5 attorney, shall include a clear state- Next month marks the tenth anniversa- that statute, and its successors, mainly ment as to any defect in form or ry of the effective date1 of the Uniform addressed the mechanics of how a other basis of error or irregularity. Rules for the Conduct of Depositions, deposition was to be noticed and held, Except to the extent permitted by part of the Uniform Rules for the New rather than the conduct of the attor- CPLR Rule 3115 or by this rule, York State Trial Courts, and codified at neys participating in the deposition.6 during the course of the examina- 22 N.Y.C.R.R. §§ 221, et. seq. (Part 221).2 Part 221 provides detailed, but suc- tion persons in attendance shall Composed of three subparts, 221.1, cinct, rules for questions, objections, not make statements or comments 221.2, and 221.3, the rules, in the words and communication with a witness that interfere with the questioning. of George Carpinello, Esq., chairman during the deposition. The rules, § 221.2 Refusal to answer when of the OCA Civil Practice Advisory which have not been amended since objection is made Committee: their enactment, provide: A deponent shall answer all questions at a deposition, except (i) to [E]mbrace cardinal principles that § 221.1 Objections at depositions preserve a privilege or right of con- are abused all the time. Lawyers (a) Objections in general. No objec- fidentiality, (ii) to enforce a limita- who know better take liberties tions shall be made at a deposition set forth in an order of a court, at depositions to gain a tactical tion except those which, pursu- or (iii) when the question is plainly advantage . . . Judge [Jonathan] ant to subdivision (b), (c) or (d) improper and would, if answered, Lippman has taken the commit- of Rule 3115 of the Civil Practice cause significant prejudice to any tee’s recommendations and issued Law and Rules, would be waived person. An attorney shall not direct a “common sense rule” that sets if not interposed, and except in a deponent not to answer except as the parameters for depositions in compliance with subdivision (e) of provided in CPLR Rule 3115 or this black and white.3 such rule. All objections made at subdivision. Any refusal to answer Why were the rules needed? Because a deposition shall be noted by the or direction not to answer shall there were certain common practices officer before whom the deposition be accompanied by a succinct and in New York State Court depositions is taken, and the answer shall be clear statement of the basis therefor. that would lead extraterrestrial visitors given and the deposition shall pro- If the deponent does not answer to believe they had wandered into a ceed subject to the objections and a question, the examining party schoolyard brawl, rather than a judi- to the right of a person to apply shall have the right to complete the cial proceeding. Coaching via “if you for appropriate relief pursuant to remainder of the deposition. know,” improperly directing witnesses Article 31 of the CPLR. § 221.3 Communication with the not to answer questions, and abusive (b) Speaking objections restricted. deponent behavior, including “barking like a dog Every objection raised during a An attorney shall not interrupt at a witness” at a deposition,4 were deposition shall be stated succinct- the deposition for the purpose of rampant. While “New York’s Field ly and framed so as not to suggest communicating with the deponent Code of 1848 provided for pretrial an answer to the deponent and, unless all parties consent or the oral examinations of adverse parties at the request of the questioning

18 | September 2016 | NYSBA Journal communication is made for the under the supervision of a referee Some, but not all: purpose of determining wheth- (citation omitted), should have We conclude, however, that the er the question should not be been granted.9 court properly granted that part answered on the grounds set forth In Mayer v. Hoang,10 the Fourth of defendant’s motion seeking to in section 221.2 of these rules and, Department addressed the propriety of require plaintiff to answer ques- in such event, the reason for the directions not to answer certain questions concerning his June 2007 communication shall be stated for tions, and the trial court’s sweeping motor vehicle accident. At his depo- the record succinctly and clearly. order that plaintiff appear for a second sition, plaintiff was directed by his Three hundred and eighty-four deposition “‘to answer all questions attorney not to answer the question words; written in English, at least for put to him including any questions whether he “ever ma[de] a claim a legal rule; clear and concise. And yet, previously asked at the prior deposi- for bodily injury following a motor 10 years on, many attorneys, if subject- tion as well as questions regarding vehicle accident in June of 2007.” ed to a snap deposition quiz, will get any of the issues inquired of by’ defen- Contrary to plaintiffs’ contention, one or more of the provisions wrong. dant’s attorney.”11 that question does not implicate the The appellate court held that some physician-patient privilege inas- Some Instructive Decisions of the directions not to answer were much as it does not request infor- If you thought there would be a tor- proper: mation concerning doctor-patient rent of decisions on deposition practice On the merits, we agree with communications or medical diag- in the 10 years since enactment of the plaintiffs that the court abused its nosis or treatment (citations omit- rules, think again. In fact, there are, on discretion in imposing that broad ted). Further, plaintiff alleges that, average, less than 10 decisions a year, requirement. Defendant took issue as a result of the fall, he injured his both reported and unreported, and it is with only five of the questions that back, hip, groin, pelvis, and elbow, rare for a deposition issue to reach an plaintiff refused to answer, and areas that are commonly injured in appellate court. defendant concedes in his brief motor vehicle accidents, and thus In Parker v. Ollivierre,7 the Second on appeal that plaintiff essential- the question was reasonably cal- Department described the improper ly answered two of those ques- culated to lead to evidence that conduct at issue: tions, which concerned whether is “material and necessary” to the [W]e agree with the appellant plaintiff smokes cigarettes. With defense of the action (citations omit- that the plaintiff’s counsel acted respect to the remaining questions, ted). We therefore modify the order improperly at the plaintiff’s depo- we conclude that plaintiff prop- by denying defendant’s motion sition, among other things, by erly refused to answer questions with respect to a return deposition making “speaking objections,” cor- concerning whether defendant in part, vacating the third ordering recting the plaintiff’s testimony, supplied “any defective, unsafe paragraph and substituting therefor and directing the plaintiff on a or improper devices or materials a directive that plaintiff submit to a number of occasions not to answer which caused [plaintiff’s] fall” or further deposition that is limited to certain questions. The questions whether the work area appeared questions concerning the June 2007 were designed to elicit information “to be unreasonably dangerous.” motor vehicle accident and relevant which was material and necessary It is well settled that a plaintiff at a questions deriving therefrom, in to the appellant’s defense of this deposition may not “be compelled accordance with 22 NYCRR 221.2.13 action (citations omitted), and the to answer questions seeking legal Finally, a veritable primer on the directions not to answer them were and factual conclusions or ques- rules can be found in Friedman v. Fay- not otherwise authorized by 22 tions asking him [or her] to draw enson,14 where, inter alia, Justice Eileen NYCRR 221.2.8 inferences from the facts” (cita- Bransten analyzed, question by ques- The appellate court reversed the tions omitted). Plaintiff also prop- tion, the directions by counsel not to portion of the trial court’s order deny- erly refused to answer the question answer questions and explained the ing the request for a further deposition whether he had “a calculation as basis for each ruling. For example: to be conducted before a referee: to any lost wages that [he] would Attorney Wertheim asked Evg- While the Supreme Court properly claim as a result of this incident” eny Freidman about the number denied that branch of the appel- inasmuch as such question primar- of instances in which the TB & S lant’s motion which was to strike ily seeks a legal conclusion (cita- Firm had performed legal services the complaint, as that remedy was tions omitted). Further, a review for Naum Freidman and Evgeny too drastic a sanction (citation of plaintiff’s deposition transcript Freidman. (Respondents’ Ex. N at omitted), under the circumstances, reflects that plaintiff properly 12:18-24.) Evgeny Freidman asked the alternative branch of the cross answered all other fact-based ques- Attorney Wertheim to clarify his motion, which was to compel the tions concerning his lost wages question, stating, “I’m not con- further deposition of the plaintiff (citation omitted).12 fused. I want you to ask the cor-

NYSBA Journal | September 2016 | 19 rect question.” (Respondents’ Ex. eny Freidman interrupted Attor- reaction, often grounded in long expe- N at 13:8-9.) Attorney Wertheim ney Wertheim as he prepared to rience, is “really?,” and their initial gut replied, “Tell me what the correct resume his questioning of Naum ruling, again grounded in long experi- question is.” (Respondents’ Ex. N Freidman, challenging Attorney ence, is “a pox on both sides.” at 13:10-11.) As Evgeny Freidman Wertheim to call the Court, refer- Still, in the appropriate case, with began to answer, Attorney Cohen ring to Attorney Wertheim as a a particularly obstructive or abusive interrupted by saying, “Stop. Pro- “[f]ucking wimp” and a “pussy,” attorney, and even where all neces- ceed with your next fact question.” and stating that Attorney Wert- sary testimony has been obtained by (Respondents’ Ex. N at 13:12-14.) heim should “[p]ick up the fuck- the questioning attorney, deposition Respondents argue that this state- ing phone and call the Court.” motions to enforce the rules have their ment was made in an effort to (Respondents’ Ex. D at 64:16-25.)16 place, both for the individual litigants stop bickering between Evgeny In a true exercise of judicial restraint, and lawyers involved and for the com- Freidman and Attorney Wert- Justice Bransten drolly ruled: mon weal. heim. (Respondents’ Mem. Opp. at Despite Respondents’ characteriza- So, next time you attend a deposi- 17-18.) Notwithstanding Respon- tion to the contrary (Respondents’ tion, bring along a copy of the rules. dents’ characterization, bicker- Mem. Opp. at 26-27), Evgeny Freid- When your poorly behaving adver- ing is not an enumerated basis man’s conduct and statements vio- sary sputters on about “knowing the for directing a deponent not to late Uniform Rule 221.1(b), which rules,” you can quote them, chapter answer. Respondents also contend provides that “[e]xcept to the extent and verse, on the record, caution the that “[t]he record shows that this permitted by CPLR Rule 3115 or by attorney that the conduct in question was, in fact, not an instruction not this rule, during the course of the violates the rules, and advise that an to answer.” (Respondents’ Mem. examination persons in attendance application to the court will be forth- Opp. at 17.) The Court disagrees. shall not make statements or com- coming if the behavior continues. You Attorney Cohen’s instruction to ments that interfere with the ques- will be amazed at how that simple “[s]top” was made during Evg- tioning.” 22 NYCRR 221.1(b).17 exercise can soothe a savage beast. n eny Freidman’s answer, and was therefore an instruction to Evgeny Conclusion 1. Added Part 221 (eff. October 1, 2006) on August 16, 2006. Freidman not to answer.15 Given the number of pretrial examina- 2. The rules can be found at https://www. tions before trial conducted in New nycourts.gov/rules/trialcourts/221.shtml. Accordingly, the first instruction not York State each year, the relative pau- 3. Michael R. Wolford, “New OCA rules on the to answer was improper. city of decisions addressing the depo- conduct of depositions,” The Daily Record, Septem- A total of nine questions which sition rules in the last 10 years might ber 7, 2006. were objected to, and where the wit- be taken to mean that attorneys in 4. “A Supreme Court judge has sanctioned an attorney $8,500 for frivolous conduct ranging from ness was instructed not to answer, New York have read, understood, and attempts to harass his opponents and barking like were analyzed in this manner. embraced the rules. I’m not so sure, a dog at a witness during a deposition.” Judge Lest the reader believe that “bark- and suspect that an extraterrestrial Sanctions Attorney, Client Over Behavior, N.Y.L.J., May 14, 2004, p. 1, col. 4. ing like a dog” behavior is a thing of visitor in 2016 would not mistake a Friedman 5. Ezra Siller, The Origins of the Oral Deposition the past, also addressed the New York State Court deposition for in the Federal Rules: Who’s in Charge?, Yale Law following deposition conduct: a tea party. School Legal Scholarship Repository, Jan. 1, 2012. Movants contend, and the record A more likely explanation for the 6. Id. The examination would be taken “subject shows, that Evgeny Freidman small number of deposition decisions, to the same rules of examination, as any other interrupted Naum Freidman’s which my anecdotal evidence suggests witness.” 1848 N.Y. Laws, c. 379, § 344 (71st Sess., April 12, 1848). deposition with a series of pro- occur with about the same frequency 7. 60 A.D.3d 1023, 876 N.Y.S.2d 134 (2d Dep’t fane remarks after Attorney Wert- as before the rules took effect, is that 2009). heim refused to accede to Evgeny attorneys are just not making motions 8. Id. at 1023–24. Freidman’s request that the par- over improper deposition practices. 9. Id. at 1024. ties take a lunch break. (Respon- The work involved in making the 10. 83 A.D.3d 1516, 921 N.Y.S.2d 426 (4th Dep’t dents’ Ex. D at 64:9-65:5.) Specifi- motion, when weighed against the fact 2011). cally, Evgeny Freidman requested that the questioner generally ultimate- 11. Id. at 1518. a break because Naum Freidman ly obtains the testimony sought, reduc- 12. Id. at 1518–19. had been examined for two hours es the incentive to seek judicial relief. 13. Id. at 1519. and needed to eat because of his And, let’s face it, these applications, 14. 41 Misc. 3d 1236(A), 983 N.Y.S.2d 203 (Sup. medical condition. (Respondents’ whether on papers or made orally dur- Ct., N.Y. Co. 2013). Mem. Opp. at 27; Respondents’ ing the course of the deposition, are a 15. Id. Ex. D at 61:12-25, 64:9-14.) After judge’s bête noir. When advised of the 16. Id. being instructed not to speak, Evg- nature of the application, their initial 17. Id.

20 | September 2016 | NYSBA Journal What Lawyer-Managers Should Do When Firm Economics Are Less Than Ideal By Joel A. Rose

hat happens when the economics of the prac- partner. He or she may know his or her respective field(s) tice are less than ideal and there simply isn’t of expertise and be respected and consulted by clients. He Wenough money to go around? It is not unusual or she perceives his or her prime mission as an attorney for partners to feel frustrated and thwarted in achieving to be of service to clients and may have difficulty meet- their personal and professional objectives. Many partners ing all of the demands on his or her time. Too often, busy may attribute the firm’s financial problems to what they partners are willing to relegate the business affairs of their perceive as the absence of sound management of their law firms to the bottom of the pile. When this attitude is firm. As a result, lawyer-managers may at this point begin coupled with the tendency of some partners to consider to examine more closely their role on the “business” side of the firm’s practice. Joel A. Rose is a Certified Management Consultant and President of Joel While both the partners and the lawyer-managers may A. Rose & Associates, Inc., management consultants to the legal profes- be aiming in the right direction in an effort to pinpoint the sion. The firm, national in scope, is headquartered in Cherry Hill, New source of the problem, they may want to keep one critical Jersey. He has extensive experience consulting with private law firms and point in mind: Many of the financial problems experi- government agencies. Mr. Rose performs and directs consulting assign- enced by law firms are of the attorneys’ own creation. ments in law firm management and organization, strategic and financial After many years consulting with partners to improve planning, lawyer compensation, the feasibility of mergers and acquisi- their firms’ management processes and enhance firm tions and marketing of legal services. He has extensive experience plan- revenue and distributable dollars available for partners, ning and conducting retreats and special expertise resolving problems it has been my experience that the cause of many firms’ among and between lawyers. financial problems lies in the very nature of the successful

NYSBA Journal | September 2016 | 21 the firm’s administrative systems and procedures, includ- control over such activities as recruitment, training and ing setting revenue and expense budgets, billing and col- career development of associates; staffing of the firm’s lecting fees and expenses, etc., necessary evils, a situation practice areas; allocation of work to attorneys; assuring results which may lead to neglect of the business affairs adequate administrative support; developing an associate of their own firm. evaluation program; practice development, the financial

A law firm’s profits are fundamentally linked to its ability to successfully utilize its partners and associates.

This “benign neglect” may result in serious conse- well-being of the firm, utilization of paralegals and law quences. Generally, the symptoms of less-than-adequate clerks; establishing criteria for admission to partnership; planning and management are readily traced to the fol- developing a compensation plan and benefits program; lowing areas: not setting objectives, under-utilization of assuring adequate communications among partners and lawyers, lack of appropriate budgeting for revenue and associates, etc. expenditures, and the absence of accountability of the A law firm’s profits are fundamentally linked to its lawyers. ability to successfully utilize its partners and associates. If Every firm that strives to be profitable must make the there is a slackening in leadership and firm management effort to formulate, identify and express its objectives in is perceived as lacking direction and the necessary skills terms of revenue, firm size, management structure, type to be effective, the result will be lower revenue and fewer of practice, staffing, etc. This means answering what may distributable dollars for the partners. be some difficult questions, such as: It has been my experience that most attorneys are will- 1. Which areas of the practice should be retained or ing to subordinate their independence and autonomy, to reduced? some extent, for the benefit of the firm, if they see tangible 2. Which attorneys are able and willing to contribute evidence of management’s effort to meet their objectives. to the firm’s objectives? The benefits are obviously of mutual advantage. 3. What should the firm be doing to attract more profitable business and enhance its reputation? Financial Planning 4. What are the sources of difficulties with clients and Management of the firm’s finances begins with careful why? monitoring of its past and present activities and establish- 5. Are the partners actively involved in managing the ing revenue and expense projections for the future. This firm’s business and substantive sides of the practice involves reviewing the present and potential monetary willing and able to manage, or do they perceive aspect of each attorney and client matter. In addition, a their function merely titular? systematic review of receipts, disbursements and produc- The answers to these questions are essential in formu- tivity data will enable the firm to make decisions that will lating a plan that provides direction and must be compat- assist it in formulating and ultimately achieving practical ible with the personal, professional and economic objec- objectives. tives of the partners. The point of defining and establish- Most firms routinely develop projections for financial ing objectives is to ensure that maximum effectiveness goals for the year ahead. To develop the information nec- can be achieved in the day-to-day operations and longer essary to establish revenue and expense budgets, the law- term objectives of the firm. yer-managers may be required to take a long and objective look at the firm’s financial performance to determine To Ensure Maximum Effectiveness whether its current volume of business will generate suf- A firm’s success in providing quality legal services in ficient income to meet the partners’ expectations and pay an effective and profitable manner is directly related to their firm’s operating expenses. A firm must maintain a its ability to manage its lawyer personnel. Firm manag- volume of business sufficient to fully utilize the time of ers must be willing to manage the firm, hold partners its attorneys. The most efficient system will not result in accountable for their actions (or inactions) and ensure a satisfactory net income unless the volume and value of that partners accept their responsibilities and satisfy their the work is sufficient. obligations to perform those fee-producing and non–fee- Adequate financial planning includes consideration producing activities to progress the firm. This means of the firm’s present client base, its billing and collection managers must assume a proactive role for recommend- procedures and specific method for managing the firm’s ing and implementing policy, maintaining adequate finances. Efficient and effective management involves

22 | September 2016 | NYSBA Journal overseeing such matters as the day-to-day activities of the specify work in practice areas needed to be performed accounting staff; advising on the firm’s capital require- by the client, and determine other areas of legal work the ments and annual budget and fee policies; assessing the client might use if the firm had the expertise. Also, the results against the budget; developing fee policies for lawyer-managers and the marketing committee must be various practice areas; determining controls over billing willing to address the issue of planning the orderly tran- performance, including profitability, unbilled time and sition of clients from senior partners to other members of costs, receivables, delinquencies, write-offs, etc. the firm. One other critical aspect of financial planning involves maintaining adequate control over costs. Management Partner Accountability must be persistent in tracking overhead costs. Generally, Each partner should be expected to produce working overhead rises more rapidly than revenue. The increase attorney revenue, on a yearly basis, in an amount that may be warranted, however, and is most often assessed would cover his or her compensation plus allocated over- by determining whether the overhead supports their head and an added profit factor. efforts to provide a satisfactory net income. Regardless Lawyer-managers must be prepared to cope in a of the size of the firm, overhead should be controlled by straightforward manner with those partners who are means of a budget for such items as non-lawyer employ- unwilling or unable to comply with the firm’s policies, ini- ment costs, occupancy costs, marketing, library, equip- tiatives and directives designed to increase firm revenue. ment and other direct and indirect costs, etc. This budget With the agreement of the partners, lawyer-managers should be established as part of the annual financial plan must administer consequences and not be willing to sit and should represent the total expenses required to sup- by and allow these recalcitrant partners to take advantage port the expected level of revenue-producing activities. of the firm or others. The complexities of life when there is not enough Increase Marketing Efforts money to go around require a firm to have appropriate Today, when a firm’s most important clients are being leadership if it wishes to deal with the professional, finan- targeted by other law firms, marketing efforts assume cial and personal challenges presented by the partners. n greater importance. A firm’s marketing activities should be coordinated by a marketing committee/partner, rather than implemented in an ad hoc manner. Partners should be accountable to the committee for Something Is Rotten in Fettig their business development efforts. Personal marketing plans should be developed by those attorneys who have A satire about the law by Jere Krakoff demonstrated the potential to generate new clients or to “[T]he uproarious proliferate work from existing clients. Variable hourly budgets of time and out-of-pocket costs devoted to busi- novel is first and ness development activities by these attorneys should be foremost a comedy, recommended. Their billable and marketing goals must rife with absurdist be adjusted accordingly. humor. . . enough jabs Ideally, the marketing committee should develop at law and criminal and implement marketing strategies that call for client justice to make a development programs that may result in one-third of the firm’s clients using at least two of the firm’s services. point, all packaged in Selected partners should meet with clients having signifi- a courtroom drama cant potential for additional fees, either through growth that’s pure of their own operations or their ability to refer business. entertainment.” Opportunities for cross-selling of legal services to clients should be pursued to further “bond” the client to – Kirkus Reviews Anaphora Literary Press the firm. To accomplish this, partners must understand a www.jerekrakoff.com client’s business as well as its legal needs. Partners must Purchase on Amazon.com review with appropriate lawyers what is involved in cross-selling their legal services. Introductions of appropriate client executives to appropriate lawyers should be “Delightfully satirical, the author takes a jab at arranged. everything from judges to juries, to Partners should meet with clients periodically to lawyers. . . . with hilarious results.” determine their legal needs. They should survey their clients to measure client perceptions of the firm, determine – Manhattan Book Review the client’s expansion or contraction in particular areas,

NYSBA Journal | September 2016 | 23 Tacking Right (or Left) Seasoned Litigator Finds New, Fulfilling and Profitable Practice By Donna Drumm

ike many mid-career attorneys I wanted more court personnel, and judges. I had invested 15 years in the from my work. I knew I wanted to continue in and profession. What could I do? Laround courthouses but did not want to build a Then, an epiphany. As a staff member of a bar associa- solo practice as a general litigator. I discovered my new tion I had a 2,000-plus foot view of the legal landscape practice by using innovative thinking and strategy that I in New York. I knew what concerned clients because we was introduced to at the American Bar Association’s Bar received calls from court users who were overwhelmed Leaders Institute conference. with waiting for hearings and decisions. I heard in their My previous practice areas were civil litigation – voices frantic appeals for resolution in their cases. Men e-Discovery consulting and some motion practice. Get- and women shared with me the emotional toll prolonged ting back into e-Discovery after a few years was not litigation was taking on their families. practical. Technical advances in the business had moved I also heard from citizens seeking legal counsel through beyond my learning curve. calls made to Lawyer Referral Services (LRS). While LRS As a member of NYSBA’’s Law Practice Management helped many, a growing number could not afford to pay Committee and passionate about legal technology, I knew for legal representation and they did not qualify for free I could create a mobile or virtual practice where I could services offered by different legal aid social agencies. work close to my home and leverage technology using At this time, New York State Retired Chief Judge Jona- affordable tools for billing, time keeping and accessibility than Lippman embarked on his campaign to raise state to clients. During my decision-making period, as now, I was Donna Drumm is principal attorney at DRUMMAdvocacy in Rye Brook, N.Y. an adjunct professor for the paralegal program at Mercy She worked in private practice and at the Westchester County Bar Associa- College, which kept me engaged in the practicalities of tion as CLE and Publications Director and, later, Executive Director until litigation, pleadings and updates to the CPLR. I loved 2014. She received her law degree from Pace University School of Law. being in the courtroom and the fellowship of lawyers,

24 | September 2016 | NYSBA Journal funding for legal services as an increase to the judiciary A trained soldier understands the terrain of the battle- budget. The “Access to Justice” programs signaled the field before stepping onto the next battleground to meet judiciary’s commitment to providing financial backing the risks of the unknown. For the experienced attorney, to expanding legal resources and services to the growing look at your current skill sets and ask yourself: population of under or unrepresented court users. • How can my skill set be expanded into a new prac- I saw this as an opportunity to find a way for me to be tice arena? in the courtroom, use my experience to serve the under- • What are the unknowns I will face in traveling to served, and promote change. But I still didn’t know how the next “battleground”? to transform this external opportunity into a new practice • What is the projected timing of the trend I want to area. catch? Then I heard Kaihan Krippendorff speak at the 2014 • What resources can I research to find out if I will be ABA Bar Leaders Institute in Chicago. He is the author of five minutes ahead or many years behind? Outthink the Competition: How a New Generation of Strate- My battlefield, or new practice focus, became “invis- gists Sees Options Others Ignore. A portion of his speech is ible disabilities.”5 In 2009, the Americans with Disabilities available as a TEDx video on the Internet.1 Act Amendments Act of 2008 came into effect. While His approach is summarized by the concept that there many people are aware of providing accommodations are three paths that help people get “outside the box” and for persons with physical disabilities in the courthouse, spark new ideas, leading to innovation. The three paths, such as wheelchair ramps and sign language interpret- or stages, are: ers for the deaf, it is not widely known that those with • Move early to the next battleground; invisible disabilities may also seek accommodations in • Coordinate the uncoordinated, and the courthouse. • Create power by creating a good strategy. He likens this way of thinking to that of a child. I suggest for us adults that we approach thinking about a new prac- Tools to build a new practice tice of law as if we were going to a strategic planning retreat. area are innovative thought, Thinking Out of the Box Means Thinking entrepreneurship and a solid Out of the Office business plan. To think out of the box, we need to, well, get out of the box. Give yourself time away from the office, to allow yourself judgment-free intellectual pursuit. Exercising Path 2: Coordinate the Uncoordinated this creative muscle can be done in many ways – jour- Kaihan’s second path suggests that to foster innovative naling, dictating ideas as they occur to you into your thinking is to observe what processes or groups are unco- cellphone, brainstorming sessions with a trusted friend or ordinated and which ones do you have the resources to legal colleague. If you are an athletic person, you may set coordinate? aside time while you are running, when the endorphins Combine and coordinate independent elements within are taking effect. Studies show that our most creative your environment to orchestrate much greater power. thoughts occur when we first wake up; you may want to Who would we like to coordinate? Customers, experts, 6 journal in the morning to capture ideas.2 employees, real estate, regulators, competitors? A study on the best conditions for “thinking outside When you think about it many examples come to the box,” reported on in Scientific American, suggests cre- mind: ative thinking or solving “insight problems” at off-peak • Westlaw brought together state and federal cases times. “[Solving] [i]nsight problems involve[s] thinking and statutes in one database. outside the box. . . . Susceptibility to ‘distraction’ can • Martindale-Hubbell assembled contact and bio- be of benefit. At off-peak times we are less focused, and graphical information on lawyers in a book format. may consider a broader range of information. This wider • LinkedIn coordinated the biographies of business- scope gives us access to more alternatives and diverse people throughout the world, and each person interpretations, thus fostering innovation and insight.”3 inputs his or her content. The New York courts are extremely innovative in Path 1: Move Early to the Next Legal Battleground bringing resources to the underrepresented by provid- I liken Kaihan’s first path4 – to foster innovative thinking ing dynamic do-it-yourself guides for pro se litigants on is to move early to the next battleground – to investment court websites. The New York State Bar Association’s strategy. It is better to be five minutes early to catch a Task Force on Family Courts in May 2016 presented sev- trend or an investment opportunity than five minutes eral programs designed to help unrepresented litigants in late. In law, the daily newspaper can show us where the family courts write petitions with the help of volunteer next battleground or legal market space will be. lawyers and legal interns. The Westchester County Bar

NYSBA Journal | September 2016 | 25 Association, with the support of the Westchester County Kaihan points out that seeking alignment with stake- Supreme Court, participates with five counties in the holders in your strategy makes it a win-win. CLARO Project where volunteer attorneys provide pro I identified stakeholders who would be impacted by bono services to low-income defendants in consumer my ADA advocacy practice: my clients, their attorneys (if debt actions.7 Erie County Bar Association’s Volunteer represented), psychiatrists, psychologists, court adminis- Lawyers Program, with the assistance of the Erie County tration, ADA liaisons and judges. Family Court, implemented the Family Court Help Desk. I spoke to representatives of each of these stakeholders Many people associate innovation with technology about my plan. Since there was already a system in place because the power of technology is that it coordinates the to accommodate persons with disabilities, the idea of an uncoordinated. But innovation is not technology. Tech- ADA advocate was not necessarily new, but an attorney nology supports innovation, and one can have innovation taking that on as a practice area was novel. Psychiatrists, without technology. in particular, were extremely positive in seeing the possibility of their patients having legal support for their dis- Observing Processes in Your Firm abilities during the stresses of court appearances. Court In my work as a legal consultant for technology com- personnel were appreciative of a professional advocate panies, I learned that technical processes ultimately are partnering with them to create clear accommodation born from frustrated inefficiencies. Routine tasks whose plans for court users, which in turn, assisted their compli- individual steps are disconnected can be improved if ance with Title II of the ADA. they are connected or coordinated. When developing my Seeking alignment with stakeholders gave power to Americans with Disabilities (ADA) Advocacy practice, my strategy to develop a practice area where I could what I saw as uncoordinated was the disconnect between decrease the stress of litigation for unrepresented or accommodations available to persons with disabilities in underrepresented clients while being in the courtroom the courthouse and their lack of knowledge about what with them. could be done and how to go about doing it. My niche Through research and networking, I met Dr. Karin became a practice focused on letting people with invis- Huffer, an author and professor, who was trained clinical- ible disabilities who are engaged in litigation know that ly in mental diseases, and linked the ADA to advocating they can seek accommodations for their disabilities while for persons with disabilities in the courtroom. She devel- in the courthouse, and then using the established proce- oped an ADA advocate training course (currently being dures to make accommodations happen effectively.8 held at John Jay College in New York City) for lawyers Over a period of a few months, I educated myself on and non-lawyers. I decided to take the course and com- the ADA laws and court processes, and soon the puzzle mitted to practicing ADA advocacy for a specific period pieces began to come together. I took apart the process to see if I could develop a viable business. I was fortunate and put it back together again in five steps understand- other clients came to me with general legal work while I able by persons who were represented by counsel or went about building the ADA practice. were pro se litigants. I then had a designer illustrate the steps and I published it on my website. By explaining the process as a coordinated series of logical steps, I can educate potential clients and colleagues about what I do in my practice. • Where in your legal practice is a process that is uncoordinated that you would like to change?

Path 3: Creating a Strategy for Good Kaihan’s third path to foster strategic thinking asks: How can we create strategic power through good strategy? He reconstructs our perceptions of competition from “kill the competition” to an inclusive approach that asks what is best for all stakeholders. This strategy is analogous to lawyers creating a mission statement and culture for their practice. • Who are the stakeholders in your law firm? • How can you build a strategy that is a win-win for all your stakeholders? A good strategy in a law office inherently includes noble aspirations, so the focus should be on a collabora- tive approach.

26 | September 2016 | NYSBA Journal Putting Innovative Thought into Solid Action Questions for your practice: I wanted a plan to help me develop this business, so I • What is the problem worth solving? searched the Internet for a business plan targeted toward • What is the solution? building law firm practice areas. Many concentrated • What is the work product this new practice will on the financial aspects of a start-up and how to make deliver to clients? presentations to banks. I found LivePlan, www.liveplan. • What non-legal and legal services will the new prac- com, which is a business plan program created for entre- tice deliver to clients? preneurs. Advertised as “The world’s leading business Using LivePlan, I moved on to the Sales and Market- plan software . . . Liveplan breaks the business planning ing sections. Who was my target audience? How would I process down into simple steps with instructions and let them know what I do and how it can help them? My examples.”9 It is a monthly subscription service and has first investment was hiring legal marketing consultant a free trial period. It appealed to me because I could and fellow NYSBA Law Practice Management Committee complete my business plan for under $50 in one month. member Carol Schiro Greenwald. Together, we created a LivePlan uses a visually appealing platform in a ques- marketing plan that respects the bounds of ethical lawyer tion and answer format, open-ended enough to facilitate advertising and marshaled social media to spread the innovative thinking and easy enough to instill confidence word about this new practice to a wide variety of audi- in me that I would make my idea for a new practice area ences. come to life. The final piece of LivePlan is the Milestones section. Milestones invites accountability by asking the user to Developing the Basic Practice Focus input due dates, who is responsible, details of the mile- The first section of the program helps to develop the prac- stone, and a reminder option which integrates into many tice focus as encapsulated in your elevator speech. How calendaring programs. many times a day are we asked: Q: What do you do? Conclusion A: I’m a lawyer. Tools to build a new practice area are innovative thought, Q: What area is your practice? entrepreneurship and a solid business plan. Begin the A: Well, I . . . uhh. process now by using the questions at the end of each The pitch is the hardest part to explain what we do. section above derived from thought leaders. Collaborat- Creating a well-crafted pitch can also be used in LinkedIn ing with colleagues, stakeholders and consultants can profiles, firm biographies and website content. enrich your quest to find a fulfilling and profitable new The first question to answer is, “What is the problem practice. n worth solving?” For my practice, the problem worth solving is: How 1. Kaihan Krippendorff, http://tedxnavesink.com/project/kaihan-krippendorff/ (last visited June 1, 2016). can court users with invisible disabilities under the stress 2. Ifran Ahmad, The Scientifically Proven Best Time to Think and Write Creative- of litigation increase their performance interacting with ly, Digital Information World, Infographic posted, Nov. 3, 2015, http://www. the judge and attorneys in the courthouse? digitalinformationworld.com/2015/11/infographic-the-scientifically-proven- The program then asks, “What is your solution?” best-time-to-think-and-write-creatively.html. For my firm, the solution is: DrummAdvocacy is a law 3. Cindi May, The Inspiration Paradox: Your Best Creative Time Is Not When You Think, Scientific American, March 6, 2012, www.scientificamerican.com/ firm that works with ADA coordinators in the courthouse article/your-best-creative-time-not-when-you-think. to design accommodations under the Americans with 4. The paths need not be done all at once or in order but for consistency in Disabilities Act for persons with invisible disabilities to this article they are in the order of Mr. Krippendorff’s presentation. increase their performance in the courthouse. 5. Examples of invisible disabilities are: ADHD, Alzheimer’s Disease, Anxi- To meet the needs of starting up a new law practice, I ety Disorders, Autism (ASDs), Bipolar Depression, Major Depressive Disor- changed some parts of LivePlan. ders, Parkinson’s Disease, PTSD and Traumatic Brain Injury. I converted the “Products and Services” section to 1) 6. Krippendorff, supra. what is the work product this new practice will deliver 7. For more information on the CLARO project, see www.claronyc.org/ claronyc/default.html. to clients? and 2) what non-legal and legal services 8. Just as students with learning disabilities are offered accommodations in will the new firm deliver to clients? Non-legal services school settings and law students who are qualified can seek accommodations could include paralegal support, unbundled services and sitting for the bar exam, court users may also seek accommodations under the administration. What I discovered in the LivePlan pro- ADA. There is a process in place to seek accommodations with ADA liaisons in courthouses throughout the United States. cess was the work product for my potential clients would 9. LivePlan, https://www.liveplan.com/how-it-works (last visited June 1, be their accommodation plan. I built upon my years of 2016). experience and decided that my uniqueness would come from my understanding of the administration of the courts, particularly the court personnel responsible for receiving the accommodation plans.

NYSBA Journal | September 2016 | 27 Carol Schiro Greenwald, Ph.D., is a strategist and coach, helping law firms become more profitable by focusing on growing their clients, modernizing the business side of law and identifying the best ways to grow their practices. She can be reached at 914.834.9320 or carol@csgmar- ketingpartners.com.

Successful Managing Partners Practice EI-Based Leadership By Carol Schiro Greenwald

uccessful managing partners practice emotional First, Some Definitions intelligence-based leadership to move their law • IQ (intelligence quotient) measures a person’s cogni- Sfirms toward their vision. How strange this sounds tive and intellectual abilities as displayed in logical, when we consider that lawyers as a group tend to rank rational, conscious reasoning. low on the emotional intelligence scales. In this article we • EQ (emotional quotient) measures a person’s social- quickly review some of Larry Richard’s1 findings from relational intelligence as displayed in his or her his studies of lawyer personalities, and define the hall- capacity to understand himself or herself and his or marks of emotional intelligence (EI). her ability to empathize with others. We pair this book learning with the “been there, done • Leadership is the ability to move people in a com- that” wisdom of six EI-savvy leaders. mon direction by establishing a vision and sharing it The six former or current managing partners I inter- with others in a manner that inspires others to will- viewed lead firms ranging in size from approximately a ingly follow one’s lead. dozen lawyers to approximately 450 lawyers. They are: • Jeffrey Citron, managing partner, Davidoff Hutcher Lawyer Personality Traits2 & Citron LLP Ironically, the very traits that facilitate great legal work • Robert Danziger, partner, Danziger & Markhoff LLP tend to be emotional intelligence inhibitors. The hallmark • P. Daniel Hollis III, managing partner, Shamberg trait of the best lawyers is skepticism – the ability to ques- Marwell Hollis Andreycak & Laidlaw, P.C. tion, argue, and critique statements. The percentage of • Mark Mulholland, former managing partner, Ruskin lawyers registering high on this quality, as measured by Moscou & Faltischek P.C. the Caliper Profile Scale, is 90 percent compared with a 50 • Mark Landis, managing partner, Phillips Nizer LLP percent level in the general public. • Michael Solow, managing partner, Kaye Scholer

28 | September 2016 | NYSBA Journal While it is an essential tool for the practice of law, in everyday life it surfaces as negative thinking – “the glass EI at work is half empty” or “today’s problems will last forever.” The second highest personality trait of successful law- • Walk the talk – model the behavior you want. yers is a need for autonomy: they score 89 percent on this • Use emotion to create connections that will trait compared with 50 percent among the general popu- enable you to lead. lation. Autonomy plays out as a desire to be in control of • Be constantly aware of what is going on. one’s activities and an aversion to direction. That’s why • Create a strong network representative of all the people often say that getting lawyers to work together is points of view in the firm. like “herding cats.” • Create buy-in by articulating clear goals, build- The third-highest lawyer personality trait is urgency – ing open, transparent discussions, and celebrat- impatience, a need to get things done. Long-range strate- ing successes. gies and leadership visions may take years to implement, • Foster self-development by genuinely working but the typical lawyer wants to see immediate returns. to help everyone become the best that he or she On the other end of the personality trait spectrum, can be. lawyers score lower than the general public on three traits • Counter the negativity caused by uncertainty that are important prerequisites for EI-based leadership. by setting clear goals, providing direction and They tend to have: offering emotional reassurance to those who are • Low resilience: thin-skinned and defensive when spooked by change. criticized; easily hurt by others’ comments. • Low sociability: disinterested in the personal lives of others, reticent to share personal information with Emotionally strong leaders understand that they must others, and fearful of intimate connections with oth- arouse emotional responses in order to motivate people ers. to follow them. But at the same time they acknowledge • Low empathy: prefer to pay attention to their own the need to move those reactions along the same path. agenda rather than relate to other people’s feelings All those I interviewed described necessary personal and experiences. leader attributes with similar words: empathy, ability to It would seem that organizations that employ a major- listen and strong communication skills balanced by the ity of people with these characteristics would not be fer- need to educate and teach followers. Mark Mulholland tile ground for successful strong leadership efforts. Yet, said, “A leader is willing to stay on a chosen course, even in today’s world when powerful changes are remaking if some dislike him. He must be decisive, but seen as the legal profession, there is a stronger than ever need for fair by all sides. In return the leader will earn trust and effective law firm leadership. respect.” EI leaders serve as role models for the kind of behav- EQ-based leadership ior they want within their firms. As Mike Solow put it, EI lawyer-leaders are more like the rest of us on a good “You always have to be on and up because others make day. They are able to connect on an emotional level with guesses based on your demeanor.” For Dan Hollis, you others, making it easier to persuade followers to follow need to live “integrity and accountability” because “you their vision. They listen well, show empathy and build can’t fake the hustle.” trust. The result is an open communication system that EI leaders try to be calm and compassionate. For Bob promotes a collegial environment. Danziger, forward-thinking leadership requires patience, People with strong emotional intelligence attributes fairness and the “appearance of calmness.” Jeff Citron score high on three planes: emphasizes the ability “to get your ideas across,” with 1. They have a strong sense of self, an awareness of words and by setting an example of the kind of inclusive, their own emotions and an understanding of the collegial, respectful interactions you want in your work- impact of emotions on their actions. place. 2. They are able to self-manage their own emotion- We all know some strong leaders who prefer to rule by action interplay by consciously choosing their own fiat, but if they also are good listeners, patient and empa- emotional response to a situation. This ability gives thetic their followers will usually forgive their flaws.3 them an “inner space” that allows them to relate to others’ responses to their requests. Successful MPs Define Leadership 3. They have a social sense that allows them to predict They all see leadership as a reciprocal connection between the probable emotional response of others which, in leaders and those led in which the leader creates, often turn, enables them to anticipate and manage their with the help of others but sometimes alone, a vision and followers’ responses more effectively. then makes sure it happens. In part one of the connection, leadership means having foresight: the ability to articu-

NYSBA Journal | September 2016 | 29 late a vison as to where the firm should be in the future, Some change old processes; for example, Jeff Citron what it should look like and who should be in it. has cut the number of regularly scheduled meetings, Each of them saw the second part of leadership con- preferring instead to sit down informally with one or nections as the reaction of the led, and the need to build two people for discussions. In an effort to simplify the a consensus behind change. Mike Solow explained this decision-making process, Mike Landis moved executive as “buy-in through education”: “It is the ability to under- committee meetings from weekly to monthly with many stand your [internal] constituencies and put them in a decisions pushed down to the practice group level. position to excel in the context of what’s going on around Their buy-in processes usually begin with those most them. [The leader] looks at the bigger picture and then impacted by a decision. Mike Solow often has to show the helps the others understand its implications.” economic and/or social value of specific decisions – such as taking a pro bono case or adding a partner with clients EI Leaders in an IQ World in industries that are offensive to some other partners – How do strong, emotionally intelligent leaders connect by talking one-on-one to individuals with an interest in with risk-adverse, skeptical, pessimistic followers? the decision. By understanding that personality traits are really preferences that can be modified. Leaders model and A Modernization Example: Changing the teach preferred behaviors. With encouragement and posi- Compensation System tive feedback others can gain ego strength and begin to Mark Mulholland recounted the story of how he moved appreciate the opportunity to work in a collegial, respect- his firm toward a nicer, more collegial, more profitable ful environment. firm by changing the origination from “eat what you kill” to shared origination. The change allowed everyone “Dictating from the top is not a recipe for success” to focus on clients as assets of the firm as a whole to be These leaders all intuitively understand the “standard developed through shared efforts and teamwork. lawyer personality.” They see that many lawyers are Mark began with the idea that he wanted to create a ruled by fear and soothed by the rhythms of habit; fall- firm for the next generation of lawyers and clients, and to ing back on “if it ain’t broke, don’t fix it” to defend their do this compensation had to be divorced from origination perspective. They often challenge suggestions for change because classic origination leads to silo mentalities, bitter- with the lawyer-like “parade of horribles,” trying to ness and an unwillingness to work hard when someone derail the idea one detail at a time. else reaps all the rewards. Growth, culture and profitability are the main con- To make the change took three years. He began cerns of these leaders. They deal constantly with change- his strategic planning effort by interviewing all of the creating issues as they try to create the most profitable stakeholders individually. He then did a SWOT analysis mix of lawyers at different levels, grow their associates that showed the firm’s competitive position: its internal by mentoring and teaching them best practices for the strengths and weaknesses vis-à-vis the external oppor- 21st century, and grow their client base by focusing on tunities and threats. A key conclusion emerged: the firm service quality and modernizing relationships between didn’t function well enough as a team, and this weakness clients and the firm. impacted its profitability. The next step was to create a strategic planning com- Buy-in mittee. He chose open-minded, forward-thinking equity To mitigate the impact of this kind of behavior they all partners and hired a seasoned consultant to share best prefer to avoid large groups when discussing new ideas. practices and lead the group. The group identified areas Instead, they work with small groups of influential attor- for adjustment. Number one was how to recognize con- neys, usually key partners, getting individuals behind tributions to client relationships. them one by one. They understand that what moves one They opened this issue up to the whole partnership person will not move another, so it is important to treat for discussion. The naysayers said the firm was doing everyone differently. fine so why change. They argued that without old-fash- The first thing Mike Landis did as managing partner ioned origination no one would want to do client work. was to schedule time with every attorney to learn more The debate went on for months until Mark slowly built about them: “I needed to know what I didn’t know.” a majority and the shared origination plan was adopted. They talked about their view of the future, how they Each practice group decided how to distribute credit saw their practice growing, the resources they used, the within their group. Only if they could not reach a conclu- resources they would like to have, etc. After meeting with sion did the origination committee step in. The result has them, he had a better sense of his own firm’s strengths been buy-in at every stage along the way. and weaknesses, and an understanding of the best points Today anyone in the firm can get origination credit to build on for the future. – from associate to senior partner – by bringing in a client or growing a current client. Origination occurs at the

30 | September 2016 | NYSBA Journal matter level. Because anyone can be rewarded for adding for them personally and for the development of the client value, everyone is motivated to seek opportunities firm.” and cross-sell services that benefit the client. Everyone • Bob Danziger, too, finds rewards in the growth is vested as an owner in client relationships. Origination and profitability of the firm and in the challenge of has become just one more aspect of everyone’s job. growing the firm while retaining a culture that feels Mark’s vision to be a second generation firm, focused good for members of the firm. on teamwork, with an evolved compensation system and • Jeff Citron finds it most rewarding to “see the pro- a flourishing client base became a reality. cess of change pay off – whether it is adding a lat- eral partner or new practice group or expanding the Try These EI Leadership Techniques footprint of the firm and redecorating it to reflect Effective leaders are seen as strong and fair by their fol- the firm’s brand as an entrepreneurial New York lowers, and are able to create a shared willingness to law firm.” move toward their vision. Leaders can use a variety of techniques to create a culture of fairness and a safe envi- Results for the firms ronment for individual development. For example: Today, all law firms need EI leaders because they under- • To counter skepticism, celebrate the positive. stand how to bring people along with them in a positive, • To reduce the need for independence, encourage emotionally safe way. Firm modernization depends on individual self-management by avoiding micro- teamwork. Legal work has become increasingly complex, management. This allows people to express their requiring an integrated approach to matters. Clients find individuality through their habits and approach to the team approach valuable because it often produces work. better results. Lawyers are more productive in a positive, • To counter low sociability and resilience, introduce collegial work environment. This, in turn, creates a more ways of showing that work was useful and relevant. profitable firm in terms of lawyer satisfaction and firm This leads to pride in the work completed, which, in profitability. n turn, encourages people to feel secure enough to be willing to work together. 1. Larry Richard, “Herding Cats: The Lawyer Personality Revealed,” at lawyerbrain.com. • To reduce people’s sense of uncertainty and anxiety, 2. Id. leaders can provide specific clear direction as to 3. Larry Richard, “Toward Better Leadership: Self-Development, Focusing goals and the means selected to attain them. on Strengths and Accepting Flaws,” from his blog, What Makes Lawyers Tick, at lawyerbrain.com. Rewards for These Leaders They all agree that law firm leadership can be a thankless job – long on aggravation and resistance to seemingly obvious changes. But all say that their rewards lie in the results: getting something accomplished that will have a Suggestions for increasing major positive impact on the firm and the lives of those your own aptitude for who work there. 1 • Mark Mulholland characterized the job of managing leadership partner as “worse than thankless – rarely thanked and often criticized. The reward is in knowing you • Take a test that measures leadership did your best, you won the group’s vote of confi- qualities to get a personal baseline. dence and the changes you made were important • Figure out what you do well and work to make and right.” those characteristics better. • Mike Solow finds it most rewarding when he is able • Work on only one strength at a time. to help others in the firm to progress and advance • Set concrete, measurable, realistic goals for in their careers. Also when they are able to come yourself so you can see progress. together as a group and make a move that is eco- • Encourage feedback as to your progress. nomically necessary, and do it in a way that adheres Consider implementing a 360° survey. to the moral values of the firm. • Link your progress to something that is per- • Dan Hollis is proud of the changes his firm has sonally important to you because then you are made to accommodate the changing needs of mem- more likely to attain your goals. bers, promote accomplished women lawyers, and 1. Adapted from Larry Richard’s blog, 5/18/16, “Toward Better create a culture based on a strong work ethic and a Leadership: Self-Development, Focusing on Strengths and Accepting collegial atmosphere. Flaws,” on Richard’s blog, What Makes Lawyers Tick?, at lawyer- • Mark Landis said he “gets a kick out of helping brain.com. others reach the next level of success and its payoff

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any law firm decision makers are talking about was going to allow us to use the cloud. This is what “the cloud.” Is it safe, should we use it? First, NYSBA had to say: Mlet’s discuss what the cloud actually is. The A lawyer may use an online data storage system to cloud, contrary to popular belief, is not an actual cloud. store and back up client confidential information pro- Rather, it is comprised of remote servers which host infor- vided that the lawyer takes reasonable care to ensure mation. Most responsible cloud providers have servers in that confidentiality will be maintained in a manner diverse locations such that if there is a disaster in one of consistent with the lawyer’s obligations under Rule 1.6. In addition, the lawyer should stay abreast of tech- their locations, they have replicative storage. The cloud nological advances to ensure that the storage system enables one to access the information and/or storage remains sufficiently advanced to protect the client’s from any location with Internet access. This enables a solo information, and should monitor the changing law of attorney, for instance, to respond quickly to a question privilege to ensure that storing the information online from one client while he or she is waiting in a courthouse will not cause loss or waiver of any privilege. to represent another client. That means that the attorney does not need to hire someone to be in the office at all times to help clients, and cuts down significantly on the Deborah E. Kaminetzky is the founding member of Kaminetzky & Associ- cost of doing business. ates, P.C. located in Cedarhurst, New York. Prior to starting the firm, Ms. New York State published an opinion in 2010 about Kaminetzky was an associate at Weisman Law Group, P.C. where she whether attorneys could use the cloud, although even primarily practiced matrimonial and family law. She is an experienced before the published opinion the New York State Bar mediator and has spoken to various groups on topics including matrimo- Association offered a discount on a cloud practice man- nial law, technology and social media use, and disaster preparedness for agement software, so I was of the opinion that New York business.

34 | September 2016 | NYSBA Journal Also: “Whether a lawyer for a party in a transaction ers could barely tell them which firm’s files were which may post and share documents using a ‘cloud’ data stor- in the water), my office had the advantage of having age tool depends on whether the particular technology most of our files in the cloud where they were safe and employed provides reasonable protection to confidential sound. That’s not to say that we don’t also have copies client information and, if not, whether the lawyer obtains on a removable hard drive – redundancy goes a long informed consent from the client after advising the client way. From having online backups to having your prac- of the relevant risks.” tice management software in the cloud, the cloud can be More recently, in 2014, NYSBA Op. 1020 dealt with utilized for almost everything. My practice management whether cloud storage could be used for transactional software is known as SaaS, software as service, and it purposes. In that situation the issue was whether an backs up and encrypts all the information on a daily attorney can use an electronic project management tool basis. For those of you who don’t know what encryp- to help with closings. Sellers, buyer attorneys, real estate tion is, it turns the information into an indecipherable brokers and mortgage brokers could post and view docu- mess so that if somehow it is stolen, it is unusable. This ments in one central place. The opinion was that with helps to comply with confidentiality. It is wise, however, informed consent, the tool could be used. to continue to back up locally to a removable hard drive So, the standard in New York is “reasonable protection just in case of a cloud outage. They usually don’t last that to confidential client information.” This does not mean long, but if it happens right before your deadline you’ll throw caution to the wind and click the box that says “I be happy you have your data at the ready. agree” when using new software without reading it. That Another great reason to utilize the cloud is that you kind of recklessness is fine if you want to use an app on can access it from anywhere you have an Internet connec- a personal device to let you know when your favorite tion, which frees you up to work when and where it’s best celebrity is nearby, but not for your law practice. It also for you. However, using unsecured (open) Wi-Fi is not does not mean that you have to personally interview the advisable. Even hotel Wi-Fi is not that secure as so many people who work for the software you choose to use prior people have the password. Your smartphone can act as a to utilizing it. (Although attending Legaltech is both fun secure Wi-Fi or you can utilize a “MiFi” or “hotspot” that and informative and you will likely meet many of the comes with a password you create. This goes a long way software and app designers.) Reasonable is somewhere toward keeping your data secure while on the road. in between. The cloud has opened up opportunities galore for Knowing where the information is being held and small and solo law firms. While one used to need to pay what precautions are being taken and getting that infor- rent for a lot of storage for files and books, now one can mation in writing (print out terms, etc.) are all steps you utilize the cloud at a fraction of the price, which levels can take. You also should keep tabs on the ever-changing the playing field. This means that you don’t need to rent technology field and the law to see if your technology of as much space or any space at all; I know many who choice still complies with the law in New York. Having work from home and meet clients on an as-needed basis your clients sign a technology policy is another useful in rental conference rooms. You do still need to have a practice tool so that it is clear to them that you are stor- physical office in New York as we saw from the recent ing their information in the cloud and that you are taking decision Schoenefeld v. Schneiderman.2 the proper precautions. You need to understand how to Another advantage of using cloud providers is that protect yourself and your clients prior to even hanging they are usually (but not always) more attentive to pre- out a shingle and taking your first client, or you will be vention of hacking than you can be on your own. It is finished before you start. very difficult to practice full time as well as pay attention Many lawyers I have spoken to say they are worried to all the IT issues one can have. Cloud providers usually about the security of the cloud. A recent survey conduct- have their own IT department working on that full time ed by the Cloud Security Spotlight Report1 showed that so that you don’t have to. You should, of course, still have despite the worries about cloud security, very few firms a good IT person on call in case you have issues with your have had actual problems with their cloud security. In my devices or software. opinion, the benefits outweigh the risks. To sum it all up, cloud computing is a wonderful tool We’ve talked about whether you can use cloud, and for lawyers as long as you take the proper precautions. n what precautions you should take. Let’s discuss why it’s worth it. Cloud computing has many advantages. First 1. Ricci Dipshan, Concern over Cloud Security Grows, But Reality Is Another Story: Survey, Law.com, http://www.law.com/sites/arti- and foremost, as a survivor of New York’s most recent cles/2016/05/17/concern-over-cloud-security-grows-but-reality-is-another- natural disaster, where both my home and my office story-survey/?slreturn=20160501104455 (last visited Jun 1, 2016). were in the flood zone, I can tell you from a disaster 2. 11-4283-cv, N.Y.L.J. 1202755844393, at *1 (2d Cir., April 22, 2016). preparedness point of view, the cloud is amazing! While other attorneys in my geographical area had their older files in storage facilities that were flooded (whose own-

NYSBA Journal | September 2016 | 35 Robert Kantowitz has been a tax lawyer, investment banker and consultant for more than 35 years. He is responsible for the creation of a number of widely used capital markets products, including “Yan- kee preferred stock” and “trust preferred,” as well as numerous customized financial solutions and techniques for clients. He is a longtime member of the New York State Bar Association Committee on Attorney Professionalism and, as such, co-authored the Commit- tee’s Report on Attorney Ratings dated December 7, 2015 and has contributed to the monthly Attor- ney Professionalism Forum feature in this Journal.

Practical Pointers on Home Construction Contracts and Projects By Robert Kantowitz

hat does a tax lawyer do for recreation? Many legal advice. They are meant to be considered from the years ago I was a tyro working at a large firm, perspective of both the client who is building a home and Wand when we tax associates needed a break his lawyer. I am not going to make any recommendation from all the assignments requiring tough analysis of on whether one should deal only with the GC and let the cases, statutes and regulations, and sometimes round- GC hire the subs, or should select and hire subs oneself, the-clock work, the partners gave us tax shelters to draft. nor am I going to pass on the wisdom of having one’s Now that that business is passé, I have decided to pass on own engineer or construction supervisor, which is a sug- some of the things I have learned from observations over gestion that Mr. Siviglia has made. But I am going to give the years regarding construction, specifically construction some practical pointers. of a single-family home for oneself or a client. 1. Make sure that the architect whom you select is In a previous issue of this Journal, Peter Siviglia wrote well-versed in the local building codes and zoning rules an article focusing on general contractors and certain and knows the local clerks and officials and the local way contract terms, in particular regarding time delays and of doing things. You don’t want your plans rejected or payments for subcontractors, also known in the vernacu- delayed because they do not comply with the rules or lar as “subs” or “trades.” (I generally eschew abbrevia- have been filed in an incorrect or incomplete way. tions and jargon, but I will make an exception for these Moreover, especially if you have a small parcel of land ubiquitous terms as well as for the abbreviation “GC” for and big ideas, you would be surprised how many times a “general contractor.”) I am grateful to Peter Siviglia for well-connected architect who is sensitive to the way local having reviewed a draft of this article; I am responsible winds blow can take advantage of ambiguities in a zon- for its content. ing code to get you permission to do things that others The following broad points are not by any means com- might not receive. I consider it a major success to avoid prehensive, and they are certainly not meant to constitute the need for a variance if at all possible. Getting there

36 | September 2016 | NYSBA Journal “firstest with the mostest” (to quote a particularly odious that in good faith you have reason to believe that they Confederate general) is better than having to endure the will not make themselves available to complete their vicissitudes of public hearings before a board that could tasks when and as needed, so that the work can be done be swayed, lawless as it might seem, by frivolous or self- in the proper order without delay. You don’t want to be ish objections of other residents. arguing with the GC about this mid-project. Your archi- 2. Before beginning construction, be sure that you tect can probably also be helpful in selecting subs. have the right insurance coverage, especially liability 5. Having written a sensible contract, follow coverage. Consult with your insurance company or bro- through on every obligation that the contract places on the ker. There may be coverage in a homeowner’s policy for GC. For example, the contract certainly should require renovations of the current home or of a second home. the GC to carry workers’ compensation insurance, with But what if the owners are living in one home (insured the homeowner as a co-insured entitled to notices, but with company A), have bought a second house (insured having that in the contract is of no avail if you don’t see by company B), but have not yet moved into the second the certificate and verify the coverage before the work house as their primary residence because they are tear- commences or if you ignore some letter or email that you ing it down to build a new one into which they plan on receive a few months later from an insurance company moving eventually? They could be covered by both the A whose name you do not recognize. and B policies, but if something bad were to happen they 6. In selecting a GC, get references – starting with could find either or both of A and B refusing coverage your architect’s opinion – not just as to a GC’s work for one or another reason – for example, citing the differ- quality but also as to his ability to meet deadlines, to bal- ence between renovation and destruction or complaining ance the completion of waning work on one project with about not having been given a requisite notice. a large workload on a new one and to manage money Although the GC’s workers’ compensation policy is inflows/outflows and obligations to trades. A gram of supposed to cover injuries to the GC’s crew, that coverage prevention here is worth a kilogram of cure. If you like to is not always foolproof; state law does not require that a gamble, go to Atlantic City instead of hoping for a wind- sole proprietor GC, for example, be covered,1 and if the fall from a construction delay penalty. (The exception that GC is not fastidious in making sure that subs have cover- proves the rule: a friend was recently building a house for age, an injured person might sue everyone in sight. In his son; it bothered him not one whit, and he was posi- one complicated situation, the resolution of a completely tively giddy, that his cost was defrayed by the mounting bogus personal injury suit worked out satisfactorily in daily delay penalty while his son continued to stay in his the end for the simple reason that the claim was shown guest room.) to be a total fabrication, but the homeowner needed to Consider requiring a bond or at least checking on hire his own attorney at his own expense to “shadow” the the GC’s financial condition and verifying that the GC insurer’s attorney, and until the claimant and the insurer could get a bond if one were sought. If a bank report is settled, there was the looming risk that the insurer would negative, find another GC. If the GC is a corporation or try to disclaim coverage. More on that in paragraph 14 a limited liability company or partnership, get a personal below. guarantee of the owner(s) and check everyone’s financial 3. If you are not an expert in construction contracts, condition(s) as well. you should refer the contract work to someone who is. 7. No matter what you have provided in the con- Even if you have experience and feel that you know what tract regarding the stages at which you are obligated to you are doing, it can be helpful periodically to study make progress payments, including the final amount to some recent samples from colleagues. But do not take be paid only upon completion, it is very possible that everything for granted. If a clause or particular language you will find yourself getting ahead of the schedule. Con- in a contract is puzzling, ask why it is there. There may or struction phases may be performed out of order for good may not be a good reason, and even if there is it may not reasons or by happenstance. The GC may mention that a be appropriate to your situation. I have seen prospectuses load of expensive red oak “just fell off a truck” and he can for securities offerings with irrelevant language that had get it for a song as flooring for your project, but only if been mindlessly lifted from precedents, and at least one you advance the money right away. Additional payments Revenue Ruling published by the U.S. Treasury contain- will be required if you make changes in midstream or if ing erroneous facts. And be sensible. You may not need the contractor points out, sometimes with justification, to have a 70-page appendix specifying the numbers and that there is a problem in the plans drawn up by the archi- sizes of the nails and the pitch of the screws even if some- tect that requires modification for the GC to do the work one else had one for his $5 million mansion or because a in the proper fashion. Regarding such modifications, see summer associate at a Big Law firm needed to be kept paragraph 12 below. In any event, place more faith in busy. tracking and documenting who is getting paid and how 4. It would be useful to give yourself the ability in much (paragraph 11 below) than in any expectation that the contract to reject the GC’s choice of subs on the basis

NYSBA Journal | September 2016 | 37 you will have much leverage based on a hold-back at the you, and unless you are a civil engineer the GC and the end. subs will know their work better than you do. However, 8. In the preceding point, I mentioned that there sometimes problems of timing, workmanship or quality may be situations where the GC says that the architect’s are manifest – for example, half-driven nails or beams plans are sub-optimal or just plain faulty. One would that are unevenly spaced or cracked – and you should hope that all of that would have been resolved before deal with things like that as quickly as possible. Consider signing the contract with the GC and the costs appropri- putting something in the contract to allow you to exer- ately considered, but things in the real world are often not cise some leverage through the GC with the trades, short as neat as they should be. For a relatively minor dollar of actually requiring you to deal with the subs directly. amount, you may well decide to eat the cost rather than Many technical matters such as the quality of lumber, the infuriating the architect and the GC over whose respon- soundness of the work and the like may not be clear-cut. sibility the flub is and then ending up eating the cost Therefore, if you have not engaged a separate construc- anyway. For example, there could be an error in the eleva- tion adviser or supervisor, you should make sure that tions requiring a couple of steps from the garage to the your architect, as part of the professional service, will also house where the plans had had none. In another instance check in at the jobsite from time to time and make sure of which I am aware, the plans had a vertical steel post that the work is being done to the appropriate standards

Carefully and meticulously document every payment, as well as every change to the contract and the project and the agreed cost. resting on a thick laminated wooden floor beam with no and full satisfaction; after all, the architect’s reputation is post directly underneath, and the contractor insisted that on the line as well. To some degree, though, you will have it would be reckless to do that without having steel all the to trust the GC based on the recommendations of other way down to the concrete basement foundation. satisfied customers. When issues like that arise, get the architect and the 11. Carefully and meticulously document every GC together and try to get them on the same page if pos- payment, as well as every change to the contract and the sible, but do not do anything that either one insists will project and the agreed cost. Resist requests by the GC that create problems. As a result, in the event of a disagree- you make any payment to any person or account other ment between or among the professionals, you are likely than the one named in the contract – such as to cash or to to have to take the most conservative and, therefore, most the GC directly or to a spouse’s account or to a supplier or expensive approach. Keep that in mind when estimating to someone else to whom the GC owes money. If the GC the cost of the project. insists that a check be made out other than as required 9. If you do not have a separate construction in the contract, then at least get a receipt or acknowledg- adviser, you should actively monitor with the GC that ment signed by the payee (such as a supplier) and by the payments are being made in a timely fashion to the subs. GC specifying that such-and-such check was received as Don’t just assume that everything is going smoothly and directed by the GC as payment toward your contract obliga- wait until a big problem arises. Ask the GC to show you tions. receipts from the subs for their payments as those pay- The foregoing is important for two related reasons. ments are made; realistically, understand that the GC is First, if you get into a dispute with the GC, there will not a lawyer or a CPA and so, therefore, do not be sur- not be any issue regarding counting all of your pay- prised if you don’t get full compliance. Whatever you get ments toward the total amount for which you are obli- is better than nothing. gated under the contract. Second, and this is something But, as important as it is for you to keep on top of this of which not everybody is aware, there is an important issue for your own safety, it is not your responsibility to limitation on the ability of subs to place mechanic’s liens remind the subs that they have to get paid. And for obvi- on your property when they have not been paid: the own- ous reasons, never, ever, tell the subs affirmatively that er’s total liability cannot be more than the total remaining they will get paid or otherwise vouch for the GC. unpaid contract price at the time that a lien is filed.2 This 10. In addition to making sure that monies you pay limitation can be complicated to apply in practice, but if to cover the trades’ work are in fact paid over to the subs, you can document that you have already paid the GC monitor the actual work of the GC and of the subs to the total contract price, including all amendments, before the best of your ability. Obviously the subs that the GC any liens are placed, you will not have to pay twice if the has hired are responsible directly to the GC and not to subs have waited too long to put their mechanic’s liens

38 | September 2016 | NYSBA Journal on the property because the GC has not paid them. In the next communique he’d be receiving would be from one instance of which I am aware, the GC was so effective the disciplinary committee. The homeowner meant it, the at sweet-talking the subs into believing that they would lawyer knew that he meant it, and the lawyer went away. eventually get paid that they ended up with no payment 15. Finally, as I mentioned above, my own field is and no liens for an aggregate of tens of thousands of dol- tax, and I would be remiss were I not to mention a couple lars on a residential project. of tax points. The documentation of costs referred to in 12. On the subject of changes, exercise a degree of paragraph 11 will be important in establishing your tax common sense and err on the side of caution. Do not do basis in the property, if and when you sell it, to determine anything without the architect’s participation, approval whether you have a taxable gain and how much. That and assurance that nothing will affect the issuance of the may not be uppermost in your mind when you are build- certificate of occupancy, as well as the architect’s commit- ing a residence that you hope to occupy for many years to ment to make any necessary revised filings. Apart from come, but it is far easier to keep good contemporaneous structural or systems issues that may not be apparent to records than to try to reconstruct (excuse the pun) the you, if the outside dimensions are to change, even slight- expenditures decades later. ly – certainly as to lot coverage and, in some localities, On the other hand, you will not be surprised to learn height or roof pitch – you may need a zoning variance. that, having completed a house, you will likely face a You may be tempted to create a fait accompli, but at least reassessment for property tax purposes, which may or one village with which I am familiar has ordered unau- may not correspond with how much you have actually thorized non-complying additions torn down. spent or the realistic market value. Be prepared for sticker 13. As President Reagan was fond of saying, and as shock. Dealing with that is an entirely separate specialty. one teenager quipped when he bounded up the stairs in I hope that the foregoing has been informative to the Harvard Law Review office asking to see if his father readers, whether contemplating building a house or rep- really appeared in the formal photographs from 30 years resenting a client who is doing so. n before, “trust, but verify.” If something seems to be taking too long – for example, some materials that were sup- 1. See N.Y. Workers’ Comp. Law § 2(4). posed to be shipped weeks before from a particular sup- 2. See N.Y. Lien Law § 4(1). plier have not arrived, and you are getting implausible or shifting excuses from the GC as to why – get down to the bottom of the problem yourself. If the reason is that the GC’s checks to the seller are bouncing, you’ll want to know sooner rather than later. 14. Beware of scams, including workers who falsely and brazenly claim to have been injured on the job. This is not the place to expand on this issue, including the extent of workers’ compensation coverage and some strict liability laws, but suffice it to say that some pretty outrageous claims have been made by unscrupulous workers and even more unscrupulous lawyers. Read paragraph two again and, even so, be prepared to have to hire lawyers and/or to pay a “nuisance” settlement to make bad actors  go away. But be firm when you need to be firm. In one COURT & LITIGATION 370 Lexington Ave. instance, a worker sued a homeowner, claiming to have Suite 1101  BANKRUPTCY & DEPOSITORY sustained a crippling back injury. The worker, though, New York, NY 10017 was as stupid as he was mendacious. Long before fil-  TRUSTS & ESTATES 212-986-7470 ing his papers in court, he had given that homeowner’s 212-697-6091 Fax name to another person as a reference for another job.  INDEMNITY & MISCELLANEOUS The case evaporated when the second person contacted  LICENSE & PERMITS the first and supplied time-stamped current pictures of [email protected] the worker on a ladder stretching to install a fixture. In another case, a company had tiled a floor so poorly that it had to do it over. The company subsequently went out of business, and a lawyer who was somehow involved in the ensuing financial tangle sent the homeowner a let- SURETY BOND SPECIALISTS ter, out of the blue, demanding more money for the redo www.LevineCompany.com plus his own fees at an outlandish rate. The outraged homeowner told the scoundrel that if he did not go away,

NYSBA Journal | September 2016 | 39 James P. Muehlberger practices at Shook, Hardy, & Bacon, L.L.P., Kansas City, Missouri, where he focuses on defending class actions and complex litigation. A graduate of the University of Kansas School of Law, he’s a frequent author on both class action litigation and legal history. Jim’s recently published book, The 116: The True Story of Abraham Lincoln’s Lost Guard, upon which this article is based, has been nominated for The Lincoln Prize.

Protecting the President The New York Lawyers Who Served in Abraham Lincoln’s First “Secret Service” By James P. Muehlberger

Introduction nation’s capital was a slave-owning city carved out of On April 27, 1861, a grateful President Abraham Lincoln Maryland. Most of its residents and government employ- thanked 116 men – among them 13 New Yorkers – and ees either owned slaves or were pro-slavery, and the city said, “Nothing is too good for men who stood off a rebel was surrounded by the slave states of Virginia and Mary- army.” Who were these men and what had they done? land. Washington was an easy prize for the Confederate Some had fought against pro-slavery soldiers in “Bleed- States of America – it had no fortifications, only a hand- ing Kansas” in the years leading up to the Civil War. ful of loyal soldiers, and was infested with Confederate After the fall of Fort Sumter, Lincoln asked these men to spies and saboteurs. The South rang with cries of “On to bivouac in the White House and serve as his armed body- Washington!” Jefferson Davis’s wife sent out cards invit- guard – the first “Secret Service” – and they likely saved ing her friends to a May 1 reception at the White House. Lincoln’s life. As a result of the recent discovery of docu- President Lincoln startled his cabinet by stating, “If I were ments identifying these men, six of whom were New York [Confederate General G.T.] Beauregard, I would take lawyers, their story can now be told for the first time.1 Washington.”3 In April 1861 there was not yet a U.S. Secret Service. No “On to Washington!” Federal Bureau of Investigation. No Central Intelligence At the outbreak of the Civil War, Confederate leaders real- Agency. No well-trained federal agents who could be ized the South was vastly outnumbered. The Confederates’ dispatched to gather intelligence relating to a threatened best chance for success depended on a quick strike. Many presidential assassination or overthrow of the govern- believed their best chance for victory would be to eliminate ment. Most of the 16,000 men in the U.S. Army were out the one person with the courage and determination to “put West fighting Indians. The military force that remained in the foot down firmly” if necessary – Abraham Lincoln. defense of Washington consisted mainly of loyal govern- New York Tribune editor Horace Greeley said, “There was ment clerks and the military band. The clerks had been forty times the reason for shooting [Lincoln] in 1860 than armed, but they knew little about war. Lincoln desperately there was in ‘65, and at least forty times as many intent on needed fighting men who could handle a gun. Fortunately killing or having him killed.” There were rumors that an for Lincoln, scores of fighting men from Bleeding Kansas army of Confederates, flush with victory after the capture had just arrived in Washington to enroll in the army. Jim of Fort Sumter, was marching toward the capital to drag Lane, who had just been elected as Kansas’s first U.S. Lincoln from bed and hang him from the nearest tree.2 Senator, was their leader. Lincoln summoned Lane, whom Washington was located in the red heart of Confeder- he had met 16 months earlier during his visit to the Kansas ate country. Located south of the Mason-Dixon Line, the Territory, to the White House to discuss the crisis.4

40 | September 2016 | NYSBA Journal When Lane arrived at the White House, he gripped led to much legal business. Towns that were county seats Lincoln’s huge, hard hand. At 52, Lincoln was a strapping (and therefore the sites of courts) were favorites of frontier 200 pounds of muscle on a 6-foot 4-inch frame, his black lawyers. The vast majority of these men were not gradu- suit draped over sinewy shoulders and a narrow waist. ates of law school, but had trained for the bar by appren- His shoulders and forearms were so strong that he could ticing themselves to another lawyer. They tended to focus hold a heavy, double-bladed ax horizontally in one out- on common sense, rather than highly technical legal stretched arm and hand without a quiver. His gray eyes analysis. Many became leaders of the Free State men.6 peered out beneath bushy eyebrows, set in a leathery face. He was the virile figure of his presidential campaign: the “The White House Is Turned into Barracks” strong, independent, Western rail-splitter, and not yet the As the sun set on April 18, 1861, the men in Lincoln’s haggard, hollow-eyed figure of Civil War photographs. Guard, bristling with revolvers and rifles, marched down The men met for several hours in Lincoln’s second- Pennsylvania Avenue to the White House. They brushed floor office, where a fire crackled and blazed in the marble by “Old Edward,” the wizened Irish doorman who had fireplace behind a brass fender. Lincoln’s worktable stood served seven U.S. presidents, and set up camp in the East between two tall windows that faced the South Lawn, Room, to the left of the front entryway. The men forted-up looking out across the marshes to the jumbled blocks that for trouble. They dumped crates of rifles and ammuni- surrounded the unfinished shaft of Washington’s monu- tion in the middle of the floor of the East Room. They ment. Lincoln explained the situation and told Lane: “I expected they might have to withstand a siege, so they don’t know who I can depend on.” Lane replied, “I’ll wanted plenty of ammunition on hand. If the Confeder- organize a body of men who will fire when called upon.” ates attacked, they expected to fight to the death. Lincoln’s The rebels were well known to Lane – he had fought secretary, John Hay, recognized the desperate and historic pro-slavery soldiers in successful military campaigns nature of what he was witnessing and noted in his diary, for six years in the Kansas Territory. Lane believed the which he started that very night: “The White House is rumored attack on the White House was a certainty. He turned into barracks. Jim Lane marshaled his Warriors knew the mood of his men, some of whom had fought today . . . into the East Room.” For the next 10 days the South Carolina men in the Kansas Territory. Knowing men operated as the country’s first “Secret Service.”7 them to be rough men ready to do violence on Lincoln’s For 10 days, the city’s fate hung by a thread. One ques- behalf, Lane warned Lincoln: “The only trouble is they tion now transfixed the nation: Whose soldiers would may fire whether called upon or not. Their blood is up!”5 reach Washington first? Federal troops to save it? Or the Lane told Lincoln that there must be a display of force Confederate Army to seize it? at the White House to discourage the Confederates from attacking, as pro-slavery soldiers had shown a dislike for The “Men Who Stood Off an Entire Army” attacking fortified positions in Kansas. He believed that On Thursday, April 18, 1861, many longtime residents the large East Room could be used and defended as a base of Washington begin fleeing the city, terrified of being of operations for his men. Lane hoped that the Confeder- caught in a battle when the Confederates attacked. Trains ate soldiers would hesitate to attack entrenched, battle- were filled to overflowing. The roads were clogged with hardened fighters. Lincoln had met many of these rough- horseback riders, and carriages and wagons heaped with hewn men during his visit to the Kansas Territory 16 household goods. The poor walked, pulling their per- months earlier, and he quickly agreed to Lane’s proposal. sonal possessions in handcarts. Both for Lincoln’s protection and the benefit of Con- The Kansas/Missouri Border War federate spies, Lane conspicuously positioned sharp- The Kansas Territory Lincoln had visited in December shooters on the roof of the White House, armed with 1859 was a rugged, deadly place. The vast territory, a huge deadly buffalo rifles, which could blow a hole through a swath of open plains stretching west to the Continental man “big enough to allow a stagecoach to drive through.” Divide and including much of present-day Colorado, had War stared at them from just 800 feet away. Only the first been opened to white settlers by the May 1854 Kansas- width of the Potomac River separated the United States Nebraska Act. The question of whether Kansas would be from the newly formed Confederate States of America. In a free or slave state was to be decided by the voters (i.e., the wooded Virginia hills overlooking the river, Confed- white males). Free State men from New York and else- erate campfires blinked like red eyes at the city.8 where and pro-slavery men flooded into the territories in It was rumored that the Confederate Army intended an effort to determine the outcome of slavery, and violence to attack Washington that night, kill or imprison Lincoln, quickly ensued. Weapons began flooding into the territory. and move the Confederate capital north of the Potomac. Partisans on both sides soon became walking arsenals. But the presence of Lane’s fighters caused the Confeder- Newspapers began calling the territory “Bleeding Kansas.” ates to hesitate – as they knew these loyal men could Lawyers, including those from New York, were also and would shoot. Rather than attack, the Confederates attracted to the territory. Land sales and claim disputes attempted to first learn their opponent’s troop strength

NYSBA Journal | September 2016 | 41 and intentions. Based upon the letters the men wrote to the Potomac River to Washington because they feared that their loved ones, they expected they may not live to see enemy guns might shell them from the Virginia shore.13 the morning light, but they vowed to give the rebels “a On Tuesday, April 23, the city was braced for an attack. good fight.” Northern newspapers called them “Lincoln’s General Scott came to dinner at the White House and Guard” or the “Frontier Guard.” spoke with Lincoln about the possibility of famine in the Lane and his men began a misinformation campaign, city. The impending attack by Confederates seemed more spreading rumors that their numbers the first night were real than the hope of rescue from the North. A haggard- several hundred, and that their force grew quickly over looking, worried Lincoln scanned the Potomac River with the next few days to several thousand. Lane refused the field glasses through the window of the Executive Office, suggestion that his men wear uniforms – the last thing looking for ships bringing troops and exclaimed, “Why Lane wanted was for the Confederates to know their don’t they come! Why don’t they come!” identity, location, and number. At night, the men marched Lane received word from his spies that the Confeder- noisily back and forth across the wooden Long Bridge ates were gathering at the crossroads of Falls Church, spanning the Potomac, making the rebel spies believe Virginia, about nine miles from Washington, for a strike they were being reinforced with hundreds of fighters, at the White House. Lane’s men marched to Falls Church, who it was rumored were hidden at Willard’s Hotel, the where they saw a company of Confederates drilling in the Treasury Building, and in the unfinished Capitol.9 town square. They attacked, scattering the Confederates, By Saturday morning, April 20, Washington was who did not even have time to take down their flag, which nearly a ghost town. The city was isolated. Confederates was flapping on top of a flagstaff. They brought the flag had torn up the railroad tracks leading North, burned back to Washington – the first Confederate flag taken by railroad bridges, and destroyed telegraph lines. Union federal forces on Confederate soil during the Civil War. spies reported that the Confederates believed Lincoln’s On Wednesday, April 24, Lincoln met at the White Guard were now “400 or 500 strong.” In reality, as other House with federal troops who had been wounded in loyal men joined the group, the number of men camped Baltimore as they attempted to fight their way into Wash- in the East Room had grown to only 116.10 ington. Lincoln’s “impatience, gloom and depression When Lincoln recalled the events of April 1861 one were hourly increasing.” He thanked the men for their year later, he described the city’s isolation: “The mails patriotism and then confided his doubts openly: “I don’t in every direction were stopped,” while telegraph lines believe there is any North. You are the only northern were “cut off by the insurgents” and “all the roads and reality.” Unknown to Lincoln however, the Confederate avenues to this city were obstructed.” At the same time, general in Alexandria, Virginia wrote Confederate Gen- the “military and naval forces, which had been called out eral Robert E. Lee that he believed there was “an army by the Government for the defense of Washington, were now numbering ten to twelve thousand men” there. The prevented from reaching the city, by organized and com- propaganda efforts of Lincoln’s Guard had paid off. bined treasonable resistance . . . The Capital was put into On April 25, a train carrying 1,000 soldiers of the Sev- the condition of a siege.” Despite his entreaties, his wife enth New York regiment finally pulled into Washington. Mary refused to leave his side. She sat up all night fully The next day, additional troops from Massachusetts and dressed, waiting to be captured.11 Rhode Island arrived. The emergency had passed. Lane Union spies reported that the Confederates in Virginia had succeeded in causing the Confederates to delay their were in “dread of James Lane and his John Brown horde.” attack, buying Lincoln the time he needed to march fed- To Confederates, Brown was a crazed religious zealot who eral troops into the city. had been willing to die for his cause of freeing slaves – On April 27, Lincoln formally thanked the men in the much like a martyr fighting a holy war. Calling Lincoln’s Frontier Guard, and presented each soldier with a signed Guard a “John Brown horde” reflected slave-owners’ fear “Honorable Discharge” (even though they were never offi- that the men in Lincoln’s Guard were also martyrs who cially enrolled in the Union army), and took a photograph would fight to the death – and these men had already with them on the South Lawn of the White House. Lincoln defeated larger pro-slavery armies in the Kansas Territory. concluded, “Nothing is too good for 110 [sic] men who stood Pro-slavers hesitated to fight them again.12 off the entire rebel army.” He rewarded the members of his On Monday, April 22, the city was deserted as the guard with lucrative military or political appointments.14 sun set. Theaters and stores had closed. Lincoln’s Guard marched conspicuously up and down in front of the The New York Lawyers in Lincoln’s “Secret Service” White House, armed with rifles and revolvers. A glim- The identity and actions of Lincoln’s “Secret Service” had mer of good news finally appeared on the horizon. It was been in question until this author discovered the dusty reported that the Eighth Massachusetts Volunteers and the muster roll and after-action report of the men in the Library Seventh New York Regiment had commandeered a ferry of Congress, during a sabbatical from his law firm. Finally, boat and had finally sailed into Annapolis Harbor. Their we now know the identity of these brave New Yorkers, commanders, however, refused to allow them to sail up six of whom were lawyers. But describing these men as

42 | September 2016 | NYSBA Journal lawyers is like describing Doc Holliday as a dentist. Some Frontier Guard, Lincoln appointed Smith as an auditor of these lawyers were as good with a pistol as with a pen.15 in the Treasury Department in New York. After the war, Henry Joseph Adams grew up New York. In his early Smith moved to New York City and originated the idea 20s he moved to Cincinnati, Ohio, where he practiced law, of building an underground railway (subway). In 1886, became involved in politics, and worked to abolish slavery. Smith succeeded in getting a charter from the legislature In the spring of 1855 he moved to Leavenworth and became for the first subway in New York City.20 active in Free State politics. In 1856, he was elected as a sen- Elisha Wallace graduated from Dartmouth and Yale ator in the first Free State Legislature. In the spring of 1857 and practiced law in Massachusetts beginning in 1815. he was elected as the first Free State mayor of Leavenworth. In 1825, he moved to Syracuse, New York, where he con- In January 1858, an unarmed Adams led a group of about 20 tinued to practice law. He formed the Unitarian Congre- Free State men who rode from Leavenworth to Atchison, a gational Society of Syracuse and became an abolitionist. pro-slavery stronghold, to confront about 50 heavily armed After his service in the Frontier Guard, Lincoln nomi- pro-slavery men who were there to murder Jim Lane when nated Wallace to be the U.S. Consul at Santiago, Cuba. In he arrived in town for a campaign speech. Because of his 1870, Wallace died in Syracuse.21 bravery and bravado, he backed down the Missouri Ruffi- ans without a shot being fired. After his service in Lincoln’s Conclusion Guard, Lincoln appointed Adams as a paymaster in the On April 14, 1865, the day he was shot by John Wilkes army, a position he held through the war.16 Booth, Lincoln signed the law that created the Secret Ser- Algernon Paddock was born in New York and admit- vice. It was a terrible tragedy that one or two of the New ted in 1856 to the New York bar. In 1857, he moved to Yorkers who had protected Lincoln in April 1861 were not Omaha, Nebraska Territory. There, he became a writer on duty guarding him four years later. Several of the men for the antislavery Omaha Republican. Publishing an anti- in Lincoln’s Guard said as much, and they wept when slavery newspaper in the Nebraska Territory was a risky they heard of Lincoln’s death.22 occupation. Accordingly, the “Colt pistol was as much Today, Lincoln is a marble monument, but for these the necessary equipment of an editor as his pencil and New York lawyers, Abe was a passionate, fallible human paper.” In 1860, he was a delegate to the Republican Con- being – they shook his huge hand, gazed into his gray eyes, vention, where he was “on hand for Abraham Lincoln’s felt his breath, and shared laughs over earthy stories. Those nomination.” After serving in the Frontier Guard, Lincoln who knew and walked with Lincoln have passed away, but appointed him Secretary of State for the Nebraska Ter- by studying those close to Lincoln, perhaps we can gain ritory. In 1875, Paddock was elected to the U.S. Senate. insights into the great man. Lincoln never forgot these New In 1887, he was elected to a second Senate term, during York lawyers. Perhaps we should remember them, too. n which he introduced the Food and Drug Act.17 Roswell Hart was born in 1824 in Rochester, New 1. James P. Muehlberger, The 116: The True Story of Abraham Lincoln’s Lost Guard 4–5 (Ankerwycke, 2015) (The 116). York. He graduated from Yale in 1843, studied law, and 2. The 116, 1–2. was admitted to the New York bar in 1847. In 1856, he 3. The 116, 2. was a New York delegate to the Republican National 4. Id., 3. Convention. Prior to Lincoln’s election, Hart spoke on 5. The 116, 18–19. Lincoln’s behalf at numerous speaking engagements in 6. Michael H. Hoeflich, Gayle R. Davis, and Jim Hoy, eds., Tallgrass Essays, The Lawyers of Old Lecompton, (Topeka: Kansas State Historical Society, 2003), Rochester. After Hart’s service in the Frontier Guard, Lin- 29–30. coln appointed him as Provost Marshall for Monroe and 7. Id., 126, 133. Orleans Districts. In 1865, Hart was elected to the U.S. 8. Id., 20–21. House of Representatives, where he served two terms. He 9. Id., 131–32, 136–37. died in 1883 in Rochester, New York.18 10. Id., 141. Thomas Shanklin was born in 1810 in New York. By 11. Id., 143. 12. Id., 145. 1844 he was practicing law and was appointed as the 13. Id., 145–46. Commissioner of Deeds in New York. In 1855, Shanklin 14. Id., 149–53. traveled to the Kansas Territory, before returning to New 15. Because the Frontier Guard was a voluntary organization, the men York, where he began advocating the Free State cause. served without pay, they were not mustered into the regular army, and their After Shanklin’s service in the Frontier Guard, Lincoln names were never placed on the official army rolls. 16. Id., 75–77; 259–60. appointed him as American Consul at Port Louis, Isle of 17. Id., 35. France. Shanklin later worked as an assistant U.S. trea- 18. Id., 312–13. surer in New York.19 19. Id., 361–62. Delano T. Smith was born in 1830 in Litchfield, New 20. Id., 364. York. He received his higher education at Clinton Lib- 21. Id., 379. eral Institute in Oneida County, New York. In 1851, he 22. Id., 153. was admitted to the bar in Albany. After serving in the

NYSBA Journal | September 2016 | 43 TAX ALERT BY ROBERT W. WOOD

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

Insurance Bad Faith Recoveries: Are They Taxable?

useful (and common) example to bear acted in bad faith in failing to settle in mind. the claim. The tavern believed it had a cause of action against Insurance 2009 IRS Ruling Company. The most important authority is an IRS Thus, as part of an agreement to private letter ruling that technically is stay the execution of the plaintiff’s not authority, since letter rulings are judgment, the tavern assigned to the non-precedential. It was a bombshell plaintiff its rights to pursue a bad faith ruling when it was issued in 2009, claim against Insurance Company. The and it suggests that some bad faith agreement between the tavern and recoveries are tax-free. Some case law, the plaintiff provided for the assign- re insurance bad faith litiga- on the other hand, suggests that some ment of all claims possessed by the tion recoveries taxable? The taxpayers may be reading the ruling tavern and the tavern manager against annoying answer is that it too broadly. Insurance Company related to the bad A 1 depends. This answer may be a bit In Letter Ruling 200903073, a plain- faith claims. Thus, the injured plaintiff less annoying with a brief description tiff had been employed as a construc- ended up with those claims. of what a bad faith claim may entail. tion worker, and in the course of his The assignment agreement provid- It may be a tort or a contract claim, employment was struck by a drunk ed that within 30 days of the termi- depending on the facts and the juris- driver. The drunk driver managed a nation of the litigation against Insur- diction. tavern, and had served himself liber- ance Company (whether by settlement It may be brought against one’s ally while on duty. The plaintiff was or judgment), the judgment against own insurance carrier, or sometimes, severely injured and sued the driver/ the manager and the tavern (relating even against someone else’s carrier. manager as well the tavern that had to plaintiff’s personal injury claims) A common claim is that the insur- employed him. would be marked “satisfied.” Eventu- ance company defendant did not pro- The plaintiff received a jury verdict ally, the plaintiff entered into a settle- ceed appropriately to pay a claim, thus consisting of compensatory damages ment agreement calling for the insur- causing the plaintiff additional dam- for his personal physical injuries, med- ance company to pay $Z to plain- ages. In that sense, not unlike a legal ical expenses, pain and suffering, lost tiff and his attorneys. The settlement malpractice claim against a lawyer, earnings, plus punitive damages. After agreement provided that upon receipt one key question will predate the bad post-trial motions, the jury verdict was of payment, plaintiff would cause the faith case. reduced to $X in compensatory dam- bad faith insurance litigation to be dis- That is, what was the underlying ages and $Y in punitive damages. The missed with prejudice, and cause the issue (which may or may not have defendants appealed. personal injury judgment against the been litigated) that gave rise to the Prior to the judgment, the insurer tavern manager and the tavern to be insurance claim? Most tax profession- for the tavern (Insurance Company) marked as satisfied. als will start to imagine a physical had rejected an opportunity to settle injury accident where the insurance for policy limits under the tavern’s Underlying Case Tax Free company pays too little too late, and policy. Under state law, the tavern as The IRS starts its analysis in the Let- later must pay more for the same policy holder had a cause of action ter Ruling with the origin of the claim injuries via a bad faith claim. That is a against the insurance company if it doctrine. Citing Raytheon Production

44 | September 2016 | NYSBA Journal account of” relationship discussed Corp. v. Comm’r of Internal Revenue,2 the the taxpayer worked for the Coast in O’Gilvie5 for the purposes of the Service states that the critical inquiry Community College District (CCCD) exclusion under section 104(a)(2). here is in lieu of the damages award- in Orange County, California. In con- Petitioner would not have filed his ed. The plaintiff may have recovered nection with his employment, Ktsanes complaint if Union Security had against the insurance company, but the participated in a group long-term dis- not denied his claim but instead recovery had its origin in the settle- ability insurance program managed by paid him the long-term disability ment of the court cases against the Union Security. payments that he sought. In other tavern manager and the tavern. The premiums were paid by words, petitioner sought compen- Indeed, the plaintiff was merely Ktsanes’s employer, CCCD, and were sation “on account of” the denial trying to collect on the plaintiff’s judg- not included in Ktsanes’s income. of his long-term disability benefits, ment against the manager and the tav- Ktsanes developed Bell’s palsy, which not for any physical injuries or ern for damages awarded on his per- caused him to be unable to continue physical sickness.6 sonal physical injury claim. “But for” working for CCCD. He filed a claim the personal physical injury claim and for long-term disability with Union On the surface, this reasoning might the plaintiff’s rights as an assignee, the Security, which the insurance company make it difficult for bad faith recover- plaintiff would be receiving nothing from the insurer for the tavern. Quite literally, the plaintiff was only receiv- In bad faith insurance cases, there is an ing money from Insurance Company underlying cause of action for which the because the plaintiff was injured. Thus, the Service concluded that the taxpayer is seeking redress. Section 104 exclusion applied. Interest- ingly, the Service noted that the exclu- denied, saying that Ktsanes was not ies to qualify under I.R.C. § 104(a)(2). sion would not apply to any amounts sufficiently disabled to qualify. Indeed, when taxpayers claim that bad the plaintiff received that resulted from Ktsanes filed a bad faith claim faith recoveries are excludable from the punitive claims. Punitive damag- against Union Security. The claim was gross income under I.R.C. § 104(a)(2), es are always taxable.3 Letter Ruling settled for $65,000. Ktsanes claimed the personal physical injury or physi- 200903073 expresses no opinion on the settlement payment was received cal sickness almost always concerns allocating between compensatory and on account of a physical sickness (the the facts that gave rise to the insurance punitive damages. Bell’s palsy), and therefore exclud- claim, rather than the denial of the ed it from his gross income under claim itself. Put differently, relative- Contract vs. Tort? I.R.C. § 104(a)(2). ly few bad faith claimants can assert In bad faith insurance cases, there When the IRS disagreed, he also that the insurance company actually is an underlying cause of action for argued that the group long-term dis- caused them physical harm. which the taxpayer is seeking redress. ability insurance program was equiva- But some can claim that the insur- It might be a personal physical injury lent to a workmen’s compensation pay- ance company’s delays exacerbated action or something else. It may be ment, so it was excludable under I.R.C. their physical injuries and physical viewed as a contract claim relating to § 104(a)(1). The Tax Court rejected both sickness. In that kind of case, the argu- the insurance policy, or as a tort claim arguments and found the settlement to ment for excluding all or part of the related to Insurance Company’s opera- be taxable. The Tax Court concluded eventual bad faith recovery can be tions and its treatment of the plaintiff. that Ktsanes’s damages were received strong. In Ktsanes, though, the Tax The IRS has usually viewed them “on account of” the insurance com- Court concludes the opinion by stat- as contract actions. Regardless, it is pany’s refusal to pay the insurance ing that relevant to inquire into the treatment claim and not the Bell’s palsy that gave [t]he $65,000 that [Ktsanes] received of damages that, at least in part, often rise to the insurance claim. The court in settlement of his suit essentially relate to the original act producing reasoned: represented a substitute for what the underlying insurance claim. Not The relief that petitioner sought in he would have received had his surprisingly, most bad faith insur- his complaint was causally con- claim been approved. Under these ance cases relate to the mishandling of nected (and strongly so) to the circumstances, no part of that pay- insurance claims. denial by Union Security of his ment is excludable under any sub- claim for long-term disability ben- division of IRC § 104(a).7 Recent Cases efits. Although petitioner’s com- This language, emphasized by its Perhaps as a result of the 2009 let- plaint alleged that he became dis- placement at the very end of the opin- ter ruling, some taxpayers may think abled as a result of physical injuries ion, seems to contradict the court’s pre- “tax free” when they hear “bad faith.” or sickness, this “but for” connec- vious language. It looks through the For example, in Ktsanes v. Comm’r,4 tion is insufficient to satisfy the “on insurance claim to the facts that gave

NYSBA Journal | September 2016 | 45 rise to the insurance claim. Moreover, But the Tax Court took a dim view: § 104(a)(3), the recovered attorney fees it implicitly asks how the payment The parties apparently believe and costs were also excludable. would have been taxed had the insur- that the interposing of a lawsuit Hauff v. Petterson12 is not a tax case. ance claim been paid without dispute. between the insured and the insur- But it is worth reading even if one is The taxation of an undisputed payer in this case causes the pay- focused solely on the taxes. Instead ment would surely depend on the facts ment petitioner received from State of analyzing a bad faith recovery to that gave rise to the insurance claim. Farm to constitute “damages” that ascertain how it should be taxed, the In Ktsanes, the court seems bothered may be excluded from income only court uses the taxability of a recovery by I.R.C. § 104(a)(3). Notably, Ktsanes by satisfying the requirements of to determine whether the insurance did not raise this sub-section as a basis [IRC § 104(a)(2)]. We disagree.10 company acted in bad faith. David for excluding the settlement payment Instead, the Tax Court analyzed the Hauff filed a claim with his automobile from his income. settlement payment under the authori- insurer after he was involved in a col- Under I.R.C. § 104(a)(3), amounts ties of I.R.C. § 104(a)(3), concerning lision with an uninsured motorist and received through accident or health amounts received “through” accident sustained physical injuries. insurance for personal injuries or sick- or health insurance “for” personal inju- Among other things, he requested ness are excludable from gross income. ries or sickness. The Tax Court con- compensation for lost wages. Hauff’s The key qualifier, of course, is that cluded that the settlement payment insurance carrier agreed to pay him the premiums for the insurance must could be excluded under I.R.C. § 104(a) an amount of lost wages based on not have been paid by the insured’s (3) up to the policy limits, and were Hauff’s wages net of the income tax employer as a tax-free benefit to the taxable interest or other taxable income that he would normally have to pay insured. Ktsanes’s long-term disability to the extent the settlement payment on them. Hauff demanded that his lost premiums were paid by his employer, exceeded Watts’s $50,000 policy limit. wages be calculated based on his gross and were not included in his income. In Watts, as Ktsanes, the Tax Court lost wages, and filed suit against his Thus, he clearly did not qualify for tax- seemed focused on making sure that in insurer alleging bad faith. free treatment under § 104(a)(3). Had bad faith and breach-of-contract cases The court determined that amounts his insurance claim been paid without regarding insurers, I.R.C. § 104(a)(2) received by Hauff for lost wages would dispute, it would presumably have does not override I.R.C. § 104(a)(3). be excludable from his income under been taxable. Where the proceeds of bad faith or I.R.C. § 104(a)(2) as amounts received Read in this light, Ktsanes is much breach-of-contract cases would cause on account of a personal physical inju- more easily reconciled with the other payments from insurers to be taxed ry or physical sickness. Because Hauff authorities on bad faith litigation. The differently from how the same pay- would not have to pay tax on the Tax Court may have been preventing ments would be taxed if paid by the amounts received from his insurer, the insurance payments that were income insurer without dispute, taxpayers court found that the insurer was acting from being made tax-exempt merely might expect the Tax Court to either in good faith by only paying Hauff his because the insurance company only refuse to apply I.R.C. § 104(a)(2) alto- net lost wages. As a result, the court agreed to pay the insurance claim after gether (as in Watts), or to construe its found for the insurer on summary litigation. Another case decided short- “on account of” language narrowly to judgment. ly after the 2009 letter ruling is more render the subsection inapplicable (as Braden v. Comm’r13 predates the troubling. in Ktsanes). 2009 letter ruling, but is interesting In Watts v. Comm’r,8 the taxpayer Notably, though, Letter Ruling nonetheless. Braden received $30,000 sued her automobile insurer claiming 20040304611 ruled that legal fees alloca- from a class action settlement with his breach of contract after she sustained ble to disability benefits were exclud- automobile insurance company. The physical injuries in a collision with an able under § 104(a)(3). The ruling action was a breach-of-contract bad uninsured motorist. The parties settled involved a taxpayer who purchased faith claim, but was related to underly- for an amount in excess of Watts’s disability insurance with after-tax dol- ing physical injury claims Braden had $50,000 policy limit. Watts excluded lars. The taxpayer was disabled on the made against the insurance company. the settlement under I.R.C. § 104(a)(2). job, but his claim was denied. The tax- Braden excluded the $30,000 from The IRS disallowed the exclusion, payer thereafter filed suit against the his gross income under § 104. The IRS asserting that the breach-of-contract insurance company, alleging bad faith disagreed, and the matter went to Tax action was not based on tort or tort- and contract damages. Court. The IRS moved for summary type rights. Of course, that require- The taxpayer prevailed, but the judgment, arguing that the underlying ment (from the Schleier case)9 is now insurance company appealed. The mat- cause of action was not based on a tort obsolete. Showing a bit of prescience, ter settled on appeal, and the taxpayer or tort-like rights. the taxpayer and the government recovered attorney fees and costs. The Therefore, the IRS said it could not agreed that the settlement should be IRS ruled that because the underly- be excludable under § 104. The Tax analyzed under I.R.C. § 104(a)(2). ing recovery was excludable under Court, however, denied the motion,

46 | September 2016 | NYSBA Journal 6. Ktsanes v. Comm’r, T.C. Summ. Op. 2014-85 at *8. stating that the nature of the taxpayer’s sion, but some do. And sometimes the 7. Id. at *11. claim controlled. The fact that this law- way to get to that position can require 8. T.C. Memo. 2009-103. suit was for breach of contract did not some creativity. foreclose the possibility that the tax- Indeed, Letter Ruling 200903073 9. C.I.R. v. Schleier, 515 U.S. 323 (1995). payer’s claim was for personal physi- involved a bad faith claim that was 10. T.C. Memo. 2009-103 at *5. cal injuries. originally owned by the tavern policy 11. January 16, 2004. holder. The claim was later pursued by 12. 755 F. Supp. 2d 1138 (D. N.M. 2010). Conclusion an injured plaintiff who recovered “on 13. T.C. Summ. Op. 2006-78. Considering how many claims insur- account of” his injuries. ance companies face for putatively bad The assigned bad faith claim MEMBERSHIP TOTALS faith behavior, it is surprising that enabled the plaintiff to sue the car- there are not more tax cases consider- rier. However, it was the nature of the ing the treatment to the plaintiff. Some underlying injury and the plaintiff’s New Regular Members bad faith plaintiff’s lawyers report claim against the tavern and tavern 1/1/16 - 8/3/16______6,377 that they routinely see clients pay tax manager that sparked the assignment. New Law Student Members on the recoveries without complaint. And it was the underlying injury that 1/1/16 - 8/3/16______1,248 Some plaintiffs may exclude them ultimately led to the recovery. n from income without much thought, Total Regular Members and perhaps there are few disputes. 1. January 16, 2009. as of 8/3/16______59,470 Despite the relative paucity of cases, 2. 144 F.2d 110 (1st Cir. 1944), cert denied, 323 U.S. 779 (1944). Total Law Student Members it seems reasonable to believe that as of 3. See O’Gilvie v. U.S., 519 U.S. 79 (1996); see also 8/3/16______5,245 there are an increasing number of bad I.R.C. § 104. faith settlements and judgments. Not Total Membership as of 4. T.C. Summ. Op 2014-85. 8/3/16 ______64,715 all involve good arguments for exclu- 5. 519 U.S. 79 (1996).

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NYSBA Journal | September 2016 | 49 Anna Natalia Diakun Tamar Peltz James Patrick Murphy Maria Jadwiga Kozak Hui Yang Catherine Ihoma Ejimadu Joel Plainfield Katherine Elizabeth Muserilli Tucker Christian Kramer Melissa Elizabeth Young Adam M. Faeth Mathieu Joseph Reno Ryan Vincent Nicolosi Ha Jin Lee Thirteenth District Theresa Joe Ferrara Cynthia Ann Riaz Catherine Ann Papandrew Victoria Liu Douglass Eric Barron Andrew Jeffrey Friedfertig Javier Eduardo Robles Christopher Michael Pearsall Kevin James Long Catherine Bentivegna Julia Gilgurd Jonathan Roman Rajendra Persaud Scott Ta-yuan Luan Grace Lee Cheng Matthew Jeffrey Glose David Aaron Rubel Harris Maxwell Peskin Alexander Marcus Jacob Carmelo Cohen Carin S. Gordon Agatha Doris Rysinski James Francis Xavier Petrich Marla Lee Matusic Amir G. Fadl Stephanie Ann Hale Ryan Sharp Kamya Rajagopal Eric Mcmahon Kimberly Ferraro Patrick M. Hanley Louis Michael Sombat Yehuda Aryeh Raskin Helena Rachael Million-Perez Michael Louis Henry Adam Lee Hayes Isaac Stern William L. Richards Anis Min Michael Vincent McNichol Matthew Alan Kielich Yi Wang Stewart Giancarlo Luca Scaccia Edwin Ho Cheung Mok Aamen Tarek Nsouli Lindsay Nicole Kreppel Nisson Tepper Michael P. Scheiner Christos Chris Philippos Birjees Rehman Catherine Jane Mcculle Ancy Thomas Aaron Michael Schleicher Moutousis Jeanne Elizabeth Murray Michael William Virga Jay Paul Sheryll Xin Mu Out-of-State Ethan Schweizer Notarius Victoria Ashley Wagnerman Diana Marcela Silva Seth Adam Nadel Irene Denise Abel Ana M. Pavlovic Samuel Jacob Wells Melissa Ann Snyder Marcin Tomasz Nadgorski Eliane Michelle Aboganena Jonathan Walter Pierowicz James Gaynor Williamson Lauren Elizabeth Soule Toochi Lillian Ngwangwa Randolph G. Abood Bridget Eileen Riley Richard Allan Wright Hernan Jose Luis Vidal Baute Corey Marc Offsey Veronica Abraham Jaclyn Frances Silver Mony Botum Pho Yin Joseph Anthony Vuozzo Mina Oh Chioma Achebe Christoph Akira Starostik Felicia Winder Suvayu Dev Pant Michael J. Affrunti Tenth District William Edward Szczepanski Brian Monter Witthuhn James Jin Park Jeremie Yossi Aflalo Sherri Lynn Adamson Debra Ann Tredo Lauren C. Wittlin Natalie Parker Luciano Ernesto Aguilera Oluwatosin O. Adeyinka Lynne Mary Jean Vicars Susan Jacqueline Wolfersdorf Poonam Pelia Burlando Gregory Paul Bakos Nicholas Alexander Weston- Theresa Ann Yanni Jane Shijing Peng Eduardo Augusto Aguilera Moshe Ben-Jacob Swan Anne Zeitoun-Sedki Aneeta Kaur Rai Amani Fahad Hommood Al Gail Marie Berkowitz Alexander Zugaro Chetna T. Ramchandani Rowais Ninth District Abed Zaman Bhuyan Gregg Noel Re Ehsan Alavi-dehkordi Justine Erika Ayala Ryan Thomas Biesenbach Eleventh District Patrick Lawrence Rieder Andre Albertini Pamela Dale Bass Matthew Robert Capobianco Jonathan D. Allan Neera I. Roopsingh Hannah Elisabeth Wood Lateef A. Bell Israel Napoleon Castillo Andre Silva Amorim Jonathan Phillip Rubin Alexander Catherine A. Birch Antonio Corcella Dana Renee Angood Yong Hyun Ryu Alexander Joseph Alfano Jessica Rachelle Bland Nicholas Daniel Cutz Amanda Barfield Joseph Solomon Sadon Alexander Vincent Alfano Aram Michael Boghosian Matthew C. Damato Darryl Michael Thomas Emily Anne Seiderman Juliann Marie Alicino Larisa G. Bowman Amanda Leigh Davis Barney Lik Chee Ricky Sim Waad Nasser S. Alkurini Peter Budoff Jonathan Ulrich Depasquale Michael Albert Brodlieb Wayne Aaron Smart Benjamin Lee Allen Ryan J. Byrnes Brian John Dipentima Trevor Burton Silvia Cristina Stanciu Mais Hamad S. Alomar Maria Anne Castiglie Michael J. Dischley James Taylor Castle Mingyang Sun Courtney Helene Alonzo Cindy Chang Lauren M. Efman Vincce Chan Vladimir Tamayeff Khalid W. Alyafi Michael Vincent Chiaramonte Brian Charles Eisner Nicole Renee Chong Denny Tang Mana Ameri Lakisha Collins Samantha Blake Epstein Thomas Paul Corcoran Jessica Lizeth Thual Ana Amodaj Theodore Michael Crispino Michele Lynn Fischetti Samuel Zachariah Corman Catherine Toner Daniel Benjamin Amodeo Erica L. Danielsen David Joseph Frank Melissa L. Cowan Christopher Henry Van John Angeloni John W. Fenner Alyssa Lynn Garone Katharine Marie Deabler- Buren Ariela Claudia Anhalt Aaron R. Fishkin Joshua Max Goldberg Meadows Nathalia Alejandra Varela Salvatore Anzalotti Lauren Fitton Jamie Heather Greenwood Maxwell Paden Deabler- Alana Beth Weber Masaaki Aono Jerome Entena Garcia Alexis Nicole Hatzis Meadows Christopher Theodore Doris M. Aragon Jonathan R. Goldman Steven Ira Heyligers Claudette Delacerna Wellington Kelly Aran John Michael Grant Thomas R. Hirschmann Bria Danielle Delaney Breahna Shondalese Wright Alexandra Arango Robert James Groot Nicholas David Iorio Kurt Andreas Doiron Xiaodan Wu Olajide a. Araromi Liliana Maria Hernandez Aliza Kayani Andrew Seth Epstein Jennifer Yeh Athena Arbes Almonte Jonathan Robert Klee Woojong Eun Cindy Kimberly Zapata Joan O’Connor Archer Jennifer Lee Holowach Stephen John Kozey Margaret Clair Farmer Omar Daniel Arnouk Caitlyn Patrice Jaile Joseph Lee Darren Vinroy Ford Twelfth District Michael K. Arroyo John J. Kolesar Megan Eileen Leo Marissa Kim Fox Zila Reyes Acosta-Grimes Daisuke Asai Sylvie Lamothe Adrienne Y. Lloyd Molly Full Asako Aiba Rafay Azim Nina Yu Ning Lee Alexandra M. Lopes Michelle Gonzalez Indhira Benitez Charles L. Babcock Danielle Alexandra Levine Megan Maureen Mackenzie David Gorelick Melanie Berdecia Chanyoung Baek Drew Levinson Jennifer Julissa Maldonado Andrew Myles Granek Paula Bianca Bondad Sang Won Baek Amanda Leigh Longo Gregory James Manas Amira Elsayed Hassan Toni Bryanna Boyd Rui Bai Cathy Lalor Lueders Amanda Harris Manning Maura Heron Natalie Anne Corvington Yuning Bai Ari Leonard Maas Thomas James Manzi Anna Ruth Jay Fuery Thomas Hocking Mahmood Ammar Bakkash Thomas Anthony Mancone Robert A. Masi Richard Carlyle Jones Derrick Christian Morales Josefin E. Baldeh Germania R. McCleese Christopher John McCune Kathryn M. Kantha David T. Peterson Gary Warren Baldwin Lisa Marie Morgillo Kristen Lynn Mella Matthew Charles Kelly Carmin Yassert Sandoval Seema Banda Diana Elizabeth Neeves John Alfred Michalski Nigina Khasidova Marie Kym Smith Young Bin Bang Liam O’Sullivan Jeremy Miller Issac Eungkyun Kim Hillel Emanuel Sussman Larry Ford Banister Victor Chinedu Okpara Lisa Marie Minuto Linda J. Kim Belinda Teye Chen Bao Maria Ouzlian Erin Elizabeth Moody Young-hee Kim Ruth L. Tisdale Robert B. Barnett Cassandra Lyn Papandrew Steven Andrew Morse Jonathan Konig Justice D. Wellington

50 | September 2016 | NYSBA Journal Gene Talmadge Barton Jiajie Cao Haritha Dasari Sarah Renee Fink Yue Han Taylor Hazelrigg Bates Kaifu Cao Tyler Mathew Dato Danielle N Fiorentino Jared Hanson James Phillips Beatty Yun Cao Shashwat Dave Jean Hedy Fischman Talin Haroutunian Kayla Michele Beauduy Kaitlan Carey Chauneice Davis Jennifer Mary Flagg Andrew Macleod Harrison Joshua Becker Patrick C. Carey Dennis De Almeida John Patrick Flanagan Danielle M. Harrison Kaytlin Virginia Beckett Hillary Rachel Caron Elizabeth Carla De Boyrie Peri Fluger Jennifer Nichole Harrison Brittany Becklin Djibril Carr Egbert Joel De Groot Anne-dominique Massap Yi Steven Eric Harrison Elena Pavlovna Begunova Emily Mayne McMullin Anne Pierrette Lascombes De Fomekong Mahika Roy Hart Emily Behzadi Carroll Laroussilhe Marco Fornari Genevieve Harte Seung Joo Beik Elizabeth Mary Carthy Joshua Mason Deal Ian William Forster Adam Patrick Hartley Bruce William Bellingham Daniel Casamassina John J. Defelice Susan E.C. Foster Arslane Hatem Christina Irene Bello David William Casazza Dejon Cheri Delpino Veronica Franco Lopez Takashi Hatsuse Jennifer Morgan Bennett Derek J. Cash Michael Dominic Demeola Moreira Caroline June Hatton Richard James Benware Adam Christopher Caskey Li Deng Alexander P. Fraser Alexis Leah Hayman Kyra Berasi Stephen Robert Catanzaro Joel Orlando Denis Paul Lawrence Fraulo Xiaojun He Helene Flora Berion Amanda Blaine Easton Patrick Michael Dennien Jessica Kye Fredette Benjamin Charles Heller Jason Christopher Bertoldi Cats-baril Nicholas Louis Depaolo Alan Benjamin Freedman Joseph Darcy Henchman Sarah Linnell Bessell Ryan Michael Chabot Walter John Deptuch Alexander Friedman Amy Li Herrera Patrick James Best John E. Chaffee William Desmond Maksim Andreyevich Frolov Anita Maria Hertell-Brennan Mitesh Bhakta Chun Yat Arthur Chan Julienne N. DeWalt Irina Frolova Craig Steven Heryford Joel A. Biatch Evelyn Seewing Chan Ariel Diamond Lei Fu Krista Marie Hess Michael Peter Biggans Wei-ming Chan Melanie Habwe Dickson Yukiko Fujioka Michael Jerome Higer David T. Billinger Jung-chih Chang Anelia Dikovytska Tak-Yin Sandra Fung Matthew John Higgins Mark Robert Bittner Kate Chapman Samuel Dillon Keiko Furukawa Sean Martin Holas Jason Bloom Avni Srinivasan Chari Peter Alfredo Dimatteo Tyler Henry Gablenz Timothy J. Holland Konstantin Bochkarev Shweta Chaubey Yi Ding Marcus Alexander Gadson Celine Hollenbeck Clinton Jacob Bodien Alice Aliette Chavaillard Natalie Nicole Diratsouian Mary Elizabeth Gaiser Bryan William Hollmann Laurel Bonnyman Alexander L. Chen Diana Joy Garcia Dizon Amanda Galbo Michal Homza Latasha De She Boone Haodong Chen Amy Rose Doberman Evgeniya Galchenko Jane Jieui Hong Natascha Helen Born Kan Chen Lene Boergmann Doherty Jue Gao Yewhoan Hong Jeffrey Francis Borrell Xu Chen Mary Lyle Dohrmann Yuebai Gao Christopher J. Hood Clarence Dimitri Bourdeau Yun Chen Matthew Richard Dollan Stacey Simone Garfinkle Chadwick Lamar Hooker De Fontenay Sarah Deanna Cheong Fan Dong Nicole Marie Garibaldi Joseph Edward Hopkins Amy Kathryn Bowles Francis Joseph Chesky Qiuyan Dong Rebecca Lauren Gauthier Adam Joshua Horowitz J’Naia Boyd Julia Cheung John Michael Donnelly Gabrielle N. Geller Desley Tanith Horton Matthew Daniel John Boyd Robert K. Chewning Suzette Gina Dos Santos Brooke Gerner Reiji Hosokawa Ryan Elizabeth Bratcher Ja Eon Cho Anthony M. Drenzek Pedro Gerson William Howery Joshua S. Bratspies Junyeong Choi Shamus Vincent Durac Alexis S. Gettier Peng Hu Marion Brauge Sanny Choi Frank Joseph Dyevoich Davide Raul Gianni Po-yuan Huang Kent David Bressie Won Sun Choi Maria Lucia Echandia Daniel Joshua Gilbert Weixun Huang Mariana Briceno Shu-fan Chou Sophia Stephanie Eckert Rosa Victoria Gilcrease- Chloe Marie Huertas Sarah Diane Brigham Calvin Tinlop Chui Jonathan Turner Edwards Garcia Julien Bertrnd Jacques Huet Paolo Briolini Alexis Iris Cassandra Chung Troy Allen Edwards Nathalie Carroll Giordan Iram Huq Iris Bromberg Gerard Thomas Cicero Susan Egeland Samuel J. Gittle Timothy Brooks Hyland Benjamin Dean Brooks Joseph Anthony Clericuzio Chad Daniel Ehrenkranz Alessandra Mary Givens Junhyung Ihm Kaitlin J. Brown Caitrin Leary Coccoma Nahi El Hachem Alison Glover Narumi Ito Melanie L. Brown George B. Codding Omar El-khattabi Alissa J. Goetz Megan Romigh Jackler Melissa Malia Brown Sean Patrick Collins Mark C. Ellenberg Javier I. Gomez-Jacome Kyle James Jacobs Miatrai Brown Marguerite Boughton Colson Morgan Enriquez David A. Gonzalez Tamara Claudia Jacobs Timothy Wayne Brown Justin Edward Condit Jon Forrest Erickson Eva Maria Gonzalez Gregory James Erin Mary Brummer Christopher Ryan Cooke Eleanor Erney Brittani N. Gordon Alain Jaquet Vincent Michael Bruni Rafael J. Corbalan Jeremy Ershow Joshua Michael Gorsky Javier Esteban Jaramillo Ann Bryant Kevin Lawrence Cornel Sol Ivette Espejo Benjamin F. Gould Michael Jarecki Benjamin Ari Bryer David Samuel Corrie Alexandra Lucille Espinosa Justin Goushas Blerina Jasari Aleece Evelyn Burgio Devon Jermaine Cox Isabelle A. Fabian Maximilian Antony Grant Lansburg Jean-Pierre Christopher M. Burke Jesse Paul Neil Cox Twinkle C. Factoran Margaret Emily Greco Christina Marie Jeter John Joseph Doherty Burke Rebecca Christine Cronauer Hadrien Vincent Fages Joshua Greenberg Aroon Kumar Jhamb Ananda Venkata Burra Gregory Alan Cross James N. Faller Stephanie Louise Greene Yiou Jiao Lisa Maree Butler Julie Lynn Cross Jingxiao Fang Gabija Grigalauskaite Linyi Jin Alice Rose Buttrick Reynaldo Ariel Cue Maria Jessica Natacha Favori Noah Grillo Jordan Scott Joachim Deniz Buyuksahin Alexandra Bowman Cumella Joan Feldman Gillian Grossman Anthony Edward Johnson Jean-jacques Cabou Busra Cundioglu Mathew Daniel Feldman Xiuhuan Gu Ashley Noelle Johnson Kimberlee Cagle Jennifer Cunningham Ross Feldman Jessica Guevara William Eric Johnson Giuditta Caldini Guillaume D’amico Weihe Feng Manuel Antonio Guevara Ieuan Jolly Shane Thomas Calendar Alexandra Mae Dackin Jamara Leigh Cuison Samantha M. Gupta Shaheem Ahmed Joya Katherine Josephine Calle Christopher Michael Dagley Fernandez Katherine L. Gustafson Yatong Ju Anthony P. Campau Christopher R. Dandridge Dmitry Filimonov Jerry Hall Kevin Roger Beharry Jules Anthony Philip Campau Matthew Brandon Danzer Edward T. Finch Lauren Elaine Haller Youmi Jun Jose C. Campos Diana Darilus Adam James Fine Christopher J. Han Bryan Thomas Jung

NYSBA Journal | September 2016 | 51 Hojun Joseph Jung Simon Peter Leen Isadora Martinez Gomez Jad Nasr Nechama Potasnick Lanah Kammourieh Terri Frances Leftwich Christopher J. Martini Joseph T. Nawrocki John Patrick Pratt Dooyong Kang Ellen Varon Lehman Eva Maryskova Nicholas Harris Nestelbaum Phylicia Amanda Preston Chi-Hsuan Kao Thomas Edward Lehman Hady Emmanuel Matar Kathleen Nestor Harry Irving Price Phillip J. Kardis Jessica M. Lehmann Eduardo Jose Mathison Bertminhtam Dinh Nguyen Kristen Charlay Pride Adam Todd Karman Vincent Matthias Orson Fuenmayor Joseph Duc Nguyen Francesca Lina Procaccini Ankit Kashyap Lehmann Tanner Works Mathison Mai-khoi Nguyen-Thanh Kathryn Pryor Konstantin Kasyan Cathal Michael Leigh-Doyle Dana J. Maykish Yunxuan Ni James Puddington Rena Katsuyama Heloisa Maria Pecorali Leite Rachel A. Mazzarella Robert Louis Nightingale Natalie Punchak Noah Medvedow Kazis William Aaron Lesser John Charles McAlister Semira Noelani Nikou Jin Qiu Husna Kazmir Lauren Leung Paul Matthew McBride Mariam Nisar Bessie Qu John Matthew Kelsey Talya Miriam Levi Terence John McCarrick Seitaro Nishimura Qing Qu Sahal O. Khalawi Davinia Levy Molner Rachel Elizabeth McCarthy Heather Elizabeth Nodler Wei Quan Rohom Khonsari Adam R. Lewis Caitlin Honoria Mccartney Salvatore Maria Nolasco Laura Kathryn Raden Ngunyi Ebenye Khumbah Brandon Michael Lewis Laura Beth McCaskill Afsha Noran Nisha Nilesh Ragha Harini Nanda Kidambi Laura Lewis Claire Louise McConway Matthew James Norton Charles James Ramsey James Taylor Kidd Nicholas Raymond Lewis William G. McCormick Irina Nossova Katia Ramundo Gabrielle Grace Kim Hiu Ming Susie Li Shane McDougall Seth Andrew Notes William George Raska Hyunseo Kim Jie Li John Patrick McGaffigan Daniel W. O’Grady Zsofia Rasko Joyce H. Kim Jingshu Li Patrick McGuigan Nominchimeg Odsuren Stephanie Marie Rebolo Mary Jean Kim Morgan Li Doireann Maria McHugh Christian Richard Oehm Guilherme Recena Costa Myeonki Kim Ruxin Li Emma McIlveen Shuya Ogawa Matthew P. Reed Yi Keun Kim Yang Li Kelly Catherine McKeon Agape Ogbonda Thomas Reichard Yoonki Kim Ellen H. Liang Yasmine-imani P. McMorrin Song Hee Oh Jan Christian Reiter Youngjoon Kim Shuangjia Liao Olivia Claire McNee Naoya Okajima Chad M. Remus Andrea Elizabeth Kimmel John Anton Libra Jeffrey Charles Meehan Jesutofunmi Popoola Min Ren Kei Kimura Emily Terese Lilburn Yanqiu Mei Olabenjo Poseidon Retsinas Siobhan Kinealy Hui-Chun Lin Nataliia Melko Sherifat O. Oluyemi Isabelle Payne Richardson Katherine Etta Kinsey Liwei Lin Lawrence Andrew Fumitaka Omi Kevin Michael Riddell Michael Khan Kiran Victor Lin Melsheimer Sin Yee Cynthia Or Kristin Hope Riddell Patrick N. Kirby Angela Estelle Linhardt Sismi Raju Menachery Demetrios George Jay Aaron Riffkin Daniela Kirsztajn Brian J. Link Nathan Richard Menard Orfanoudis Daniel Phillip Rifkin Viktor Klajn Congcong Liu Maria Jose Menendez Arias Matthew E. Osman Leo Marc Rishty Kristina Klykova Fei Liu Emily Kim Merki Michael Ossei-Appau Christoph Michael Ritter Daniel Christopher Knox Ping Liu John Bennett Meyer Michael Edward Otto Abdul Jamaal Roberts Daniel Han Ko Terrence Liu Jacqueline Rose Meyers Jiangang Ou Natasha Allyn Robertson Maryna Koberidze Irena Livshits Lauren Marie Migliaccio Gary R. Owens Sarah Jane Robertson Amanda Ann Konarski Joseph Zachary Lloyd Caroline Hope Miller Marco Pacheco Marcos Bernardo Rodrigues Ilya Kraminsky John Anthony Lo Forese Erin Lynn Miller Neil Leonard Padgett Silvia Raquel Rodriguez- Greta Krulyte Kristin Lockhart Hamilton Scott Miller Alessandra A. Pagnotti Garrote Carly Sara-lynn Krupnick Shivani Lohiya Peyton Randolph Miller Tamara Rose Pallas Mark Victor Rohan Nayda Lyn Kuachusri Joseph Patrick Lombardo Adam S. Minsky Trisha Suzanne Pande Michael Eugene Romais Akira Kubota Ojeaga A. Longe Roshanak Mirhosseini Daniel Park Lauren Roncoroni Ami Kurakado Bridget Gallagher Longoria Gladys Kemunto Mogaka Emily Park Javier A. Rosado Fahreen Kurji Javier M. Lopez Arundhati Mohankumar Min Woo Park Daniel Harris Rosenblum Yuki Kuroda Jonathan Errol Lopez Wanadi Jose Molina Cardozo Sang Heui Jacqueline Park Marcel T. Rosner Alexandra DeFoe Kutner Li Lu Aaron Benjamin Mollin Rebecca A. Parry Adam Roth Sin Man Connie Kwok Shang-yun Lu Sally Monkemeier Melissa Greenberg Michael Aaron Rothenberg Jessica Lynn Lafaurie Xi Lu Anthony Peter Monticciolo Paszamant Michael Hayles Roy I-wen Lai Xiaoyang Lu Damon Anthony Moore Laura Ada Patti Amanda Haley Russo Lucas W. Lallinger Yimei Lu Jordan Laird Moran Joseph Richard Patton Allan C. Ryan James Joseph Lambert Alisha Shari Lubin Ronald J. Morgan Anna Yevgenyevna Kathleen M. Ryan Charles J. Lanzalotti Yijia Luo Keita Mori Patvakanova Kevin John Ryan Thomas Armand Lapierre Benjamin Wilson Nichols Norimitsu Mori Kevin Pavloski Thomas William Ryan Ross Larkin Macdonald Ashley Eleanor Morin Edwin Clark Pease Shin Ryoo Daniel Robert Larson Lauren A. MacDonald Kirika Morita Regan Bennion Pederson Othmane Saadani Hassani Anne Pierrette Lascombes De Marianne Madden Bryan A. Mornaghi Charles F. Pegher Sara Sabour Laroussilhe Trevor Brett Maddison Christopher John Morten Moish Eli Peltz Andre Muller Sadeghian Atef Abdul Latif Delilah Magao Anca Muir Neal J. Perlman Mahdey Samir Salhab Matthew D. Lawless Kartikey Mahajan James Muirhead Brence Dentrell Pernell Rami M. Salim Simonne Meryne Lawrence Abdallah Zakaria Ahmed Ali Brian Patrick Mulcahy Michael Richard Philips Wallace J. Salvador Harry Lee Laxton Maher Matthew Muma Gery-Ross Pierre Kenneth L. Samuelson Tiffany Marie Lebron Waqar Ahmed Malik Claire E. Murphy Jennifer J. Pinales Christina Sanchez James Herbert Leckie Ramasamy Mannar Mannan Finella Ynez Murphy Stacey Lynn Pitcher John Patrick Sanderson Amber Lee Ezra Marcus Adrian Bogdan Musca Misty Leigh Pless Bindu Sanjeevkumar Bruce P. Lee Fernando Margarit Sebastien Jean Philippe Evangelia Podaras Emily Ann Santana Hosoo Lee Jenel Rose Marraccini Nanteuil Jenna C. Pollock James Sebastian Savalli Sa-rang Lee Melissa Wolken Marshall Daniel S. Nanula Whitman Joel Portillo Gil Savir Eric Cristian Leemkuil Benjamin Scott Martin Daniel Steven Nanula Eduardo Postlethwaite Chandni Saxena

52 | September 2016 | NYSBA Journal Florence P. Scarborough Jennifer Lynn Startzel Mary Katherine Wagner Hiu Hung Wong Jingjie Yuan Aisha Margaret Schafer Ian Joseph Stearns Gregory George Waite Lisa C. Wood David Howard Yunghans Elyse Suzanne Schindel Glen Fred Strong Roxanne Walton Meredith Wood Rosaline Yusman Josef Schmidt Laurence Eliot Stuart Xiaobin Wang Thomas Richard Woolsey Philip Christopher Zager Julia Elizabeth Schmidt Kristina Stanislavovna Xiaotong Wang Di Wu Agnieszka Anna Zarowna Maria Caecilia Schweinberger Subbotina Yu Wang Wenyuan Wu Ge Zeng Alexander Elias Sculthorpe Blake Thomas Sullivan Navan Ward Yiing-Shin Wu Jia Zeng Nina M. Sedlacek Alina Sutter John C. Wei Zhi Xia Linfan Zha Stephanie Jenny L.M.D. Ryan James Suzano Charles Weiner Duo Xu Chen Zhang Seeuws Mai Takada Ira Evan Weintraub Hiroyuki Yagihashi Enbo Zhang Masaya Seki Hiroyuki Takahashi Cameron Alexander Welch Sofia Maria Yague Feifei Zhang Takanari Sekiguchi Kana Takahashi Jaime Jansen Welch Hiroshi Yamada Hao Zhang Viktor Semenyuk Nobuki Takeuchi Mia Hyun Ae Wells Jiebei Yan Ling Zhang Vincent Jack Sena Masa Takriti Yinan Wen Yan Yan Moran Zhang David L. Sfara Eriko Tamura Xiangxi Weng Yanyan Yan Shiyuan Zhang Travis James Shafer Edward Kwan Siu Tang Zhe Wei Weng Takatoshi Yanagisawa Wenyu Zhang Amanda Shaffu David Evan Tanner Jessica Leigh Westerman Pei-chi Yang Yilin Zhang Daniel H. Shainker Jessica Octavia Taylor Allison M. Wheeler Wen-hsuan Yang Haibo Zhao Emma Smith Shakeshaft Wilfried Etienne Tchangoue Chelsea R. Wiggins Xiaolin Yang Lynn Olivia Zheng Michael David Shapiro Nicolas Teijeiro Glenith M. Williams Li Yao Xianzhi Zheng Aman Syed Shareef Andra Telemacque-Korajkic Jeffrey Tyler Williams Mohammad Saleh Yassin Ni Zhi Deepti Satyaki Sharma Esther Rita Karel Theyskens Kristina E. Wilson Ke Ye Xueting Zhong Kanika Sharma George Riley Thomas Melanie L. Witt Melissa Sarah Yermes Ting Zhou Maulik Sharma Lizanne Thomas Edward M. Wittenstein Jihyun Yoo Yan Zhou Mark William Shaughnessy Ryan Elizabeth Thompson Mayan Rachel Wizman Song-Mee Yoon-Smith Yuhua Zhou Revital Shavit Barsheshet Lilian M. Timmermann Jeffrey M. Wolf Erica Cristina Young Zijia Zhou Chen Shen Michael Tomasino Tina Wolfson Chenxie Yu Jiancheng Zhu Jie Shen Sydney L. Tonsfeldt Spencer Joseph Wolgang Feifei Yu Yana Zubareva Jiaoting Shi Marlin Gerald Townes Tianqi Shi Richard James Tracy Yiqun Shi Marie Catherine Trihy Serena Shie Abhinav Tripathi Kotaro Shiojiri Bryan David Trojan COMING NEXT ISSUE Mohammad Shouman Meng Chin Tsai Alice Sich Yenshou Tsai If you enjoy “Burden of Proof,” Brent Samuel Silverman Shania Tsang Cory Alexander Simmons- Kylie Mariko Tsudama starting next month you can also Edler Kwok Kei Antonio Tsui enjoy “Son of Burden of Proof,” a Tyler Allan Sims Philipp Tsukanov new column by incoming Albany Raymond Sin Melissa L. Turcios Law School (Class of 2019) stu- Andrew Robert Singer Madeline Victoria Tzall Darshana Singh Jasmine Anne Mendoza Ual dent Lukas M. Horowitz. Ondine Jane Sinsheimer Olga Ugolev Titled “Becoming a Lawyer,” the Peter Mierswa Skeffington Ifeoma Maureen Ukwubiwe Alexander Smith Enrique Jose Urdaneta column will follow Lukas and his Owen D. Smith Fatma Gokce Uzun fellow classmates as they progress Raymond Jeffrey Smith Devi Alamelu Vairavan from innocent naïfs to sophis- Thomas Anthony Smithurst Thomas Silvio Valente ticated, newly minted lawyers, Nathalie Alisa Paula Ghislain Brendan Michael Valentine Smuha Ryan Van Olst and beyond. Whether it’s been Mark Snyder James Christopher five months, or 50 years, since Marisa Ruth Soghoian Vandermark you graduated from law school, Jeongsoo Soh Minerva Clizia Vanni Juliana Maia Soic Bryan Thomas Vannini “Becoming a Lawyer” will remind Robert Joshua Solomon Vincent Marie Jean Vedel you how much has changed, and Ahree Song Darryl Veld stayed the same, since you were Jason Sorensen Edward Anthony Velky a student. And current students Christina Sorgi Andrew Venturelli Sophia Souffront Maysa Abrahao Tavares will enjoy sharing the journey with Juliette Sandrine Spaes Verzola their classmates. Jillian N. Spielman Maria Elena Vignoli Gilbert Kirk Squires Roberto Cristian Villaseca Law students and first-year associates will also be invited to Divya Harshvardhan Vial contribute their experiences, some of which will be incorporated Srivastav-Seth Kruthi Vishwanath into the column. Hopefully, Lukas’ and his classmates’ triumphs Emer McColgan Stack Sean M. Vitka will far outnumber their tribulations, but whatever their ups and Kirk Stadnika Alexander P. Vlisides Andrew Jay Stamelman Alexander Palmer Volpe downs, this column will be candid, illuminating, and hopefully Carmela D. Starace Anastasia Voronina funny at times. Michael Starrett Ana Vucetic

NYSBA Journal | September 2016 | 53 ATTORNEY PROFESSIONALISM FORUM

To the Forum: misrepresentations. Other times, the perjured testimony or false evidence”); While clients understandably are often line is not so fine. When New York 4.1 (“In the course of representing a more emotional when involved in replaced the existing Code of Profes- client, a lawyer shall not knowingly litigation, I have always tried to be sional Responsibility with the Rules make a false statement of fact or law civil and, to a certain extent, friend- of Professional Conduct (NYRPC) in to a third person”); 8.3 (addressing a ly with opposing counsel. I find that 2009, Canon 7’s requirement that “[a] lawyer’s obligation to report another it often works to the clients’ benefit lawyer shall represent a client zeal- lawyer where there is a substantial since the lawyers are able to remain ously within the bounds of the law” question as to that lawyer’s honesty); objective while looking for opportu- was removed and neither “zeal” nor 8.4(c) (“A lawyer or law firm shall not nities to resolve the litigation in a “zealously” appear in the Rules of Pro- . . . engage in conduct involving dis- way that is favorable to the client. In fessional Conduct. (See Paul C. Saun- honesty, fraud, deceit or misrepresen- recent months, however, I have been ders, Whatever Happened to ‘Zealous tation”); N.Y. Judiciary Law § 487 (mis- involved in very contentious litiga- Advocacy’?, N. Y. Law Journal, March demeanor for attorney who is guilty tions where my adversaries have been 11, 2011, 245 no. 47). Many states, per- of deceit or collusion with intent to keen on bending, or what some might haps seeing these terms as a relic of the deceive court or party); 22 N.Y.C.R.R. § say fabricating, the facts and misstat- Rambo-era of litigation, similarly have 130-1.1(c)(3) (sanctions where counsel ing the law. In briefs submitted to moved away from using them in their “asserted material factual statements the court and even during oral argu- rules of professional conduct. Indeed, that are false”). Specifically, Rule 3.3(a) ment, they have blatantly lied to the many detractors have argued that the (1), which provides that “[a] lawyer court concerning the facts of the case phrases were being used by those who shall not knowingly . . . make a false and made misrepresentations about act outside the bounds of ethical advo- statement of fact or law to a tribunal or relevant documents. It amazes me cacy as a weapon against their adver- fail to correct a false statement of mate- that they would risk doing so since saries. (See id.). But assuming that the rial fact or law previously made to the your reputation and credibility before principle of zealous advocacy endures tribunal by the lawyer, ” and Comment the courts is paramount in this busi- in our adversarial system, there is a 2 to NYPRC 3.3 are applicable to your ness. These lawyers are from large, stark difference between representing situation: reputable law firms. Are they count- a client’s case with persuasive force This Rule sets forth the special ing on their adversaries being poorly and blatantly mispresenting the law duties of lawyers as officers of prepared to recognize and raise their and facts to the court and your adver- misrepresentations to the court? How sary for the purpose of gaining a litiga- The Attorney Professionalism Committee should I handle advocates who might tion advantage. As Judge Jed S. Rakoff invites our readers to send in comments just as well be Pinocchio? Do I run recently put it in Meyer v. Kalanik, or alternate views to the responses the risk of annoying the court by rais- 15 Civ. 9796, 2016 WL 3981369, at *7 printed below, as well as additional ing the numerous misrepresentations (S.D.N.Y. July 25, 2016), “litigation is a hypothetical fact patterns or scenarios to made by counsel? I’m concerned that truth-seeking exercise in which coun- be considered for future columns. Send some courts might turn on me and sel acting as zealous advocates for your comments or questions to: NYSBA, find my conduct to be unprofessional their clients, are required to play by the One Elk Street, Albany, NY 12207, Attn: or uncivil for essentially calling my rules.” Id., citing Nix v. Whiteside, 475 Attorney Professionalism Forum, or by adversary out as a liar. My client is out- U.S. 157, 166 (1966). email to [email protected]. raged and wants to move for sanctions With these principles in mind, we This column is made possible through against the lawyer and his client. I’m first address what rules your adver- the efforts of the NYSBA’s Committee on at a point where I believe something sary is potentially violating. It should Attorney Professionalism. Fact patterns, must be done. Your guidance is greatly go without saying that attorneys names, characters and locations presented appreciated. should never lie to their adversaries in this column are fictitious, and any resem- Sincerely, or the court. Multiple rules and deci- blance to actual events or to actual persons, Fed Up sions prohibit attorneys from mak- living or dead, is entirely coincidental. These ing false and misleading statements. columns are intended to stimulate thought Dear Fed Up: See, e.g., NYRPC 3.1(b)(3) (A lawyer’s and discussion on the subject of attorney In the heat of oral argument, when you conduct is “frivolous” where “the law- professionalism. The views expressed are are trying to juggle a judge’s questions, yer knowingly asserts material factual those of the authors, and not those of the client issues, exhibits, the holdings in statements that are false.”); 3.3(a)(1) Attorney Professionalism Committee or the voluminous number of cases cited, (“A lawyer shall not knowingly . . . the NYSBA. They are not official opinions and the key points you want to make offer or use evidence that the law- on ethical or professional matters, nor to the judge, there is often a fine line yer knows to be false.”); 3.4(a)(4) (“A should they be cited as such. between vigorous advocacy and pure lawyer shall not . . . knowingly use

54 | September 2016 | NYSBA Journal the court to avoid conduct that a client.” This rule is instructive on that so many members of our profes- undermines the integrity of the how you should act on behalf of your sion forget this. adjudicative process. A lawyer act- client and how you should address It is generally more difficult to ing as an advocate in an adjudica- your less than truthful adversary. In demonstrate that an attorney know- tive proceeding has an obligation our opinion, the most effective meth- ingly made a false statement of law to present the client’s case with od of handling a dishonest attorney is than of fact. An attorney has an persuasive force. Performance of preparation, attention to detail, and obligation to present his or her cli- that duty while maintaining con- remembering not to sink to their level ent’s case with persuasive force to fidences of the client, however, is of practice. If you believe that oppos- the court. (See Rule 3.3, Comment 2; qualified by the advocate’s duty of ing counsel is lying about facts in NYRPC Rule 1.3(a)). The hallmark of candor to the tribunal. Consequently, court filings, prove it! Do you have an drafting effective papers for a client although a lawyer in an adversary exhibit that unequivocally contradicts is to distinguish the legal arguments proceeding is not required to pres- the lie? That would be our first exhibit made by opposing counsel and argue ent an impartial exposition of the in any responsive motion papers or that the cases and statutes should law and may not vouch for the the first document we would pres- be interpreted in favor of the client’s evidence submitted in a cause, the ent in rebuttal to your adversary’s position. Therefore, unless there is a lawyer must not allow the tribunal to oral argument to the court. Build the blatant misstatement of the law, and it be misled by false statements of law record that your opponents are dis- is not supported by a reasonable argu- or fact or by evidence that the lawyer honest. The court will remember it. If ment for an extension, modification or knows to be false. you have proof that they are submit- reversal of existing law, your efforts (NYRPC Rule 3.3, Comment 2) ting party affidavits to the court that are best spent on your argument to (emphasis added). are contradicted by documentary evi- the judge why your adversary’s legal The obligation to assure that an dence, show the court the contradic- position is incorrect. See 22 N.Y.C.R.R. attorney’s materially inaccurate infor- tion. At oral argument, you may even § 130-1.1 (attorney conduct is deemed mation is not relied upon by other remind your adversary that NYRPC frivolous, and subject to sanctions, if parties is so strong that it is one of the 3.3(a)(1) requires them to correct false “it is completely without merit in law limited situations in which an attor- statements of law or fact. How force- and cannot be supported by a reason- ney may reveal a client’s confidential fully you go about this request will able argument for an extension, modi- information. (See NYRPC Rule 1.6(b) depend on the level of dishonesty and fication or reversal of existing law”). (3) (“A lawyer may reveal or use con- your ability to demonstrate that the In our experience, judges loathe being fidential information to the extent that attorney knew its falsity when pre- asked to find a member of the bar dis- the lawyer reasonably believes neces- sented to the court. honest merely because you disagree sary . . . to withdraw a written or oral Put another way, don’t tell the judge with his or her interpretation of case opinion or representation previously your adversary is a liar; show the judge law or a statute. However, if your given by the lawyer and reasonably that your adversary is being dishon- adversary has misquoted a case, or believed by the lawyer still to be est. If you give your adversary an misrepresented a case’s holding, or relied upon by a third person where opportunity to correct the misstate- omitted key facts that are pertinent the lawyer has discovered that the ment, the court will see that you are to a court’s holding or has knowingly opinion or representation was based acting professionally without resort- failed to cite binding authority that on materially inaccurate information ing to name calling. In the event that undercuts his or her client’s position, . . ..”). your adversary doubles down on his you should identify those misrepre- The Forum has previously addressed or her misstatement, insisting that his sentations or omissions in your argu- Rule 3.3(a)(1) where an attorney has or her position is valid in the face of ment. Again, show the judge why knowledge of a fact that is contrary to contradictory evidence, it is likely that your adversary’s arguments cannot the position her firm intends to take in you helped your client by proving to be trusted. an action. See Vincent J. Syracuse, Mat- the judge that your adversary and/or Depending on the extent of dis- thew R. Maron & Maryann C. Stallone, his or her client is not trustworthy. As honesty, you may be required to Attorney Professionalism Forum, N.Y. St. you correctly state in your question, an report it to the court or other author- B.J., November/December 2014, Vol. attorney’s reputation and credibility is ity. NYRPC Rule 8.3 tells us that “(a) 86, No. 9). Your question raises a differ- everything, the most important asset A lawyer who knows that another ent issue. How does one deal with an that any of us can ever have. Once lawyer has committed a violation of adversary who is making false state- an attorney loses his or her credibil- the Rules of Professional Conduct ments to the court? ity before the court, it has a profound that raises a substantial question as Rule 1.3(a) of the NYRPC requires effect on how the judge views that to that lawyer’s honesty, trustwor- lawyers to “act with reasonable dili- attorney, and in our opinion, how the thiness or fitness as a lawyer shall gence and promptness in representing judge views the case. It is surprising report such knowledge to a tribu-

NYSBA Journal | September 2016 | 55 nal or other authority empowered to suspension warranted where attorneys sel’s misstatements of facts, you would investigate or act upon such viola- intentionally influenced their client to need to demonstrate that counsel for tion.” As we put it in a prior Forum, misrepresent the situs of her accident the opposing party “asserted material “an attorney should use professional in order to pursue an action which factual statements that are false” (22 judgment and discretion when deter- they knew was fraudulent from its N.Y.C.R.R. § 130-1.1(c)(3)). mining whether and how to report a inception and commenced an action In extreme circumstances, under colleague.” See Vincent J. Syracuse, against an innocent third party, filing N.Y. Judiciary Law § 487(1) an attor- Ralph A. Siciliano, Maryann C. Stal- papers, such as pleadings, containing ney can be guilty of a misdemeanor if lone, Hannah Furst, Attorney Profes- misrepresentations with the court); In he or she uses “deceit or collusion, or sionalism Forum, N.Y. St. B.J., May re Radman,135 A.D.3d 31, 32–33 (1st consent[] to any deceit or collusion, 2016, Vol. 88. No. 4. This advice is Dep’t 2015) (suspending attorney for with intent to deceive the court or similarly applicable to your adver- three months; finding that attorney any party.” In addition to the penal sary. Comment 3 to NYRPC Rule 8.3 who had submitted purported expert law punishment, the attorney forfeits notes “[t]his Rule limits the reporting affirmations from two unnamed doc- treble damages to the party injured. obligation to those offenses that a tors to a trial court when, in fact, (Id.) Judiciary Law § 487, however, self-regulating profession must vigor- they were drafted by the attorney “provides recourse only where there ously endeavor to prevent. A measure himself and were never agreed to or is a chronic and extreme pattern of of judgment is therefore required in signed by any medical experts, had legal delinquency.” Solow Mgt. Corp. complying with the provisions of this violated NYRPC Rules 3.3(a)(1), 3.3(a) v. Seltzer, 18 A.D.3d 399, 400 (1st Rule. The term ‘substantial’ refers to (3) [“offer or use evidence that the Dep’t 2005), lv. denied, 5 N.Y.3d 712 the seriousness of the possible offense lawyer knows to be false”] and 8.4(c) (2005). As one federal decision noted, and not the quantum of evidence of [“engage in conduct involving dishon- “neither the language of the statute which the lawyer is aware.” esty, fraud, deceit or misrepresenta- nor the holdings of several decisions Misconduct involving dishonesty, tion”]); In re Rosenberg, 97 A.D.3d 189 applying Section 487 impose any fraud, deceit and/or misrepresenta- (1st Dep’t 2012) (one-year suspension such requirement” (Trepel v. Dippold, tions may result in severe sanctions for attorney who knowingly used per- 04 CIV. 8310 (DLC), 2005 WL 1107010, from short suspensions to disbarment jured testimony, knowingly made false at *4 (S.D.N.Y. May 9, 2005)). Five “depending on the repetitiveness of statements of law or fact, and who months after the Trepel decision, how- the misconduct and the desire for per- thereby engaged in conduct that was ever, the Court of Appeals denied sonal profit.” In re Becker, 24 A.D.3d 32, prejudicial to administration of justice leave to appeal in Solow which does 34–35 (1st Dep’t 2005)). The rationale and adversely reflected on his fitness impose the requirement (Solow Mgt. behind these sanctions is that “[a]n as a lawyer). Corp. v. Seltzer, 5 N.Y.3d 712 (Octo- attorney is to be held strictly account- From your question, we do not ber 20, 2005)). Alas, a detailed his- able for his statements or conduct have enough information to determine tory and analysis of the “chronic and which reasonably could have the effect whether you have an obligation to extreme pattern of legal delinquency” of deceiving or misleading the court report the offending counsel. You will requirement of Judiciary Law § 487 is in the action to be taken in a matter need to use your judgment to deter- perhaps a subject for a future Forum pending before it. The court is entitled mine whether the fabricated facts and which will have to wait for another to rely upon the accuracy of any state- misstatements of law you witnessed day. ment of a relevant fact unequivocally raised a substantial question as to the By submitting briefs to the court made by an attorney in the course of lawyer’s honesty or whether it was that are well researched and thor- judicial proceedings. So, a deliberate merely an attorney exaggerating his oughly demonstrate where your misrepresentation by an attorney of arguments in an attempt to diligently opposing counsel took liberties with material facts in open court constitutes represent his client. the facts and law, and being prepared serious professional misconduct.” In re Under 22 N.Y.C.R.R. § 130-1.1(b), at oral argument with a solid grasp of Schildhaus, 23 A.D.2d 152, 155–56 (1st you could move for sanctions against the facts of the case, the record and the Dep’t), aff’d, 16 N.Y.2d 748 (1965); see opposing counsel, the opposing party, nuances of the case law at issue, you also In re Donofrio, 231 A.D.2d 365 (1st or both. To obtain sanctions for coun- accomplish a number of objectives. Dep’t 1997). Indeed, courts have held sel’s misstatements of law, you would First, you are complying with NYPRC that where the misconduct alleged need to demonstrate that counsel’s Rule 1.3(a) which requires your dili- involves the misrepresentation of facts legal arguments are “completely with- gence on behalf of the client. You also to a court, tribunal, or government out merit in law and cannot be sup- will be demonstrating the dishonesty agency, suspension is warranted even ported by a reasonable argument for of your adversary while protecting in the face of substantial mitigating an extension, modification or reversal the reputation of you and your client circumstances. See, e.g., In re Rios, 109 of existing law” (22 N.Y.C.R.R. § 130- in the eyes of the judge that may ulti- A.D.3d 64 (1st Dep’t 2013) (nine-month 1.1(c)(1)). To obtain sanctions for coun- Continued on Page 60

56 | September 2016 | NYSBA Journal The Legal Writer Continued from Page 64 an individual or group is allowed to Peterson to take antibiotics. Peterson do something, everyone should be took the antibiotics because Stevens, a 7. Straw Man allowed to do it. partner, must be smart. The straw-man argument is a com- Example: Mr. Mozzarella is a mem- The fallacy: Mr. Stevens is an excel- mon fallacy that “involves refuting an ber of the Departmental Disciplinary lent attorney. Therefore, he must know opponent’s position by mischaracter- Committee for New York’s First Judicial how to treat a headache. The conclu- izing.”9 Department. But he violated the New sion to take the antibiotics is unwar- Example: Ms. Jones argues that the York Rules of Professional Conduct last ranted. His credibility doesn’t extend United States shouldn’t fund a space year. Therefore, it’s acceptable to act to medicine. program. Mr. Smith counters that sci- unethically in Manhattan and the Bronx.11 ence classes are an important part of a The fallacy: A tu quoque argument 14. Etymological Fallacy student’s education. makes it “impermissible to justify one The etymological fallacy dictates that The fallacy: Mr. Smith is mischar- wrong by another.”12 That Mr. Moz- the present-day meaning of a word or acterizing Ms. Jones’s argument to zarella acted unethically doesn’t entitle phrase should be similar to historical include cutting funding for science other lawyers to act unethically. meaning. classes in schools. Smith can’t imply Example: In Muscarello v. United that Jones also wants to stop funding 11. Nirvana Fallacy States, 524 U.S. 125 (1998), the issue was science in school. The nirvana fallacy occurs when the how to interpret the phrase “carries writer rejects a solution to a problem. a firearm” and whether Congress 8. Genetic Fallacy The solution is rejected because it isn’t intended by that term to include the A genetic fallacy occurs when one perfect.13 notion of conveyance in a vehicle.14 To “attempt[s] to prove a conclusion false Example: Mr. Brown doesn’t sup- define “carries,” Justice Breyer cited by condemning its source — its gen- port a new bill to reduce greenhouse several dictionaries showing that the esis.”10 gas emissions. He argues that this bill origin of the word “carries” includes Example: Ms. White is a member of won’t completely eliminate greenhouse “conveyance in a vehicle.” Congress. She drafted a bill that will gases and thus it shouldn’t be passed. The fallacy: Sometimes courts look to help fund law schools. People oppos- The fallacy: Mr. Brown rejects the bill a term’s language of origin, “[b]ut these ing White’s bill argue that because because it isn’t a perfect solution. It’s historical antecedents are not necessar- White lacks a law degree, the bill fallacious to argue against a bill on the ily related to contemporary usage.”15 shouldn’t be passed. sole ground that the bill isn’t perfect. Historical meaning doesn’t always The fallacy: The fallacy is that people Brown is entitled to hold out for a bet- coincide with present-day meaning. opposing the bill unfairly challenge it ter bill, but he can’t logically argue that because White wrote it. The opposition the bill should be rejected because it 15. Appeal to Popularity isn’t challenging the bill’s language or doesn’t advance all his goals. Appeal to popularity uses popular content. prejudices as evidence that a proposi- 12. Poisoning the Well tion is truthful. 9. Ad Hominem, or Appeal Poisoning the well presumes your Example: The current trend is that to the Person adversary’s guilt by forcing your defendants are representing them- “Ad hominem” means “to the person.” adversary to answer a question. selves at trial. Therefore, all defendants An ad hominem fallacy attacks a person’s Example: The lawyer asked the wit- should represent themselves.16 character, not the person’s ideas. ness, “When did you stop beating your The fallacy: Representing yourself at Example: Ms. Robinson argues that wife?” trial is the right thing to do. But a deci- mandatory sentences for criminals The fallacy: The question assumes sion to represent yourself is unwar- should be lowered. Mr. Johnson chal- that the witness used to beat his wife, ranted based on the premise. lenges Ms. Robinson because she’s a that he stopped beating his wife, that convicted felon. Therefore, Robinson he’s married, and that he’s married to 16. Appeal to Consequences can’t be trusted. a woman. This fallacy suggests that if the conse- The fallacy: Mr. Johnson’s argument quences are desirable, the proposition is fallacious. He attacks Ms. Robinson’s 13. Appeal to Authority is true; if undesirable, the proposition character. Johnson doesn’t challenge The “appeal to authority” fallacy is false. Robinson’s idea on its merits. assumes that a person who excels in Example: If there’s objective moral- one area is credible and authoritative ity, then good moral behavior will be 10. Tu Quoque in unrelated areas. rewarded after death. I want to be “Tu quoque” means “you do it Example: Ms. Peterson told Mr. Ste- rewarded; therefore, morality must be yourself.” Writers use tu quoque argu- vens, a partner at her law firm, that she objective. ments when they contend that because had a headache. Mr. Stevens told Ms.

NYSBA Journal | September 2016 | 57 The fallacy: The argument doesn’t The fallacy: Although no single wit- 23. Circular Reasoning address the merits of the conclusion. ness offered sufficient evidence to Circular reasoning is used when the The conclusion is reached by appealing convict the defendant, the totality of writer “assumes the truth of what one to the consequences of the result.17 the circumstantial evidence might be seeks to prove in the very effort to enough for a conviction. prove it.”23 17. Appeal to Emotion Example: The defense attorney Appeals to emotion are frequently 20. Division argues this in summation: “My client used tactics in arguments and fall into Division is the converse of the compo- couldn’t have committed this crime. “the general category of many fallacies sition fallacy. If a group has a feature, He isn’t a criminal.” that use emotion in place of reason in the individuals in the group have that The fallacy: The fallacy in the argu- order to attempt to win the argument. feature. ment — even though reputation evi- It is a type of manipulation used in Example: The defendant was part of dence is admissible — is that the defen- place of valid logic.”18 a cult. The cult is known for commit- dant is innocent just because he’s not a criminal. The logic is circular. Circular- ity is an invalid method of reasoning.

The best way to avoid and detect fallacies 24. Scapegoating is to become familiar with them. Scapegoating passes to another target the blame for an unfortunate event. Example: The Widget Company Example: Judges may react to the ting violent acts. Therefore, the defen- manufactures cars. Widget didn’t pain and anguish a given law or doc- dant is a violent person. properly inspect its brakes in the cars. trine causes, and they may point to the The fallacy: The defendant must be a As a result, the brakes in Widget’s cars painful or existential consequences of violent person because he’s part of the were faulty. The faulty brakes caused that law as reason to change it.19 cult. The fallacy of division suggests many injuries. Widget blamed the The fallacy: Emotions shouldn’t be that the defendant is violent because Application Company for the faulty the basis on which to make decisions. the cult he’s a part of is violent. brakes. Application manufactured the Appealing to emotion is a powerful brakes for Widget’s cars.24 tool. But it’s logically fallacious. 21. Appeal to Ignorance The fallacy: The Widget Company’s The logical fallacy of appealing to argument relies on the scapegoating 18. Guilt by Association ignorance occurs by “forgetting that fallacy. Widget should have inspected Writers use guilt-by-association argu- absence of evidence is not evidence of the cars it sold. Widget passed the ments when they support or attack absence.”21 One can’t assume that a blame on to the Application Company a belief or person by an unrelated proposition is true or false just because because Application manufactured the association. some information is absent. faulty brakes. Example: Ms. Smith was convict- Example: Scientists can’t prove that ed of armed robbery. Ms. James was aliens haven’t visited earth. Therefore, 25. Non Causa Pro Causa friends with Smith. James was charged aliens must have visited earth. This fallacy occurs when the writer with conspiracy because of her friend- The fallacy: The lack of evidence in “incorrectly assumes an effect from a ship with Smith. this case is not evidence of the conclu- cause.”25 The fallacy: Ms. James is guilty sion. The conclusion is based on a lack Example: I forgot my umbrella today. because of her association with Ms. of evidence. Therefore, it’ll rain today. Smith. Their relationship is not evi- The fallacy: The speaker invalidly dence of guilt. 22. Begging the Question concludes it’ll rain. It’s impossible to Begging the question draws a conclude from the initial premise that 19. Composition conclusion based on an unproven it’ll rain. The fallacy of composition assumes that assumption. To beg the question isn’t a feature of the individuals in a group is to evade the issue or to invite an 26. Fake Precision also a feature of the group itself. obvious question.22 The fake-precision fallacy occurs Example: The plaintiff’s case relies Example: Murder is wrong because “when an argument treats information solely on circumstantial evidence. No killing another human is wrong. as more precise than it really is. This witness for the prosecution showed The fallacy: The fallacy here is that happens when conclusions are based that the defendant committed the the premise is used to support itself. on imprecise information that must be crime. Therefore, the prosecution Murder is wrong, but the conclusion is taken as precise in order to adequately didn’t prove its case beyond a reason- invalid based on the premise. support the conclusion.”26 able doubt.20

58 | September 2016 | NYSBA Journal Example: “We can be 90 percent cer- 30. Hasty Generalization The fallacy: An argument is falla- tain that Bloggs is the guilty man.”27 The fallacy of a hasty generalization cious when it relies on an appeal to The fallacy: You can’t prove by a per- occurs when the writer takes a limited tradition. Merely because Law X has centage how certain you are of a person’s sampling to justify a broad conclusion. been followed for generations doesn’t guilt. This information is misleading. Example: Chief Court Attorney Sam- mean it should continue. It gives others an impression that the son never edits draft opinions from writer is confident that Bloggs is guilty. his law department. All chief court 34. Special Pleading attorneys are lazy. A special pleading is a fallacy peo- 27. False Dilemma The fallacy: Because one chief court ple use to claim that something is an The false-dilemma fallacy occurs when attorney doesn’t edit draft opinions, all exception, even without proper evi- the writer “make[s] choices based on chief court attorneys must be lazy. Just dence to support that claim. a perceived set of variables that do because Mr. Samson doesn’t edit drafts Example: Drunk drivers should be not effectively identify the real choices doesn’t mean that he or any other punished. But Mr. A is an exception. available to the decision-maker.”28 chief court attorney is lazy. Countless Today’s his birthday. Example: A lawyer asks a witness, reasons can explain why only Samson The fallacy: That today is Mr. A’s “Would you say that the defendant doesn’t edit drafts. birthday isn’t an adequate reason for gets drunk about once a week, twice a an exception. week, or more often?” 31. Fallacy of Accident The fallacy: The defendant is drunk The fallacy of accident occurs when 35. The Prosecutor’s Fallacy at least once a week. The possibility there’s an “improper application of a The Prosecutor’s Fallacy results from exists that the defendant never drinks. general rule to a particular case.”30 confusion between the probability The question posed allows only for a Example: Murder is illegal. Anyone that (a) any individual will match the limited number of options. who kills an ant should be charged description of the guilty person and with murder. (b) an individual who does match the 28. Slippery Slope The fallacy: The general law that description is actually guilty. The speaker argues that once the first murder is illegal is improperly applied Example: The perpetrator was step toward a particular event is taken, to the specific case of killing ants. This described as seven feet tall, with blond the first step will inevitably lead to the is opposite of the fallacy of the hasty hair, walking with a limp, the exact worst possible outcome. generalization. characteristics of the defendant in the Example: Tuition for school is too courtroom. An expert testifies that the expensive. If the tuition increases, stu- 32. False Cause odds of any given person matching dents won’t be able to afford it. If False cause is also known as post hoc that description is 0.00000072 (72 out students can’t afford to go to school, ergo propter hoc. This means “after this; of 100 million). The prosecutor argues they’ll inevitably turn to a life of crime therefore, because of this.” This fallacy that the odds that the defendant is the to make money. assumes that because one event occurs guilty party are approximately 1.4 mil- The fallacy: The conclusion relies on after another, the first event caused the lion to 1. the slippery-slope fallacy. The prem- second. These types of “arguments fail The fallacy: The prosecutor has ises don’t support the conclusion that because they imply a causal relation- ignored the size of the population in students will become criminals if they ship without a basis in fact or logic.”31 question. The New York metropolitan can’t afford tuition. Example: Every time I brag about area has a population of more than how well I write, I submit a document 20 million people. If the case were in 29. Faulty Analogy with lots of typos. New York, the odds that the defendant The fallacy of faulty analogy occurs The fallacy: If you don’t brag about is the guilty party (without any other when items in an analogy are dissimi- your writing, you’ll submit typo-free information) are only 1 in 14.4, or less lar. When analogies are dissimilar, the documents. No causal link connects than 7 percent (i.e., 0.00000072 times conclusion becomes inaccurate. bragging and submitting typo-free doc- 20 million). Example: To illustrate an idea about uments. After reading through this list of security interests, Ms. Daniel relates fallacies, readers might find it difficult them to the principles under which 33. Appeal to Tradition to believe that any argument can be bankruptcy contracts operate. An appeal to tradition suggests that a wholly free of them. The best way The fallacy: Bankruptcy contracts practice is justified because of its con- to avoid fallacies in arguments is to don’t function the same way security tinued past tradition. become familiar with them. The fol- interests do.29 The items in the analogy Example: Law X has been in effect lowing six guidelines, from University are dissimilar. The method of reason- for generations. Therefore, Law X of Memphis Professor Andrew Jay ing is inaccurate. shouldn’t be repealed. McClurg, are a good start for any

NYSBA Journal | September 2016 | 59 lawyer crafting fallacious-free argu- 5. Id. 19. Adapted from Ediberto Roman, Love and Civil ments:32 6. Regester v. Longwood Ambulance Co., Inc., 751 Rights, 58 How. L.J. 113, 123 (2014). 1. “The premises must be at least A.2d 694, 700 (Pa. Commw. Ct. 2000). 20. Inspired by Harold Anthony Lloyd, A Right but Wrong Place: Righting and Rewriting Citizens probably true.” 7. Bo Bennet, Logically Fallacious, https://www. logicallyfallacious.com/tools/lp/Bo/LogicalFal- United, 56 S.D. L. Rev. 219, 233 (2011). 2. “The essential premises must be lacies/150/Red_Herring (last visited June 6, 2016) 21. Julie Lurman Joly et al., Recognizing When the stated.” (emphasis deleted). “Best Scientific Data Available” Isn’t, 29 Stan. Envtl. L.J. 247, 270 (2010). 3. “The conclusion must at least 8. McClurg, supra note 1, at 90. 22. Inspired by and adapted from Gertrude Block, probably follow from the prem- 9. Id. at 89. Language Tips, 85 N.Y. St. B.J. 61, 61 (May 2013). ises.” 10. Daniel R. Ortiz, The Informational Interest, 27 23. Ramee, supra note 4, at 6. 4. “The conclusion cannot be used to J.L. & Pol. 663, 676 (2012) (internal quotation marks omitted). 24. Inspired by Sean Kane, Honda Finds Convenient prove itself.” Scapegoat in Takata, 35 Westlaw J. Automotive 1, *1 5. “Competing arguments must be 11. Inspired by Michael P. Scharf & Ahran Kang, (2016). Errors and Missteps: Key Lessons the Iraqi Special fairly met.” Tribunal Can Learn from the ICTY, ICTR, and SCSL, 25. Bo Bennett, Logically Fallacious, https://www. 6. “Rhetoric must not supplant rea- 38 Cornell Int’l L.J. 911, 935–36 (2005). logicallyfallacious.com/tools/lp/Bo/LogicalFalla- cies/95/False_Effect (last visited June 6, 2016). son.” n 12. L. Scott Smith, Religious Toleration and the First 26. W. Jerry Chisum & Brent E. Turvey, Crime Amendment, 22 Kan. J.L. & Pub. Pol’y 109, 135 Reconstruction 115 (1st ed. 2007). (2012). Gerald Lebovits ([email protected]), an 27. Madsen Pirie, How to Win Every Argument: The 13. Bo Bennet, Logically Fallacious, https:// Use and Abuse of Logic 79 (2006). acting Supreme Court justice in Manhattan, is www.logicallyfallacious.com/tools/lp/Bo/ an adjunct professor of law at Columbia, Ford- LogicalFallacies/134/Nirvana_Fallacy (last 28. A. Benjamin Archibald, The False Dilemma, 47 ham, NYU, and New York Law School. For their visited June 6, 2016). Boston B.J. 16, 16 (Sept./Oct. 2003). research, he thanks judicial interns Reid Packer 14. Adapted from Stephen C. Mouritsen, The Dic- 29. Adapted from Laura B. Bartell, Revisiting (Hofstra) and Ziqing Ye (Fordham). tionary Is Not a Fortress: Definitional Fallacies and A Rejection: Secured Party Interests in Leases and Execu- Corpus-Based Approach to Plain Meaning, 2010 B.Y.U. tory Contracts, 103 Dick. L. Rev. 497, 535 (1999). L. Rev. 1915, 1939 (2010). 30. William J. Blanton, Reducing the Value of Plain- tiff’s Litigation Option in Federal Court: Daubert v. 1. Andrew Jay McClurg, The Rhetoric of Gun Con- 15. Id. Merrell Dow Pharmaceuticals, Inc., 2 Geo. Mason U. trol, 42 Am. U. L. Rev. 53, 96 (1992). 16. Inspired by John McAdams, It’s Good, and L. Rev. 159, 199 (1995). We’re Going to Keep It: A Response to Ronald Tabak, 33 2. Bradley Dowden, Internet Encyclopedia of Phi- 31. Maureen B. Collins, Losing Arguments, 90 Ill. Conn. L. Rev. 819, 821 (2001). losophy, http://www.iep.utm.edu/fallacy/#H6 B.J. 669, 669 (Dec. 2002). (last visited June 6, 2016). 17. Adapted from G. Fred Metos, Appellate Advo- 32. Andrew Jay McClurg, Logical Fallacies and cacy, 23 Champion 33, 34 (Mar. 1999). 3. Adapted from id. the Supreme Court: A Critical Examination of Justice 4. Neal Ramee, Logic and Legal Reasoning: 18. Bo Bennett, Logically Fallacious, https:// Rehnquist’s Decisions in Criminal Procedure Cases, 59 A Guide for Law Students, http://www.unc. www.logicallyfallacious.com/tools/lp/Bo/ U. Colo. L. Rev. 741, 841–42 (1988). edu/~ramckinn/Documents/NealRameeGuide. LogicalFallacies/29/Appeal_to_Emotion pdf (last visited June 6, 2016). (last visited June 6, 2016).

Attorney Professionalism Forum QUESTION FOR THE Continued from Page 56 NEXT ATTORNEY mately decide the case. If, on the other strongest assertion of impropriety, PROFESSIONALISM FORUM hand, you decide to resort to name and you have the evidence to support calling before the judge, especially your contention, you are unlikely to My client insists that we use a pri- where there may be issues of fact or irritate the judge, you will protect the vate investigator to “dig up” dirt on multiple interpretations of the cases reputation of you and your client, and his adversary to use in our litigation. I cited by opposing counsel, you may you will have diligently represented certainly can see the benefits of doing annoy the judge and undermine your your client’s interests. so, but I’m also concerned about the case in the long run. Judges do not Sincerely, ethical pitfalls and my obligations with want to spend their time overseeing The Forum by respect to a third-party over whom I attorneys that bicker about whether Vincent J. Syracuse, Esq. may not have control. What are the eth- each and every statement is an out- ([email protected]) ical issues I should be aware of? Should right lie or whether it is a matter of Maryann C. Stallone, Esq. I have my client retain the private interpretation. You may be correct ([email protected]) investigator? Would that protect me if when you say that your opponent is Carl F. Regelmann, Esq. the private investigator goes AWOL? lying. But you need to show the court ([email protected]) Am I responsible in any way for the that you are right. Telling the court Tannenbaum Helpern Syracuse private investigator’s actions if he or that you are right will not help if you & Hirschtritt LLP she is taking directions from my client cannot demonstrate it. If you judi- and is not adhering to the guidelines I ciously pick your battles over which provide? How do I protect myself? material misstatements deserve your A.M. I. Paranoid

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

NYSBA Journal | September 2016 | 63 THE LEGAL WRITER BY GERALD LEBOVITS

Say It Ain’t So: Leading Logical Fallacies in Legal Argument – Part 2

art 1 of this column, which 3. Accent mean the same thing in both con- appeared in the July/August An accent fallacy creates an ambigu- texts.”6 P2016 issue of the Journal, covered ity in the way a word or words are Example: Mr. Parker told his friends formal fallacies in legal argument. accented. that he passed the bar. His friends Example: A reporter asks a member congratulated him on his accomplish- Informal Fallacies of Congress whether she favors the ment. Informal fallacies are fallacious because President’s new missile-defense sys- of their content. The following is a list tem. She responds, “I’m in favor of a of informal fallacies and what makes missile defense system that effectively Equivocation uses them fallacious. defends America.”2 ambiguous language The fallacy: Her answer could mean 1. One-Sided Argument that she favors the President’s missile- to hide the truth. When crafting arguments, “[i]t is fal- defense system or that she opposes it lacious to ignore countervailing evi- because the system is not effectively The fallacy: Mr. Parker equivocated dence or arguments in attempting to defending America. She creates an the meaning of passing the bar. Pass- persuade.”1 ambiguity in which word is accented. ing the bar has two meanings. Mr. Example: The reputation evidence If the word “favor” is accented, her Parker might have lied in suggesting shows that the defendant is the kind of answer is likely in favor of the missile- that he passed the bar exam. He could person who’d never killed a bug. The defense system. If the words “effec- simply have walked past the bar in a evidence also shows that he’s easygo- tively defends” are accented, she likely courtroom separating the public from ing and has lots of friends. Therefore, opposes the defense system.3 the well where the lawyers argue and the defendant didn’t kill his wife. the judge sits. The fallacy: The reputation evidence 4. Complex Question might be true and relevant, but coun- The complex-question fallacy “occurs 6. Red Herring tervailing evidence might refute the when the question itself is phrased in The fallacy of “the red herring is a conclusion. such a way as to presuppose the truth deliberate diversion of attention with of a conclusion buried in that ques- the intention of trying to abandon 2. Amphiboly tion.”4 the original argument.”7 It “divert[s] It’s fallacious to argue based on an Example: “Why is the free market so attention by sending the audience ambiguity in the grammatical struc- much more efficient than government chasing down the wrong trail after a ture in a sentence. regulation?”5 non-issue.”8 Example: Ms. Smith hit and injured The fallacy: The question assumes Example: The prosecution argued at a person while riding his motorcycle. that a free market is more efficient than trial that the defendant acted immor- She should be held accountable. government regulation. A free market ally. The defense attorney asserted The fallacy: It’s impossible to con- might or might not be more efficient, that morality is subjective and that clude from the premise that Ms. Smith but one may not assume a fact not yet there’s no single definition of moral- should be held accountable for the in evidence. ity. injury. Based on the grammatical struc- The fallacy: The defense attorney ture of the premise, we don’t know 5. Equivocation diverted the conversation from the whether she was driving the motor- Equivocation uses ambiguous lan- defendant’s actions to a discussion of cycle. The ambiguity in the structure guage to hide the truth. If “the same morality. of the sentence makes the conclusion word or form of the same word is invalid. used in two different contexts, it must Continued on Page 57

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