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Nov-Dec 2013.Indd NOVEMBER/DECEMBER 2013 VOL. 85 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION Also in this Issue Jackson Estate Says, Are Bloggers Journalists? 2013 Criminal Legislation “Beat It, IRS.” Plea Counsel Cases and Retroactivity By Robert W. Wood Appeals in Arbitration Art by renowned illustrator Alex Nabaum. RENOWNED EXECUTION For more than 100 years, we’ve orchestrated the most complex institutional transactions, and provided the highest quality trust administration. For global experience you can trust and execution you can count on, call Jack Beeson at 302-636-6018, email [email protected], or visit wilmingtontrust.com. GLOBAL CAPITAL MARKETS | CORPORATE TRUST | RETIREMENT PLAN SERVICES | INSTITUTIONAL INVESTMENT MANAGEMENT ©2013 Wilmington Trust Corporation. BESTSELLERS FROM THE NYSBA BOOKSTORE November/December 2013 Admission to the Criminal and Civil Contempt, 2nd Ed. Legal Manual for N.Y. Physicians, 3rd Ed. New York State Bar, 2012 This second edition explores a number of aspects Completely updated to reflect new rules and All relevant statutes and rules, an overview of of criminal and civil contempt under New York’s laws in health care delivery and management, admission procedures, a comprehensive table of Judiciary and Penal Laws, focusing on contempt discusses day-to-day practice, treatment, disease statutory and rule cross-references, a subject-matter arising out of grand jury and trial proceedings. control and ethical obligations as well as profes- sional misconduct and related issues. index and the N.Y. Rules of Professional Conduct. PN: 40622 / Member $40 / List $55 / 294 pages PN: 40152 / Member $50 / List $70 / 226 pages PN: 41329 / Member $120 / List $140 / Evidentiary Privileges, 5th Ed. 1,130 pages Attorney Escrow Accounts – Rules, A valuable text of first reference for any attorney Regulations and Related Topics, 3rd Ed. whose clients are called to testify. Expanded, with Sales and Use Tax and the New York Provides useful guidance on escrow funds and updated case law and statutes. Construction Industry, 2nd Ed. agreements, IOLA accounts and the Lawyers’ PN: 409912 / Member $45 / List $60 / 432 pages Provides practical advice and a comprehensive Fund for Client Protection. With CD of forms, overview of relevant statutes, regulations and regulations and statutes. Foundation Evidence, Questions applicable case law. PN: 40269 / Member $45 / List $55 / 330 pages and Courtroom Protocols, 4th Ed. PN: 42211 / Member $40 / List $50 / 184 pages New edition of this classic text features expanded Best Practices in Legal Management chapters on Direct and Cross-Examination and Workers’ Compensation Law The most complete treatment of the business new chapters on Objections, Motions to Strike and Practice in New York of running a law firm. With forms on CD. and The Courtroom and the Court. Combining academic analysis with practical con- siderations for the courtroom, this book provides PN: 4131 / Member $139 / List $179 / 498 pages PN: 41072 / Member $60 / List $70 / 294 pages expert guidance on all aspects of workers’ compensation law. Contract Doctrine and Marital Legal Careers in New York State Agreements, 2nd Ed. Government, 10th Edition PN: 4236 / Member $125 / List $175 / 720 pages Completely reorganized, with updated case and Everything you need to know about a career in statutory law, this is a unique reference essential public service in state and municipal government for this complex and challenging area of law. and the state court system. PN: 41292 / Member $40 / List $60 / 360 pages PN: 41593 / Member $175 / List $225 / 2 vols. NEW! Disability Law and Practice: Book One N.Y. Municipal Formbook, 4th Edition Practice of Criminal Law Under This first book in a series that will provide a A must-have for attorneys whose practice touch- the CPLR and Related Civil broad education in all aspects of disability law es on zoning law, labor issues, real property rights Procedure Statutes, 6th Ed. and practice focuses on special education, assis- within towns and villages, telecommunications This new edition compiles the rules regarding tive technology and vocational rehabilitation. and other public contracts, roads and highways, jurisdiction, evidence and motion practice PN 42153-1 / Member $60 / List $75 / 382 pages FOIL requests, and use of public lands. More than and those applying to criminal law practice 1500 forms on CD. found in statutes governing civil procedure. Impasse Resolution Under the Taylor PN 41603 / Member $150 / List $185 / 228 pages Law, 2nd Edition PN: 40699 / Member $50 / List $60 / An invaluable resource for attorneys whose prac- Products Liability in New York, 2nd Ed. 230 pages tice may involve public sector labor law issues. The A comprehensive text on this challenging and Second Edition is current through the end of the complex area of law. COMING SOON! 2013 state legislative session. PN: 41979 / Member $120 / List $170 / 2 vols. PN 41223 / Member $30 / List $40 / 130 pages N.Y. Lawyers’ Practical Skills Public Sector Labor and Employment Series, 2013–2014 In the Arena: A Sports Law Handbook Law, 3rd Ed., 2013 Revision Discusses all aspects of sports law, including intel- The leading reference on public sector labor and N.Y. Lawyer’s Deskbook and lectual property and trademark rights, collective employment law in New York State is completely Formbook, 2013–2014 bargaining, Title IX, concussions, NCAA, and more. revised with updated case and statutory law. PN: 4002 / Member $60 / List $75 / 574 pages PN: 42057 / Member $150 / List $185 / 2 vols. N.Y. Practice Forms, 2013–2014 Expand your professional knowledge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2053 Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION LEGALEase Titles BOARD OF EDITORS EDITOR-IN-CHIEF Adoptionp in New York David C. Wilkes AnimalAnim Law in New York State Tarrytown NEW YORK STATE BAR ASSOCIATION TheThe Attorney’sA Role in Home Purchase Transactions e-mail: [email protected] BuyingBuyin and Selling Real Estate Marvin N. Bagwell LEGALEase New York City ChildChild Support – Determining the Amount Brochure Series Brian J. Barney Inform your clients. DivorceDivo and Separation in New York State Rochester Promote your services. Build your practice. GuidelineGuid for Guardians Elissa D. Hecker HIV/AIDSHIV/ and the Law Irvington If YYouo Have an Auto Accident Barry Kamins Brooklyn IntellectualInte Property Jonathan Lippman LivingLivi Wills and Health Care Proxies New York City Long–TermLon Care Insurance John R. McCarron, Jr. Carmel NewNe York Marriage Equality – FAQ’s Eileen D. Millett RightsRig of Residential Owners and Tenants New York City TenantTen Screening Reports and Tenant Blacklisting Thomas E. Myers ThingsTh to Consider if You Have a Serious or Chronic Illness Syracuse WWhy You Need a Will Gary D. Spivey Colorado Springs, Colorado YYouo and Your Lawyer Sharon L. Wick YYour Rights as a Crime Victim Buffalo YYour Rights if Arrested MANAGING EDITOR YYour Rights to an Appeal in a Civil Case Daniel J. McMahon YYour Rights to an Appeal in a Criminal Case Albany e-mail: [email protected] ASSOCIATE EDITOR Nicholas J. Connolly Tarrytown Display Them, Send Them, Use Them PUBLISHER LEGALEase brochures give you excellent flexibility of use. Display a full Patricia K. Bucklin Executive Director set in your lobby or waiting area in one of our display racks. Mail brochures to prospects in a standard envelope. Hand them out during consultations. NYSBA PRODUCTION STAFF Use them any way you want. Plus, there’s a space on the back of each bro- ASSISTANT EDITOR chure where you can stamp or sticker your firm’s name. Joan Fucillo DESIGN Lori Herzing Informative, Inexpensive, Invaluable Erin Corcoran At a cost of only $25.00 per packet of 50 brochures for New York State Jonathan Grandchamp Bar Association Members, and $40.00 for Non-Members, the LEGALEase EDITORIAL OFFICES One Elk Street brochure series is an outstanding value – and an outstanding way to Albany, NY 12207 educate your clients and promote your practice. (518) 463-3200 FAX (518) 463-8844 Visit www.nysba.org/legalease www.nysba.org ADVERTISING REPRESENTATIVE Network Media Partners Meredith Schwartz Executive Plaza 1, Suite 900 Order your LEGALEase brochures today! 11350 McCormick Road Hunt Valley, MD 21031 4 ways to order! (410) 584-1960 e-mail: [email protected] • Order online @ www.nysba.org/legalease • Charge by phone at 800-582-2452 or 518-463-3724 EUGENE C. GERHART (1912 – 2007) • Fax a completed order form to 518-463-5993 Editor-in-Chief, 1961 – 1998 • Mail a completed order form with your check made payable to NYSBA to: New York State Bar Association, Order Fulfillment One Elk Street, Albany, NY 12207 Allow 4-6 weeks for delivery. Source Code PUB2054 CONTENTS NOVEMBER/DECEMBER 2013 JACKSON ESTATE SAYS, “BEAT IT, IRS.” BY ROBERT W. WOOD 10 DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 14 Burden of Proof BY DAVID PAUL HOROWITZ 48 Index to Articles 2013 18 Bloggers, Journalists, Reporting, 49 Index to Authors 2013 and Privilege 51 New Members Welcomed BY RONALD D. COLEMAN 54 Attorney Professionalism Forum 26 New Criminal Justice 60 Index to Advertisers Legislation 60 Classified Notices BY BARRY KAMINS 61 Language Tips BY GERTRUDE BLOCK 31 The Supreme Court’s New Plea Counsel 63 2013–2014 Officers Cases and Retroactivity 64 The Legal Writer Should New York Revisit Eastman- BY GERALD LEBOVITS Teague’s Retroactivity Rubric? BY MARCY L. KAHN AND CHRISTOPHER H. BENBOW 44 An Appellate Mechanism in Arbitration CARTOONS © CARTOONRESOURCE.COM BY HON. DAVID B. SAXE The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers.
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