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NEW YORK STATE BAR ASSOCIATION JournalJournalMARCH/APRIL 2003 | VOL. 75 | NO. 3 DISCLOSINGDISCLOSING CLIENTCLIENT WRONGDOINGWRONGDOING Inside Insurance Rehabilitation Impeaching Witnesses Property Condition Disclosure Act Russia Revives Jury Trials BOARD OF EDITORS ONTENTS Howard F. Angione C Editor-in-Chief Queens e-mail: [email protected] Recent News Events Illustrate Ethical Dilemmas Rose Mary Bailly Associated With a “Difficult” Organizational Client Albany Louis P. DiLorenzo 8 Willard H. DaSilva Garden City Litigators Must Prepare for Risk That Insurers May Louis P. DiLorenzo Go into Rehabilitation or Liquidation Syracuse Margaret J. Gillis and John P. Calareso, Jr. Philip H. Dixon 20 Albany Lesley Friedman CLE Insights: Evidence – Effective Techniques For New York City Impeaching Witnesses Judith S. Kaye Walter L. Meagher, Jr. 28 New York City John B. Nesbitt First Court Case to Interpret Property Condition Lyons Disclosure Act Holds Sellers Not Liable Eugene E. Peckham Karl B. Holtzschue Binghamton 31 Sanford J. Schlesinger New York City Russia in Transition – Sharing Legal System Objectives Richard N. Winfield As Russia Revives Trial by Jury New York City Patricia D. Marks, Mark W. Bennett, Bret Puscheck and Eugene C. Gerhart Ronald Reinstein 36 Editor Emeritus Binghamton Daniel J. McMahon Managing Editor Albany e-mail: [email protected] D EPARTMENTS Philip C. Weis President’s Message _______________ 5 Crossword Puzzle _________________ 52 Associate Editor Attorney Professionalism Forum ____ 44 by J. David Eldridge Oceanside Lawyer’s Bookshelf________________ 46 Index to Advertisers _______________ 53 EDITORIAL OFFICES by Thomas F. Liotti Classified Notices _________________ 54 One Elk Street Point of View _____________________ 48 New Members Welcomed __________ 56 Albany, NY 12207 (518) 463-3200 by Alvin D. Lurie 2002-2003 Officers _________________ 63 FAX (518) 463-8844 Language Tips ____________________ 51 The Legal Writer __________________ 64 by Gertrude Block by Gerald Lebovits ADVERTISING REPRESENTATIVE Network Publications Sheri Fuller 10155 York Road, Suite 205 Crestridge Corporate Center O N T HE C OVER Hunt Valley, MD 21030 (410) 628-5760 A referee calls time out on this month’s cover, a symbol of the decision an attorney e-mail: [email protected] may need to make when dealing with a client poised to do the “wrong thing.” (See page 8.) ON THE WORLD WIDE WEB: http://www.nysba.org Cover Design by Lori Herzing. 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 cita- tions 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 © 2003 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, Sep- tember, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. Journal | March/April 2003 3 have been inspired by the legisla- are no easy issues, no simple solu- tive advocacy and related actions RESIDENT S tions, and no paths without hurdles Iof our state’s first woman admit- P ’ or forks in the road. ted to the bar, Kate Stoneman, as I ESSAGE These facts of life are demon- prepare to participate in Albany Law M strated by developments in mid- School’s program in her honor in late March regarding our persistent ef- March. Recalling her work in the forts to obtain legislation that would 1880s for legislation to allow women raise the dismally low assigned to participate in school elections, she counsel rates for indigent criminal commented, “I think it is called lob- defendants and in Family Court mat- bying now, but in those days it was ters. These considerations also are the simplest thing in the world to get evident in the current debates about inside the brass rail. We had the ‘run’ proposed changes in the tort system, of the two houses and were allowed another topic of our long-time effort to come and go as we pleased.” to ensure that the process is fair to all She applied her advocacy skills concerned. again when, after passing the bar The governor’s budget plan calls exam, she was turned down for ad- for establishment of an Indigent mission to the bar based on the male Legal Services Fund and an increase terminology of the statute. As she in the assigned counsel hourly rates, told the story, facing the pending ad- from the outmoded levels of $40 for journment of the Legislature, she work in court and $25 outside the marshaled the support of educators courtroom, to $75 for felony and and persons prominent in govern- Family Court matters and $60 for ment to remedy this situation. A bill LORRAINE POWER THARP misdemeanors. The revenue for these was quickly prepared, which passed increases is to be derived from vari- the Senate and Assembly in just a Legislative ous fee increases and an increase in few days with “hardly a dissenting the biennial attorney registration (an vote.” The afternoon upon securing Advocacy additional $50 every two years). The this vote, she visited Governor Hill – critical importance of updating the accompanied by state and city representatives and the assigned counsel rates is recognized and can be simply press – and obtained his signature on the amendment. stated. As I told legislators in my testimony at budget The governor also happened to be the president of the hearings on February 24: State Bar Association (no one told me that dual role was These rates, which have remained unchanged since possible!). Within three days, she successfully reapplied 1986 have had a devastating adverse impact on the for admission. We are indebted, indeed, to the savvy practice of criminal defense law and the nature of rep- Ms. Stoneman for this seminal achievement. resentation afforded to indigents. Many experienced at- This vignette of legislative action drew my keen in- torneys no longer can afford to handle assigned counsel cases and have left state court panels to accept federal terest, not only in relation to our current efforts to assure court assigned counsel work, the rate for which rose to equity and opportunity in the profession, but also as $90 per hour in 2002. Consequently, because of dwin- background to our work to ensure that our message is dling numbers, attorneys handling “state” assigned effectively heard in today’s legislative process, above counsel matters now face an ever-increasing caseload, the cacophony of competing concerns and complexities. coupled with a decline in experienced practitioners. Ul- We need also to ensure that the necessary actions for jus- timately the rights of those unable to pay for legal ser- tice are taken even in the wake of these difficult eco- vices are not properly protected. Too often indigent per- sons in need of an attorney in criminal or Family Court nomic conditions. matters are denied access to justice because of the crisis In the past year, I have written and spoken to you in our assigned counsel system. about the concrete steps that we are taking to strengthen our legislative advocacy, coordinating with an increased This critical need also was reflected in a case brought presence in the media and public forums to promote un- by the New York County Lawyers’ Association, a co- derstanding of the issues and how these have an impact sponsor of the assigned counsel plan in New York City, on the citizens of our state. With the expertise of our Lorraine Power Tharp can be reached at Whiteman members from all practice areas and perspectives, we Osterman & Hanna, One Commerce Plaza, Albany, continue to strive to be a voice of reason. Today, there New York 12260, or by e-mail at [email protected]. Journal | March/April 2003 5 PRESIDENT’S MESSAGE for changes in the tort system were heating up in Wash- ington and Albany. Here, too, with our diverse mem- in the February 5 decision of Supreme Court Justice Lu- bership reflecting all perspectives, we have worked over cindo Suarez directing assigned counsel rates of $90 in the years to be a voice of reason, calling for constructive 1 the City. changes where needed and fair to all parties, but cau- On this, the 40th anniversary of Gideon v. Wain- tioning against the wholesale dismantling or erosion of 2 wright, we remember the words of the Supreme Court the civil justice process in matters of liability. Consistent in that landmark decision: “. in our adversary system with House of Delegates’ action for many years, we of criminal justice, any person haled into court, who is spoke in opposition to the federal Health Act of 2003, too poor to hire a lawyer, cannot be assured a fair trial contending that authority for medical liability laws unless counsel is provided for him. The right of one should continue to reside with the states. Let me share charged with crime to counsel may not be deemed fun- this with you: damental and essential to fair trials in some countries, but it is in ours.” We also think about the observations This would be an appropriate moment to take an objec- of the New York State Court of Appeals 38 years ago in tive look at the tort laws of New York.