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OLD Vs. NEW LEGAL WRITING NEW YORK STATE BAR ASSOCIATION JournalJournalJULY/AUGUST 2001 | VOL. 73 | NO. 6 LEGALLEGAL WRITING:WRITING: OLDOLD vs.vs. NEWNEW Inside Securities Laws and LLCs Special Real Estate Coverage: • Foreclosures • Usury Risks • Financing Issues • Mechanic’s Liens BOARD OF EDITORS C ONTENTS Howard F. Angione The Legal Writer: Dress for Success: Be Formal But Editor-in-Chief Queens Not Inflated e-mail: [email protected] Gerald Lebovits 8 Rose Mary Bailly Albany Courts Apply Investment-Contract Test to Determine Willard H. DaSilva When LLC Membership Interests Are Securities Garden City Peter A. Mahler Louis P. DiLorenzo 10 Syracuse Philip Dixon Mortgage Foreclosures Involve Combination of Law, Albany Practice, Relationships and Strategies Judith S. Kaye Bruce J. Bergman 19 New York City John Nesbitt Lyons Confusury Unraveled: New York Lenders Face Usury Kenneth P. Nolan Risks in Atypical or Small Transactions New York City Joshua Stein 25 Eugene E. Peckham Binghamton Sanford J. Schlesinger Wall Street Remains a Key Player in Commercial Real New York City Estate Financing Despite Capital Market Fluctuations Richard N. Winfield Joseph Philip Forte 34 New York City Eugene C. Gerhart Businesses Considering Renting in Commercial Editor Emeritus Binghamton Condominiums Face Unique Contractual Issues Matthew J. Leeds Daniel J. McMahon 43 Managing Editor Albany Understanding Mechanic’s Liens Reveals Approaches e-mail: [email protected] Philip Weiss To Thwart a Developer’s Improper Filing Brian G. Lustbader Associate Editor 51 Oceanside The Journal wishes to thank Prof. Robert Zinman of St. John’s University, William EDITORIAL OFFICES One Elk Street Colavito of Bedford Hills and Harry Meyers of Buffalo for their assistance in de- Albany, NY 12207 veloping the articles on real estate matters in this issue. (518) 463-3200 FAX (518) 463-8844 D EPARTMENTS ADVERTISING REPRESENTATIVE President’s Message _______________ 5 Index to Advertisers _______________ 61 Network Publications Editor’s Mailbox __________________ 56 2000–2001 Officers ________________ 63 Sheri Fuller Classified Notices _________________ 58 Language Tips ____________________ 64 10155 York Road, Suite 205 Crestridge Corporate Center New Members Welcomed __________ 59 by Gertrude Block Hunt Valley, MD 21030 (410) 628-5760 O N T HE C OVER e-mail: [email protected] This month's cover illustration of an Elizabethan courtroom is from Historical Picture ON THE WORLD WIDE WEB: Archive/Corbis. The cover was inspired by a statement in the new Legal Writer column: “Some rules will help lawyers get out of Elizabethan courts and into American courts of http://www.nysba.org the twenty-first century.” 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 © 2001 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 $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | July/August 2001 3 “Well, if that doesn’t beat all.” Effie (one even using the Internet to do it). Gunderson dropped her magazine to But not Effie. She had to be different. her lap. PRESIDENT’S After the kids left home and the farm If there was another person in the shut down, Effie Gunderson had room, he wasn’t letting on. MESSAGE taken out subscriptions to every “BOB? You listening?” lawyer magazine in the country, and “I hear you, Effie. What did those read those bar journals cover to cover bar fellows do now?” Bob Gunder- every month. And today she was fix- son scarcely looked away from the ated on the President’s Message from television set. But then, if he had, he the June 2001 New York State Bar would have had a hard time finding Journal. Effie, who had created a fortress of Effie was not a lawyer, nor were stacked magazines on the tables sur- any of her kin. She had limited con- rounding her ancient rocking chair. tact with lawyers in her lifetime. Effie “Did you know that over there in had a lawyer draw up her will, and New York State the attorney discipli- had seen the same lawyer (Mr. An- nary system is closed to the public?” dersen, rest his soul) when she and Bob was in no hurry to respond. Bob decided to put the Lundegaard Bob was happy to kick back and family farm into both their names, watch his “stories” after 41 years of but otherwise hadn’t ever had the raising durum wheat. Now that the need. So whatever she knew about government was paying him not to lawyers and lawyering came from grow his crops, he made an easy those journals she devoured on an transition into the world of daytime hourly basis. television. STEVEN C. KRANE “They make such a big secret Effie became impatient. “BOB!” about it,” Effie muttered as if to her- “Whaddya want?” Bob finally Meet the self but in a perfectly audible tone. shifted his gaze from the television’s Gundersons Bob relented after another pro- gray glow (low signal strength in longed silence, figuring he would northwestern North Dakota) to the piles of publications have to engage in this conversation surrounding his wife. sooner or later. Effie could be very patient while lying in Effie leaned forward and peered over the rim of mag- wait. “Well, they must make something public sometime, azines piled on the table that separated her from Bob. “I don’t they?” said, did you know that over there in New York State “Well, sure, once it’s all over with, and it’s been the attorney disciplinary system is closed to the public?” through the grievance committee and through the Bob hesitated for a moment, as if genuinely trying to courts, they announce the result. You can’t disbar or sus- remember whether he did in fact know anything at all pend a lawyer in secret, Bob. And you surely can’t have about attorney discipline in New York or any other a private public censure!” Effie broke into peals of state. laughter the likes of which Bob hadn’t heard from her in years. “No, Effie, I did not know that.” This time he wasn’t going to bite. If he engaged her in conversation he’d Bob saw the humor, but wasn’t quite ready to “bust a miss several key plot elements and would have to buy gut” with his wife. Yet, having joined in the talk, he the digest over at the convenience store to catch up. He jumped in with both feet. As was his pattern, he usually was going to say no and leave it at that. started by baiting her. “Well, why should they?” Effie was prepared for this stratagem and allowed the “Should they what, dear?” silence to grow. She remained almost motionless behind “Make anything public.” her barricade, knowing full well that Bob would not “Don’t you know anything?” Effie leaped from her survive the lull in conversation and that he eventually seat, now towering over the parapets of her bar journal would be compelled to join. Bob remained resolute, try- fortress, and strode to the bookshelf that held the family ing to reinsert himself into the plot of the soap-of-the- Bible and other important volumes. “Remember the moment. Why couldn’t Effie have a normal hobby, like McKay Report?” the other ladies her age in Winston? Other ladies hooked rugs, took up needlepoint, played cards, be- Steven C. Krane can be reached at 1585 Broadway, New came ham radio operators, collected decorative spoons York, N.Y. 10036 Journal | July/August 2001 5 PRESIDENT’S MESSAGE “Well, here’s what the McKay Report said about that: “Not more MDP! Please!” ‘The public does not accept the profession’s claims that lawyers’ reputations are so fragile that they must be “Not MacCrate, but McKay!” Effie began to recite. shielded from false complaints by special secret pro- “Dean Robert McKay, chairman of the ABA Commis- ceedings. The irony that lawyers are protected by secret sion on Evaluation of Disciplinary Enforcement, report proceedings while earning their livelihoods in an open adopted by the ABA House of Delegates in 1992.” system of justice is not lost on the public. On the con- Bob didn’t remember. He must have still been riding trary it is a source of great antipathy toward the profes- the tractor back when this report came out. sion.’” “Here. Page 33. Here’s what the McKay Report says: “And on what did they base that conclusion?” ‘The Commission is convinced that secrecy in discipline “They held nationwide public hearings, then circu- proceedings continues to be the greatest single source of lated a draft report for comment to all sorts of groups, public distrust of lawyer disciplinary systems. Because including bar associations around the country, client it engenders such distrust, secrecy does great harm to protection funds, consumer groups, and so on. It was a the reputation of the profession.’ You listening?” big deal, Bob.
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