JANUARY 2008 VOL. 80 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION

Our Children, Our Future A special issue on New York’s children “My NYSBA membership is invaluable for the benefi ts that it offers me as a solo practitioner—the professional camaraderie and the highest quality of continuing legal education offerings by some of the best in the business is unparalleled.”

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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany EDITOR EMERITUS Eugene C. Gerhart Binghamton MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside

PUBLISHER Patricia K. Bucklin Executive Director

NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org

ADVERTISING REPRESENTATIVE Network Publications Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] CONTENTS JANUARY 2008 ISSUE EDITOR’S INTRODUCTION by Judith S. Kaye Cover artwork contributed by Taylor, age 7, a child adopted from foster care. 10

12 Investing in Our Children: A Key to a Prosperous New York by ELIOT SPITZER 46 A Decade of Reform in the 16 Child Custody in Contested Matrimonials New York State Family Courts by JACQUELINE W. SILBERMANN by JOSEPH M. LAURIA and SHARON S. TOWNSEND 20 Advancing Juvenile Justice Reform in New York DEPARTMENTS A Proposed Model 5 President’s Message by MICHAEL A. CORRIERO, with 8 CLE Seminar Schedule ALISON M. HAMANJIAN 50 Burden of Proof 24 Preparing Young Citizens for Democracy by David Paul Horowitz by JACQUELINE SHERMAN and DORY HACK 52 Planning Ahead 28 What Will It Take? by Eric W. Penzer and Frank T. Santoro Improving the Lives of All New York’s Children 56 Tax Alert by Robert W. Wood by OLIVIA GOLDEN 63 Attorney Professionalism Forum 32 A Call to Action 64 New Members Welcomed The Cradle to Prison Pipeline Crisis 70 In Memoriam: Eugene C. Gerhart by MARIAN WRIGHT EDELMAN 72 Classified Notices 35 Conquering Youth Violence 73 Index to Advertisers by MEREDITH WILEY 77 Language Tips 39 Children in Poverty by Gertrude Block Prison Inmates or Positive Outcomes 79 2007–2008 Officers by GEOFFREY CANADA 80 The Legal Writer 42 Function of the Attorney for the Child by Gerald Lebovits by JOHN E. CARTER, JR. Cartoons © CartoonResource.com

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 © 2008 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 $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.

NYSBA Journal | January 2008 | 3

PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN

Breaking the Cycle for Our Youth at Risk

very wise woman once said – a focus of your year, and a theme of “If we don’t stand up for your Presidential Summit.” How could Achildren, then we don’t stand I say no? for much.” That wise woman is none What Judge Kaye tapped, was a other than our national champion for long-term commitment that I have had children, Marian Wright Edelman, who for children, particularly adolescents, joins us as a contributing author for that began during my own teen years, this extraordinary issue of the Journal when I coached a girls little league team “Our Children, Our Future.” Fifteen and refereed girls basketball. I learned a years ago, Marian wrote an article for compelling lesson about the importance another special issue of the Journal, of teaching girls the lessons that boys titled “Poor Children in the Decade traditionally accessed through sports – lies confront every day in our court of the Child,” during Bob Ostertag’s a sense of fairness, teamwork, the self system. term as President of NYSBA. Few of esteem that comes from achievement, I would like to report that we have you will be surprised to learn that the rules of the game. made significant progress since my the driving force behind that special That interest in reaching out to ado- 1975 thesis but we have not. Our young issue in 1992, and again today, is our lescent youth continued during my girls still confront a sexual double stan- charismatic and visionary Chief Judge, undergraduate years at the University dard. Children of color also suffer dis- Judith Kaye. of Colorado. I received a grant for an proportionately in our system today. Last January, Judge Kaye regaled internship at an innovative residential They are more likely to be placed, and the House of Delegates with her treatment program for juvenile girls, remain longer, in foster care. Minority remarks in what has become a much- which formed the basis for my senior youth are more likely to be incarcer- anticipated House tradition. She spoke thesis “Girls in Trouble: The Denial of ated in both the juvenile and criminal eloquently about the problems chil- Equal Protection in the Juvenile Justice justice system. Most alarmingly, one dren and families face in our court System.” My thesis examined the gen- out of every three black males born system, which she has characterized der-based, protectionistic tendencies in 2001 will serve time in a federal or as the “most vexing, frustrating and of our justice system and the troubling state prison. seemingly insoluble issues” she has statistics that girls are far more likely to We all know that truism – about our confronted. Despite her pioneering be incarcerated for status offenses, such children being our future. But do we efforts and many innovative and suc- as truancy, running away, parental con- really own that? Our track record on cessful systemic initiatives, the real- flict, or “being in danger of leading an that score is sobering. Let’s take two ity in our Family Courts is decidedly immoral life,” which was a statutory examples. Childcare. In 1971 Richard grim. Nearly a quarter of our dockets standard in Colorado back then. Nixon vetoed a comprehensive child- affect the families in New York, includ- Upon admission to the bar in New care bill that would have enabled the ing child-related issues, domestic vio- York, I became a Law Guardian in United States to join nearly every lence or matrimonial matters. Our state Family Court where for many years, industrialized nation with a national is in desperate need of more Family in addition to my full-time practice, childcare policy. We know that ages Court Judges as the volume of annual I handled a wide variety of PINS, zero to four are key to a child’s future filings now exceeds an unprecedented juvenile delinquency and foster care emotional, social and intellectual 700,000. And with only 127 full-time matters, as well as representation of development and yet stable, quality Family Court Judges statewide. After child sex abuse victims. And while childcare is unattainable for many of concluding her remarks to the House, my practice today is focused on yet our families. Since the 1980s more than Judge Kaye turned, looked me right in another vulnerable population, our the eye and said, “Kate, I do hope that frail elderly, I have never forgotten the Kathryn Grant Madigan can be during your year as President, you will frustration and the sheer enormity of reached on her blog at http://nysbar. make our children and our families the obstacles our children and fami- com/blogs/president.

NYSBA Journal | January 2008 | 5 PRESIDENT’S MESSAGE two-thirds of American mothers work that for every dollar we spend on Head American Bar Association President, outside the home. Yet we continue to Start we, as a society, save at least $7 Karen Mathis, whose national Youth pay those who park our cars and who in the costs associated with crime and at Risk initiative has been dedicated care for animals in our zoos more per delinquency, high school drop-outs to improving the odds of our youth hour than those who care for our most and increased welfare costs. Yet, since in realizing their potential. We will be precious resource – our children. Unlike its inception, we have been unable to joined by Geoffrey Canada, yet anoth- most other countries, we provide sig- provide funding for more than half of er inspiring voice and contributing nificant childcare assistance only to the children who are eligible. author in this issue of the Journal, as we the very poor, in welfare-to-work pro- No matter what your practice set- explore strategies for reducing Family grams; most have long waiting lists. Far ting or focus, I urge you to take the time Court and criminal justice involve- too many parents are a sick child away to consider the thoughtful analysis and ment, particularly for inner-city youth; from losing their jobs and returning to creative insight provided by our dis- mentoring and coaching programs for the welfare rolls. And many welfare tinguished authors in this exceptional adolescents; youth in foster care; and mothers, once employed, will lose the issue of the Journal. the continuing role of the legal com- childcare subsidy that enabled them to I also invite you to become part of munity in these critical issues. We will work in the first place. Most of our mid- the solution to the challenges we face also examine the most recent research dle-class families are completely shut in meeting the needs of our youth on adolescent brain development and out, despite the rising costs of childcare today by participating in a special, free the very real differences between the and the compelling evidence that fam- plenary Presidential Summit at our way that juveniles and adults pro- ily-friendly workplace policies, includ- Annual Meeting in New York City on cess information and make judgments, ing corporate support for childcare, can January 30, 2008. The first part of the warranting more developmentally help drive the economic development summit will focus on “Breaking the appropriate standards of competence engines in our communities. An edito- Cycle for Youth at Risk,” including the and treatment. rial in the New York Times in October Ratification of the UN Convention on As I noted in my first President’s noted that childcare is controversial, the Rights of the Child, which has been Message, a society is measured by a political “hot potato” that has been ratified by 193 countries. The United the way in which it cares for its poor, “swift boated” by social conservatives. States along with Somalia remain as its elderly and its children. To quote How can that be? the only two nations a party to the UN Marian Wright Edelman yet again, Another example is Head Start, that have not ratified this vital agree- “the question is not whether we can one of the Great Society programs of ment. afford to invest in every child; it is the Johnson era. We know it works. Moderated by Judge Kaye, our whether we can afford not to.” ■ Extraordinarily well. We also know panel will include immediate past Are You feeling overwhelmed? The New York State Bar Association’s Lawyer Assistance Program can help. We understand the competition, constant stress, and high expectations you face as a lawyer, judge or law student. Sometimes the most difficult trials happen outside the court. Unmanaged stress can lead to problems such as substance abuse and depression. NYSBA’s LAP offers free, confidential help. All LAP services are confidential and protected under section 499 of the Judiciary Law. Call 1.800.255.0569 NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM

6 | January 2008 | NYSBA Journal

NYSBACLE Tentative Schedule of Spring Programs (Subject to Change)

The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.

Franchise Law in New York Equitable Distribution of Professional Practices (half-day program) and Closely Held Businesses Fulfills NY MCLE requirement for all attorneys (3.5): (half-day program) 3.5 of practice management and/or professional practice April 25 Tarrytown February 14 New York City May 9 Rochester May 16 Melville, LI The New Era of Worksite Enforcement: June 13 Albany Representing the Endangered Employer June 20 New York City Fulfills NY MCLE requirement for all attorneys (8.5): 1.0 of ethics and professionalism; 2.5 of skills; 5.0 of Immigration Law Update 2008 practice management and/or professional practice (two day program) February 26 New York City May 8–9 New York City

Twelfth Annual New York State and City Tax DWI on Trial VIII Institute (two day program) March 5 New York City May 13–14 New York City

Public Sector and Employment Law Getting Ready in New York: Public March 6 Rochester Health Emergency Legal Preparedness March 12 Albany May 15 New York City March 18 New York City † Fourth Annual International Estate Bridge the Gap 2008: Crossing Over Into Reality Planning Institute Fulfills NY MCLE requirement for all attorneys (16.0): (one and one-half day program) 3.0 of ethics and professionalism; 6.0 of skills; 7.0 of May 27–28 New York City practice management and/or professional practice IMPORTANT NOTE: NYSBA CLE seminar coupons and † Escrow Accounts (telephone seminar) complimentary passes cannot be used for this program. (program: 12:00 noon–1:30 pm) (two-day program) June 4 All cities March 12–13 New York City † Law Firm Billing (telephone seminar) Ethics and Civility (program: 12:00 noon–1:30 pm) (half-day program) June 11 All cities April 4 Albany; Buffalo; New York City April 18 Melville, LI † Financing a Law Firm (telephone seminar) April 25 Rochester (program: 12:00 noon–1:30 pm) June 18 All cities Practical Skills – Family Court Practice April 8 Albany; Buffalo; Melville, LI; Practical Skills – Basics of Bankruptcy Practice New York City: Rochester; June 18 Albany; Melville, LI; Syracuse; Westchester New York City; Syracuse

Women on the Move † Does not qualify as a basic level course and, therefore, cannot (half-day program) be used by newly admitted attorneys for New York MCLE April 9 Syracuse credit. Election Law To register or for more information (half-day program) April 17 Syracuse call toll free 1-800-582-2452 April 23 Buffalo In Albany and surrounding areas dial (518) 463-3724 April 25 Tarrytown Or fax your request to (518) 487-5618 May 7 New York City Complete Spring CLE Schedule can be found at: May 14 Albany www.nysba.org/CLE/spring2008 May 16 Melville, LI (Note: As a NYSBA member, you’ll receive a substantial discount)

JUDITH S. KAYE is Chief Judge of the State of New York. She is the Issue Editor for this special edition of the Journal.

Issue Editor’s Introduction

By Judith S. Kaye

igh on the list of significant junctures in my own Even after 17 years heading the Permanent Judicial life is the day, 17 years ago, that I acceded to the Commission on Justice for Children, I struggle for a precise Himportuning of my predecessor Chief Judge and definition of “justice for children.” When it comes to bet- agreed to co-chair his recently formed Permanent Judicial tering the lives of our children there’s hardly a bad idea. Commission on Justice for Children. My resistance was When the remarkable Ellen Schall (now Dean of the well founded: I had been a commercial litigator before the Wagner School) and I, as co-chairs, took the reins of the miracle of my appointment to the Court of Appeals; I had Commission, we solicited suggestions from a wide group spent little time in the field of family law; and I had no of experts, narrowed the Commission’s focus to children sense of what might be considered “justice for children.” zero to three, and pushed for improvements in early Today, chairing that Commission, and supporting in intervention health services (formerly secured through every way I can initiatives to advance justice for children, Family Court, of all places) and centers in the courts are at the very core of my professional life. where children could be safely and constructively occu- I began with this egocentric message because I hope pied while their caregivers tend to court business. Today not only that you will find this Journal issue of interest but our agenda is full of collaborative programs for the zero- also that it will stimulate your own desire to work toward to-three population, and we have enlarged the spotlight improvement in the lives of our children. It’s their future, to to include adolescents. There are so many good ideas. be sure. But it’s your future, and our nation’s future, too. In the ensuing pages you will find all the statistics, and “Never doubt that a small group of thoughtful, all the support, for what our own good sense already tells committed people can change the world. It is the only us – that thousands of children right here in our midst are thing that ever has.” — Margaret Mead being denied their birthright as Americans. They have no safe, permanent home, no one who loves and believes in Again, my purpose is less to boast about us than to them, no real chance at a constructive, productive, happy encourage you to join us. There’s so much that can be life. I’ve heard that you can pretty much foretell a child’s dis- done to achieve justice for children, so much that lawyers mal future from the zip code into which he or she is born. in particular can do, whether as highly informed citi- That they are “our children” is no overstatement, and zens asking questions and influencing policymakers; as I mean this in more than a “brother’s keeper” sense. The mentors, or foster or adoptive parents; or as CASAs, pro State, through the courts, literally has custody of the 27,390 bono volunteers or community activists. I hope that this children today residing in foster care. More than a thou- publication draws you in, that it stimulates you to think sand of those children each year age out of foster care to of more ways to be helpful, and that you will act on the “independent living.” How comfortable do you feel about impulse and become part of the solutions. children – particularly children with no support system – Finally, my thanks to the Bar Association, especially living “independently” at 18, 19, 20 or 21? No wonder that to President Kate Madigan for a State Bar Week show- many of them soon are homeless, unemployed, incarcer- case program on the important subject of Children and ated, even dead. Thousands more children every day are Families, and to Journal Editor David Wilkes for the in our courts, victims of abuse, neglect, family dysfunction pleasure of assembling this special issue, as well as serv- and bitter family dissolution. Some are there on delin- ing on his Board. My thanks to our terrific authors for quency charges; and some young teenagers are there to be what they have done and what they have written; to the tried and imprisoned as adult felons. wonderful people who have tirelessly educated me in With presumably many years of life ahead for these children’s issues, particularly Jan Fink, and former and children, doesn’t it make sense for us to devote serious current Commission Executive Directors Sheryl Dicker time to finding, and supporting, meaningful early inter- and Kathleen DeCataldo; and – always – to the judges on ventions? It’s their future, but ours too. the front lines of these vexing issues. ■

NYSBA Journal | January 2008 | 11 ELIOT SPITZER is New York’s 54th Governor. Prior to being elected Governor, Spitzer served for eight years as New York State Attorney General. Governor Spitzer is a graduate of the Woodrow Wilson School at Princeton University and Harvard Law School, where he was an editor of the Harvard Law Review. The Governor may be contacted at http://www.ny.gov/governor/contact.

Artwork created by Natalie, age 12, a participant in the Chautauqua County Foster Care Youth Art Contest.

Investing in Our Children: A Key to a Prosperous New York By Eliot Spitzer

s Governor of New York, I am honored to contrib- including the world’s largest public university system. ute to this special edition of the New York State Our state is home to more Fortune 500 companies than ABar Association Journal dedicated to children’s any other state. New York City contains the largest cen- issues. ter of high-technology employment in the nation. But it Each day, over 650 children are born in the State of is only through our investment in future generations of New York. Some of these children will have the opportu- New Yorkers – ensuring that they have the opportunity to nity to reach their full potential. But far too many never acquire the knowledge and skills they need to compete – will. Indeed, if we allow the status quo to prevail, far too that we can truly prosper in the highly competitive global many of the children born today will never discover their economy. talents because they will languish in failing schools. Far When I took office, as part of my vision for One New too many of today’s children will have their potential cut York,1 I announced an ambitious agenda that included short by chronic illnesses because they will be among the initiatives to significantly enhance the lives of our chil- 400,000 children in our state who currently lack health dren and prepare them for the future. In participation insurance and therefore lack access to critically important with local governments, educators, advocates and mem- primary and preventive care. Far too many will never bers of the Legislature, my Administration has begun to experience the joy of intellectual achievement because reform our education and health care systems to ensure their minds will be consumed with the troubles that often that the needs of children previously left behind are met, accompany economic insecurity: poor housing, hunger, and to design programs to provide New York families or an unsafe school, home or neighborhood. with economic security. We are off to a good start, but Because innovation has become the driving force of job have significant work to do. creation in the global economy, human capital – the intel- lectual creativity and versatility of a nation’s workforce Reforming New York’s Education System – has emerged as the most important natural resource Pre-Kindergarten Through 12th Grade that a nation can have. New York is well-positioned to We began reforming education by ending the 14-year-old compete favorably in the global economy. We have the Campaign for Fiscal Equity litigation, and thereby taking highest concentration of universities in the United States, the fate of school funding out of the courts. Indeed, we

12 | January 2008 | NYSBA Journal made the single largest investment in education in New The Commission’s recommendations in each of these York’s history. In one year alone, state funding for schools areas will frame our efforts going forward to assure that was increased by 10%, or $1.8 billion. New York’s higher education system is designed to best Knowing that a single infusion of resources would serve our students, our communities and our state. do little to effectuate long-term change, we reformed the way education will be funded going forward. Working Access to Health Care, Health Insurance with the Legislature and education advocates, we broke and Nutritious Food the entrenched “shares system” and adopted a new Perhaps the most significant step in my plan to achieve “Foundation Aid” formula designed to distribute state aid universal health insurance for all New Yorkers was our to school districts based on educational need, not political initiation of efforts to ensure that all of the state’s children gain. As a result, our historic increases in funding are tar- have access to health insurance coverage. geted to reach the school districts that need it most. To ensure that funding is used in ways designed to best help students, the 56 school districts that receive “I keep your promises in my shoe, the most new funding and have at least one underper- so I’ll remember them and forming school are required to enter into “Contracts for Excellence.” These contracts must describe the specific you will, too. I keep your promises reforms and investments a school district plans to make near my sole, and if you break them, with its increased state funding. In addition, these dis- my sole breaks whole.” tricts are required to use certain funding on programs and activities designed to improve student achievement, – R.A. Abused former foster child, age 12. including smaller class sizes, longer school days or years, and teacher quality initiatives. We also began a four-year process to implement univer- Children’s Health Insurance sal pre-kindergarten and full-day kindergarten throughout Over 400,000 of New York’s children lack health insur- the state. Already, 172 school districts have taken advan- ance coverage – more than the population of Rochester, tage of funding that was made available, and are offering Binghamton and Albany combined. Without health insur- their children pre-kindergarten for the first time. ance, children do not receive primary and preventive care, including vaccinations and developmental screen- Higher Education ing, which is so critical to staving off or treating serious To compete in the new global economy, New Yorkers conditions and illness. We have no chance of competing need more than an effective primary education system. in the global economy when tens of thousands of our They need a higher education system that will prepare children risk having their opportunities dramatically them to be successful in whatever field they choose to curtailed by illness or chronic disease. While we have pursue. Therefore, we are taking a fresh look at our high- experienced a certain measure of success in our efforts, er education system to identify necessary reforms. the battle to secure health insurance for New York’s chil- To that end, I established the Commission on Higher dren continues. Education2 to conduct a review and analysis of New Child Health Plus is New York’s component of the York’s colleges and universities, with particular empha- State Children’s Health Insurance Program (SCHIP), sis on public higher education and the State University a federal program that allows states to provide health of New York (SUNY) and City University of New York insurance coverage to uninsured children whose fam- (CUNY) systems. This analysis will include an assess- ily incomes are too high to qualify them for Medicaid. ment of: (1) the degree to which public primary and sec- At the dawn of my Administration, I proposed, and ondary education adequately prepare students to enter the Legislature enacted, an expansion of Child Health and succeed in college; (2) the mission of the state’s com- Plus to children in families with incomes between 250% munity colleges, including the proper balance between and 400% of the federal poverty level, subject to federal preparing students to enter four-year institutions and financial participation.3 However, the U.S. Department of helping students obtain high-value jobs; (3) the reason- Health and Human Services (HHS) rejected the expan- able costs of an education for students in SUNY and sion on grounds that it did not comply with new rules CUNY degree programs, and the available sources and issued by HHS on August 17, 2007. The new rules, which amounts of financial aid for students who need assistance were arbitrarily issued without a public comment period to meet such costs; and (4) the types and amounts of and which unlawfully conflict with the statutory author- financial support provided by the State to private colleges ity that created SCHIP, made it impossible for New York and universities and their students, and the rationale for to expand income eligibility for Child Health Plus begin- such programs. ning September 1, 2007 as planned.

NYSBA Journal | January 2008 | 13 SCHIP was set to expire on September 30, 2007. sugar and caffeine. They also offer a significant weapon Congress reached a bipartisan compromise on new leg- in the fight against childhood obesity and the chronic islation which would have extended and expanded diseases associated with poor nutrition. SCHIP and would have nullified the August 17 rules. Despite overwhelming popular support for the legisla- The New York State Council on Food Policy tion, President Bush vetoed it. As of this writing, SCHIP Finally, to address hunger in New York and elsewhere has been temporarily extended at current federal funding and to increase access to affordable, fresh, nutritious levels, but it is unclear whether New York will be able to food, including fresh fruit and vegetables, especially for proceed with the expansion authorized by the Legislature children, I established the Council on Food Policy.5 The under any permanent SCHIP reauthorization that may be Council will develop and recommend a state food policy enacted. that seeks to ensure the availability of an adequate supply I have worked with other state governors and with of affordable, fresh, nutritious food to state residents. New York’s congressional delegation to lobby the Bush Administration for reversal of the August 17 rules and, Economic Security Agenda joined by several other states, commenced litigation In addition to our efforts on education and health care, against HHS in federal court to seek such relief. We are we have also worked to implement what I have called an also proceeding with our administrative remedies regard- Economic Security Agenda to strengthen and grow New ing the federal denial of the expansion. I will continue York’s shrinking middle class. Over the last decade, the pursuing all avenues available to secure affordable health gap between New York’s rich and poor has widened so insurance for all of New York’s children. much that we now lead the nation in this disparity. Far too many working New Yorkers are neither firmly established Healthy Schools in the middle class nor firmly supported by the full array While it is crucial to ensure that children have access to of programs that make up our social safety net. For these primary and preventive care, made possible by adequate hardworking yet struggling families, a single unexpected health insurance, it is equally important to address crisis – an illness, a sudden layoff, an injury at work or a the factors that contribute to childhood illness. My sick child, can quickly pull them down into poverty. Administration has pursued a number of public health The effect of economic insecurity on children is enor- initiatives in this regard, but one of the most significant is mous. Our strategy for fighting economic insecurity our attack against childhood obesity. Childhood obesity is being carried out on many different fronts. We have is associated with very serious health problems such as already made progress by enacting the largest property heart disease, cancer, osteoarthritis, asthma, and Type II tax cut in New York’s history and targeting it to those diabetes – a condition which until recently was seen only who need it most; by dedicating hundreds of millions in in adults. Obesity in children has grown so exponentially funding to preserve affordable housing units; by imple- over the last several years that one out of every four chil- menting our “Working Families Food Stamp Initiative” dren in this state is obese. to enroll an additional 100,000 working families into the I have proposed legislation that would help combat Food Stamp Program, enabling us to draw down $200 childhood obesity and promote healthy lifestyles for million in federal funds; by strengthening worker rights; children across New York. My “Healthy Schools Act”4 and by implementing a “block by block” strategy to would require the State Education Department, working reclaim struggling neighborhoods, especially in upstate with the Department of Health, to promulgate regula- cities. tions establishing nutritional and dietary standards for We established the Keep the Dream Mortgage foods and beverages sold, served or offered in elemen- Refinancing Program, a $100 million program run by tary and secondary schools. The standards would set the State of New York Mortgage Agency (SONYMA). limits on cholesterol, sodium, fat, sugar, and calories, The program is designed to help eligible households and would ban artificial trans fatty acids; moreover, no with certain high-risk mortgages avoid possible foreclo- soda or candy could be sold in schools. Additionally, sure. The program enables families with adjustable rate, districts would be required to develop local school interest-only or other unconventional mortgages to refi- wellness policies to ensure community involvement in nance with the help of SONYMA and obtain a 30-year or considering ways to create healthier schools, such as 40-year fixed-rate mortgage at competitive interest rates. increasing opportunities for physical activity during the This will provide at-risk households with affordable and school day. predictable monthly payments for the full term of the These measures are important because they help pro- mortgage, preventing families from losing their homes. mote healthier learning environments, allowing children We enacted a New York City childcare tax credit.6 This to focus on learning the skills necessary to compete in tax credit is designed to assist low-income families with today’s innovation economy – without the distraction of young children. It provides personal income tax relief

14 | January 2008 | NYSBA Journal From the NYSBA for families who pay childcare expenses for children under the age of four, and have gross household incomes Bookstore under $30,000 annually. An estimated 49,000 families will qualify for the credit, most of whom would be eligible to receive a city tax credit of up to $1,000. The tax credit is Legal Manual effective immediately and applies to taxable years begin- ning January 1, 2007. for New York Additionally, we introduced Paid Family Leave legis- lation, which passed the Assembly but has not yet passed Physicians the Senate.7 Under the federal Family and Medical Leave Act (FMLA), businesses of 50 or more employees must Second Edition provide up to 12 weeks’ leave to their workers who need to take care of a recently born or adopted child, or care for a loved one. FMLA leave, however, is unpaid, and many Editors: cannot take advantage of it for financial reasons. Under Robert Abrams, Esq. this proposal, the State’s existing disability insurance Donald R. Moy, Esq. system, which provides $180 per week for individuals compelled by disability to leave their work temporarily, Over fifty topics covering: would be extended to cover employees who stay at home Business and Management to bond with a child or care for a sick relative. This would Practice Issues allow more parents to spend time away from work to be Professional Misconduct with their children, to the great benefit of both children and Related Issues and parents alike. Our goal is to close the gap between wealthy and poor Regulatory Entities and by bringing those lower on the economic ladder up, and Reporting Requirements by protecting those middle-class New Yorkers who are in Written and edited by more than fifty experienced practitio- danger of falling down. ners, Legal Manual for New York Physicians, Second Edition, Conclusion is a practical reference guide for attorneys representing phy- sicians and anyone involved with the medical profession. We have good reason to be proud of the successes we have had in beginning to reform education and health The information in this manual, provided by experts in the care, and building a foundation for economic security, but field, is primarily presented in an easy-to-use question-and- there is more to do. Therefore, I established a “Children’s answer format. Who can access medical records? How do I Cabinet,”8 to ensure that our children’s agenda is imple- open a medical practice? Can a donor specify a donee? mented successfully. The Children’s Cabinet, comprised of These questions, as well as hundreds of others, are the commissioners of state agencies that interface with chil- answered in this publication. dren, will oversee the development and implementation of reforms required for the success of New York’s children. Sponsored by the NYSBA’s Health Law Section, the Legal I remain committed to my initial vision of creating Manual is co-published by the Medical Society of the State One New York with a vibrant education system that of New York and the New York State Bar Association. The demands accountability and rewards excellence; a health Second Edition covers more than fifty topics and includes a care system that serves the needs of patients first, not new chapter on Managed Care Litigation. institutions; and a thriving economic climate that offers opportunity to all. If we are successful in these efforts, we 2006 / PN: 41325 / 1,018 pages will move closer to the day when we can pass the torch to List Price: $105 / Member Price: $90 the strongest generation of New Yorkers in our history. ■ ** Free shipping and handling within the continental U.S. The cost for shipping and handling outside the continental U.S. will be added to your order. Prices do not include applicable sales tax. 1. Annual Message to the Legislature (2007) at 9-17. 2. N.Y. Comp. Codes R. & Regs. tit. 9, § 6.14 (N.Y.C.R.R.) (executive order [Spitzer] No. 14). To order call NYSBA at 3. 2007 N.Y. Laws ch. 58. 4. 2007 Governor Program Bill (GPB) No. 25R. 1.800.582.2452 5. 9 N.Y.C.R.R. § 6.13 (executive order [Spitzer] No. 13). 6. 2007 N.Y. Laws ch. 484. Mention Code: PUB0189 when ordering. 7. 2007 GPB No. 28R introduced as A. 9245 (Silver 2007). 8. 9 N.Y.C.R.R. § 6.16 (executive order [Spitzer] No. 16).

NYSBA Journal | January 2008 | 15 JUSTICE JACQUELINE WINTER SILBERMANN is the New York State Deputy Chief Administrative Judge for Matrimonial Matters. Justice Silbermann graduated cum laude from Bryn Mawr College and Fordham University School of Law. She has received numerous awards including the Harlan Fiske Stone Memorial Award, Benjamin N. Cardozo Award, Louis Capozzoli Gavel Award, New York Women’s Bar President’s Award, and the Doris Hoffman Memorial Award from the Women’s Bar Association of the State of New York.

Artwork created by a child in one of the Family Court Children’s Centers. Child Custody in Contested Matrimonials By Jacqueline W. Silbermann

s a matrimonial trial judge, as Administrative are entrenched and embittered, often having accused one Judge at 60 Centre Street in Manhattan, and as another of serious vices and wrongs to meet the pleading Athe statewide Deputy Chief Administrative Judge threshold if the grounds for the divorce involve cruelty or for Matrimonial Matters, I view divorce proceedings from other fault. While the law has not changed in the decades several unique vantage points. Rearing children before, since Braiman was decided, the judiciary has pursued during, and after divorce is one of the most sensitive other ways to ameliorate the harm custody litigation issues facing litigants and matrimonial judges in custody inflicts on children. disputes. In presiding over such proceedings, my primary Chief Judge Judith S. Kaye’s involvement in matrimo- interest is the well-being of the litigants’ children, where nial reform efforts began even before she became Chief the matrimonial judge must determine what is in the Judge, when she served on then-Chief Judge Wachtler’s “best interests” of the child. Committee to Examine Lawyer Conduct in Matrimonial Clearly, the best interest of the child would be to Actions, chaired by Justice E. Leo Milonas. From that remain in an intact family, barring situations such as committee emerged the Matrimonial Rules designed to domestic violence and abuse. By the time the family has streamline the divorce process. These rules have reduced appeared in my courtroom, however, the intact family has the average time it takes to resolve a matrimonial case dissolved. Thus, I view my role, in all my hats, as one of by more than half. Never complacent, Chief Judge Kaye assisting families in the restructuring of their lives with as has noted, “but still divorce takes too long and costs too little discomfort to the children as possible. much: too much money, too much agony.” As a result, Although many litigants and their attorneys favor we have explored innovative methods to lessen litigation “joint custody,” the law of New York as decided by the and address these concerns, especially the emotional toll Court of Appeals in Braiman v. Braiman, is that the award that litigation takes on the family and the child. I take this of joint custody is insupportable where the parties are opportunity to share some of them with you. “so severely antagonistic and embattled and that such an award could only enhance family chaos.”1 The Court of The Parenting Plan Appeals did note that joint custody may be appropriate as Making the process less adversarial and formulating a voluntary alternative for relatively stable parents behav- custody arrangements that give each parent a signifi- ing in a mature and amicable fashion. Unfortunately, by cant and responsible role in the lives of their children is the time they seek judicial assistance, the parents usually a major goal in my offices. Historically, custody issues

16 | January 2008 | NYSBA Journal were framed in terms of possession of the child and the education, acts as a “noncustodial parent” was given some amount of time liaison with other sys- for “visitation.” In 2005, we implemented the use by tems and professionals matrimonial judges, statewide, of a document titled the to integrate interaction “Parenting Plan.” with parties, their The Parenting Plan intentionally uses neutral terms counsel, the court, law such as “parenting time” rather than “visitation,” and “pri- guardians, drug and mary residence” instead of “physical custody” or “legal alcohol counselors, custody.” One strategy embodied in the Parenting Plan is psychologists, psychia- the establishment of “zones of decision making,” rather trists, Child Protective than awarding all decision making to one parent, as an Service caseworkers, effective way to keep a parent from feeling invisible in the school teachers, CASA child’s life. The Parenting Plan sets forth a proposed access (court appointed spe- schedule and a proposal for decision making: one for day- cial advocate) or other Artwork created by Margaret, age 7, a to-day decisions and one for major decisions. In training supervised visitation student at Lowville Academy and seminars, the judges who hear custody cases are counseled programs, forensic Central School. to discourage parents from equating a good Parenting Plan evaluators and other with the number of hours or minutes they have with the extra-judicial resources. The FCCA works with the liti- child, and to help them acknowledge that, as in any family, gants to craft viable resolutions based on the family’s children need to have time with friends, to be by them- unique needs, which counsel then reviews for incorpo- selves and to do things away from either parent. ration in an overall settlement. The success of this program, over the past eight years, Plan for Success has resulted in greater utilization of FCCAs by the mat- It is also useful to get a history of what life was like before rimonial judges and the bar. Significantly, the program the family disintegrated: who did homework with the resolves one of the most traumatic aspects of divorce, child, bathed the child, prepared meals, took the child at the inception of the case, avoiding antagonistic con- to school, to the doctor, to religious services, or to sports frontation in open court. Expansion of this pilot program activities. Even the most contentious litigants often can to courts across the state continues to be one of my top agree upon what has worked in the past, and then formu- initiatives. late a stipulation with the assistance of the court. A plan Recently, initiatives using mediation to assist in resolv- structured and mutually agreed to by the litigants is more ing custody disputes have been implemented in various likely to succeed. If the parties can agree on the terms, the counties, including Nassau, Erie, Orange and New York. document is signed by each of them and becomes their The goal is to resolve issues involving children in a less Parenting Plan, removing the uncertainty for both par- adversarial fashion. In New York County, judges are able ents and, most important, for the child at the very earliest to order one 90-minute session of mediation, with volun- stage of court involvement. tary sessions to follow if the parties agree. The program In March 1999, a pilot program utilizing social work- initially focused on post-judgment disputes regarding ers to assist families in custody, visitation, and relocation custody and visitation, but it has expanded to include disputes was launched in the Supreme Court in Kings, pre-judgment custody disputes. Nassau, Suffolk, Richmond, New York, and Westchester Counties. The position requires a Master’s Degree in Children Come First social work and/or counseling and additional profes- In late 2006, Nassau and Erie Counties were selected sional training, experience and credentials, including but to participate in a new Model Custody Part called not limited to family therapy practice or other mediation “Children Come First.” These parts have a Family credentials. Services Coordinator to screen cases and provide vari- The family counseling and case analyst (FCCA) ous services, such as parent education programs, case receives custody case referrals directly from Supreme conferencing, focused and comprehensive evaluations, Court matrimonial judges and actively conferences the and the development of a Parenting Plan. In each of case with the parties, often in multiple sessions. As famil- these counties, the former FCCAs have been elevated to iarity and confidence in the program and the individual Parenting Coordinators, utilizing their conflict resolu- social worker are established, these meetings may be con- tion skills and also overseeing the Model Part. In Nassau ducted without legal counsel present, upon the approval County, the initial FCCA pilot was so well received by of both counsel. the bar that a new FCCA was hired to provide social Because divorce is a family crisis and situations can be work services to those litigants not selected for the complex, the FCCA provides assessment and parental Children Come First part.

NYSBA Journal | January 2008 | 17 The Parent Education Program appoint counsel with the costs to be borne by the Office The Parent Education Program was launched in 2001, of Court Administration. Access to effective legal repre- with appointment of a Parent Education Advisory Board sentation for each parent in a custody dispute hopefully chaired by the Honorable Evelyn Frazee. The Board, will reduce acrimony and litigation as the parties are charged with developing a comprehensive approach to better informed of their legal rights and responsibilities parent education in New York, has developed a curricu- and better equipped to use the court resources described lum to provide parents with information and strategies to in this article. supplement and enhance their parenting skills; to create and maintain supportive parent-child relationships; to Collaborative Family Law Resource Center provide a stable, supportive home environment; to pro- New York State will soon be the first in the nation mote healthy parental functioning and psychological well to have a Collaborative Family Law Resource Center. being; and perhaps most important, to protect children Collaborative family law refers to a dispute resolution from ongoing conflict between parents. Certified pro- process in which the parties and their attorneys sign a grams, now located throughout the state, allow parents consent agreement setting forth the parameters of the to gain a greater understanding of what their children are attorneys’ representation and ground rules to assist experiencing during the divorce process. them in the resolution of their dispute. This process may include a third-party expert, as agreed to by the parties, Certification of Forensic Experts with specialized training to act as a third-party neutral to Forensic evaluators often are appointed to assist the court identify issues, clarify perceptions and explore options in reaching custody determinations. As Deputy Chief for a mutually acceptable outcome. Administrative Judge, I have proposed a certification pro- Collaborative law differs from traditional mediation, as cess requiring minimum qualifications for forensic experts. there is a suspension of court intervention in the dispute Such a process will ensure that our standards are current while the parties engage in collaborative family law dis- with professional standards and that forensic experts have cussions. There will be specific training and qualifications the requisite minimum education, experience and training for attorneys seeking to participate; a roster of qualified to provide the courts with effective assistance. attorneys; an agreement to comply with the rules of the My office provides annual educational seminars to the Center; a time frame for the process; and an understand- judges and lawyers handling matrimonial cases, offering ing that, should the parties fail to reach an agreement for such topics as psychological and developmental issues any reason, the case will be returned to the court, and relevant to custody and parental access planning. This the representation of the collaborative attorneys, which training introduces them to the available diagnostic tools is limited in scope to non-litigation matters, must cease. that can help them address the myriad psychological, If an agreement is reached through the collaborative law sociological and pharmacological issues relating to the process, as with any matrimonial action, the settlement mental health and well-being of the family. Mental health may be incorporated into the divorce judgment. experts and veteran matrimonial judges train newer judges in how to appropriately conduct an interview Conclusion of a child (Lincoln Hearing). Copies of A Mental Health It has been my highest priority, in all of my judicial capac- Glossary of Selected Terms for Judicial Use During Child ities, to remove children from the center of custody and Custody Cases, prepared by Sandra Kaplan, MD, and Rona parental access litigation, to protect them to the fullest Muntner, PysD., of North Shore University Hospital, are extent possible from the pernicious effects of such litiga- provided to the matrimonial judges at these seminars, tion, and to reduce the level of hostility and aggression and are available to the bar and the public at our Web site in custody disputes. In many cases, the only thing the www.courts.state.ny.gov/ip/matrimonial-matters/. The parents still have in common is love for their children. Web site also includes the Parenting Plan and other forms The Parent Education Program, the Parenting Plan, the referenced in this article. FCCA social worker pilot program, the Court-Sponsored Mediation program, the Children Come First Model Assigned Counsel Pursuant to Judiciary Law § 35 Custody Initiative and the Collaborative Family Law The recognition that the access to one’s child is funda- Resource Center, all were designed to build upon that mental and paramount to the well-being of the child and common interest. The success of these initiatives depends each parent, prompted the enactment of Judiciary Law upon the willingness of concerned parents, lawyers, § 35(8) this past year. This section provides legal repre- judges, social workers and experts to remain focused on sentation to either parent seeking custody or parental the need to protect the children from the toxic fallout of access, upon a finding of financial eligibility, where that custody litigation. ■ party would have been entitled to such representation in Family Court. Upon such a finding, the court may 1. Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449 (1978).

18 | January 2008 | NYSBA Journal

JUDGE MICHAEL A. CORRIERO presides over Manhattan’s Youth Part, a court set aside with- in the adult court system to deal exclusively with the cases of 13-, 14-, and 15-year-olds who are charged with the most serious and violent crimes. Judge Corriero is an alumnus of St. John’s University School of Law and St. John’s University. He is the author of a book titled Judging Children as Children: A Proposal for a Juvenile Justice System, published by Temple University Press, September 2006.

The authors wish to acknowledge the contribu- tions of Kathleen Landaverde, Yasmin Safdie and Michelle Haddad in the preparation of this article.

Portions of this article were excerpted from Judging Children as Children: A Proposal for a Juvenile Justice System by Michael A. Corriero. Copyright © 2006 Temple University. Used by permission of Temple University Press.

Artwork created by Pheobe, age 7, a student at Lowville Academy and Central School. Advancing Juvenile Justice Reform in New York A Proposed Model By Michael A. Corriero, with Alison M. Hamanjian

n June 29, 2007, Connecticut Governor M. Jodi trouble with the law was unique for its time. Conceived Rell signed legislation that raised the age of as the first problem-solving court, it was emblematic Ocriminal responsibility from 16 to 18, permit- of a broader national progressive movement to protect ting certain juveniles under 18 to be transferred to adult the poor and vulnerable from the negative aspects of court only after a juvenile court hearing. In taking this the rapid progress of our democratic and industrialized significant step, Connecticut recognized that treating all society. children under 18 as adults is inconsistent with sound In the first decades of the 20th century, this concept public policy and current scientific research demonstrat- of a humane and practical approach to adjudicating the ing the cognitive differences between adults and ado- delinquency of minors, so that they would not be fore- lescents. It also represents the latest sign that America is closed from opportunity to participate constructively on the brink of a counter-reformation in its approach to in society, spread rapidly throughout the nations of the juvenile justice – a reformation that signals a return to the world and became an established feature of modern founding principles underlying the creation of the first democratic justice systems. juvenile court. In the last 30 years of the 20th century, however, dis- Just over a century ago, the first juvenile court was satisfaction grew with the juvenile court concept in terms established in Chicago, Illinois. The concept of a separate of its capacity to adequately cope with juvenile violence court for juveniles presided over by a firm yet compas- – a concern that threatened the very existence of the court sionate and understanding judge whose goal was to pro- as a separate and viable institution. A few sensational vide individualized treatment and services for children in cases of juvenile violence and the proliferation of guns,

20 | January 2008 | NYSBA Journal “The sad truth is nearly half the drugs and gangs in the poorest neighborhoods of our world’s children are living in poverty nation drove state legislatures to revisit the way in which children accused of participating in serious crimes were not because of benign neglect, but adjudicated. because too many governments are New York was among the first to “reform” its juvenile justice system. In 1978, an extraordinary case of juvenile making deliberate, informed choices violence, a gubernatorial election and public frustration that hurt children. And too many with the juvenile justice system resulted in enactment people are letting those choices be of New York’s Juvenile Offender Law.1 Before then, the cases of all children under 16 were prosecuted in New made without challenge.” York’s Family (Juvenile) Court. – Carol Bellamy The Juvenile Offender Law authorized the wholesale movement of an entire category of children to the adult court on no more a sophisticated basis than their reaching allowed adults and youths to be incarcerated in the same a threshold age of 13 and accused of the crime of murder; facilities by lowering the age of criminal responsibil- the age of 14 and accused of the crime of robbery, assault ity and broadening the circumstances under which they and other newly characterized “juvenile offender” offens- could be prosecuted in adult court.4 es – without regard to a child’s individuality, potential Many states, faced with what they contended was a or extent of involvement in the underlying crime. As a wholly new kind of juvenile offender, began to view the result, the cases of 13-, 14- and 15-year-olds were now to principles at the core of the old system, the treatment be automatically prosecuted in the adult courts and, equal- orientation and the concern for offender privacy, as not ly significant, subject to mandatory imprisonment and merely outmoded but dangerous.5 As violent crime con- the lifetime stigma of a felony record upon conviction. tinued to rise, other states began to mimic New York’s The only way mandatory imprisonment could be rigid approach to juvenile offenders. From 1992 through avoided was for a judge to exercise discretion to grant 1997, all but three states changed laws to facilitate the the legal equivalent of a second chance by declaring the prosecution of children in the adult court.6 youth a “youthful offender”; this was often a difficult I believe this approach leads us in the wrong direction choice given the presumptive punitive response contem- because, as recent research has demonstrated, it ignores plated by the law.2 At the time, New York became one critical differences between children and adults, does not of only three states, along with Connecticut and North prevent juvenile crime or secure protection of the public, Carolina, that prosecuted children as young as 13 in adult and unnecessarily criminalizes children. courts. The Juvenile Offender Law impacts not only children When New York’s Juvenile Offender Law was first who are dangerous because of the violent acts they per- enacted its mandatory nature was virtually unprecedent- sonally commit but also children on the periphery of ed. Juveniles throughout the nation were generally sub- offenses. Consider the case of Loretta: jected to prosecution in adult court only after a hearing in Loretta, a 14-year-old African-American girl, was juvenile court, during which a juvenile court judge was traveling to school on the subway one morning with a required to examine factors enumerated in the Supreme classmate. Sitting across from them was another student Court case of Kent v. United States.3 also on her way to school. The student was wearing an Such factors included the youth’s age and social attractive pair of gold earrings. Loretta’s classmate, who background, prior delinquency records, the nature of was 15 years old, bigger than Loretta, and with a reputa- past treatment efforts and the availability of programs tion as a bully, noticed the earrings and decided to have designed to treat a juvenile’s behavioral problems. The them. She stood up and walked over to the girl. Loretta Juvenile Offender Law prevented judges from taking followed. “Give me your earrings,” demanded the bully. these critical individual factors into account before pros- The student ignored her. She repeated the demand. The ecution in the adult court, and it did not provide ade- student tried to move away but was blocked by Loretta. quate resources to deal with the special needs of young Again, the bully menacingly demanded the earrings. The offenders. It represented a dramatic shift in policy from student continued to ignore her. As the train neared a rehabilitative justice for juveniles to punishment and station, Loretta’s classmate suddenly reached down and retribution. ripped the earrings from the girl’s pierced ears. As the New York’s Juvenile Offender Law presaged a grow- doors opened onto the subway station, they attempted to ing American trend to criminalize juvenile delinquency. flee from the train. Fortuitously, a policeman was stand- Since 1978, virtually every state in the nation passed ing on the platform. He saw the young girl screaming and laws that placed more young people in the criminal holding her ears. He stopped Loretta and her classmate as court, instituted harsher sanctions, and in some instances they tried to run. Loretta was charged as an accomplice in

NYSBA Journal | January 2008 | 21 the robbery and prosecuted along with her classmate as The juvenile justice reforms of the latter part of the an adult pursuant to the Juvenile Offender Law. 20th century were enacted with little empirical evidence When Loretta first appeared before me, I was told that of their effectiveness. Columbia University professor she had never been in trouble before and that she was a Jeffrey Fagan, in his aptly titled article “This Will Hurt Me talented dancer attending one of New York City’s schools More Than It Hurts You: Social and Legal Consequences for the performing arts. I asked a court representative of Criminalizing Delinquency,”8 analyzes the effects of from an alternative to incarceration program to interview statutes that permit the prosecution of juvenile offend- Loretta, who was being held in detention. A few days ers in an adult court, concluding that, rather than deter later, the program representative returned to court. She crime, they have had the opposite effect. This is so, he told me that she wanted to work with Loretta but that contends, because incarceration interferes at a critical Loretta had serious problems. She had asked Loretta a point in a child’s normal developmental transition from typical “social worker question” to get a sense of who adolescence to adulthood. It leads to the acclimation of a she was and her relationship to the community: “Loretta, violent lifestyle, which reflects the culture of prison life if you could change three things in your life, what would and it culminates in long-term economic disenfranchise-

“Unless the investment in children is made, all of humanity’s most fundamental long-term problems will remain fundamental long-term problems.” – UNICEF, “The State of the World’s Children” (1995) you change?” Loretta replied that she would change her ment through the stigma of felonization. Professor Fagan country, her family and her sex – her country because she concludes that “whatever the symbolic gains from sen- believed America was a racist society, her family because tencing adolescents as adults, these gains are discounted her mother was a crack addict and she never knew her if not reversed by increased public safety risks of substan- father, and her sex because she believed young women tial punishment of juveniles as adults.”9 were vulnerable to physical and sexual abuse. Laws that provide for the automatic prosecution of How well does the Juvenile Offender Law respond juveniles in adult courts fail because they are too broad to the issues presented by Loretta? Does it provide the in application, encompassing many whose needs could flexibility of dispositions that could link Loretta to appro- be better met, consistent with public safety, within the priate services? How likely is Loretta to receive adequate juvenile court: for example, children with no significant rehabilitative services in an adult criminal court setting? prior delinquency record or children on the periphery In 2005, the movement to restore the redemptive qual- of offenses and whose level of culpability rests solely on ity of justice for children in trouble with the law won a the law of accomplice liability. For those children who significant victory in the Supreme Court case of Roper are dangerous, these laws also fail because they do not v. Simmons.7 This decision signified the tangible begin- provide adequate sentencing flexibility or sufficient reha- ning of the counter-reformation in juvenile justice policy. bilitative services while incarcerated. An unprecedented coalition of advocacy groups com- State and federal governmental leaders are beginning posed of physicians, behavioral scientists, child advo- to recognize the destructive consequences of policies cates and lawyers came together to successfully challenge that unnecessarily expose young offenders to lifelong Missouri’s juvenile death penalty statute. Although Roper criminalization, not only in human terms but also in dealt with the constitutionality of executing minors under economic costs. As experience with the so-called “get 18, the Court’s rationale provides a compelling argu- tough” legislation has grown, the direct impact of these ment for the proposition that children under 18 should laws on federal, state and local budgets, as well as their be within the jurisdiction of a juvenile court and subject perceived disproportionate impact upon racial minori- to individualized treatment. In Roper, the Supreme Court ties, has increased pressure on political leaders to rethink recognized the developmental differences of minors their approach to crime prevention.10 under 18 as an accepted societal factor in determining New York has a rich history as a leader in raising the the appropriate treatment of juvenile offenders, thereby standards of justice for its citizens. Therefore, it is ironic officially acknowledging the conclusions of behavioral that in the realm of juvenile justice, we are fast becoming scientists as to the diminished capacity and culpability of isolated in our approach to juvenile wrongdoing. adolescents.

22 | January 2008 | NYSBA Journal New York can improve the way in which it addresses due process judicial hearing, as well as a reinvestment in juvenile crime by adopting a model of juvenile justice the resources and capacity of the Family/Juvenile Court.13 that incorporates the following four core principles: To prepare for this new category of young offenders, (1) the development and implementation of a statutory efforts to improve court diversion and pre-trial detention strategy of prosecution that serves to identify more pre- practices such as those suggested by the Annie E. Casey cisely dangerous, violent and chronic juvenile offenders; Foundation, as well as efforts to increase the number of (2) the development of “punishments” that are primar- Family Court judges and support personnel, must be a ily intended to educate an offender; (3) a system of part of the legislative plan.14 The commission would be prosecution and punishment of juveniles that is flexible required to submit its final report and recommendations enough to recognize and accommodate juveniles who for appropriate legislation and funding to the New York have the capacity to change their behavior by participat- State Legislature within a reasonable deadline. ing in alternative-to-incarceration programs; and (4) the Our children deserve a system of justice that not development of mechanisms to remove the stigma of a only holds them accountable for their behavior but also felony conviction from those juveniles convicted in the protects and nurtures those who can learn from their adult criminal court but who have demonstrated after a mistakes and become productive citizens. The long-term sufficient period of time that they have conformed their goal is to create a model juvenile justice system that behavior to society’s standards. unites the juvenile court and criminal court in a common Although the judgments of state legislatures have dif- strategy – the rehabilitation of juvenile offenders. This fered in distinguishing childhood and adulthood in terms can be accomplished in a system that provides for the of fixing criminal responsibility and determining appro- individualized treatment of all offenders under 18 years priate sanctions, most states recognize the age of 18 as of age. ■ the age of majority in civil contexts. The model I propose would extend that recognition, in light of the vulnerabil- 1. N.Y. Penal Law § 10.00(18). ity and malleability of adolescents, and in keeping with 2. Although § 180.75(4) of New York’s Criminal Procedure Law permits the removal of an action against a juvenile offender to the Family Court, these the four core principles that I have discussed, to require provisions have proved to be largely ineffective and impracticable. all youth under 18 to be prosecuted in the juvenile court. 3. Kent v. United States, 383 U.S. 541 (1966). A youth under 18 years of age could be transferred to the 4. See Franklin E. Zimring, American Youth Violence (Oxford University adult court, but only after a due process judicial hearing Press, 1998). See also Linda F. Giardino, Statutory Rhetoric: The Reality Behind in which such a child was found not to be amenable to Juvenile Justice Policies in America, 5 J.L. & Pol’y 223 (1996). the programs or sanctions available in the juvenile court, 5. See Zimring, supra note 4. or that the public’s interest would be best served by pros- 6. See P. Torbet, P. Griffin & H. Hunt, Jr., Juveniles Facing Criminal Sanctions: ecution in the adult court. Three States that Changed the Rules, U. S. Department of Justice, Office of Justice I would further recommend that no youth under 14 Programs, Office of Juvenile Justice and Delinquency Prevention (2000). years of age be transferred to the adult court unless it 7. Roper v. Simmons, 543 U.S. 551 (2005). can be established by clear and convincing evidence that 8. 16 Notre Dame J.L. Ethics & Pub. Pol’y 1 (2002). he or she is competent to understand and assist in the 9. Id. at 28. See also Laurence Steinberg et al., Reentry of Young Offenders from proceedings.11 Such a system would be consistent with the Justice System: A Developmental Perspective, 2 Youth Violence & Juv. Just. 21, American Bar Association standards as well as national 28–29 (2004). and international norms.12 10. See Michael Jacobson, How to Reduce Crime and End Mass Incarceration, A judicial waiver or transfer system would ensure Downsizing Prisons (New York University Press, 2005). that no child is prosecuted as an adult without a judicial 11. Requiring that no juvenile under 14 years of age be transferred to adult court without a specific finding of competence is consistent with recom- hearing that carefully examines the child’s level of matu- mendations of experts in the field of child psychology who have found that rity, past history, role in the offense and amenability to “current knowledge about adolescent development raises strong doubts treatment. Juvenile court judges are uniquely qualified to about the capacities of youths 13 and younger . . . to assist effectively in their own defense and to make self-interested decisions.” See Richard J. Bonnie & perform this task because they have witnessed many of Thomas Grisso, Adjudicative Competence and Youth Offenders, in Youth on Trial: these children enter the dependency system as infants in A Developmental Perspective on Juvenile Justice 89 n.31 (Thomas Grisso & abuse and neglect proceedings, as children navigating the Robert Schwartz, eds., 2000). foster care system, as persons in need of supervision, and 12. See IJA-ABA Juvenile Justice Standards, Standard 1.1 (relating to transfer as respondents in delinquency proceedings. between courts); see also United Nations Convention on the Rights of the Child. In order to implement such reform, New York should 13. See Final Report, Connecticut Juvenile Jurisdiction Planning and establish a commission whose purpose would be to Implementation Committee (Feb. 12, 2007). develop legislation that would result in the expansion of 14. See David Steinhart, Pathways to Juvenile Detention Reform: Planning the Family Court’s delinquency jurisdiction to children for Juvenile Detention Reform – A Structured Approach (The Annie E. Casey under the age of 18 with a provision that would allow for Foundation, 1999). the transfer of certain cases to the adult court only after a

NYSBA Journal | January 2008 | 23 JACQUELINE D. SHERMAN is the Director of the Center for Courts and the Community, a statewide program that works to inform the public about the courts, engage young people and adults across New York in the work of the courts, and to demonstrate the commitment of the judiciary to understanding and meeting community needs. She received a B.A. from Amherst College and a J.D. from Harvard Law School. Ms. Sherman’s commitment to civic education stems from her experience working in the public sector, observing firsthand the positive influence informed, active and organized citizens can have on government.

DORY HACK, the Deputy Director for the Center for Courts and the Community, received a B.A. from Wesleyan University. Previously, Ms. Hack was the Project Coordinator of the Youth Justice Board.

2006–2007 Youth Justice Board in front of the New York County Family Court. Preparing Young Citizens for Democracy By Jacqueline Sherman and Dory Hack

istilling his study of American democracy, Alexis Red Hook Youth Court de Tocqueville observed that it “is hard to make The Red Hook Youth Court in Brooklyn is one of nearly Dthe people take a share in government; it is even 100 youth courts across New York State.3 As youth court harder to provide them with the experience and to inspire members, teens learn how the justice system works, how them with the feelings they need to govern well.”1 The to use sanctions to address illegal behavior, and how words frame an essential challenge for civic education they can have a positive influence on their peers. They today, especially for the judicial branch. Given that young step into the roles of judge, jury and advocate to hear real people cannot participate in government by voting or cases (referred by courts, police precincts and schools) serving on juries, and given a certain natural cynicism, involving truancy, vandalism and assault. Youth court how do we help them develop the kinds of knowledge members use their unique insights to craft sanctions and skills they need to become active citizens? that emphasize community restitution and engagement. Dozens of exceptional programs across New York The justice system is no longer some distant authority – State’s justice system are currently attempting to meet young people essentially become co-producers of justice. Tocqueville’s challenge. For over 30 years, the State Bar Naraya’s4 story illustrates how youth courts have the Association’s Law, Youth and Citizenship Program has power to turn a negative incident into an opportunity for promoted superior citizenship and law-related educa- positive change. Naraya approached her interview with tion in schools throughout the state. The New York State Shante Martin, the Red Hook Youth Court coordinator, Learning Standards2 require schools to teach students with skepticism. She had heard about youth court when the values and responsibilities of citizenship. Mock tri- she got in trouble before and did not want any part of it. als and debate teams engage youth intellectually and But after she was caught with a weapon at school, her build skills essential to participation in the give and take social worker scheduled an appointment with Martin. of democratic institutions; service learning projects and Naraya’s grandmother escorted her to the Red Hook art-based activism provide additional avenues for youth Community Justice Center to make sure that she got participation. there. What Martin said came as a surprise: the goal of the In recent years, two new models have emerged that proceeding would not be to punish Naraya, but to give seek not only to educate young people about the judicial her an opportunity to take responsibility for her actions. branch, but also to involve them in grappling with thorny, If she participated respectfully in the process and submit- real-life problems – youth courts and the Youth Justice ted to a sanction imposed by the court’s jury, she could Board. Both provide young people with knowledge and clear up the matter. If she refused, the incident could be experience that will inspire them to take a share in gov- taken into account if she got in trouble again. Naraya ernment and govern well. decided to cooperate.

24 | January 2008 | NYSBA Journal She was next interviewed by a “youth advocate,” the ning process. The program aims to create youth leaders youth court member who would represent her during a and to foster dialogue between teens and policymakers. hearing before the full court of eight teens, most of whom In essence, the Youth Justice Board is an experiential she knew from school and the public housing projects civics class, engaging participants not in abstract book of Red Hook. The meeting changed Naraya’s attitude. learning but in conversation with practitioners respon- The youth advocate explained exactly what was going to sible for formulating and implementing policy in the real happen and informed her that the members of the youth world. A snapshot of a recent Youth Justice Board presen- court were not against her – they were there to help her. tation gives a sense of how the program works. Now she was looking forward to this process. The most recent Youth Justice Board presentation was At the hearing, Naraya’s advocate told her story: devoted to the subject of how the New York City perma- Naraya knew that carrying a knife to school was wrong nency planning process might be improved for youth in but succumbed to pressure from her friends to do so. She foster care, a subject the Board had studied for months. did not intend to use the weapon; she just wanted to be A standing-room-only crowd packed the room to hear accepted. Naraya reported that she maintained a 70 aver- the report. Key stakeholders in New York City’s child age, but wanted to improve her grades so that she could protection system – judges, court attorneys, law guard- become a lawyer. After her advocate spoke, the group ians, prosecutors, caseworkers, and foster care provider peppered her with questions, drawing out information agency directors – chatted while they waited for the pre- about the circumstances of the incident, her feelings sentation to begin. A television crew worked busily in the about it and her future goals. After the questioning, her back of the room. advocate closed by highlighting her positive intentions and acknowledging that while she had made a bad choice, she is not a bad person. He asked the youth court to give her a sanction that would help her realize the negative effects of her actions and learn from them. After several minutes of discussion, the jurors reached consensus. They ordered Naraya to perform 15 hours of community service at a nearby health clinic and to attend a workshop about negative peer pressure and poor deci- sion making. Before sending her away, one of the jurors asked Naraya: “Since you would like to be a lawyer, how would you feel about becoming a youth court member yourself?” Fast forward to today. Naraya has completed her com- munity service and has begun training to become a youth court member. She will soon hear cases of people in situa- tions like the one that brought her to the youth court and help them as her fellow members have helped her. While not all teens that appear before the Red Hook Youth Court as respondents follow this path, the program has shown impressive results. It handles more than 140 cases each year and has trained more than 400 young people since 1998. Compliance with youth court sanc- tions stands at 85% – a significant improvement on the rate achieved by most adult judges. Judge Alex Calabrese, who often refers young offenders to the Red Hook Youth Court, has said, “[T]he message teens get from peers is more effective than the one any adult can give them.”

Youth Justice Board Artwork created by Michael, Youth Justice Board member, June 2007. The Youth Justice Board is an after-school program that brings together 15 to 20 teenagers from different New At the front of the room a group of teens – many of York City schools to devise recommendations on justice whom had spent time in the foster care system – waited, system issues that affect youth, such as school safety, their nervous energy on display. Some posed for photos, juvenile offenders returning to New York City following some rehearsed one last time, and some fidgeted quietly, placement in a state facility, and the permanency plan- peering out at the crowd settling in to hear them speak.

NYSBA Journal | January 2008 | 25 The Youth Justice Board members had earned the lesson that will affect how they will operate in school, in audience assembled before them through hard work. jobs, and in their communities in years to come. As one Their research included over 40 interviews, court obser- Youth Justice Board member put it, “This is the first time vations, and focus groups with youth in the foster care I feel like I’ve accomplished something. Not only do I feel system. The members examined and debated the perma- like I can make a difference for other youth in foster care, nency planning process from every angle. Early on, they it’s helped me speak up for myself, and talk about what I identified their goal: to help foster care youth participate think is important.” in their court cases so that the process could better meet their needs. Now they were presenting their report: Conclusion “Stand Up, Stand Out: Recommendations to Improve These two program models offer only a glimpse of a Youth Participation in New York City’s Permanency much larger universe of programs that provide young Planning Process.”5 They had identified concrete steps participants with an understanding of how democratic to help prepare youths to take a more active role in their institutions work and help them develop a commitment cases; to strengthen system-wide collaboration; and to to take part in government. The further the reach of such ensure that the court environment facilitates meaningful programs expands, the closer we will come to ensuring youth involvement. that all of our citizens have the experience necessary to The members fielded questions and heard suggestions govern well. ■ from the audience. One provider agency offered to pilot peer-led workshops. A law guardian suggested that the 1. Alexis de Tocqueville, Democracy in America 315 (J.P. Mayer ed., George Lawrence Trans.) New York, NY: Perennial Classics 2000) (1835). Youth Justice Board participate in presentations to new 2. These are standards approved by the Board of Regents to define what all attorneys on the needs of teenage clients. The members New Yorkers should know, understand and be able to do as a result of their saw their recommendations begin to become more than schooling. words on a page. 3. The state’s first youth court was established in Colonie, New York, in The Youth Justice Board will spend the next nine 1995. Since 2002, youth courts across the state have collaborated through the Association of New York State Youth Courts to strengthen and promote the use months working in partnership with stakeholders in the of youth courts as an important feature of the juvenile justice system. permanency planning process on the implementation 4. Not her real name. of some of the Board’s recommendations. The program 5. The full report is available at .

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26 | January 2008 | NYSBA Journal

OLIVIA GOLDEN, PH.D. served as New York’s Director of State Operations for Governor Spitzer during 2007. Prior to her service in New York, Dr. Golden was a Senior Fellow and Center Director at the Urban Institute in Washington, D.C. and previously served as Commissioner for Children, Youth, and Families and Assistant Secretary for Children and Families for the U.S. Department of Health and Human Services. Dr. Golden received her B.A., Masters in Public Policy and Ph.D. in Public Policy from Harvard University.

Artwork created by Markita, age 16, a participant in the Chautauqua County Foster Care Youth Art Contest. What Will It Take? Improving the Lives of All New York’s Children By Olivia Golden

his is a moment of opportunity for children in New Who Are New York’s Children? York State. As Governor Spitzer writes elsewhere How Are They Doing? Tin this issue of the Journal, investing in children is About one in four, or 4.5 million, of New York’s residents essential to safeguarding New York’s economic future. It are children age 17 or younger. Of these children, just is also part of the Governor’s commitment to One New over one quarter are of preschool age (birth to four), York – to a state that is based on principles of fairness, so about half elementary school age (five to 13) and just a child’s life chances are not determined by whether her under one quarter high school age (14 to 17). parents could afford to send her to preschool or purchase Over the next decade, the number of children in New family health insurance. York is expected to remain stable while the number of In the 2007–2008 budget, the Governor and the working-age adults decreases, as workers reach retire- Legislature went beyond simply articulating this com- ment age. This decrease means that young adults enter- mitment – they backed it up with funding and statutory ing the workforce are particularly crucial to New York’s changes. The budget included a historic increase in fund- economic future – so we must successfully prepare every ing for pre-kindergarten programs; a historic investment child for adulthood. Across the state, business and com- in education, together with a new framework to ensure munity leaders have persistently highlighted to me their accountability for results; and the funding and statutory sense of urgency about this goal. In their view, the future changes to ensure that all 400,000 uninsured children in of our communities requires our children to experience New York gain access to health insurance within the next the right education, health care and family support so four years. they can thrive as adults, replace an aging workforce and Yet there is much more to do to build on this moment drive New York’s economic future. of opportunity and early accomplishment. Taking the Achieving this goal, however, means grappling next steps will not be easy: the experience nationally, as with the demographic and economic circumstances well as in New York State, suggests the challenges to be of our children, who are increasingly different from negotiated by any ambitious agenda for children. This older adults. One third of New York’s children have at article summarizes the current circumstances of New least one parent who is foreign-born. About one in five York’s children, the nature of the agenda ahead and children in New York is Latino and one in five African the special features of the Governor’s approach that are American – compared to one in ten Latino and one in intended to overcome the challenges. ten African-American among New Yorkers age 65 and

28 | January 2008 | NYSBA Journal older. And even though the large majority of New York Board. Second is the challenge of federal roadblocks. Our State’s children live in families where one adult (or more) strategy combines active national leadership and advo- works full-time, year-round, four in 10 children live in cacy with state implementation. Third is the challenge low-income families, defined as families with incomes of effectiveness: ensuring that implementation delivers below twice the federal poverty level or about $40,000 for results, not just good intentions. The strategy is to ground a family of four. the agenda in research and data. The challenge of high-work yet low-income families is a problem that cuts across New York State’s regions, with The Children’s Cabinet: about 40% of children upstate and almost 50% in New Why It Matters and How It Works York City growing up in low-income families. According Across the country, fragmented government structures to national data – which likely understate the problem in for health, education, early childhood programs, mental New York’s high-cost regions – at least a quarter of fami- health, economic support and family services make it lies at this income level have trouble paying the mortgage harder for programs to meet the interconnected needs of or rent and about the same proportion have trouble put- children and their parents. New York State has been no ting food on the table over the course of a year. exception. In fact, it has even more agencies, more differ- Given how much we depend on this generation of ent jurisdictions and more separate reporting structures children, we cannot yet feel confident that we have than most other states. secured their futures. The most recent education data To overcome this fragmentation and bring everyone from the State Education Department (SED) show that to the table to deliver results for children, the Governor only about six in 10 eighth-grade students test at or above created the Children’s Cabinet and the Children’s Cabinet SED’s math learning standards and about five in 10 meet Advisory Board. The Children’s Cabinet is not an infor- or exceed SED’s standards in language arts. And major mal group of expert advisors or a think tank. Instead, disparities among different groups of children persist: it provides a formal structure, established by Executive For example, despite improvements between the years Order, that brings the key agencies together and requires 2004 and 2006, fewer than half the African-American and them to take joint responsibility for achieving results: Hispanic students graduated from high school within first, in the two priority areas of early learning and health four years even in the 2006 cohort, compared to about two-thirds of all students. Similarly, while more than 90% of New York’s children have health insurance, that still leaves over 400,000 who do not.

What Will It Take to Succeed? Solutions to the Historic Challenges Our challenge, therefore, is to turn the historic commit- ments made to children in the 2007–2008 budget into real improvement in children’s lives and New York’s future. Beyond appropriating the dollars for children’s health insurance, important as that is, we need to make sure that children are actually enrolled in health insurance plans, are able to find doctors and clinics, and – over time – are in better health. Similarly, for the increased preschool appropriation to make a difference, children need to be enrolled in and attending pre-kindergarten programs, the programs need to have good teachers who are expe- rienced in promoting young children’s development, and the other child care settings children spend time in – for example, the family child care provider or child care center they attended during the first four years of their lives – also need to provide care that prepares them for learning. To change children’s lives in these ways requires that we take on three challenges. First is the fragmentation challenge, which has defeated many public programs for children. The Governor has taken on this challenge by establishing a Children’s Cabinet with an active Advisory

NYSBA Journal | January 2008 | 29 insurance; and second, and more broadly, in achieving use technology to smooth the enrollment of children in the Governor’s children’s agenda. health insurance. Even after just a few months, this new way of operat- ing has paid off for children. For example, SED, the Office National Leadership to Overcome Federal Barriers of Child and Family Services (OCFS), the Council on In contrast to the focus of New York State’s leadership, Children and Families (CCF) and the Governor’s Office public and private, on making a positive difference for have collaborated closely so that as many school districts children, the federal government has too often placed as possible will implement pre-kindergarten programs obstacles in the way. The Governor in his article writes this year. Among the early products of the collaboration of the planned expansion of the State Children’s Health is a new regulation adopted by the Board of Regents Insurance Program (SCHIP) to cover all children, includ- to allow school districts the planning time they need to ing children in families with incomes up to 400% of pov- implement new pre-k programs. Based on this regulation, erty (about $80,000 for a family of four), who do not have New York City has already increased the number of pre-k insurance. Unfortunately, however, the U.S. Department classrooms and enrolled children beyond initial expecta- of Health and Human Services chose to change the rules tions. Other districts which originally did not expect to on children’s health insurance – through a letter sent to

“Just don’t be dissuaded because people don’t want to hear your message or are moving too slowly. Unlike many disasters, change for good rarely ‘strikes suddenly.’ With persistence, with a steady blend of thought, talk and action, it happens incrementally until hopefully it seems to take on a life of its own.” – Carol Bellamy participate at all this year are now preparing to start pre-k the states late on a Friday night – to defeat New York’s classes on January 1. plans, and those of dozens of other states, to cover more Another fragmentation challenge for children’s pro- children. grams around the country is the disconnect between On October 1, 2007, Governor Spitzer announced a public and private sectors – between public programs on multi-state lawsuit against the Bush administration charg- the one hand and researchers, advocates, business and ing that the abrupt policy change was not supported by labor leaders, and nonprofit practitioners on the other. the law and was made without following proper proce- Even when all parties care about children, it may be hard dures. In addition the Governor, along with a bipartisan for those outside government to understand how to con- coalition of Governors, has worked closely with members nect to the bureaucracy. In New York State, with its com- of Congress – including the two Senators and 29 House mitment to local control, another challenge can be unclear members of New York’s Congressional delegation – to relationships and communication between state and local urge the reauthorization of SCHIP to expand enrollment agencies. of children. This story is still unfolding and will undoubt- To bring all these partners together as well, the edly affect children across the nation, not only through Governor has appointed an Advisory Board to the the immediate legislative action but because the leader- Children’s Cabinet, co-chaired by Geoffrey Canada of ship of the bipartisan Governors will set the framework the Harlem Children’s Zone and Karen Schimke of for future national policy discussions. the Schuyler Center for Public Policy and Advocacy. Chief Judge Judith S. Kaye is a distinguished member Grounding the Strategy in Research and Data of this group. The Advisory Board includes members A key element of the Governor’s approach is to ground from across the state, representing experts, community all strategies in the evidence – that is, what works. For and local government leaders and practitioners, and is example, research about early childhood programs pro- charged with bringing to the Cabinet its real-world vides a strong argument for investing in high-quality pro- knowledge of barriers, solutions and next steps. Early grams. In fact, the Federal Reserve Bank of Minneapolis, on, the Cabinet and the Advisory Board decided to jump- summarizing the evidence from a number of studies, start their collaboration through joint working groups argues that investing in high-quality early childhood pro- focused on very practical issues like local implementa- grams provides a better economic return than investing tion, how to bring funding streams together and how to in education or training at any other age.1

30 | January 2008 | NYSBA Journal Following this evidence, the Children’s Cabinet and The Future the Advisory Board are delving into the quality of pro- The Governor’s ambitious goal is that New York State grams, not only the number of children enrolled. SED, will erase the inequities that hold children back from which is required by statute to develop early childhood fulfilling their true potential – and will reap the benefits learning standards, and OCFS, which is developing a of this unprecedented commitment to a whole generation quality rating system2 that groups programs into differ- as young people leave school healthy, well-educated and ent tiers, have committed to collaborating on their work prepared to thrive in the new innovation economy. Over – important for providers and for parents, who will at the coming years, we will be moving step by step toward last see a coherent vision about what a good program is. this goal, seeking to make important strides and at the With this coherent vision, we should also be able to plan same time to gather and assess the data that will tell us a shared approach to measurement, so that we can track if we need to refine or redirect our efforts. With the con- not only the number of children in programs but also the tinuing involvement of New Yorkers from all parts of the characteristics of the programs and the results for chil- state and all walks of life, we believe that this vision can dren’s learning and development. become a reality. ■ The Cabinet is also using data to constantly improve its strategies. For example, data on children’s enrollment 1. Rob Grunewald & Arthur Rolnick, Early Childhood Development: Economic Development with a High Public Return, Mar. 2003, . ting children enrolled but also keeping them enrolled: a 2. Quality rating systems, used in many states to provide information about large number of children are dropped from the program quality, are analogous to more familiar rating systems, like rating hotels with each month. Potential solutions include simpler forms, one through five stars. more follow-up with parents and more effective use of technology.

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NYSBA Journal | January 2008 | 31 MARIAN WRIGHT EDELMAN is the founder and President of the Children’s Defense Fund, the nation’s leading advocacy group for children and families. Mrs. Edelman graduated from Spelman College and Yale Law School. In 2000, she received the Presidential Medal of Freedom, the nation’s highest civilian award, and the Robert F. Kennedy Lifetime Achievement Award for her writings. For more information about the Children’s Defense Fund, visit www.childrensdefense.org.

A Call to Action The Cradle to Prison Pipeline Crisis By Marian Wright Edelman

t is time for adults of every race and income group relentless stream of violence equivalent to the tragic to break our silence about the pervasive breakdown Virginia Tech massacre but without the outcry. Over Iof moral, family, community and national values; 200 million guns saturate our nation’s communities to place our children first in our lives; and to struggle and homes, leaving none of us safe. to model the behavior we want our children to learn. • Every minute a baby is born to a teen mother. Our “child and youth problem” is not a child and youth Children having children would fill up the city of problem; it is a profound adult problem as our children Atlanta each year. do what they see us adults doing in our personal, pro- • Every two minutes a baby is born at low birth- fessional and public lives. They seek our attention in weight. The U.S. ranks 24th among industrialized negative ways when we provide them too few positive nations in infant mortality and 22nd in low birth- ways to communicate and to get the attention and love weight babies. Yet our political leaders in both par- they need. And we choose to punish and lock them up ties continue to refuse to ensure all pregnant women rather than take the necessary, more cost-effective steps prenatal and postpartum care to help assure all chil- to prevent and intervene early to ensure them the healthy, dren a healthy start in life. head, safe, fair and moral start in life they need to reach These statistics reflect children of every race, place and successful adulthood. family type. But minority children fare far worse. Black • A child is abused or neglected every 36 seconds, babies are almost four times as likely as White babies to over 880,000 a year. A child dies from abuse or have their mothers die in childbirth and are more than neglect every six hours, about 1,460 a year. twice as likely as White babies to be born at very low • A child is born into poverty every 36 seconds. Our birthweight and to die before their first birthday. Black 13 million poor children far exceed the combined children are more than three times as likely as White chil- populations of Haiti and Liberia. Children who live dren to be born into poverty and to be poor, and are more in households with annual incomes of less than than four times as likely to live in extreme poverty. One $15,000 are 22 times more likely to be neglected or in four Latino children and one in three Black children abused than those with incomes of $30,000 or more. are poor. Between 2000 and 2006, poor Latino children • A baby is born without health insurance every 47 increased by more than 500,000 (to 4.1 million) and poor seconds; 90 percent of the nine million uninsured Black children increased 132,000 (to 3.8 million). children live in working families and a majority What must children feel when those entrusted with in two parent families. Forty American states each caring for them in their homes, neighborhoods, schools have fewer than nine million people. and other institutions abuse and neglect them? How great • A child or teen is killed by a firearm about every must be their fear and anger when parents and relatives three hours – almost eight a day. Every four days are snatched away from them by drugs and gun violence 32 children and teens die from guns in an invisible, and incarceration. How scary it must be for a child to

32 | January 2008 | NYSBA Journal sleep in an unsafe shelter full of strangers with no place ers to prevent and remove these multiple, accumulated to call home. How angry and rejected a child or teen must obstacles, so many poor and minority youths are and will feel when there is no loving, reliable person he or she can remain trapped in a trajectory that leads to marginalized trust and who is being shunted from one family foster lives, imprisonment and premature death. home or group home to another and from one school that The Pipeline is not an act of God or inevitable; it is a suspends and expels him or her to another. How isolated series of human choices at each stage of our children’s and alone a child or teen must feel when no one sees or development. We created it, we can change it. We know cares whether you’re truant or home before dark or strug- what to do. We can predict need. We can identify risk. We gling to see the blackboard or have a learning disorder. can prevent damage. We can target interventions. We can Our children don’t need or expect us to be perfect. monitor progress. In so doing, we can guarantee returns They do need and expect us to be honest, to admit and on public investments and control costs to children and correct our mistakes, and to share our struggles about society. We can train professionals and create programs that the meanings and responsibilities of faith, parenthood, heal and nurture. We can adapt and replicate strategies that citizenship and life. So many children are confused about work in communities across our nation and incorporate what is right and wrong because so many of us adults them in policy. We can restore hope and build on child talk right and do wrong in our personal, professional and strengths and resiliency. We can wrap buffers around our public lives. children’s fragile places, bind up their wounds and prepare The Cradle to Prison Pipeline crisis can be reduced them with spiritual anchors to better weather the storms of to one simple fact: The United States of America is not a life. We have the knowledge and the experience to do this. level playing field for all children and our nation does not It is not impossible or futile as countless inspiring stories value and protect all children’s lives equally. Countless of children and youth beating the odds every day attest. children, especially poor children of color, already are in What it takes is a critical mass of leaders and caring adults the pipeline to prison before taking a single step or uttering with the spiritual and political will to reach out and pull a word, and many youth in juvenile justice facilities never children at risk out of the Pipeline and never let go and who were in the pipeline to college or success. They were not will make a mighty noise until those in power respond to derailed from the right track; they never got on it. our demands for just treatment for children. This will not So many poor babies in rich America enter the world with multiple strikes already against them: without pre- natal care and at low birthweight; born to a teenage, poor and poorly educated single mother and absent father. At crucial points in their development, from birth through adulthood, more risks and disadvantages cumulate and converge that make a successful transition to produc- tive adulthood significantly less likely, and involvement in the criminal justice system significantly more likely. Lack of access to physical and mental health care; child abuse and neglect; lack of quality early childhood educa- tion to get ready for school; educational disadvantages resulting from failing schools that don’t expect or help them achieve or detect and correct early problems that impede learning; zero tolerance school discipline policies and the arrest and criminalization of children at younger and younger ages for behaviors once handled by schools and community institutions; neighborhoods saturated with drugs and violence; a culture that glorifies excessive consumption, individualism, violence and triviality; ram- pant racial and economic disparities in child- and youth- serving systems; tougher sentencing guidelines; too few positive alternatives to the streets after school and in summer months; and too few positive role models and mentors in their homes, community, public and cultural life overwhelm and break apart fragile young lives with unbearable risks. Without significant interventions by families, commu- nity elders and institutions, and policy and political lead-

NYSBA Journal | January 2008 | 33 happen unless you and I do the hard work to build a move- 6. Commit to helping the richest nation on earth end ment to save all our children and nation’s soul. We can: the child and family poverty that drives so much of 1. Name and change the Pipeline and work together, the Pipeline process and the racial disparities faced recognizing that children do not come in pieces but by Black, Latino and American Indian children who in families and communities and are profoundly are disproportionately poor. It is not right, sensible affected by the norms, priorities, policies and values or necessary to have 13 million poor children in of our nation and culture. There are many wonder- a $13.3 trillion economy. No other industrialized ful people engaging in effective efforts all across our nation permits such high rates of child poverty. land addressing a piece of the Pipeline. The chal- Benjamin Franklin said a long time ago that the lenge is to connect all the pieces to see and under- best family policy is a good job. A majority of poor stand the whole Pipeline while breaking it down children live in working households, yet private into manageable pieces for action, always seeing sector and government policies do not ensure that how each piece affects the whole child. work pays enough to escape poverty and get health 2. Call and work for a fundamental paradigm shift in care. Parents need a range of work and income sup- child policy and practice toward prevention, early ports to make ends meet, including expanded and intervention and sustained child investment and away refundable earned income tax and child tax credits from the too frequent first choice of punishment and and minimum wage laws adjusted for inflation. incarceration. That our President and Congress refuse They also need access to education and training to to invest enough money to provide all nine million improve themselves including at least the chance to uninsured children the health care they would not attend a community college. deny a single one of their own children for a single 7. Dramatically decrease the number of children who day, and that taxpayers provide them, should be an enter the child welfare and juvenile and criminal urgent issue in 2008 and until a national child health justice systems, stop detaining children in adult and mental health safety net is in place. The lottery of jails, and reduce the racial disparities in these and birth should not dictate child survival. all other child-serving systems. Children need 3. Ensure every child quality Early Head Start, Head strong and loving families and communities who Start, child care and preschool to get ready for work together to keep children safely at home school. High quality early childhood programs help whenever possible: to be moved out of foster care children do better in school, avoid special education promptly and into permanent caring families, and and stay out of trouble. Yet only 50% of children eli- to be helped not to reenter care unnecessarily or gible for Head Start get it. get shunted from child welfare to the juvenile and 4. Link every child to a permanent, caring family criminal justice systems. Measures to prevent teen member or adult mentor who can keep them on pregnancy, provide quality parent-child home visit- track and get them back on track if and when they ing programs, comprehensive and quality commu- stray. The fabric of community must be rewoven to nity family support programs to prevent neglect and catch falling children until our torn family fabric can abuse, and comprehensive family-based substance be repaired. We must bring to scale promising prac- abuse treatment to keep children out of the child tices that engage and enrich children during out-of- welfare system are critical. school time and encourage more minority youths to 8. Confront America’s deadly, historic romance with see teaching and child advocacy as urgent callings. guns and violence, and stress more nonviolent And every adult who works with children in our values and conflict resolution in all aspects of education, health care, child welfare and juvenile American life. It is time to provide a counter vision justice systems should love and respect children or in word and deed to help our children redefine go do something else. The most important mentors what constitutes success in life. in children’s lives are those they come into regular America’s moral compass and investment priorities need contact with in their homes, schools and communi- resetting. We are sliding backwards, teetering on the brink ties and through the all pervasive media. of destroying at home and around the world the very val- 5. Make sure every child can read by fourth grade and ues of freedom and justice that make America America. It will graduate from school able to succeed at work is time to ensure every child a healthy, head, fair, safe and and in life. An ethic of achievement and high expec- moral start in life and successful transition to productive tations for every child must be created in every adulthood; to confront the deadly intersection of poverty home, congregation, community and school and in and race where so many child dreams and futures are our culture and public policies and practices. Turn wrecked; to ensure all our children a level playing field; off the television and pick up the books. Make read- and to affirm the basic tenet of every great faith that each ing cool and fun. child’s life is sacred and of equal value. ■

34 | January 2008 | NYSBA Journal MEREDITH WILEY is the state director of Fight Crime: Invest in Kids New York. She received her law degree from the Willamette College of Law (cum laude) and her master’s in public administration from Harvard University’s Kennedy School of Government. Ms. Wiley is the co-author of Ghosts from the Nursery: Tracing the Roots of Violence, a book that explores the impact of early child abuse and neglect on child development and crime. For further information regarding Fight Crime: Invest in Kids New York visit the Web site at www.fightcrime.org/ny.

Conquering Youth Violence By Meredith Wiley

ike every other state across the nation, New York human species. We grow a brain that allows us to sur- is wrestling with what to do about the numbers of vive in the world into which we are born. Before we can Lviolent children in our midst, overwhelming our speak our first complete sentences we have a very strong education, social services and juvenile justice systems, to take on whether or not the world is safe or dangerous name but a few. In the aftermath of particularly horrific and whether we can trust other people; and our brain incidents – Jonesboro, Paducah, Springfield, Columbine, has organized itself in response to this information. This Virginia Tech – we grieve together, bringing flowers and is a time of both enormous vulnerability and enormous candles, playing “Amazing Grace” on the bagpipes as yet potential.1 again we bury dead students and dead teachers. Toxic substances – prenatal exposure to alcohol, drugs And as the dreadful images play over and over on the and nicotine – combined with toxic experiences – abuse, evening news and the headlines splash across the front neglect, domestic violence – adversely affect both the pages of the morning papers, we ask ourselves why? architecture and the neurochemistry of the brain. Physical What gets into these kids? How can they go to school abuse also takes its toll. Abused children can develop and gun down their classmates in such a cold-blooded, post-traumatic stress disorders (PTSD) and suffer perma- calculated manner? Where are these kids coming from? nent alterations in their neurochemistry. Even when noth- Contrary to what many may believe, the answer to the ing is threatening them, their brains can become stuck in question “why” is not a mystery. It lies in the develop- “red alert” resulting in high resting heart rates and high mental processes of the human brain where all behavior levels of stress hormones in their blood. Severely neglect- originates. Psychiatrist Dr. Bruce Perry, founder and head ed children frequently respond to others with aggression of the Child Trauma Center in Houston, Texas, says it and cruelty that is often accompanied by a cold lack of best: “It isn’t the finger that pulls the trigger, it’s the brain. empathy. Some researchers, such as Dr. Perry, believe that It isn’t the penis that rapes it’s the brain.” the most dangerous children of all are created by a malig- nant combination of early physical abuse and neglect, a Where It Begins lethal mix that can create violent and remorseless chil- Violence begins in the brain and the brain begins in the dren who grow into violent and remorseless adults.2 womb. Prenatally and during the first months and years The cumulative damage to these kids is devastating. A of life, the brain undergoes an explosion of development study done by Casey Families Programs in Seattle in 2004 that is never repeated. It organizes itself in relation to showed that, at age 22, children who had been in foster information coming in from the child’s environment. care in Oregon and Washington were more than two Biologically it is part of the adaptive capacity of the times as likely to suffer from PTSD as Gulf War veterans.3

NYSBA Journal | January 2008 | 35 The symptoms of PTSD in children – often mistaken for The research shows that the best time to intervene other things such as attention deficits, behavioral prob- for children at high risk of abuse and neglect is to begin lems, learning disabilities and mood disorders – cause before they are born. For example, the Nurse-Family all sorts of problems including serious interference with Partnership Program randomly assigned at-risk preg- learning in school. nant women in Elmira, New York, to receive home visits Early experiences have a profound impact on whether beginning prenatally by nurses who provided coaching a child’s developing brain provides a strong or weak in parenting and other skills, up to the child’s second foundation for all future learning, behavior and health.4 birthday. By age 15, child abuse and neglect was reduced Abuse or neglect during this time can make children more by 49% for children in the program. There was a 90% susceptible, not only to later aggression and violence but reduction in adjudications as PINS (persons in need of to a host of long-term negative outcomes including men- supervision) for incorrigible behavior, a 59% reduction in tal and physical illnesses.5 Early maltreatment under- the number of children arrested and a 61% reduction in mines a child’s ability to master the developmental tasks arrests of the mothers.9

“Feelings are real and legitimate; children behave and misbehave for a reason, even if adults cannot fi gure it out.” – Unknown fundamental to school readiness and life success.6 The Another in-home parent coaching program, Healthy reality is that school readiness begins in the womb.7 With Families New York, has also shown promising initial nearly 71,000 confirmed cases of child abuse and neglect results based on a two-year randomized control evalu- in New York State in 2005, to say nothing of thousands ation.10 Other proven early interventions include high of cases that go undetected each year, the impact of mal- quality early educational child care such as pre-kinder- treatment on young children’s brains should be of grave garten, early literacy programs provided in-home such concern to us all. as Long Island’s Parent Child Home Program, and pro- Conversely, early childhood is a time of enormous grams that identify and work effectively with troubled potential with huge returns if we invest in young chil- children and their families beginning at age two through dren. These years are the time when the foundations of early grade school.11 good citizenship – empathy, conscience, connection to No one knows better than law enforcement leaders others, and the ability to engage in complex thinking that violent criminals need to be arrested, convicted and reasoning – are established. A nurturing and safe and locked up. But sheriffs, chiefs and district attorneys environment during this time can result in a lifetime of know this is only half the battle when it comes to reduc- contribution and productivity. ing crime. They see the results of child abuse and neglect and our failure to make early investments in kids every We Know What Works day in the backs of their police cruisers, courtrooms and And the good news is that we really do know a lot about jails. They know we aren’t going to just arrest our way what works. There are several well-researched early out of the crime problem and that dealing effectively interventions that provide coaching to parents to mitigate with abuse and neglect is central to long-term commu- destructive behaviors from the beginning and to build in nity safety. protective factors. To the surprise of many, New York law Babies go home from hospitals every day all over enforcement leaders and crime victims understand this New York State and across our nation to environments and are speaking out. Members of “Fight Crime: Invest in that breed rage, despair and alienation. These babies then Kids New York,” an organization made up of more than disappear from view and don’t reappear until they can 300 police chiefs, sheriffs, prosecutors and crime victims, walk, talk back, bully their classmates and shoot guns. have taken a careful look at the research and are working Or, just as bad, they wind up at a morgue like the one to educate policy makers on the crime prevention benefits in Brooklyn where seven-year-old Nixzmary Brown was of proven early interventions. taken after being tortured for years and finally beaten to We are in an unprecedented time in human history death, or at a church like the one in Schenectady where where advances in the sciences of early childhood, espe- four-year-old Xcstasy Garcia showed up at services one cially in early brain development, can be coupled with Sunday morning with a broken left arm, broken right information and data from over 40 years of rigorous pro- shoulder, and eyes swollen shut from bleach that was gram evaluation. Together they point us towards what poured into them after she wet her pants. That’s when really works to get kids off to a good start.8 we notice these kids.

36 | January 2008 | NYSBA Journal Prevention Is Best our communal negligence. Like all states, we expend a We are geared to deal with disaster, not prevention. We staggering amount of fiscal and human resources deal- wait for parents to fail and then punish or try to fix them. ing with the multiple consequences of child abuse and We put the children in foster care. For the truly grisly cases, neglect. According to a study done by Prevent Child in anguish we review the files, look at the past actions of Abuse New York, we spend $2.3 billion annually treating caseworkers and supervisors and talk to neighbors to see the direct and indirect consequences which have all been where the system failed. Then we pass laws, often named linked to child abuse, including domestic violence, alco- after dead or maimed children, to try yet one more time to hol and substance abuse, juvenile delinquency and crime, reform the child welfare system. This is not to say all these mental and emotional problems, injuries and health prob- things are wrong. They are often needed and should be lems, special education, foster care, homelessness, teen done. But they are all after the fact and long past the time mothers, prostitution and public assistance.14 Compare when we might have been able to place the parents and this to the benefits reaped from investments made early child on a very different trajectory. in a child’s life, especially those that reduce abuse and Policy-wise, we do not pay attention to earliest child- neglect. For example the RAND Corporation concluded hood. There is an inverse correlation to our expenditures that the Nurse-Family Partnership home visitation pro- on children. When the brain development opportunity gram saves more than it costs, especially for the highest is at its greatest, we spend the least. The truth is that the risk population, where it saved the government $5.70 for longer we wait to deal with child abuse and neglect the every dollar invested.15 more expensive it gets and the less likely it is that we will So where do we begin? At the beginning. With a com- be successful. But despite growing interest in and sup- mitment to protect and nurture each child’s potential port for programs that have been proven to prevent child from the beginning and to make sure all parents have abuse and neglect, these programs are, in general, not what they need to succeed. The research is compelling readily available. For example, less than 15% of New York and clear. Early childhood is a crucial time when we form women who would benefit from early home visitation the core of conscience, develop the ability to trust and services currently receive them.12 However, one promising effort is underway in New York by a group of people who have quietly been work- ing to change this. After two years of intensive work by a broad group of stakeholders, the Schuyler Center for Analysis and Advocacy (SCAA) has recently issued a white paper that describes a plan for a universal system of home visitation in New York that would begin prenatally. The ideal system would provide an initial screening and basic services that promote optimal physical health, mental health, family functioning and self-sufficiency to all new parents. In addition to general services provided to all parents, the new universal sys- tem would target high-risk families for specific evidence-based intensive services such as the Nurse-Family Partnership or Healthy Families New York.13 The truth is we really do know a lot about how to prevent child abuse and neglect; we just choose not to invest in it. Child abuse and neglect is an epidemic that we allow to continue year after year unabated. And New Yorkers are paying a terrible price for

NYSBA Journal | January 2008 | 37 relate to others, and lay down the foundation for life-long CAN/NYCAN.pdf> and Long Island at the Crossroads: Building a Prosperous and learning and thinking – or not. By giving all our children Safe Community Tomorrow by Investing in Young Children Today, at (2006). the gift of protecting and nurturing their capacities from 9. D.L. Olds, Long-term Effects of Nurse Home Visitation on Maternal Life Course the beginning, we also give them to ourselves and to our and Child Abuse and Neglect, 278 J. Am. Med. Ass’n, 637–43 (1997). For the origi- communities. ■ nal outcomes on the children in the program, see: D.L. Olds, Long-term Effects of Nurse Home Visitation on Children’s Criminal and Anti-social Behavior: 15-year 1. Robin Karr Morse & Meredith S. Wiley, Ghosts from the Nursery: Tracing Follow-up of a Randomized Controlled Trial, 280 J. Am. Med. Ass’n, 1238–44 (1998). the Roots of Violence (Atlantic Monthly Press 1997). David Olds, the principal author, updated some of those findings using alter- native statistical analysis. Available at . Violence’ in J. Osofsky ed., Children in a Violent Society 124–48 (Guilford Press 1997). 10. S. Mitchell-Herzfeld et al. Evaluation of Healthy Families New York (HFNY): First Year Program Impacts (2005). Rensselaer, NY: Office of Children and Family 3. Northwest Foster Care Alumni Study, Casey Family Program and Harvard Medical Services; K. DuMont, et al., Healthy Families New York (HFNY) Randomized Trial: School (2005) available at . 11. See supra note 8. 4. Ctr. on the Developing Child at Harvard Univ., A Science-based Framework for Early Childhood Policy: Using Evidence to Improve Outcomes in Learning, Behavior, 12. Fight Crime: Invest in Kids, A Comprehensive Crime Fighting Strategy for and Health for Vulnerable Children available at (2007). 13. Schuyler Center for Analysis & Advocacy. Universal Prenatal/Postpartum 5. V.J. Felitti, et al., Relationship of Childhood Abuse and Household Dysfunction to Care and Home Visitation: The Plan for an Ideal System in New York State (2007). Many of the Leading Causes of Death in Adults, 14 Am. J. Preventive Med. 245–53 Available at (2007). 6. D. Cichetti & M. Lynch, Failures in the Expectable Environment and 14. Prevent Child Abuse New York, The Costs of Child Abuse and Neglect and the Their Impact on Individual Development: The Case of Child Maltreatment, in 2 Urgent Need for Prevention. Available at (2007) Cicchetti & D. Cohen eds., 1995). 15. Lynn A. Karoly, et al., Early Childhood Interventions: Proven Results, 7. Karr Morse & Wiley, supra, note 1. Future Promise (2006). 8. For a full discussion as to what works to get kids off to a good start see Protect Kids, Reduce Crime, Save Money at

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A Publication of the New York State Bar Association A Publication of the New York State Bar Association A Publication of the New York State Bar Association Committee on Attorneys in Public Service, produced in cooperation with the Committee on Attorneys in Public Service, produced in cooperation with the Committee on Attorneys in Public Service, produced in cooperation with the Government Law Center at Albany Law School Government Law Center at Albany Law School Government Law Center at Albany Law School IT’S FREE! Indian Law EEminentminent DomainDomain • Myths of Kelo v. New London, Connecticut AVAILABLE TO ALL • Current Problems and Suggested Solutions • Legislative Proposals NYSBA MEMBERS! to Rectify Public's Concern • Highest and Best Use • Just Compensation • Condemnation of Public Utility Properties • Compensation for PRROCUREMENTOCUREMENT Amendment V. Loss of Business Value ISSSUESSUES “The Guardian” • Methods for Judicial Constitution of Duethe process United of law and States just compensation. of America Painting by John Kahionhes Fadden Criminal actions — Provisions concerning — Challenges Under • Model Procurement Code • Public Authority Contracts the EDPL

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38 | January 2008 | NYSBA Journal GEOFFREY CANADA is President and CEO of Harlem Children’s Zone, Inc. which offers education, social service and community-building programs in Central Harlem. Founded in 1970, Harlem Children’s Zone today works with over 10,000 at-risk children in one of the state’s most devastated areas. Mr. Canada is also the co-chair of Governor Spitzer’s Children’s Cabinet Advisory Board and is co-chair of New York City Mayor Bloomberg’s Commission on Economic Opportunity. Mr. Canada has a masters’ degree from the Harvard School of Education and is an internationally renowned advo- cate for poor children and education reform.

Artwork created by a child in one of the Family Court Children’s Centers. Children in Poverty Prison Inmates or Positive Outcomes By Geoffrey Canada

Changing the Odds for Children absolutely can be turned around and these terrible out- We are failing our children. Our institutions, particularly comes can be avoided. the education and criminal justice systems, have not kept Regardless of the intent of the architects of the cur- pace with the changes among poor children, so they are rent system, it has created a crisis, particularly for poor not adequately serving them. people of color. Our current system is expensive but its We can’t blame the children. In many cases, they are cost returns little of use to the society that pays for it. facing incredible hurdles and the results are showing up In fact, courts are overwhelmed by the influx of young in grim statistics in New York State and across the coun- people – many of whom, in years gone by, would have try. We, as the adults and leaders of this society, need to been dealt with by the adults around them – school staff take responsibility for ensuring that our children succeed or family members. – all of our children. In fact there are several things that As detailed in the Children’s Defense Fund report, New York’s legal community can do to help. America’s Cradle to Prison Pipeline, we see a country that is It’s not impossible to turn the situation around. It cer- standing by as a significant number of its young are sent tainly will cost money, but it will be less expensive than on an almost-irresistible trajectory to incarceration. incarceration and will produce adults that are assets to The pipeline to prison can start at birth: often moth- our society. ers who lack dependable health care have babies with low birthweight, which is a risk factor for developmental Criminal Justice and learning problems. The next possible entryway into It would be hard to imagine how anyone could argue the pipeline is being born into a poor family that can’t that our criminal justice system is working when it comes provide the basic necessities of life: good food, shelter, to children. Prison populations are stunningly high, stability. ever-younger children are entering the criminal-justice Poor children who are able to overcome those risk machinery, but we are still a state and country plagued factors often still face placement in failing neighborhood by violent crime. When prisoners are released, they are public schools, and must walk a gauntlet of gangs and by and large not ready to be integrated into mainstream criminality each time they leave their home. Poor children society – so juveniles who enter the system end up with of color must also make their way in a society that expects the remainder of their lives wasted. But the situation the worst of them and often treats them accordingly.

NYSBA Journal | January 2008 | 39 Role Models my professional and personal experience that there is no Tangled in this morass, children in poor communities time in a child’s life where adults can just walk away for often have few adults to help guide them or act as role any length of time and assume that the child will be fine. models. More than half a million black men – many of Good parents take that as a given in raising their own them fathers – are serving time in jail. Not only are their children, but we don’t seem to extend that assumption for own chances of success diminished, but they are absent building public policy. from the lives of their children, and studies show that The failure rate of at-risk children grows as they grow. children with an incarcerated parent are six to nine times Even with the benefits of a quality pre-school, children as likely as their peers to land in prison themselves. need to be supported so they remain at grade level or Instead of learning from positive role models, children they may become turned off to school and drift into anti- become attracted to the local thugs who hang out on their social behavior. street corner or by what they see at home on television: gangsta rappers and trash-talking athletes. I am passion- Support Systems The tricky part of saving kids comes as they hit middle and high school. Unfortunately, school staff today is “We do not inherit this land increasingly addressing disruptive behavior among stu- from our ancestors; we dents with police and the criminal justice system. These kids acting out need help, not handcuffs. At that age, they borrow it from our children.” are solidifying their outlook on the world and if they are told they are criminals, they will embrace the identity to – Haida Indian saying gain some respect from their peers and the adults around them. ate about this country’s freedom of expression, but I am The only way to save large numbers of these children horrified to witness the toxic culture that is deluding our is to build a strong support system of adults around them. children. Overwhelmed and unprepared parents need guidance Readers of the New York State Bar Association Journal about parenting skills; they need help with addressing may have a vague idea of what gangsta rap is, but those their own problems so they can help with their children’s. of us who work with children see the stranglehold it has Simply taking children away from troubled families and on the children who have no strong positive value system placing them in foster care has overwhelmed that system to guide them. The fantasies that these rappers spin are too. Often a proactive counseling program can stabilize a swallowed whole by pre-teens who have little experience family and prevent the shattering disruption of taking a in the world to counterbalance the glorification of vio- child from his parents. lence and misogyny. In too many cases, the only adults Because these poor children tend to live in particu- who are talking to these kids are rappers and the kids lar neighborhoods, these communities also need to be are eager to listen. Unbelievably, these kids can grow up strengthened. While there is little single parents can do thinking that being a criminal is a viable or even desirable about the presence of drug dealers on the corner or in lifestyle choice. their building, a united and determined group of neigh- bors can often retake their block and make it safer for Breaking the Cycle their children. The results of this devastated landscape are well doc- What can we as a state and a country do? First, we umented and are not just sobering, but horrifying. need to recognize that this isn’t someone else’s problem. Obviously, we need to change this picture. It won’t be The costs to our society for this failure are enormous. easy but, guided by some basic principles, we can change New York State spends over $30,000 each year to incarcer- the odds for many of today’s children before they become ate a young man. And that does not include the potential tomorrow’s prison population. wages and taxes lost from that person’s dropping out of We need to take a holistic, long-range, pro-active the workforce. We have several “million dollar blocks” in approach to breaking the cycle of generational poverty. Harlem where the cost of incarcerating people from that By doing so, we will reduce substantially the pool from block reaches a million dollars or more each year. which gangs and criminals can recruit. The evidence is unequivocal: intervening in children’s What Lawyers Can Do lives earlier is more effective and cost-efficient than What can people in the legal community do? The crimi- addressing the mushrooming problems later in their nal justice system has to reevaluate its approach to the lives. But that is not enough. Once we get these babies children careening through its entranceways. Prosecutors and toddlers on the right track, we need to ensure they and judges need to seriously consider local alternatives stay on that track throughout their young lives. It’s been to incarceration, so they can divert children from the

40 | January 2008 | NYSBA Journal path of criminality. A young tough facing prison time will NYSBA’s CLE Online probably only strengthen his anti-social leanings when ONLINE | CD | iPod | MP3 PLAYER he lives among criminals for years. While there are obvi- ously cases where incarceration is justified, less serious offenses should not automatically trigger imprisonment. Bringing CLE to you... Teenagers are still malleable and their behavior is often a disguised shout for help, even if they themselves don’t anywhere, anytime. understand that. Presented with viable alternatives, some may yet turn their trajectories around. Where members of the criminal justice system don’t see any good alternatives in their communities, they must NYSBA is proud to present the most flexible, “on advocate for their creation. If the transition to proactive demand” CLE solutions you could ask for. alternatives to incarceration is going to happen, it will With CLE Online (also available as CLE on CD), you happen only with sustained political pressure to repriori- can now get the valuable professional learning tize expenditures and make the system work. you’re after If attorneys really want to roll up their sleeves to help, they can provide invaluable assistance by doing pro bono ...at your convenience. work for youth- and family-oriented nonprofits, which are often in need of high-quality legal services. Another > Get the best NY-specific content from the everyday solution is to provide internships to low-income state’s #1 CLE provider. children, who may not have access to the world of corpo- > Take “Cyber Portable” courses from your rations and white-collar office environments. laptop, at home or at work, via the Internet The costs of doing this right will actually be less than or on CD. the current system. Locking kids up is an expensive way > Download CLE Online programs to your iPod to buy what is essentially a short-term solution, and one or MP3 player. with little or no resulting benefits for America. Giving large numbers of kids and families a chance at a better > Everything you need to obtain full MCLE life is not just enlightened social policy, it is also smart credit is included online or on CD! economics. We do not lack the money, the solutions or the ratio- Come click for CLE credit at: nale; we lack only the will. It is up to those of us dealing www.nysbaCLEonline.com with this crisis on a day-to-day basis to educate others or to purchase CDs call 800.582.2452 and immediately make an all-out effort to reform this failing system. We will be helping both the children and ourselves. ■

NYSBA Journal | January 2008 | 41 Function of the Attorney for the Child

By John E. Carter, Jr.

ew York State enjoys a long tradition of lead- can confront attorneys for children in addressing the ership in providing lawyers for children in varying capabilities of their clients. In essence the rule Ncourt proceedings. This tradition was recently provides that, as with all lawyers, attorneys for children strengthened through a series of important initiatives by are to discharge their duties in a manner that responds to the state’s Judicial Branch to clarify the role and responsi- the unique needs and circumstances of each of client. bilities of the attorney for the child. The second initiative was adoption by the Statewide The initiatives were based on recommendations of the Law Guardian Advisory Committee, with approval of the Statewide Law Guardian Advisory Committee, chaired Administrative Board, of a policy statement (see page 44) by Edward O. Spain, Justice of the Appellate Division, entitled “Summary of Responsibilities of the Attorney for Third Department, and comprised of judges, law guardian program admin- istrators and other key Unified Court System staff. The recommendations were approved by the Administrative Board of the Courts on October 4, 2007. The central initiative was enactment of a court rule that sets out the function of the attorney for the child. The new provision, § 7.2 of the Rules of the Chief Judge, was promulgated by Judith S. Kaye, Chief Judge of the State of New York, on October 17, 2007, and became effective immediately. The rule places the work of a child’s attorney squarely within the framework of the classic attorney-client relation- ship, subject to the obligations of zealous advocacy and adherence to ethical stan- dards applicable to all attorneys. The rule emphasizes the importance of the collaboration between the attorney and the child in establishing and advancing the client’s position. At the same time, the rule recognizes the challenges that

JACK CARTER is director of the Law Guardian Program of the Appellate Division, Third Department, and serves on the Statewide Law Guardian Advisory Committee. He is a member of the New York State Bar Association’s Committee on Children and the Law, which he previously chaired. He is a recipient of the Bar Association’s Howard A. Levine Award for Excellence in Juvenile Justice and Child Welfare. He graduated from Middlebury College and Syracuse University College of Law.

42 | January 2008 | NYSBA Journal Judge Kaye’s order detailing the role and responsibilities of the attorney for the child.

theh ChildChild.” ” ThThe statement outlines li the h essential i l steps that generally form the core of effective ser- vices by the child’s attorney, including early rep- resentation, regular client consultation and active participation in all phases of the proceeding. The statement draws on and supplements representa- tion standards previously developed by the State Bar Association and the Law Guardian Programs of the four Appellate Divisions. Finally, the Administrative Board adopted the recommendation of the Statewide Committee to seek legislation changing the term “law guardian” to “attorney for the child.” This change, first advancednced by the Chief Judge’s Matrimonial Commission under conflicting expectations about the objectives and actions the leadership of Sondra Miller, former Justice of the of the child’s lawyer. No doubt the term “law guardian” Appellate Division, Second Department, would remove underscores the important protective function of the a major source of confusion concerning the function of child’s attorney, but this is a responsibility that all law- lawyers who represent children. For many participants yers have when the circumstances require. Replacing in proceedings involving children, “law guardian” sug- the ambiguous “law guardian” with “attorney for the gests that the lawyer is a guardian ad litem rather than child” will promote effective representation of children an advocate for the child. This misunderstanding can by providing a more consistent understanding of this have a significant impact on a proceeding, leading to vital function.

NYSBA Journal | January 2008 | 43 Summary of Responsibilities of the Attorney for the Child Statewide Law Guardian Advisory Committee

While the activities of the attorney for the child will (5) Evaluate the legal remedies and services available vary with the circumstances of each client and proceed- to the child and pursue appropriate strategies for ing, in general those activities will include, but not be achieving case objectives; limited to, the following: (6) Appear at and participate actively in proceedings (1) Commence representation of the child promptly pertaining to the child; upon being notified of the appointment; (7) Remain accessible to the child and other appro- (2) Contact, interview and provide initial services to priate individuals and agencies to monitor imple- the child at the earliest practical opportunity, and mentation of the dispositional and permanency prior to the first court appearance when feasible; orders, and seek intervention of the court to (3) Consult with and advise the child regularly con- assure compliance with those orders or other- cerning the course of the proceeding, maintain wise protect the interests of the child, while those contact with the child so as to be aware of and orders are in effect; and respond to the child’s concerns and significant (8) Evaluate and pursue appellate remedies available changes in the child’s circumstances, and remain to the child, including the expedited relief pro- accessible to the child; vided by statute, and participate actively in any (4) Conduct a full factual investigation and become appellate litigation pertaining to the child that is familiar with all information and documents rel- initiated by another party, unless the Appellate evant to representation of the child. To that end, Division grants the application of the attorney for the lawyer for the child shall retain and consult the child for appointment of a different attorney with all experts necessary to assist in the repre- to represent the child on appeal. sentation of the child; [APPROVED by the Administrative Board October 4, 2007]

Artwork created by a student at the Lowville Academy and Central School.

44 | January 2008 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION Practical Solutions to… Renewing your NYSBA dues

Looking for a safe, easy, and convenient way to renew your 2008 New York State Bar Association membership dues? Look no further…

…you may want to consider our new Automated Installment Plan! NYSBA’s Automated Installment Plan (AIP) enables you to renew your dues in one, two, or three installments, directly debited from your bank or credit card account on the 25th day of the payment month(s).* More than 1,200 NYSBA members are now using this safe, convenient, paper-free alternative to mailing dues and we encourage you to take advantage of this great new service.

You can sign up online for our Automated Installment Plan when you go to www.nysba.org/ renew2008. Or, for more information, call 518.463.3200, or visit www.nysba.org/aip.

The Automated Installment Plan – an easy, safe, and convenient way to renew your 2008 NYSBA membership dues!

*All installment payments must be completed by June 30th. NYSBA dues are on a calendar year basis and are billed in September, to be paid in full by December, of each dues year.

As a member, you deserve nothing less. For more information on this great benefit, go to www.nysba.org. JOSEPH M. LAURIA is the Administrative Judge of New York City Family Court. Judge Lauria is a graduate of Long Island University and the New York Law School/Southern Methodist University Law School.

SHARON S. TOWNSEND is the Administrative Judge of the Eighth Judicial District. Judge Townsend is a graduate of the University of Rochester and the University of Connecticut School of Law.

In recognition of their service to children and families, Judge Townsend and Judge Lauria were awarded the 2006 Howard A. Levine Award for Excellence in Juvenile Justice and Child Welfare by the New York State Bar Association.

Banner displayed at Queens Family Court Teen Day in April 2007. A Decade of Reform in the New York State Family Courts By Joseph M. Lauria and Sharon S. Townsend

ver the past 10 years, Family Court judges have interests of each child and individual who came before touched the lives of many thousands of children the court, has been a real challenge. Oand families. Increasing numbers of families have turned to the court system to help with their parent-child A Proactive Shift relationships and to protect them from the drugs and In an effort to meet the challenge, Family Courts across violence on our streets and in our homes. The number of the state have instigated a proactive shift in the way we cases has exploded, and the complexity of the issues fac- work. Even as we face daunting demands, several excit- ing the family courts has multiplied. Poverty, substance ing initiatives enable us to better address the needs of abuse and single-parent households have become the children and families and have changed the way we do norm in many areas of our state. business in the Family Court. This article will put the Since 1982, statewide filings have increased by 58% emphasis on the positive, as we continue to press for (not including support matters), while only 21 new drastically needed additional resources. Family Court judges have been added (an increase of In 1998 the Family Justice Program in New York only 16%). Significantly, there has been no increase in City created four function-based divisions: Juvenile the number of judges in New York City Family Court Delinquency/PINS; Domestic Violence/Custody; Child since 1991. That number remains at 47, despite calendars Protective/Permanency Planning; and Support/Paternity. that have tripled during this period. Passage of new leg- The new structure allows for facilitated scheduling and islation, including the Adoption and Safe Families Act expedited resolution of cases as well as more frequent (ASFA) in 1997, Persons in Need of Supervision (PINS) case reviews, with one judge presiding over the case reform in 2002, and the Permanency Legislation in 2005, from intake to conclusion. This concept of “One Judge/ greatly added to the Family Court’s substantive work. One Family” enhances the court’s oversight ability. In Without additional and commensurate judicial resources, addition, it facilitates the continuous calendaring of cases fulfilling the court’s mission to protect the safety and best until permanency is achieved, reduces delays and dem-

46 | January 2008 | NYSBA Journal Court staff volunteers in costumes traveling through the court waiting rooms to entertain the children. onstrates respect for Family Court litigants. Without and welfare of chil- question, however, this restructuring is no substitute for dren through the the appointment of additional Family Court judges to do “Babies Can’t Wait” this invaluable work. series. The first in Courts have become the venue to triage family trage- the series occurred dies – no courts more so than our Family Courts. The most in the Bronx Family recognized of the “Problem Solving Courts” – the Drug Court in 2001, and Treatment Court – is premised on the realization that tra- was then replicated ditional legal remedies have done little to address the ram- throughout the city. pant abuse of drugs and alcohol in our society. Treatment This program brings judicial, medical and child welfare courts have been implemented statewide, to assist parents professionals together. Both the New York City and charged with neglect of their children to attain sobriety and Monroe County series have drawn experts from local uni- learn skills necessary to parent effectively. versities and hospitals, in areas from child development to kinship resources, to address monthly lunchtime train- Laboratories for Change ing sessions and who continue on thereafter to perform a Hands-on judicial leadership is also reflected in our men- consulting role. tal health courts, integrated domestic violence courts, Experience has shown that engaging the public edu- juvenile treatment courts and permanency planning divi- cation system is also critical. The New York State Family sions. These problem-solving models allow for dedicated, Court Advisory and Rules Committee sponsored a first- continuous judicial supervision as well as expedited of-its-kind Education Roundtable, bringing together rep- referrals to community services where long-term care for resentatives from Family Courts, agencies, advocates, children and families is available. and state and local educators to collaborate on improving We have been fortunate to preside as lead judges over educational outcomes for children in foster care. These child welfare “model courts” through our affiliation with discussions resulted in two ongoing workgroups focused the National Council of Juvenile and Family Court Judges. on educational issues for all children under the court’s New York City and Erie County Family Courts have supervision. become “laboratories” for change in these model court initiatives, looking to our community stakeholders to iden- The Challenge of New Laws tify, design and help implement appropriate strategies. Legislative change has also compelled us to look for new This model of community-inspired, judicially led change and innovative collaborations. In 2002, state law changed has since moved well beyond the child welfare case type to allow the filing of a PINS petition for youth up to the and our two designated model courts. The Family Court age of 18. At the time of the passage of this legislation, judge is no longer a passive adjudicator, but is an active our communities lacked the programs to address the participant, crafting resolutions of the cases while utilizing needs of this older juvenile population. Once again we the agencies and other community resources. had to act so that the anticipated increase in new case fil- In no area of court reform has the involvement of all stakeholders been more instrumental than in the decade of innovation in child welfare, which took a significant step forward with the Court Improvement Project (CIP), in partnership with the Permanent Judicial Commission on Justice for Children. Through the CIP, courts across the state work with their col- laborative partners to institute prac- tices which have been demonstrated to improve outcomes for children and families. As a perfect example of utilizing the unique strengths of a commu- nity to increase the wealth of informa- tion available to decision makers, the Family Court has promoted four years of professional training on the health

NYSBA Journal | January 2008 | 47 ings would not bring the courts to a standstill. Our local completed by referees presiding over permanency hear- collaborators acted preemptively, designing diversionary ings involving adolescents and is designed to ensure that systems to provide resources and pre-petition services for the court obtains all relevant information concerning the these families. These age-appropriate, community-based particular issues confronting each adolescent prior to his programs successfully diverted the majority of the youth or her departure from foster care. The checklist and more from the court system and reduced reliance on placement narrowly tailored hearings are intended to ensure that the and detention, thereby allowing children to remain suc- youth is better prepared with the skills necessary for suc- cessfully with their families in their communities. cessful adulthood. In addition, to better understand the myriad and complex issues facing youth and adolescents Legislative Change in foster care, the court has worked closely with CCI’s In some instances our improved outcomes became the Youth Justice Board to identify strategies to improve the catalyst for important legislative change. In child welfare Family Court system. cases, the 1999 New York State implementation of ASFA inspired a greater emphasis on permanency planning for Conclusion children in the foster care system. ASFA mandates that In conclusion, our vision to enhance these reforms pro- we closely supervise the child welfare process of per- vides the road map for improvements in future decades manency planning. Dubbed “Best Practice” parts, these for the Family Court and most importantly for our specialized dockets ensured frequent post-dispositional children and families. Families now experience hearings reviews, more enhanced judicial oversight, better utiliza- that are more timely, more substantive, more respectful, tion of non-judicial personnel and narrowly tailored court and more child- and family-focused. Attorneys and par- orders to engage the litigants and propel the case toward ties are better prepared for court, and enhanced infor- timely closure. These practices were critical in our state’s mation is reaching the bench. passage of the federal Title IV-E Foster Care Eligibility More parents and youth are appearing in court and Review in 2006. there is greater effort to engage them in the hearing pro- To meet the expectations of the Permanency Legislation cess. Calendars are better managed and more efficiently and better utilize judicial time across all case types, the run. Facilities and technology are also improving. The courts have increasingly looked to alternative dispute Universal Case Management System, implemented in resolution models to resolve issues, thereby obviating 2001, now connects all 62 counties with Family Court the need for a prolonged trial or hearing. Our courts find information. Frequently judges, legal advocates and that routine use of mediation increases the amount and social service representatives meet to share information quality of information to all parties, illustrates a method and collaboratively problem-solve. for reaching agreement despite ongoing conflict and pre- We have been proud to be a part of these efforts with vents case recidivism. Mediation is being used in many our colleagues both on and off the bench, both inside courts across the state in child custody, parental access and outside our courthouses. And so we begin the next and child permanency cases.1 It is truly a participatory decade of change with optimism. ■ model for all involved and empowers parties in making decisions about their own children and families. 1. Two excellent programs, mandated parent education, and Children Come First (on-site licensed social workers), are available for Family Court as well Another initiative designed to inform and empower as matrimonial judges. These programs are more fully described in the article litigants in Family Court is the New York City Family written by Justice Jacqueline Silbermann that appears in this issue. Court Legal Services Project. Highly skilled attorneys from major law firms and corporations provide on-site, legal assistance to low-income, self-represented litigants Pro Bono Opportunities Guide Now involved in support, paternity, custody, visitation, guard- Online at www.nysba.org/volunteer ianship and family offense cases – free of charge. The court and its community partners have developed Looking to volunteer? new programs that focus on adolescents. Adolescents This easy-to-use guide will help you find the right currently represent 60% of the foster care population in opportunity. You can search by county, by subject New York City. To engage these youth, New York City area, and by population served. has developed specialized education and training on ado- Questions about pro bono service? lescent issues for Family Court stakeholders and practi- Visit the Pro Bono Dept. tioners, coordinated resource-rich “Teen Days” designed Web site for more information. to focus on issues surrounding permanency hearings for www.nysba.org/probono adolescents, and collaborated with the Center for Court (518) 487-5641 Innovation (CCI) on the design and piloting of a checklist [email protected] titled the “Passport to Adulthood.” This document is

48 | January 2008 | NYSBA Journal NYSBA and LYC Announce Youth Service Advocate Program

Proud of the young volunteers in your area? Help them get recognized.

Honor a Youth Service Advocate. What is a Youth Service Advocate? They are young people who are passionate about serving their community and making it a better place to live and work. If you know any such young volunteers, you know they deserve to be recognized for their commitment to service. You can help ensure they get the recognition they deserve by urging them to apply to be Youth Service Advocates. The Youth Service Advocate designation is reserved for exceptional youth who have devoted a certain number of hours to law-related volunteer service in a given year. The Youth Service Advocate designation is an honor, and may be used on applications for college admission and scholarships, as well as on applications for other awards and honors. However, the designation is more than an honorary title. Youth Service Advocates are role models and, thus, become advocates for volunteer service, thereby empowering their peers – and even adults – to rise to the same level of service. Designees will receive a certificate, verification letter, and a back pack. In addition, an extraordinary applicant(s) will be chosen to receive an honorary designation during the 2008 Law Day celebration hosted by the New York State Court of Appeals.

For an application and additional information: www.nysba.org/YouthServiceAdvocate BURDEN OF PROOF BY DAVID PAUL HOROWITZ

DAVID PAUL HOROWITZ ([email protected]) practices as a plaintiff’s personal injury litigator in New York City. Mr. Horowitz teaches New York Practice at New York Law School, is a member of the Office of Court Administration’s CPLR Advisory Committee, and is a frequent lecturer and writer on the subject.

“Dad, There Is Something I Have to Tell You”

ad, there is something I have to your attorney, in the event you need I do not ever want to have to make tell you. legal assistance as a result of what you that choice. Hence, the retention of my D Nine words that make my are about to tell me?” Him: “Yes.” legal services by my sons. pulse quicken and forehead bead with Me: “And do you understand that The law in New York State, as in sweat. Having completed a good num- anything you tell me is protected by the most jurisdictions, recognizes the spe- ber of the laps in the marathon that attorney-client privilege?” Him: “Yes.” cial nature, based upon trust, of any is the raising of two boys, this type And then my son tells me that he number of relationships: attorney- of introductory sentence is rarely fol- [fill in the blank]. client, clergy-penitent, and physician- lowed by good news: “Dad, there is Whereupon the quickening pulse patient, to name a few. Recognizing the something I have to tell you.” “What and beading sweat at the start of the special nature of these relationships, is it?” “I was named student of the conversation starts to look very much conversations within these pairings are month in middle school!” like the good old days. privileged. Absent a waiver, conversa- No. Instead, “Dad, there is some- Now, why go through this exercise tions or other communications that are thing I have to tell you,” is followed by with my sons? Because I can. Whether privileged are not discoverable and are an official school communication, but or not New York State recognizes a not admissible at trial. of the summoning sort. “What is it?” parent-child privilege is unclear, and, if It may surprise some readers, “The principal wants to see you first there is such a privilege, when it ends, therefore, to learn that conversations thing tomorrow morning.” if it ends, is also unclear. One thing I between a parent and child, the bed- Now, being an attorney has helped am certain of in my relationship with rock relationship of our society, not to very little when it comes to child rear- my sons: I do not want to ever be put mention the mechanism for survival of ing (about on par with the help it in the position of being compelled to the human race, may not be privileged provides in dealing with my spouse). testify against one or both of them. in New York State. Far more attenuat- For example, cross-examinations of my However, as my son’s attorney, ed relationships, husband and wife, for boys have been no more successful, on my subsequent conversation with my example, get the benefit of privileged average, than those of non-attorney child is privileged. Without engaging communication.1 parents. in this little pas de deux, I cannot be cer- One leading evidence commenta- However, as an attorney I have one tain that an attorney-client relationship tor, Edith L. Fisch, Esq., has explained: decided advantage as a parent. It affords will be found to have been established “A parent-child privilege has begun me a method of immunizing my con- between my son and me. to be recognized in this state but its versations with my children from dis- Fortuitously, as an attorney, I have outlines have not yet been sharply closure. To anyone (spouse included). the ability to cloak my conversation defined.”2 Professor Richard T. Farrell My boys know the drill. After initi- with my son in a privilege. Most par- points out that “[n]o statutory parent- ating a conversation something along ents don’t have this option. child privilege exists in New York. the lines of “Dad, there is something I can’t think of a more trusting Although lower courts have adopted I have to tell you,” I tell my son relationship than the one between a such a privilege, the Court of Appeals to go and get five dollars (while the child and parent. If you are a parent, has not.”3 Professor Farrell further amount has increased over time, I do you know this. If you are not a parent, points out that a number of courts4 not foresee a time when I will not need thinking back to the feeling you had have “avoided the question because it my day job) and, when the particular for your own father or mother makes had not been preserved by appropriate son in question returns, the following this evident. objection.”5 exchange takes place: Now, imagine being compelled to One of the two “avoidance” cases Me: “Are you giving me this [fill in give testimony against your child, or cited by Professor Farrell is a 1994 the amount] in order to retain me as risk being held in contempt of court. Court of Appeals decision, People v.

50 | January 2008 | NYSBA Journal Johnson.6 Although the Court found the for a serious crime, seeks the guid- recognized the privilege. Interestingly, issue unpreserved, it went on to opine ance and advice of a parent in the it provides that the parent-child privi- that the privilege, if there was such a unfriendly environs of a police pre- lege extends beyond the age of major- privilege, was not present in the case cinct. As noted earlier, the courts ity, and would not be vitiated by the have recognized that, for such a before it: presence of the child’s siblings. youth, his parent is the primary 9 I hope CPLR 4502-a is enacted. Moreover, a parent-child testimo- source of assistance. ■ nial privilege (which defendant Until it is, my sons know the drill. urges be adopted to preclude his However, the Court of Appeals, EDITOR’S NOTE: mother’s testimony) would not finding the issue to be unpreserved, After this column even arguably apply in that defen- wrote, “[W]e have no occasion to went to press, the Court of Appeals, dant was 28 years old at the time of address defendant’s claim that such a on November 27, 2007, issued its deci- 10 the conversation with his mother; privilege should be recognized.” sion in Arons v. Jutkowitz, et al. The another family member was pres- A Fourth Department case from Court reversed both the Second and ent; the mother testified before 1978 eloquently made the case for a Fourth Departments, and held that the the Grand Jury hearing evidence parent-child privilege: defendants are permitted to conduct against defendant; and the con- Although the communication is not post–note-of-issue interviews with a versation concerned a crime com- protected by a statutory privilege, plaintiff’s treating physicians, and that mitted against a member of the we do not conclude that it may HIPAA-compliant authorizations for household.7 not be shielded from disclosure. that purpose must be furnished by the It would be difficult to think of plaintiff. The February 2008 Burden of It is unclear under what conditions a situation which more strikingly Proof column will address this issue the Court would consider a parent- embodies the intimate and confi- in detail. child privilege since there were four dential relationship which exists independent factors militating against 1. With 50% or so of marriages ending in divorce, among family members than that “attenuated” seems to fit the bill. the privilege in both cases. in which a troubled young per- In the second “avoidance” case, the 2. Fisch on New York Evidence § 751 (2d ed. son, perhaps beset with remorse 2007). Court of Appeals twice denied leave and guilt, turns for counsel and where the Second Department held: 3. Prince-Richardson on Evidence § 5-412 (Farrell guidance to his mother and father. 11th ed. 2006). The defendant’s present conten- There is nothing more natural, 4. The issue was found to be unpreserved in tion that the admission of certain more consistent with our concept a Court of Appeals decision from 1983: People v. testimony was violative of the par- of the parental role, than that a Harrell, 59 N.Y.2d 620, 463 N.Y.S.2d 185 (1983) (“Not ent-child privilege is unpreserved child may rely on his parents for having been raised either at the suppression hear- ing or as a ground for objection to the admission of for our review inasmuch as it was help and advice. Shall it be said to the evidence at trial, defendant’s present contention not cited as a ground for objection those parents, “Listen to your son that the statement made in his jail cell by him to his at trial. In any event, we find no at the risk of being compelled to mother was inadmissible as having been obtained in violation of a purported parent-child privilege merit to the defendant’s argument. testify about his confidences?11 has not been preserved for our review. Accordingly, The circumstances which may give we have no occasion to address defendant’s claim Numerous trial level and appel- rise to a parent-child privilege, i.e., that such a privilege should be recognized.”). “when a minor, under arrest for late division cases have recognized the 12 5. Id. a serious crime, seeks the guid- privilege. 6. 84 N.Y.2d 956, 620 N.Y.S.2d 822 (1994). ance and advice of a parent in the A bill has been introduced in the unfriendly environs of a police pre- New York State Senate to codify the 7. Id. 13 cinct,” were not present here.8 parent-child privilege. Under pro- 8. People v. Clark, 215 A.D.2d 494, 626 N.Y.S.2d 527 posed CPLR 4502-a (immediately fol- (2d Dep’t) (citation omitted), leave denied, 86 N.Y.2d The case the Second Department lowing the spousal privilege), “[a] 792, 632 N.Y.S.2d 505 (1995). cited for “[t]he circumstances which child and his or her parent, guard- 9. People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 501 may give rise to a parent-child privi- ian, or legal custodian shall not be (2d Dep’t 1982), aff’d, 59 N.Y.2d 620, 463 N.Y.S.2d lege” was a 1982 Second Department required, or, without the consent of 185 (1983). case where the Appellate Division the other if living, allowed to disclose 10. See supra note 4. held: a confidential communication made 11. In re A and M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (4th Dep’t 1978). We agree that a parent-child privi- by one to the other,” subject to certain lege does arise in certain circum- enumerated exceptions. 12. An excellent review of cases is found in Fisch on stances, and in our view, that priv- This salutary legislation would cod- New York Evidence § 751 (2d ed. 2007). ilege is rarely more appropriate ify the decisions of trial and appellate 13. Similar legislation has been introduced in the than when a minor, under arrest courts throughout the state that have past.

NYSBA Journal | January 2008 | 51 PLANNING AHEAD BY ERIC W. PENZER & FRANK T. SANTORO

ERIC W. PENZER is a partner at Farrell Fritz, P.C. Mr. Penzer’s practice is primarily concentrated on estate litigation, probate contests, accountings, and commercial litigation regarding estates. He received his law degree from Fordham University School of Law and his B.A. from State University of New York at Stony Brook.

FRANK T. S ANTORO is an associate at Farrell Fritz, P.C. Mr. Santoro’s practice consists mainly of trusts and estates litigation. Mr. Santoro’s prior legal experience includes litigating commercial disputes, insurance coverage claims and handling administrative matters. He received his law degree from Brooklyn Law School and his B.A. from SUNY Binghamton.

This article first appeared, in slightly different form, in the New York State Bar Association’s Trusts and Estates Law Section Newsletter, Fall 2006, Vol. 39, No. 3.

Second Circuit Clarifies Scope of Probate Exception to Federal Jurisdiction

he “probate exception” to federal for her through a gift in the form of the probate exception did not encom- jurisdiction has been described a “catch-all” trust.5 While the estate pass Vickie’s counterclaim. The courts Tas “one of the most mysterious was subject to ongoing proceedings also held that E. Pierce had tortiously and esoteric branches of the law of in the Texas probate court, Vickie filed interfered with Vickie’s expectancy federal jurisdiction.”1 The Supreme for bankruptcy in California, and E. by conspiring to suppress or destroy Court has cautioned against expan- Pierce filed a proof of claim in the the inter vivos trust instrument Mr. sively applying the exception, stating federal bankruptcy court alleging that Marshall asked his lawyers prepare that the probate exception is “narrow” Vickie had defamed him when her for Vickie, and conspiring to strip Mr. and should not be used as an excuse for lawyers told the media that E. Pierce Marshall of his assets by falsifying federal courts in declining to exercise had engaged in forgery, fraud and documents and presenting them to Mr. jurisdiction over suits merely because overreaching to gain control of Mr. Marshall under false pretenses. The they involve a probate-related matter.2 Marshall’s assets.6 Ninth Circuit reversed, however, hold- Providing further guidance to lower E. Pierce sought a declaration that ing that the probate exception barred courts and practitioners, the Second his claim against Vickie was not dis- the federal courts from entertaining Circuit has established what appears chargeable in bankruptcy and Vickie Vickie’s counterclaims. to be a bright line test for applying the answered and asserted counterclaims, Reversing the Ninth Circuit, the exception.3 including that E. Pierce had tortiously Supreme Court attempted to clarify interfered with a gift she expected language that it perceived as ambigu- Marshall v. Marshall from Mr. Marshall.7 The Bankruptcy ous in its prior decision in Markham In Marshall, the Court revisited the Court granted summary judgment for v. Allen.10 The Court clarified that, probate exception, analyzing its prior Vickie on E. Pierce’s claim and, after a in accordance with Markham, federal decisions on the subject and conclud- trial, entered judgment for Vickie on courts have jurisdiction to entertain ing that the exception applies only her tortious interference counterclaim, suits “in favor of creditors, legatees in limited circumstances. This case awarding her substantial compensa- and heirs and other claimants against involved the estate of decedent J. tory and punitive damages.8 a decedent’s estate ‘to establish their Howard Marshall II, who died with- Following the trial, E. Pierce filed claims’ so long as the federal court does out providing for his wife, Vickie-Lynn a post-trial motion to dismiss for lack not interfere with the probate proceed- Marshall (a/k/a Anna Nicole Smith). of subject matter jurisdiction, assert- ings or assume general jurisdiction of Mr. Marshall’s son, E. Pierce Marshall, ing that Vickie’s tortious interference the probate or control of the property was the ultimate beneficiary of Mr. claim could be tried only in the Texas in the custody of the state court.”11 Marshall’s estate plan.4 According to probate proceedings.9 The Bankruptcy Vickie, Marshall intended to provide Court and the District Court held that Continued on Page 54

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Mention code: PUB0191 when ordering. Continued from Page 52 of the probate court – estate funds that seek to recover estate assets, i.e., – were subject to the probate excep- property under the control of the According to the Court, Markham held tion. However, claims seeking recov- Surrogate’s Court, are subject to the that a federal court “may exercise its ery against the executors personally, probate exception. jurisdiction to adjudicate rights in such rather than from the estates, were not property where the final judgment within the ambit of the exception and Post-Lefkowitz does not undertake to interfere with could be maintained. Specifically, the Shortly after its decision in Lefkowitz, the state court’s possession save to the plaintiff pleaded claims for unjust the Second Circuit decided Carvel v. extent that the state court is bound by enrichment and conversion, seeking Carvel Foundation, Inc.,23 where it dis- the judgment to recognize the right an order directing the executor to turn missed an action to confirm a judg- adjudicated by the federal court.”12 over all of the principal assets and ment against an estate. Noting that the The Court disavowed various lower accumulated income of the estates to action would interfere with a complex court approaches utilized in the wake which she alleged to be entitled. The proceeding in the New York County of Markham in determining the applica- plaintiff also sought an order requiring Surrogate’s Court concerning the assets bility of the probate exception,13 which BNY to make distributions from the of the estate, the court held that the included the Ninth Circuit’s approach estates pursuant to consent orders and probate exception applied because the that was largely adopted from the a determination that certain assets of suit sought to dispose of property in Second Circuit’s decision in Moser v. the estates belong to her.19 the custody of the Surrogate’s Court.24 Pollin.14 Because the claims at issue did not On the heels of Lefkowitz, Judge In sum, the Court concluded that seek to probate or annul a will and Patterson of the Southern District of the probate exception only applies in neither party sought to administer a New York analyzed the probate excep- three limited circumstances: (1) where decedent’s estate, applying the probate tion in Groman v. Cola.25 In Groman, a federal court is asked to probate or exception turned on whether the feder- an executor of an estate commenced a annul a will; (2) where a federal court al court’s exercise of jurisdiction would proceeding in Surrogate’s Court, New is asked to administer a decedent’s affect property in the custody of a state York County, against the defendant, a estate; or (3) where the federal court’s probate court, i.e., estate assets. The New Jersey domiciliary, for a declara- exercise of jurisdiction will result in Second Circuit held that to provide the tion concerning the estate’s sale of the attempt “to dispose of property relief requested by the plaintiff on her stock of a privately held company to that is in the custody of a state probate claims would require the federal court the defendant. Specifically, the estate court.”15 to assert control over property that sought an upward adjustment of the was controlled by state courts, which is purchase price pursuant to an agree- Lefkowitz v. Bank of New York prohibited by the probate exception.20 ment executed at the time of the sale. In Lefkowitz,16 the Second Circuit con- However, the court held that the The defendant removed the proceed- sidered the application of the probate plaintiff’s in personam claims for breach ing to federal court. Upon removal, exception for the first time post-Mar- of fiduciary duty, aiding and abetting the defendant interposed a contingent shall. The plaintiff, Adrienne Marsh breach of fiduciary duty and fraudu- counterclaim seeking a downward Lefkowitz, asserted numerous causes lent misrepresentation against BNY, adjustment of the purchase price. The of action against the executor of her which sought only damages against the plaintiff moved to remand the action to parents’ estates, the Bank of New defendants personally, were not subject the Surrogate’s Court. York (BNY) and other defendants.17 to the probate exception.21 While the Applying Marshall and Lefkowitz, the According to the District Court, the court acknowledged that the plaintiff’s District Court remanded the proceed- plaintiff argued that proceedings in claims were “entirely intertwined with ing on the basis that it lacked jurisdic- probate courts were “inactive,” while nitty-gritty issues of estate administra- tion pursuant to the probate exception. BNY and the other defendants argued tion,” it held that the probate exception In doing so, the court acknowledged that it was required to petition and cannot be applied “merely because the that applying the probate exception file accountings in Surrogate’s Court issues intertwine with claims proceed- requires “fine line drawing.” The court for both estates following the outcome ing in state court.”22 found that the proceeding was, “at its of estate proceedings in Hong Kong Thus, according to the Second heart, a dispute about the proper valu- courts.18 Circuit, the application of the probate ation of an estate asset in a sale by the The Second Circuit affirmed the exception apparently rests on a bright Estate’s executors.” The court noted dismissal of several of the plaintiff’s line distinction focusing largely on that the estate held a note from the causes of action. The court deter- the remedy sought. Claims seeking defendant for a portion of the purchase mined that the claims through which an in personam judgment against a price and had inchoate rights under the the plaintiff essentially sought a dis- fiduciary or other party fall outside purchase price adjustment agreement. gorgement of funds under the control the probate exception while claims According to the court, these assets

54 | January 2008 | NYSBA Journal were in the possession of the executors Conclusion 7. Id. at 301. of the estate, and thus in the possession It remains to be seen how lower courts 8. Id. and control of the Surrogate’s Court. will apply the probate exception in the 9. Id. at 302. The court held that a determination wake of Marshall and, now, Lefkowitz. 10. 326 U.S. 490, 494 (1946). by the district court affects property Certainly, claims seeking recovery from 11. Marshall, 547 U.S. at 1747 (quoting Markham, 326 U.S. at 494). in the possession and control of the a decedent’s estate are not uncommon. 12. Id. Surrogate’s Court and remanded the If one accepts the proposition that the 13. Id. proceeding. assets of a decedent’s estate constitute 14. 294 F.3d 335 (2d Cir. 2002). Lefkowitz has also provided guid- “property that is in the custody of a 15. Marshall v. MArshall, 547 U.S. 293, 312 (2006). ance to courts outside the Second state probate court”, then actions seek- 16. Lefkowitz v. Bank of N.Y., 2007 WL 1839756 (2d Circuit. In Colclasure v. Young,26 the ing to recover those assets – including Cir. 2007). plaintiff sought damages from the claims against the estate and claims by 17. Id. at 1. defendant individually, a declaration the estate seeking to determine rights 18. Lefkowitz v. Bank of N.Y., 2003 WL 22480049, 4 of rights in and title to the property of a in estate property – should be litigated (S.D.N.Y. 2003). 19. Lefkowitz, 2007 WL 1839756 at 4. decedent’s estate and an inventory and only in the Surrogate’s Courts, rather 20. Id. accounting.27 Following the approach than in federal courts. ■ 21. Id. at 5. of the Second Circuit in Lefkowitz, the 22. Id. Colclasure court parsed out the claims, 1. Dragan v. Miller, 679 F.2d 712, 713 (7th Cir. 1982). 23. 230 Fed. Appx. 103 (2d Cir. 2007). dismissed those seeking a declaration 2. Marshall v. Marshall, 547 U.S. 293 (2006). 24. Id. at 104. of rights and title to property of the 3. Lefkowitz v. Bank of N.Y., 2007 WL 1839756 (2d 25. 2007 WL 3340922 (S.D.N.Y. Nov. 7, 2007) decedent’s estate under the probate Cir. 2007). (Patterson, J.). exception, but retained jurisdiction 4. Marshall, 547 U.S. at 3003. 26. 2007 WL 3005333 (E.D. Ark. 2007). over the in personam claims against the 5. Id. 27. Id. at 3. defendant.28 6. Id. 28. Id.

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NYSBA Journal | January 2008 | 55 TAX ALERT BY ROBERT W. WOOD

ROBERT W. WOOD practices law with Wood & Porter, in San Francisco (www.woodporter.com), and is the author of Taxation of Damage Awards and Settlement Payments (3d Ed. Tax Institute 2005 with 2007 Update) available at www.damageawards.org. This discussion is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional.

The ABCs of Charitable Conservation Easements

ment agency. The easement’s terms When a donor made a contribution are ordinarily negotiated between the of “ordinary income property,” the landowner and the charitable conser- federal income tax deduction for that vation organization or government donation was limited to 50% of the agency. In negotiating the terms of the donor’s contribution base.6 However, a easement, the landowner should con- deduction for ordinary income proper- sider Internal Revenue Code (“Code”) ty could not exceed the donor’s adjust- requirements. ed basis in the easement (not to be con- Q: What are the tax benefits of fused with the donor’s adjusted basis nvironmental organizations charitable conservation easements? in the entire property).7 For a donation promote the conservation of A: You can deduct from your taxes of long-term capital gain property, the EAmerica’s natural habitats. With the value of the easement (typically, the donor, however, may elect to treat the increased media focus on global cli- value of the property before contribu- donation as a contribution of ordinary mate change, people are paying atten- tion of the easement, minus the value income property, and thus, be subject tion to the environment, and especial- of the property after contribution of the to the 50% contribution base limita- ly to its conservation and preservation. easement).1 The amount of the deduc- tion.8 Any unused amount could be Charitable conservation easements can tion is subject to annual limitations, but carried forward for five years after the help the environment, and ease one’s unused deductions can be carried over year of contribution.9 tax burden at the same time. to future years.2 The annual limitations Q: What are the new annual limi- Q: What is a conservation have recently been changed,3 though tations? easement? the changes are only effective for ease- A: The new annual limitations, A: A conservation easement is a vol- ments donated in 2006 and 2007. Thus, which only affect contributions during untary restriction placed on the use of donors should be aware of both the old 2006 and 2007, treat “long-term capital land for a conservation purpose. Valid and new annual limitations. gain” property and “ordinary income” conservation purposes can include the Q: What are the annual limitations property identically. The annual limi- protection of open space, timberland, (through 2005)? tation for contributions of both types farm land, scenic views, wetlands, or A: Under the old annual limitations of property is 50% of the donor’s con- other significant natural resource val- (for 2005 and earlier contributions), tribution base.10 Any unused portion ues. The easement need not restrict the “long-term capital gain” property (i.e., may be carried forward for 15 years.11 sale of the property. a capital asset held for more than Q: Are there other limitations? Conservation easements are gener- one year) and “ordinary income prop- A: Yes. Donors should also consider ally not required to provide the public erty” (i.e., a capital asset held for less certain other limitations which can with a right of access or use of the land than one year) were treated differently. affect the amount of the deduction subject to the easement, unless the pur- When a donor made a contribution for a charitable conservation easement pose of the easement is a public benefit of “long-term capital gain” property, contribution.12 which requires public access (i.e., pres- the federal income tax deduction was Q: Aren’t easements nondeductible ervation of the land for outdoor recre- limited to 30% of the donor’s “contri- as partial interests? ation or education of the general pub- bution base.”4 The contribution base A: No. In general, charitable dona- lic). Generally, the easement (as well as is defined as adjusted gross income tions of “partial” interests of property the restrictions it imposes) is donated computed without regard to any net are denied tax deductions.13 Easements to a charitable organization or govern- operating loss carryback.5 are partial interests in real property,

56 | January 2008 | NYSBA Journal so without an exception, the dona- lic charity’s commitment to protect the or education of the general public, then tion of an easement would not qualify conservation purposes of the donation the Treasury Regulations require that for a charitable contribution deduc- can generally be found in its articles of the recreation or education must be for tion. Fortunately, there is an exception incorporation or by-laws. the “substantial and regular use” of the for “qualified conservation contribu- Q: What resources are required to general public.22 Accordingly, the ease- tions.”14 enforce the restrictions? ment must provide access to the real Q: How is “qualified conservation A: Potential donors should examine property for the general public. contribution” defined? whether charitable organizations they Q: What constitutes preservation A: A qualified conservation contri- are considering have the resources of a significant, relatively natural bution is: to enforce the restrictions of the con- habitat for fish, wildlife, or plants? • a contribution of a qualified real templated easement. The amount of A: The Treasury Regulations take property interest, resources an organization must spend a liberal view of what constitutes a • to a qualified organization, to enforce the restrictions of the con- significant, relatively natural habitat • exclusively for conservation pur- servation easements is not defined for fish, wildlife, or plants. Examples poses.15 in the Code. However, the Treasury provided by the Treasury Regulations A failure to meet any of these require- Regulations make clear that organiza- include lakes formed by man-made ments can result in denial of the income tions are not required to earmark funds dams; salt ponds; habitats for rare, tax benefits. Plus, in some cases, you specifically for enforcement of conser- endangered, or threatened species can incur gift tax. Furthermore, in mak- vation easements.20 of animals, fish, or plants; and natu- ing a qualified conservation contribu- Nonetheless, the IRS keeps an eye ral areas that represent high-quality tion, the donor must have a “donative on qualified organizations’ efforts to examples of a terrestrial community or intent” (in other words, an intent to monitor and enforce conservation aquatic community.23 make a charitable contribution).16 More easements. Exempt organizations are Furthermore, the regulations explic- about this intent below. required to file a Form 990 annually itly state that the fact that the habitat Q: What is a “qualified real prop- with the IRS. The Form 990 requires or environment has been altered to erty interest”? organizations holding conservation some extent by human activity does A: A “qualified real property inter- easements to report the amount of staff not result in a deduction being denied est” is defined as the donor’s entire real hours and expenses spent in monitoring so long as the fish, wildlife, or plants property interest other than a “qualified and enforcing easements for the pre- continue to exist there in a relatively mineral interest,” a remainder interest ceding year. Thus, while the resources natural state.24 Note the word “rela- in real property, or a perpetual restric- an organization must spend to moni- tively” here. tion on the use which may be made of tor and enforce conservation easements The United States Tax Court has also the real property – in other words, a are undefined, a qualified organization taken a liberal view. For example, in perpetual easement17 or other restric- must document the time and money it Glass v. Commissioner,25 the taxpayers tive interest in real property.18 This spends each year on these tasks. donated two individual conservation definition adds one more requirement Q: What constitutes a conservation easements with the conservation pur- for tax purposes: the easement must be purpose? pose of protecting a significant, rela- granted in perpetuity to be considered a A: There are four broad categories tively natural habitat. The easements “qualified real property interest.” of conservation purposes: were relatively small: one covered an Q: Who is an eligible donee? • the preservation of land areas for area 150 feet wide by 120 feet deep, A: An eligible donee must be a outdoor recreation by, or the edu- and the other covered an area of 260 “qualified organization,” having a cation of, the general public; feet wide by 120 feet deep. The tax- commitment to protect the conserva- • the protection of a relatively payers also presented evidence that tion purposes of the donation and the natural habitat of fish, wildlife, or a bald eagle roost (a perch on which resources to enforce the restrictions.19 plants, or similar ecosystem; birds can temporarily rest or sleep) Qualified organizations include local, • the preservation of certain open was located on the property, and state, or federal governmental agen- space (including farmland and that one type of endangered plant cies, and public charities defined in forest land); and grew on the property. The Tax Court Code § 501(c)(3). • the preservation of a historically held that both conservation ease- Q: What is a commitment to pro- important land area or a certified ments met the conservation purpose tect the conservation purposes historic structure.21 requirement.26 of a donation? Q: What is recreation or education There is an important distinction A: While a “commitment to protect of the general public? between this conservation purpose and the conservation purposes of the dona- A: If the conservation purpose of the conservation purpose of recreation tion” is not defined in the Code, a pub- the easement is for outdoor recreation, or education of the general public. The

NYSBA Journal | January 2008 | 57 Treasury Regulations state specifically • The openness of the land; • The opportunity for the general that limitations on public access to • Relief from urban closeness; public to use the property or property donated for the preservation • The harmonious variety of shapes enjoy its scenic values; of a significant, relatively natural habi- and textures; • The importance of the property tat for fish, wildlife, or plants do not • The degree to which the land use in preserving the local or regional jeopardize the tax deduction. maintains the scale and character landscape or resource that attracts Q: How can preserving open space of the urban landscape to pre- tourism or commerce to the area; qualify? serve open space, visual enjoy- • The likelihood that the donee A: Conservation easements to pre- ment, and sunlight for the sur- will acquire equally desirable and serve “open space” qualify as having a rounding area; valuable substitute property or conservation purpose if they meet one • The consistency of the proposed property rights; of the following criteria: scenic view with a methodical • The cost to the donee of enforcing • the preservation is pursuant to a state scenic identification pro- the conservation easement; clearly delineated federal, state, gram, such as a state landscape • The population density in the or local governmental conserva- inventory; and area of the property; and tion policy, and will yield a sig- • The consistency of the proposed • The consistency of the proposed nificant public benefit; or scenic view with a regional or open space with a legislatively • the preservation is for the scenic local landscape inventory made mandated program identifying enjoyment of the general public, pursuant to a sufficiently rigor- particular parcels of land for and will yield a significant public ous review process, especially if future protection.33 benefit.27 the donation is endorsed by an Some landowners may want the Q: What is a government conser- appropriate state or local govern- current tax deduction for the ease- vation policy? mental agency.31 ment, but want to retain a right to A: There is not much guidance about Of course, to qualify as scenic enjoy- develop the property in the future. The what constitutes a “clearly delineat- ment, the easement must grant visual Treasury Regulations do not allow this. ed government conservation policy.” access to the general public over a An easement for the preservation of However, the Treasury Regulations significant portion of the property.32 open space cannot permit “a degree of make it clear that a “clearly delineated In some ways, this is intuitive: there intrusion or future development that federal, state, or local governmental cannot be a scenic view if no one can would interfere with the essential sce- conservation policy” is something see it. nic quality of the land or with the gov- more than a “general declaration of Q: What is a significant public ernmental conservation policy” which conservation goals by a single official benefit? the easement allegedly promotes.34 or legislative body.”28 The Treasury A: The Treasury Regulations list 11 Q: What is preserving a historic Regulations also state that where a different criteria for evaluating wheth- land area or structure? governmental entity adopts a resolu- er the open space conservation ease- A: The preservation of a histor- tion specifically endorsing protection ment yields a significant public benefit. ic land area or structure is another of a particular property as “worthy of They are: valid conservation purpose. Historic protection for conservation purposes,” • The uniqueness of the property to land areas are defined as any that a conservation easement granted for the area; meet the National Register Criteria that property will be respected.29 • The consistency of the proposed for Evaluation in 36 C.F.R. § 60.4 (Pub. Q: What constitutes scenic enjoy- open space use with public pro- L. 89-665, 80 Stat. 915), any land area ment of the general public? grams (whether, federal, state, within a registered historic district, A: Whether or not an easement is or local) for conservation in the and any land area adjacent to a prop- for the “scenic enjoyment of the gen- region, erty listed in the National Register eral public” is determined by a facts • The intensity of land development of Historic Places where the physi- and circumstances test. Factors such in the vicinity of the property; cal or environmental features of the as topography, geology, biology, and • The consistency of the proposed land area contribute to the historic cultural and economic conditions are open space use with existing pri- or cultural integrity of the property.35 relevant.30 In addition, the Treasury vate conservation programs in the A historic structure is defined as any Regulations list eight other factors to area; building, structure, or land area listed be considered: • The likelihood that development in the National Register, or any build- • The compatibility of the land use of the property would lead to or ing located in a registered historic with other land in the vicinity; contribute to degradation of the district, and certified by the Secretary • The degree of contrast and variety scenic, natural, or historic charac- of the Interior as being of historic sig- provided by the visual scene; ter of the area; nificance to the district.36

58 | January 2008 | NYSBA Journal Claiming a tax deduction for a con- the property subject to the easement 170(b)(1)(E)(iv), a “qualified farmer or rancher” can servation easement to preserve a his- which makes impossible or impractical deduct up to 100% of the donor’s contribution base. toric structure became more difficult in the continued use of the property for 11. 26 U.S.C. § 170(b)(1)(E)(ii). 2006 with the passage of the Pension conservation purposes, any proceeds 12. See 26 U.S.C. § 170(b)(1)(A) (limiting the aggre- gate amount of all of the donor’s charitable deduc- Protection Act. Congress added such resulting from the sale or exchange of tions for the year to 50% of the donor’s contribution requirements as requiring the ease- the property must be used in a manner base). See also 26 U.S.C. § 68 (limiting itemized ment to include a restriction which consistent with the conservation pur- deductions, which include deductions for charitable conservation easements). preserves the entire exterior of the poses of the original contribution.44 building, requiring the easement to Q: Are there other requirements? 13. 26 U.S.C. § 170(f)(3)(A). prohibit any change in the exterior of A: Yes. The Treasury Regulations list 14. 26 U.S.C. § 170(f)(3)(B)(iii). the building which is inconsistent with several other requirements for a chari- 15. 26 U.S.C. § 170(h). the historic character of such exte- table conservation easement deduc- 16. United States v. Am. Bar Endowment, 477 U.S. 105 (1986); Hernandez v. Comm’r of Internal Revenue, 490 rior, and requiring a written agreement tion. For example, existing mortgages U.S. 680, 690 (1989); Rev. Rul. 67-246. between the donor and donee where on the property must be subordinated 17. Note that state laws govern the creation and the donee certifies that it is an eligible to the easement.45 In addition, uses enforcement of easements. Thus, the easement donee.37 of the property which are inconsis- must also comply with all of the state statutory requirements in order to qualify as a “qualified real The donor must also include with tent with any conservation purpose property interest.” his or her tax return for the year of the (whether or not the purpose is specifi- 18. 26 U.S.C. § 170(h)(2). donation, a qualified appraisal, photo- cally identified by the easement) must 19. Treas. Reg. § 1.170A-14(c)(1). 46 graphs of the exterior of the building, be prohibited. 20. Id. and a description of all the restrictions Furthermore, the easement may not 21. Treas. Reg. § 1.170A-14(d)(1). on the development of the building.38 allow the donor to retain surface min- 22. Treas. Reg. § 1.170A-14(d)(2)(ii). Lastly, Congress requires the donor to ing rights or any other mineral extrac- 23. Treas. Reg. § 1.170A-14(d)(3)(i), (ii). make a $500 payment with the filing tion rights in the property.47 There are 24. Treas. Reg. § 1.170A-14(d)(3)(i). of any tax return claiming a deduction also substantiation requirements and 25. 124 T.C. No 16 (U.S.T.C. 2005), aff’d, 471 F.3d 48 in excess of $10,000 for conservation reporting requirements. 698 (6th Cir. 2006). easements contributed to protect his- Q: Are there any basis implications 26. Id. 39 torically significant structures. of a donation? 27. Treas. Reg. § 1.170A-14(d)(4)(i). Q: Are certain transfers restricted? A: Yes. The donor must reduce his 28. Treas. Reg. § 1.170A-14(d)(4)(iii)(A). A: Yes. The Treasury Regulations or her adjusted basis in the property 29. Id. restrict the transfer of easements to that is subject to the easement by the 30. Treas. Reg. § 1.170A-14(d)(4)(ii)(A). certain organizations. For example, the proportion of the easement’s value 31. Id. easement not only has to initially be over the fair market value of the 32. Treas. Reg. § 1.170A-14(d)(4)(ii)(B). conveyed to a qualified organization, property before the contribution of 33. Treas. Reg. § 1.170A-14(d)(4)(iv)(A). but it must prohibit the easement’s the easement.49 transfer to any organization that is 34. Treas. Reg. § 1.170A-14(d)(4)(v). not “an eligible donee.”40 An eligible Conclusion 35. Treas. Reg. § 1.170A-14(d)(5)(ii)(A), (B), (C). donee is defined as an organization Charitable conservation easements are 36. 26 U.S.C. § 170(h)(4)(B), (C). that is a qualified organization, has a experiencing significant current inter- 37. 26 U.S.C. § 170(h)(4)(B)(i), (ii). commitment to protect the conservation est. Their benefits make navigating 38. 26 U.S.C. § 170(h)(4)(B)(iii). purposes of the donation, and has the their detailed rules and requirements 39. 26 U.S.C. § 170(h)(4)(B), (C). resources to enforce the restrictions.41 worthwhile. ■ 40. Treas. Reg. § 1.170A-14(c)(2). Furthermore, a conservation ease- 41. Treas. Reg. § 1.170A-14(c)(1). ment must include provisions pro- 1. 26 U.S.C. § 170(a)(1). 42. Treas. Reg. § 1.170A-14(c)(2). hibiting the donee from subsequently 2. See 26 U.S.C. § 170(b)(1). 43. The cy pres doctrine, emanating from English transferring the easement unless, as a 3. Pension Protection Act of 2006. and French law, holds that where the donor’s origi- 4. Treas. Reg. § 1.170A-8(d). nal intent becomes illegal or impossible to perform, condition of the subsequent transfer, the court may amend a charitable trust to conform the donee requires “that the conserva- 5. Treas. Reg. § 1.170A-8(e). as closely as possible to the donor’s original intent. tion purposes which the contribution 6. Treas. Reg. § 1.170A-8(b). 44. Treas. Reg. § 1.170A-14(c)(2). was originally intended to advance 7. I.R.C. § 170(e)(1); Treas. Reg. § 1.170A-4(a)(1). 45. Treas. Reg. § 1.170A-14(g)(2). This limitation remains unchanged by the Pension 42 continue to be carried out.” Protection Act of 2006. 46. Treas. Reg. § 1.170A-14(e)(2). The Treasury Regulations add one 8. Treas. Reg. § 1.170A-8(b). 47. Treas. Reg. § 1.170A-14(g)(4). more requirement based on the cy pres 9. Treas. Reg. § 1.170A-10(c)(1)(ii). 48. Treas. Reg. § 1.170A-13(c)(3). See also I.R.S. 43 Form 8283. doctrine. If there is an unexpected 10. The new annual limitations are even better for change in the conditions surrounding “qualified” farmers or ranchers. Under 26 U.S.C. § 49. Treas. Reg. § 1.170A-14(h)(3)(iii).

NYSBA Journal | January 2008 | 59 ATTORNEY PROFESSIONALISM FORUM

To the Forum the firms; and, to provide for the needs pay may well intensify already high The Attorney Professionalism Forum of professionals and staff in a manner anxiety levels among associates . . . and the Committee on Attorney that makes financial sense. During the provide less time for mentoring . . . Professionalism is soliciting read- better part of a year, the decision by [and lead firms to] become less tolerant ers’ views about the increase in the some of the largest and most respected of mistakes.”5 salaries for first-year associates at firms to raise associate salaries has Perhaps understandably, clients large Manhattan law firms, currently been discussed in a way that sug- are more concerned with the salary $160,000, and higher. gests an inevitable degradation of our increases. A recent Altman Weil sur- What does this increase mean for fundamental values and a substantial vey found that many of America’s 200 the legal profession in New York? What change in the vitality of our individual largest law departments believed that sense, if any, does such an increase and collective practices. The question the associate salary increase was “out- make for the law firms initiating such raised by the Committee asks, quite rageous” and some, in fact, changed increase? What sense, if any, does such simply, whether our personal and pro- their policy to restrict the use of first- an increase make for the law firms fessional values are threatened by the year lawyers.6 The survey respondents matching such increase? What effect recent associate compensation. This also registered general dissatisfaction does this have on the lives of lawyers question is not new, and the discussion with the firms’ decision being made – partners as well as associates – work- inevitably will be revisited each time without consultation. In-house lawyers ing at those firms? What effect does the profession sees a round of 5-digit expressed specific concerns. DuPont’s this have on the clients of such firms salary increases. chief litigation counsel, for example, and what, if any, responses are such The point of this column is to discuss rhetorically asked, “How will these clients likely to make? What effect briefly the critical sentiment expressed law firms pay for these increases? They does this have on the other lawyers in by lawyers and clients, and to offer won’t just absorb them. Take them New York State, who do not work at several considerations to ameliorate out of partner profits? Doubtful. The such large law firms? What cumula- these concerns. Throughout the year, answer, of course, is to raise the associ- tive effect does this have on the overall since the first announcements were ates’ billing rates.”7 He believed that legal culture in New York? And, if you made, numerous blogs and journals salary increases would be passed to view this with concern and worry, and have voiced various levels of alarm believe the overall effects of such an and have initiated genuine discourse. increase are negative, what antidotes Many commentaries warned that these would you suggest? substantial pay increases would have a The Attorney Professionalism Committee Send your comments to: NYSBA, negative impact on lawyers, firms and invites our readers to send in comments One Elk Street, Albany, NY 12207, Attn: clients.1 or alternate views to the responses Attorney Professionalism Forum, or Suggesting that even the beneficia- printed below, as well as additional by e-mail to [email protected]. Please ries may not welcome the substantial hypothetical fact patterns or scenarios to put “Attorney Professionalism Forum” salary increase, a recent ABA survey be considered for future columns. Send in the subject line. Comments and reflected that 84.2% of respondents your comments or questions to: NYSBA, views will be included in the Attorney would opt for a salary decrease in One Elk Street, Albany, NY 12207, Attn: Professionalism Forum published in exchange for reduced billing obliga- Attorney Professionalism Forum, or by the January 2008 issue of the Journal. tions.2 An earlier American Lawyer e-mail to [email protected]. survey similarly reported that a major- This column is made possible through Views Concerning Increased ity of the participants would accept a the efforts of the NYSBA’s Committee on Associate Salaries pay cut for a reduced billing require- Attorney Professionalism. Fact patterns, These thoughts came from Michael Kuhn, ment.3 While not “scientific” or truly names, characters and locations presented an attorney in Houston, Texas, also licensed reflective of whether one is so willing in this column are fictitious, and any resem- in New York: to forgo a salary increase, the sur- blance to actual events or to actual persons, Whether called goals or profession- veys suggest growing “life” issues. living or dead, is entirely coincidental. These al objectives, we all have certain values Growing attrition rates also indicate columns are intended to stimulate thought that guide and direct the operation of additional pay raises may negatively and discussion on the subject of attorney our firms. Let me state a few. We strive impact associate life. Although salaries professionalism. The views expressed are to attract and retain the best legal and have increased, retention rates have those of the authors, and not those of the professional talent; to deliver excel- declined. Attrition rates have risen to Attorney Professionalism Committee or lent legal services to our clients; to 80%, with nearly 2/3 of third- and the NYSBA. They are not official opinions charge a reasonable fee as mandated fourth-year associates believing that on ethical or professional matters, nor by our professional rules of conduct; they will leave their firms within five should they be cited as such. to maintain the competitive force of years.4 Many believe that “[h]igher

60 | January 2008 | NYSBA Journal clients without added value, estimat- Assuming a “typical” 2,100 hour size firm competition (much like a ing a cumulative rate increase that year, the increase is approximately $7 perceived elimination of the middle could reach $5 million per year for his to $10/hour or 10% to 15%.8 One com- class). One recent reporter believes company. mentator observed that the increase that large firms are attempting to seg- Following another series of rhetori- followed six years of relative “salary ment the market by finding the salary cal questions – “What about the firm’s inactivity” and was not far off the rate amount that would lead “second tier” culture, client base, and work environ- of inflation.9 In that context, a decision firms to drop out of the competition for ment? Do these intangibles mean noth- by some of the nation’s most profit- the best law graduates.12 While some ing? What do first-year associates have able firms does not seem unreasonable. share a fear that the profession will be to do with high-quality service from A decision by firm management to divided, others see genuine opportu- top-tier lawyers?” – DuPont counsel invest in the recruitment of new and nity for regional and specialized prac- concludes that little attention is paid to existing legal talent makes economic tices to benefit from a growing gap in client needs when it comes to costs and sense. Assuming a $350 billing hour costs of legal services. As consumers of urges firms to take a more disciplined rate, with an annual budget of 2,000 legal services become more sensitive approach to rate increases. Increases hours, simple math suggests a $700,000 to rates and costs, there will be a sub- should, instead, reflect something other annual gross revenue potential to the stantial opportunity for boutique or than a reflexive price increase to offset firm. With adjustments for overhead niche practices, as well as firms known a firm’s salary spending or inability to and write-offs for efficiency concerns, for holding the line on salaries with a control its own costs. a firm still stands to profit at least commitment to first-class, value-based The salary increases adopted by $160,000. Salary increases, thus, may be legal work. large firms has been described as “lem- viewed by many as a necessary move Other correlations with increased mingesque” or having the feel of falling to remain competitive in an environ- associate salaries include expansion dominos, suggesting that little evalua- ment where the number of law school of “multi-tier” partnerships with tion or analysis preceded the deci- graduates is flat and the demand for an increased number of non-equity sion. Frankly, we doubt the accusation new lawyers is growing. partners and fewer equity partners, since the financial impact is significant An additional consideration relates increased time to partnership, increased and the need to preserve profitability to rising tuition and the growing and accelerated “up or out” policies is substantial. Firms understand the burden of student loans. Since 1985, with less patience for mistakes, and need to attract and retain the best pos- the average law school tuition has increased use of paralegals and con- sible legal talent, and they are aware more than tripled, and the average tract lawyers. With new or expanded of their clients’ sensitivity to rates. law school graduate carries an $80,000 policies to retain profitability in the Well-managed firms cannot ignore the student loan debt that can take 15 to face of rising “labor costs,” firms know tensions created by the move toward 20 years to repay. One report suggests that whenever profits-per-partner fall, increasing associate salaries and costs that students “are paying up to 267 lateral recruitment and partner reten- of operation. percent more for their education, com- tion becomes more difficult. Is the magnitude of the salary pared with costs in 1990.”10 Beginning Consideration No. 1: When meeting increase sufficient reason for concern? lawyers bear proportionately more the competition, don’t forget the “core When one firm announced that the sal- debt at graduation than their predeces- values.” While the salary increase may ary for a first-year associate would be sors which erodes a substantial portion be necessary to recruit first-year law- increased to $160,000, immediate reac- of the salary increases and has a direct yers, statistics indicate that more is tions registered surprise. Now, per- impact on career choices.11 Increasing needed to retain the lawyer beyond the haps not for the first time, a first-year student debt may, as one commenta- third year. Mr. Sager’s rhetorical ques- associate could earn more than most tor suggests, “distort incentives” for tion – what about the firm’s culture, state judges; more than many expe- those that might be happier working work environment and other intan- rienced in-house legal counsel; more somewhere other than a large law firm. gible, non-monetary aspects of lawyer than the median earnings of lawyers Anecdotally, more graduates report a life – leads to an important antidote: in the state. Comparisons are inevi- deliberately stated goal to pay down preserve the firm’s culture.13 table – but, certainly not dispositive debt then leave for another oppor- Consideration No. 2: Don’t lose of the issue. It has been pointed out tunity. In any event, growing tuition sight of the standard retention factors that partner profits have risen at rates costs along with increased student debt preached by consultants during the greater than the recent associate salary erode the significant pay increase and past decade: training and mentoring; increases, and that the increase could tend to directly impact a choice among professional development plans with be justified by inflation alone consid- employment opportunities. specific goals and objectives; and, use ering the years passing since the last Broader concerns and effects on the of development directors and ombuds- substantial increase. profession include an erosion of mid- men.14 At an average investment of

NYSBA Journal | January 2008 | 61 $300,000 per lawyer by the third year, The following comments come from New nosed as bi-polar, and she is being retention is crucial. York attorney Lewis Taishoff: held in a state mental institution. A Consideration No. 3: Promote effi- I wish to voice my entire approval guardian has been appointed by the ciency and productivity through val- for increased salaries for beginning court of that state to take control of her ue-based billing structures, selection of attorneys at “going rate” law firms. I property and assets appropriate talent for specific projects, only regret these salaries are not higher, She has been getting money from and use of temporary legal staff and so as to match the compensation paid to a trust set up in New York by her late legal assistants. Efficiencies and pro- corporate executives who have driven father, pursuant to which an annuity ductivity are essential to value.15 their corporations’ stock prices into the was created to give her monthly pay- Consideration No. 4: Client commu- ground, hedge fund managers who bet ments for life. nication, addressing fee structure and on subprime mortgages, and athletes. She called me on the phone to ask salary increases – provide more than Why should first-year associates right if she could direct the Nebraska insur- a “lemmingesque” explanation of the out of law school be compensated at a ance company to send future monthly firm’s decisions. Firms should listen rate lower than a rookie infielder bat- payments to me. I would set up a New carefully to client needs and concerns, ting .225 on a last-place baseball team? York escrow account to be turned over and overcome the tendency to make Or the promoter of a collapsing hedge to her at an appropriate later time. decisions in a vacuum. Discussions fund? But why confine your questions Would this be considered an evasion of before raising associate salaries, there- to new entrants? I have heard that the foreign state order which specifies by justifying an increase in rates, is a some more senior lawyers now bill that her assets and property be taken clear call from corporate counsel.16 $1,000 per hour; excellent! Even the over by the guardian? I think future Consideration No. 5: Be creative very senior lawyer who remarked “I payments which originate in Nebraska and thoughtful in anticipation of the cannot see paying that much money to pursuant to a New York trust and next round of salary increases. There anyone who isn’t actually saving your which never reach the foreign state are reported whispers and hints of life” has outdated ideas. As for those may be excluded. Can I presume she increases to $190,000.17 For example, of the older generation of lawyers (and has the apparent capacity to direct her at the risk of missing out on “star” tal- some younger ones) who looked on the annuity payments? Could my giving ent, consider a salary below market for practice of law as a calling or profes- of telephone advice possibly be con- the first three years and above market sion, or as a means to public service, sidered practicing law in the foreign for senior associates. Some even sug- it is time they were removed as so state? I am uneasy about what may be gest scrapping the multi-million dol- much dead wood. Why should these considered an attempt to thwart the lar summer programs and law school new entrants or senior lawyers care if order of a foreign court. recruiting efforts – with a risk of being the public regards lawyers as one step characterized as an “also ran” or sec- above used car salespeople? The motto Sincerely, ond-tier firm. of the law business (as opposed to the Concerned Counselor Consideration No. 6: Offer an alter- profession) should be “Hey Ho We Got native track without a stigma. One the Dough,” trumpeted to the skies. 1. James J. Sandman, The High Price of Escalating Associate Salaries, 21 Wash. Law. 7 (Mar. 2007). commentator mentioned Perkins Coie Only then will public disgust force us 2. Stephanie Francis Ward, Who Will Pay for as one of a handful of firms that allow to return some sense of proportion to Associate Raises: Partners or Clients?, ABA J. E-Rep. associates to opt for lower pay with attorney compensation. http://www.abanet.org/journal/ereport/f2raise. reduced billing requirements.18 Also, html (Feb. 2, 2007). whether called project lawyers, con- Lewis C. Taishoff, Esq. 3. Kelly Lucas, Billing by the Hour May Be Hazardous to Health, Ind. Law. (Sept. 11, 2002). tract attorneys, per diems, ad hocs, Schechter & Brucker, P.C. 4. Carolyn Elefant, No Attrition in Associate interims, consultants or borrowed New York, NY Attrition Rate, Law.Com Blog Network, http:// and leased personnel, increased use legalblogwatch.typepad.com/legal_blog_ of talent other than those being paid watch/2006/08/no_attrition_in.html (Aug. 15, QUESTION FOR THE 2006) (quoting Elizabeth Goldberg, Exit Strategy, 28 $160,000/year plus benefits will help QUESTION FOR THE NEXT Am. Law. (Aug. 2006)). ATTORNEY PROFESSIONALISM minimize fee increases without losing NEXT ATTORNEY 5. Leigh Jones, Client Expectations Drive Pay Hikes, profitability or quality of work. FORUMPROFESSIONALISM FORUM: Firms Say, 8 Fulton County Daily Rep. (Aug. 7, 2007). Michael Kuhn A former client of mine (a woman 6. Zusha Elinson, GCs Still Steamed About Raises, Bracewell & Giuliani LLP of some means) had moved to another 131 The Recorder (May 21, 2007). Houston, Texas state, but we had kept in touch, and I 7. Thomas Sager, Not Going to Take It Anymore, 14 Corp. Counsel 67 (Sept. 2007). DuPont’s chief legal (Member of State Bar of New York, gave her some friendly advice about counsel expressed a belief that increased value will Texas and Colorado) her activities and lifestyle. She now not accompany higher rates and suggests five ways informs me that she has been diag- to integrate the impact of salary increases. General

62 | January 2008 | NYSBA Journal From the NYSBA Bookstore

counsel for the Association of Corporate Counsel, expressed similar concerns about the recent raises. Estate Planning and Will She predicts resistance to work by young lawyers and heightened billable-hour expectations from firms to cover the costs of the increases. Both of which, she fears, will lead to excessive charges to Drafting in New York corporate clients. Leigh Jones, Latest Associate Salary Hikes Leave Corporate Clients Cold, 189 N.J. L.J. 667 (Aug. 20, 2007). Editor-in-Chief: 8. Posting of Cold Math to The Wall Street J. Law Blog, http://blogs.wsj.com/law/2007/01/22/ Michael E. O’Connor, Esq. simpson-thacher-raises-the-bar/ (January 23, 2007, DeLaney & O’Connor, LLP 8:19 am). Cold Math calculated his $42 hourly rate of pay very simply: $160K/(80 hrs. per week) (48 Syracuse, NY weeks). 9. Law Firm Salary Wars: Who Really Pays?, Ill. Bus. L.J. http://iblsjournal.typepad.com/illinois_busi- ness_law_soc/2007/03/law_firm_salary.html (Mar. 15, 2007). With its 37 footnotes, the Internet article includes an extensive bibliography. 10. Leigh Jones, As Salaries Rise, So Does the Debt, Estate Planning and Will Drafting in New York provides an overview of the complex lawjobs.com (Feb. 1, 2006). Increase in education rules and considerations involved in the various aspects of estate planning in New costs since 1990 exceed 267%, while increases in sal- York State. Each chapter has been brought completely up to date for the 2006 revi- ary average 60% over the same period of time. sion. Several chapters – including “New York Estate and Gift Taxes” and “Marital 11. Mary Alice Robbins, Jurists Say Minority Clerk Recruitment Failed by Firms That Pay Bigger Bucks, Deduction” have been totally revised for this update. Tex. Law. (Oct. 15, 2007). With the burden of Written by practitioners who specialize in the field, Estate Planning is a comprehen- $100,000 student loans, judges are seeing “[a] lot of people. . . [going] for that $160,000, because they can sive text that will benefit those who are just entering this growing area. Experienced pay their debt off in a few years.” practitioners will also benefit from the practical guidance offered by their colleagues, 12. Nathan Carlile, Are They Worth It?, 30 Legal and use this book as a text of first reference for areas with which they may not be as Times 1 (Oct. 1, 2007). familiar. 13. Sager, supra note 7. 14. Susan Raridon Lambreth, Redressing Attrition: Contents At-a-Glance Forms available on CD Retain More Associates by Taking a New Approach Estate Planning Overview Book Prices to Training and Development, Hildebrandt Int’l 2006 • 822 pp., loose-leaf Publ’ns, http://www.hildebrandt.com/documents. Federal Estate and Gift Taxation: PN: 4095 (includes 2006 update) aspx?Doc_ID=642 (Apr. 2, 2001). An Overview NYSBA Members $125 15. Daniel J. DiLucchio, Business As Usual: Hourly New York Estate and Gift Taxes Non-Members $160 Billing Stays As Standard Fee Arrangement, 236 The Legal Intelligencer 7 (Sept. 12, 2007); Henry J. Fundamentals of Will Drafting 2006 Update Macchiaroli, Help on the Way: Using Temporary Marital Deduction/Credit Shelter Drafting (available to past purchasers only) Lawyers Yields Many Benefits, Legal Mgmt. (Nov.- Revocable Trusts PN: 50953 Dec. 2006). NYSBA Members $75 16. Thomas Sager, Fight the Ripple Effects From the Lifetime Gifts and Trusts for Minors Non-Members $95 Associate Salaries Spike, 23 Tex. Law., In-House Texas IRAs and Qualified Plans—Tax, Medicaid S9 (Oct. 1, 2007). Book and CD Prices and Planning Issues 2006 • PN: 4095C 17. Martha Neil, NY 1st-Year Plan: $250K, But No Estate Planning with Life Insurance NYSBA Members $175 Jobs, ABA J. - Law News Now, http://www.aba- Non-Members $210 journal.com/news/ny_1st_year_pay_plan_250k_ Dealing with Second or Troubled but_no_hires/ (October 1, 2007). Humorous and Marriages CD Prices cynical to some, a firm could announce a starting Planning for Client Incapacity PN: 60955 salary of $250,000 – “but we’re just not going to hire NYSBA Members $95 anyone.” Long-Term Care Insurance in New York Non-Members $115 18. Stephanie Francis Ward, Such a Deal, 93 ABA J. Practice Development and Ethical Issues 29 (Oct. 2007); Stephanie Francis Ward, Associates in the Trenches, 93 ABA J. 24 (Feb. 2007). Chapman & Free shipping and handling within the continental U.S. The cost for shipping and handling outside the Cutler, a Chicago-based firm with 3 offices and 220 continental U.S. will be added to your order. Prices do not include applicable sales tax. attorneys, chose to raise first-year associate salaries to $160,000, with a two-track compensation system at the second year. Second-year associates at the Chapman firm will be able to choose fewer hours Get the Information Edge at lower pay or more hours at higher pay. Lynne NEW YORK STATE BAR ASSOCIATION Marek, Cash Caste System: Firm Offers Associate Choice of Pay and Hours Options, N.Y. Law. (Oct. 16, 1.800.582.2452 www.nysba.org/pubs 2007); Martha Neil, Chicago Firm Creates 2 Tiers of Mention Code: PUB0192 Associates, ABA L. Prac. (Oct. 16, 2007).

NYSBA Journal | January 2008 | 63 NEW MEMBERS WELCOMED

FIRST DISTRICT Danielle Tracy Bersofsky Julie Chang Lesley Ann Decasseres Erica Fung Olaitan Oluuatosin Marc Nicholas Biamonte Douglas R. Chartier Brandon Randolph Jaime Heather Gabor Abidoye Luigi Bianco Kathleen M. Chastaine Defrehn Margo O’Donnell Mark Darryl Ableman Rossana Bianco Ariel Chaus Stefan Depozsgay Gallagher John Joseph Acosta Robert James Bickel David M. Cheifetz Mirella Alessandra Toni Lynn Gantz Dara Calvo Acusar Claire Wong Black Hui-i Chen Derose Alberto Germano Taimarie Nicole Adams Elise Marie Blackburn Jing Chen Nicole DeSantis Garofalo Tyler Britton Adkins Sarah Blackman Teresa Nancy Chen Vincent Edwin Di Joseph Terrence Gasper Lauren Amanda Adler Laureve Daniele Yan Chen Giacomo Maria Elena Gaudio- Maryam Afif Blackstone Eli Karl Cherkasky Justin Harris Dicker Longo Jae-hyon Ahn Michael Blauvelt Yekaterina Chernyak Trent Stevenson Dickey David A. 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Giuliano James Arnold Askew Alvin H. Brown Susan Collyer Lisa Y. Faham Marcie Rachael Gluskin Rene Aubry Amanda Kate Brown Christopher Mario Nicholas James Faleris Diana Janae Goff Keith Robert Ayers Jonathan Harrington Colorado Joanne Fanizza Nazmiye Anna Gokcebay Shabnam Shelley Azizi Brown Sean M. Connery Joseph D. Farrell Amy E. Gold Avichai Badash Kim Suzanne Brown Christina S. Cooper Matthew Jacob Faust Carrie Ann Goldberg Tamer O. Bahgat Tracy Melissa Brown Lauren Elyse Cooper David Ben Feirstein David Mark Goldberg Michael D. Bailkin Jordan Michelle Brudner Richard Alan Cooper Rosanne Elena Felicello Jacquelyn Leigh Golden Melissa Ann Ballard Mary Anne Ema Buechel Rachel Cordero David Samuel Felman Darius Goldman Jessica Heather Barker William Charles Bunting Craig Austin Costa Thomas Elias Felsberg Gustavo Manuel Gonzalez Amanda Matthews Joshua Dan Burns John Edward Courtney Alison Victoria Ferguson- Michael Steven Gordon Barnhardt Carmel B. Butler Matthew Jason Cowan woods Gennady A. Gorel Stanley Alexander Barsky Aja Claire Byrd Kevin Keith Cowie Taline Festekjian Matthew Paul Goren Christine Annabelle Peter Michael Byrne Brooke Crescenti Edward Elliott Filusch Daniel Gotlieb Bateup Jennifer Marie Cabrera Aaron Hayes Crowell Emily Meredith Fischthal Brett Gottlieb Monica Isabel Becerra James Anthony Cadogan Joshua Lon Crowell Emily Maxine Fishman Emil Bradley Gould Anne C. Beckmann Dorothea Caldwell-Brown Sarah Alison Crowley Maya Fishman Keisha-Ann Grace Gray Justin Harris Bell Julie Anne Calidonio Jeremy Crystal Alan B. Florendo Sara Grdan Lauren Bell Sherry Cameron-Harry Craig Ryan Culbert Michael Jason Fluhr Arthur Stuart Greenspan Lauren Alicia-barnes Bell Liangrong Cao Rebecca Durie Katherine Lindsay Nora Forbes Emma M. Greenwood Leigh Bellas William Christopher Culley Keri Dianne Foster Katherine Marshall Lisa Nicole Bellomo Carmody Anne Fox Cutler Robert Michael Fox Gregory Ahsaki E. Benion Faith Louise Carter Lucy Cutolo Alison Beth Franklin Matthew W. Grieco Matthew Benjamin Stephanie Carver Edyta Katarzyna Giacomo Freda Daniel Grosfeld Melissa Marie Lee Benzon Carmen Casado Czaplicka Lesley G. Freeman Diana Aviva Grunwald Elana Tova Berger Kashana Cauley Nicole Marie D’Avanzo Ellen Stanfield Friedman Donato Guadagnoli Elissa Rivka Berger Alexandra Beth Certilman Courtney M. Dankworth Paul Alexander Friedman William Frank Guiliford Elizabeth Jean Berger Bartholomew Chacchia Geoffrey Alan David Rebecca Friedman Timothy Patrick Eric Paul Berger Lauren Donner Chait Sean Michael Davis Tyler Joseph Friedman Gumkowski Barry H. Berke Seth Britten Chandler Bethany Aryn Davis-noll Kevin Friedmann David Lee Gunton Emily S. Berkman Nishka Genelle Jamela S. Debelak Scott Evan Frimmer Namita Gupta Jeffrey Steven Berman Chandrasoma Adjoa Adjapoma Debrah- Brian Lawrence Frye Preeti Kumar Gupta Francine J. Berry Gladys Chang Dwamena Yael Fuchs Itai Gurari

64 | January 2008 | NYSBA Journal Cicek Gurkan Vincent G. Kalafat Christopher Charles William F. Lloyd Nina Fletcher McIntyre Marra Hope Guttenplan Veerat P. Kalaria Lafferty Beatriz Sofia Loaisiga- Stephanie McLeod Jean Marie Hackett Matthew Richard Seema Lal Ivanova Susan Margaret Daniel C. Hackney Kalinowski Christopher T. Lamal Marianna Stacey Lopez McNamara Gabrielle Ann Haddad Steven Michael Kalogeras Julie Lamberth Andrea Wan Ming Louie Colin Connor McNary Richard Inad Haddad Barry Antoine Kamar Kara Adele Larsen Elizabeth Luk Mark David McPherson Rebecca Hagenson Heesun Kang Dana Lau Molly Sanghee Lundberg Parul Mehta David Hahm Gergely Kanyicska Patricia Rose Lawler Yvonne M. Lunde Daniel Meier Shan A. Haider James Matthew Kaplan Terra Eve Lawson-Remer Jennifer Townley Lupfer Catherine Meza John Hamilton Magnus Karlberg Brian Woo Lee Guilherme F.M. Luz John T. Midgett Kristina Cunard Brian S. Karp Carol Frances Lee Gregg P. Macey Marc Daniel Miele Hammond Brian Andrew Katz Chris Churl-min Lee Ursula Mackey Aaron M. Miller Stacy Smith Hampel Dana Leigh Katz Edward Joonho Lee Bipul Kanta Mainali Alan Scott Miller Sharon Sarang Han Jessica Kaufman Haewon Lee Michele Maman Kassia Elaine Miller John Edward Handy David Victor Kay Hamilton First Lee Jonathan Lee Bjornstad Rachale Christine Miller Matthew Ross Hanley Brendan T. Kehoe Hoonpyo Lee Manders Deulrae Min Adrienne A. Harris Todd Steven Keithley Jennifer Lee Anne Marie Mangiardi Peter Minton James William Harris Nathanael Kelley Suzanne Min-Sung Lee Miliette Marcos Jessie Brett Mishkin Lesli D. Harris Jeffrey Bernhard Kempler Sylvia Lee Milan Markovic Jason Thomas Mitchell Nina E. Harrison Robert W. Kendall Winnie Lee Nathaniel E. Marmon Lerato Ntswaki Molefe Giovanna Haydee Michael Kerstetter Young Joseph Lee Heath Martin James Edward Monagle Fernandez Harswick Kevin Meier Kertesz Thomas Manning Leith Sebastian Martinek Anthony Frank Montaruli Alicia Catherine Hayes Lyle Brent Kessler Shawn Leo Carmen Laura Martinez Pheabe Saydeon Morris Joshua Heiliczer Jamshed Mohammad Adrianne Joy Leven Lopez Amitab Mark Mukerjee Adam Jackson Heintz Khan Marc Andrew Lewinstein Paola Marusich Milja Mulic Thomas Heller Nadia Khattak Stanley J. Lewis Emily Joy Mathieu Danielle Gena Myers Sharmaine Tang Heng Sarmad Mostafa Deborah Liben Berta Altagracia Matos Kalpana Nagampalli Jason C. Hershkowitz Khojasteh Essence Liburd Andrea Marie Mattei Sheila Nagaraj Jason Cory Hershkowtiz Joelle Sandra Khoury Robert Andrew Liguori Stephanie Mazepa Tae Woo Nam Alison Anne Hewitson Dorhee Kim Justin Jose R.S. Lim Brian David McCawley Kelly Nash Yoshihide Hirao Seulgey Kim Richard Chih-chiu Lin Eichakeem Lashawn Chloe Elizabeth Neil Carolina Holderness Sun E. Kim Peter J. Linken McClary Danial A. Nelson Colin Neville Holmes Vivian Haewon Kim Jason E. Litwack Alan Alexander Bartlett Julia Nestor Kaleb M. Honsberger Michael Thomas Kingfield Brian Edward Liu McDowell Daniel Charles Neustadt Juana Corina Hopwood Rebecca Kirschner Emmeline S. Liu Brian McElroy David Newman Michael Laurence Amy Gallup Klann Jason L. Liu Joanna Simone McGibbon Margeau J. Ney Horowitz Russell Klein Erin Elizabeth Lloyd Michele B. McGlyn Uyen Nguyen Steven Charles Hough Jason Morris Kleinman Justin Paul Houghton Valerie Patricia Damon Paul Howard Knobelsdorf Thomas William Howard Christopher John Kocher In Memoriam Pamela Anne Huergo Danielle Jodie Kohn Junsuk Huh Ioulia Kolovarskaia Abraham Abramovsky Leonard Hershkowitz Mary Irene Hunter Evelyn Konrad New York, NY Boca Raton, FL Lisa Brooke Hurwitz Andrew Joseph Kopelman Charles A. Barker Rodney N. Houghton Emilie Rachel Hyams Ruslan Vladimirovich Central Valley, NY Vero Beach, FL Anna Lee Chikako Iijima Koretski Peter A.A. Berle Christine A. Ingraham Marsha Jessica Indych Victoria Koroteyeva Stockbridge, MA Clifton Park, NY Toshinori Isoai Denis Korsunskiy Albert L. Brunell John Marc Johnson Tomoko Iwata John Kosmidis Demarest, NJ New York, NY Omar Jabri Stergios Kosmidis W. Park Catchpole Francis C. LaVigne Bibiana Andrea Del Pilar Serhat T. Krause Jamestown, NY Massena, NY Jaimes Iregui Faye Kravetz Dennis Andrew Sumangali Krishnan Raymond Kevin Conboy Carmen A. Miller Jamiolkowski Brant Duncan Kuehn Yorktown Heights, NY Corning, NY Richard Jarosch Vincent Anthony Kullen William Cozzolino Kenneth M. Myers Steven Abraham Jaspan Sasha Goel Kumar New York, NY Miami, FL Shaohui Jiang Alice Lin-hsuan Kuo Jacob J. Epstein Stuart H. Pringle Khelia Jehan Johnson Julie Margaret Kurdes Jeffersonville, NY South Pomfret, VT Susan Jennifer Kurkowski Latasha Nicole Johnson Stanley Garrett Jack D. Samuels Ilya Kushnirsky Michael Ridgway Jones New York, NY Los Angeles, CA Charles Nicholas Juliana Frank Leslie Ling Loong Eugene C. Gerhart Robert Swensen Stuart Phillip Kagan Kwok Binghamton, NY Port Saint Lucie, FL Shannon Therese Kahle Gustavo Laborde

NYSBA Journal | January 2008 | 65 Virginia Tu Huong Christopher Charles Ashley Michelle Schneider Mario J. Sturla Rebecca Mary Watson Nguyen Prevost Jeffrey Robert Schneider Christina Helen Sullivan Kristin Laura Weinberger Melinda Ann Nicholson Huaying Qi Brian Allen Schultz Adam David Summers Jason Scott Weinstein Jennifer Michele Nixon Stefan Hisashi Quick Joshua Steven Schwadron Catherine Suvari William H. Weisman Kathleen N. Noreau Andrew Townsend Lisa Ann Schwartz Anand Swaminathan Brian A. Weiss Lisa Renee Norman Radsch Laurence Michael Kirsten Elizabeth Amnon Zvi Wenger Ethan Notkin Dennis Andrew Rambaud Schwartztol Talmage Jacob Benning Wentworth Sonia Angelica Novoa Sarah Rasheed Nicholas Thomas Scott Derek James Tang Sydney S. White Robin Linnett Nunn Donald Theodore Rave Jennifer Ann Sculco Kenneth Mark Tanzer Andrew Jacob Wiesner Siham Nurhussein Kimberly Jane Ravener Timothy J. Scutero Nathan Kron Tasso Kamali Pettiford Willett Nadir Nurmohamed Susan Andrea Reading Christine Adele Sebourn Bonnie S. Tellgmann Emily M. Williams Kevin Thomas O’Connor Jonathan Day Rechner Zachary Lewis Seder Marc Alan Tenenbaum Olanrewaju Ariezino Stephen Burke O’Connor Daryl Wornie Reed Marie Louise Seelig Ann-Marie Tesar Williams Jean O’Hearn Alexander Jonathan Rein Justin Thomas Sevier James S. Thompson Richard Chen Williams Brendan David O’Leary Racquel Heather Reinstein Avani Manoj Shah Sacha Thompson Lauren Willig Vanessa Wynter Natlee Reisen Payal Kiran Shah William Robert Alexander Wilson O-blanquet Sarah Reisman Fadi Shaheen Thornewell Bradley D. Wilson Sameerah Oodally Natalia M. Restivo Amir Shaikh Chen Feng Tien Jennings Beazley Wilson Johnathan Ophir Sue Rhee Susan Shamoto Thomas Sig Tollefsen Mary Katherine Wingard Kirsten Alexis Alexandra Charles Michael Jonathan Charles Shapiro Adam Martin Tomiak Benjamin Joshua Wolf Orr Ricciardelli Aabha Sharma Jeremy Traster Lorianne Melissa Norman Paul Ostrove Richard B. Riecker Michael H. Shaw Stacie Elizabeth Trott Wolseley Vincent Albert Pace Christina Marie Rieker Robert Brian Shaw Ashley True Ka Fei Wong David Ari Packman Lee E. Riger Jonathan Roy Shechter Trevor Kress Truman Courtney Marie Wright Laura Padin Matthew David Rittberg Paul Lewis Shechtman Susan Tsai Libing Wu Sydney Erica Paley Irmali Belen Rivera-Mora Jesse Joshua Kamal Sheff King Fung Tsang Nicole A. Wyskoarko Mark Edgar Palmer Caitlin Anne Robin Michael Timothy Shepherd Christopher Alexander Brett David Yacker Joshua O. Panas Carol Elizabeth Tillman Marc Adam Sherman Tsarnas Fuhao Yang Susan John Pappy Robin Kathleen Kaufmann Shih Conray Tseng Florence Marie Yee Mariana Souza Pargendler Jeremy Patrick Robinson Sara Shikhman Dmitry Tuchinsky Samantha Page Yellin Julie Elizabeth Parish Erin Ventre Roeder Khardeen I. Shillingford Christopher Richard Arabella Yip Jennifer Park Kristy Michelle Rogan Kim Marlowe Shipley Tulimieri Tracy Yuan Pamela Ann Parker Courtney A. Rogers Jaron Razilee Shipp Elizabeth Whelan Tatiana Vladimir Emily Pataki Courtney Michelle Rogers Jeffrey Alan Shooman Turchyn Zakharova Amisha Patel David Rosen Shahram M. Siddiqui Bethany Rebecca Turke Yonatan E. Zamir Ryan Patino Janelle Brooke Susan Slovak-Stern Erdal Turnacioglu Joshua Marc Zelig Rena Tamar Paul Rosenbaum Erica Carolyn Smilevski Caleb McCracken Turner Fei Zhou Antonette Louise Payne Alyse Rosenberg Craig M. Smith Deborah Ann Lanlan Zhou Halfeng Peng Steven Z. Rosenzweig Katherine Mullen Smith Twardowski Jie J. Zhu Lauri Penn Alexandra Rosin Shani S. Smith Samantha M. Tweedy Tally Zingher Daniel F. Pepitone Marc Rossell Whitney Morgan Smith Ugochukwu O. Ude Daniel Ioannis Zohny Alfredo Antonio Perez Dara Therese Royer Mychii Snape Viktoria Ulyanitsky Nick Zotos De Alejo Veronica Rozo-Martinez Oliviero Antonio Soldati Scott Cortlandt Urquhart SECOND DISTRICT Joshua S. Pergament Arie Meir Rubenstein Adam Keith Spease Sujal Kirit Vaidya Andrew Vafa Afifian Jennifer I. Pertnoy Caroline David Harralson Gina Susan Spiegelman Daniel Scott Valinoti Deborah Karen Vanessa Erwin R. Petilos Ruschell Joshua Edward Spielman Alexander Van Voorhees Baker Edgar Pevsner Angola M. Russell Andrew Spital Brien Grey Van Wagner Kafui Aku Bediako Clarence William Phillips Andrea Cristina Saavedra William Rudolph Lisa S. Vara-Gulmez Martin Spencer Bell Cristine Irvin Phillips Alexander Joseph Saffi Springer Alyssa Michelle Varley Mackenzie A. Brooks Mary Elizabeth Pierce Stelios Giuseppe Saffos Peter Sprung Deepa Alluri Varma Daniel Eduardo Brunetti Thaddeus Lawrence Elizabeth Anne Safian Adam Steinbauer Jerry George Vattamala Ezra Ulalia Carrasquillo Pitney Ezequiel Sanchez Herrera Eric Jon Stenshoel Ana Carolina Velez Jonathan Benning Chazen Timothy James Plunkett Jeremy Raymond Sanders Rebecca Meryl Sterling Anna Vidiaev Heather Rebecca Demner Philip Ray-chee Poh Mary Ellane Sanders Amy Kathryn Sterner Elizabeth Charney Cynthia Joy Domingo- Alexander M. Polis Joshua M. Sandler Caleb James Stevens Vladeck Foraste Adam Lewis Pollock Michael Barrett Sandler Anna Leora Stewart Allison Claire Voetsch Sharyn Maitland Duncan Laura Renee Pomeroy- Paul Anthony Sarkis Spencer Stiefel Lauren Suzanne Voss Eva D. Hoenlein Dworkin Gerber Jodi Renee Sarowitz David Michael Stoltzfus Jade K. Wagner Tanya Patrice Dwyer Joseph James Pontrello Mark H. Sattinger Claudio Storelli Kulbir Singh Walha Shlomo Ehrentreu Whitney Potts Kristin Leigh Savarese Eric J. Storz Thomas Walsh Ian George Fisher Evridiki Poumpouridis Tammy Dawn Schall Jonathan Aaron Strauss Michele Inge Walther Claryse Flores Peta-Gaye Antoinette Maronya Charisse Scharf Julie Lynn Strom Alfred Wang Kristen Anne Gaken Prendergast Marcela Vania Schlaen Preston Matthew Ying Wang Anat Grosfeld Jacob Press Gregory Michael Schmidt Strosnider David Mark Wasserman Jonathan Herman

66 | January 2008 | NYSBA Journal Sarena Tamar Horowitz Travis H.D. Lewin Jason Todd Bowden Barry J. Ungar Elizabeth McGrath Irina Hisun Kim Mary Helen McNeal Edward Bradley Carol Anne Van Houten William Patrick Novak Shari L. Braverman Eileen M. Verity Ebere Ogba-Trotman Dietrich Jan Knabe SIXTH DISTRICT Suzanna Pacht Brickman Everett Witherell Raasheja Niche Page Mariana Louise Kovel Mark Dodds Robert M. Bridges Carol L. Wood Brian Todd Pakett Michele Lam Lynn Janis Trudell Matthew Allen Lane John Peter Brooke Yantong Yang Katie Marie Ringer Shilpa Patel Larson SEVENTH DISTRICT John M. Chase Joshua Zukofsky Melissa P. Schwechter Sean T. Hanna Anna Christina Chau Alexandra Genevieve Mark Alexander Laughlin ELEVENTH DISTRICT Charles Eyrich Sieving David Joseph Conn Sedehi Talya Abigail Leader Natallia Azava Jeffrey A. Wadsworth Leonor Hidalgo Coyle Andrew Paul Sherwood Jonathan Lee Ouzy Azoulay Jason Wesley Creech Matthew Paul Sotirhos Lawrence B. Lipton EIGHTH DISTRICT Brooke Barnes Eric Gordon Dahlgren Jamien Oliver Weddle Timothy Ian Mahon Eric Samuel Bernhardt Kyungsoo Cho Rachael E. Dioguardi Shakoya Della Womack Kathleen Malloy Jeffrey Thomas Blair Ryan Joseph Clark Brooke Ashner Drew Jason Wong Joana Mary Marshall Timothy William Hoover Emily Frances Collins Kristen Elayne Drumm Kimberly Zick Kathleen Mary Mc Inerney Amy Elizabeth McShane Olivia Margaret Cuggy Blake Alexander Feldman Daniel L. Mellor Chenping Su Vicente Tanierla Cuison OUT OF STATE Jordon M. Freundlich Elizabeth Mary Moehle Matthew Leonard Alberto Acevedo NINTH DISTRICT Robert Geoffrey Gandler Evan H. Nass Depetro Charles Rodney Acker Kwaku Boafoh Agyeman Christine Margaret Geier Michael R. Nerenberg Eduardo Javier Diaz Taskeen Ahmed Christine Marie Argentina Michael Giannetta Alexander Nevins Christopher Fanning Bhagwan Dass Ahuja Adonaid Casado Ronni Jill Ginsberg Bradley Leo Ollinger Marilyn Anne Filingeri Alex-handrah Ruth- Fred M. Cohen Arti Goswamy Margarita Maria Ortiz Dov A. Fried emilienne Aime Christopher Martin Crane Edwin J. Grasmann Jenny Min Park Lu Gao Hamayun Sahl Akbari Arthur L. Delnegro Karla Antonieta Guerra Matthew Alain Peller Claudia Gigler Samuel Alemu Michael Anthony Turquoise Haskin Denis Petre Eileen Goldstein Tara Marie Alhofen DiDonato Eric James Helman Jeannette Marie Poyerd Emily Christine Grajales Patricia Marie Allen Cynthia Dolan Catherine Ann Henry Reeta L. Prakash Tina Grillo Lauren Audra Anderson Cynthia Lee Dow James Joseph Herz Diana Price Avrum Kaniel Navid Ansari Deborah E. Epstein John Hewson Carlis Linda Quinland Haenoon Kim Cristhian M. Arguedas James Patrick Fitzgerald Elizabeth Ann Justesen Terence J. Ricaforte Larry Lalla Jessica Arlauckas Mark J. Fitzmaurice Heather Dawn Kaplan Bruce Andre Richardson Daniel Levine Rodrigo Armand Makaria L. Gallagher Thomas G. Korakis Hannah Elizabeth Roman Zhijun Liu Jill Nicole Averett Meagan Katherine Sammy Jong Kye Avi Rosengarten Teresita V. Magsino Katherine Elizabeth Galligan Evan Matthew Lapenna Elizabeth D. Rothstein Christine N. Markussen Avery David Michael Katz Diane C. Lowe Walter Owen Russell Stacy Joan Meisner Adetokunbo Badejo Daniel W. Kelly Robert J. Malito Joshua Reed Saunders Laura Margaret Mullaney Simon Robert Bagnall Diana M. Kolodziejcuk Robert Newton Martinez Joseph J. Sheirer Stephanie Ng Joseph Abraham Bahgat John Anthony LaLindez Ryan Hamilton McAllister Kimberly Anne Summers Lorraine Debra Brent Richard Baker Julissa Lezcano Erin Elizabeth Rhiana Lauren Swartz O’Donoghue Gary Francis Ball Jordan Jayce Manfro McCandless Eleanor G. Taylor Christine M. Oliveri Ethan Daniel Balsam Karl E. Najork Thomas Mathew Alexander John Antonia T. Pappas Revital Bar-or Frank Joseph Nuara McGovern Threadgold Chejin Park Daniel Jay Barkin Julie P. Passman John Emil Morrone Michael L. Walker Sarah Maya Pillay Rachel Esther Bash Katherine Polak Sally Lana Mourad Yi Wang Arnolfo Tampos Quindala Robert S. Baska Kemal Matthew Rana Brian Peter Murphy Mark Thomas Weaver Peter Rahaghi Aniefiok Etim Bassey Carol Phyllis Richman Daniel O’Shea Carrie Sophia Zoubul Arya Shanika Ranasinghe Ellen Margaret Bates Elena Rossano Angelique H. Pabon-Cruz THIRD DISTRICT Alfred Schiraldi Christina Lakshmi Zachary Germano Schuck Ivy Madelyn Palmer Elizabeth Ava Culmone Vassilis Sfyroeras Beharry Ryan Christopher Susan G. Pernick John J. Faso Alan Michael Sigalow Mari H. Bergeron Schwarz Alexander Somphone Peter G. Ford Sukhbir Singh Patrick Robert Bergin Rosemary Anne Sciangula Phengsiaroun Gayle Harshfield Adedayo David Soneye Janna Ione Berke Diane E. Selker Altagracia Beatrice Pierre Gayle Ann Harshfield Lisa Marie Trpic Risa Anne Berkower Ron S. Solow Eric Noah Pitter Christos P. Kotsogiannis Leifan Wang Susan Marie Bernabucci Frederick A. Thomas Nancy Beth Regula Margreta Maria Morgulas Charlie Yue Krysta Linn Berquist Enrique Vargas Lois Rowman Walter Winfield Weber Maria Jesus Bertrand Daniel H. Walsh Joseph Ruotolo TWELFTH DISTRICT Jennifer M. Wilson Marvin Beshore Leyli Zohrenejad Joseph C. Ruotolo John William Bieder Susan A. Biggins FOURTH DISTRICT David Michael Zucker Gunit Singh Sabharwal Cesaria De Marco Kevin Michael Blake Laura Ann Lin Keith Schafer Lesley DeCasseres TENTH DISTRICT John Bennett Blank Ronald Michael Marcsisin James Paul Seney Lauren Di Chiara Moriah Rachel Adamo Melissa Steedle Bogad Scott A. Martin Mario E. Simmons Belkys Garcia Victor Adeniyi Adefuye Victor Andrew Bonett Dale Sheri Skir Bari Gayle Handwerger FIFTH DISTRICT Tina Fard Attarian Douglas James Boorstein Diann M. Trainor Gabriela Leal Clifton C. Carden Pierre Bazile Dan Booth Noel P. Tripp Susan Leddy Eszter Farago Daniel Robert Biegelman

NYSBA Journal | January 2008 | 67 Thomas Christophe Thomas Paul Duignan Margaux Danielle Hall Bohyoung Kim Jaime Lynn Mannon Bourdeaut Philip Laurence Dukes David Scott Hamilton Bokyoung Kim Laura Heidi Manschreck Robert S. Brady Sapna Dutta Jungeun Han Elizabeth Tammy Kim Jeffrey Nathan Maurice Ladale Felix Ebbinghaus Ryan E. Hanlon Hyun A. Kim Markowicz Brimmage Molly Jean Egan Toni Louise Harmer Hyung Tae Kim Eldonie Sicona Mason Jane Helen Broderick Laurence Brooke Elgart Erica Worth Harris Julie Kim Pinakin Milind Joseph Richards Brubaker Arthur Mark Elk Kim Taylor Hauskens Natalya R. Kim Masurekar Kenneth Ian Alejandro Craig Stewart Esquenazi Marisa Faye Helfer Andrew Scirica Kingsdale Tetsuya Matsueda Bucu Gregoire Etrillard Christopher Michael Mih Suhn Koh Michael Xavier Mayhew Patrick Joseph Bumatay Margot Mcree Eves Hennessey Anton Yurievich Konnov Linda K. McLeod Daynor Maria Butler Jonathan Robert Fabozzi Sturla Henriksbo Lisa Marie Kotasek Calvin John McNulty Emma Cafferky Jiaqian Fan Daniel John Hettich Amy Massengale Samuel Justo Medina Andrea Ometto Moreno Kun Fang Cassandra Louise Hill Kouznetsov Shishir Rupesh Mehta De Camargo Michael J. Faul Michael S. Hing Takashi Koyama Peter Boris Melamed Rwanda Nairobi Tomas Felcman Howard Ho Jessica Elyse Krieg Christine Marie Melilli Campbell Natara Gayle Feller Christopher Joseph Hoare E. Carlton Kromer Kamisha Latoya Menns Alexia Josefina Capote Alan S. Fellheimer Randa R., Hojaiban Jakub Marcin Kubicki Amy Lynn Miller Richard Gilbert Castanon Bridget Ann Fernquist David S. Hong Elizabeth Pari-sima Anita Astrida Millers Vanessa Chandis Corey Fitelson Emilie Jeanne Honore Kunkel Scott Michael Miloro Cheng-ho Chen Erin Regina Flanagan Adriana Stefanova Peter Joseph Kurdock Cynthia Beth Molkenthin Jie Chen Michael Paul Fleming Hristova Airi Kuya Jaeho Moon Maryan Maggy Chirayath Jennifer Wheatley Chingsen Hsu Matthew David Lakind Mark Joon Moon Casey M. Chisick Fletcher Mingyuan Hu Carole Barbara Landat Natalie Sue Morelli Chaoyuan Chiu Allison Gray Fraser Mindy Yen Yuan Huang Rinat Laniado Jaime Moreno Valle Christin Su Yi Chiu Jeremy Bennett Freeman Tsz Hai Huang John Hardy Lasater Ndidi Nkechi Moses Sungchan Cho Marie Anne Freret Christopher Joseph April Lavalley Logan Vansen Moss Peter Jihoon Choi Daniel Jacob Friedland Huber Michael Lazzeri Dana Anne Mulhauser Unha Jessica Chung Sven-Oliver Friedrich Benjamin Thomas Audrey Doris Lee Jill Lorraine Murch Beatrice Clement Taro Fujii Huebner Hyo In Lee Meredith Ramirez Daniel Raphael Corbin Kenji Fukuda Mark Clive Hulbert Rowoon Lee Murphy Yolanda Altagracia Jennifer Corinne Furlong Jeremy Ambler Hushon Yen-yao Donna Lee Bhavani Murugesan Cosme Mary Yosef Gabriel Gergana Hristova Tara Beth Lefurge Mitsuhiko Nakamoto Paul Cosmovici Gregg Mattisen Galardi Ignatova Raymond Howard Shiho Nakano Laura Marie Cotter Selena Galaviz Aya Inbar Lemisch Christopher Anthony Shamar Renee Cowan Pooja Galliara Roberta L. Irving Jared Raymond Narducci Jordan Wade Cowman Lingyun Gao Justine Isernhinke Lenderink Robert Hamilton Neill Robert Milton Crawford Jane Lee Garrison Ogniana Vassileva Beatriz Elena Leon Jennifer Michelle Nelsen Janaina Andrade Sousa Patrick Gervais Ivanova Andrew D. Leven Eric Andrew Nelson Cruz Victoria Ann Gilbert Christopher Keith Jahnke Gillian Niccola Lewter- Mark Peter Sheridan Cheryce Marie Cryer Angela Michele Mathew Paul Jasinski Miller New Jason Christopher Curry Gingerelli Lynn G. Javier Jessica Mckee Nelson Robert L. Newmark Daniel Patrick Gina Giordano Pauline Jean Leyland Ossi Eerikki Niiranen D’Alessandro Stephen J. Gobbo Daniel G. Johnson Leonel Leyva Gerald Thomas Nowak Amy Rebecca D’angelo Christopher Goetz Matthew Richard Just Fan Liao Atim A. Nsunwara William C. Dahlin Jeffrey Scott Goldstein Richard Matthew Just Hui-wen Lin Stephanie Marie O’Brien Michael Minxiang Dai Randy Charley Gonzales Margub Kabir Yun-hsien Diana Lin Richard Graham Anisha Sasheen Dasgupta Antonio Angelo Gonzalez James Martin Kalashian Thomas Ling O’Donoghue Senchal Marie Dashiell David M. D. Goodchild Shuhei Kambayashi Rex Allen Littrell Eun-woo Oh Brian John Deboer Timmy Kent Goss Taher Kameli Faye Vin Liu Atsushi Oka Bruce L. Decker Jason Philip Gratt Halim Samir Kanaan Tian Liu Helen Esther Omapas Olivia Defoort Stephanie Modlin Greene Nicholas Kliingbeil Kant Magdalena Maria Loos Jennifer Joy Chua Ong Nicole Ann Demers Adam Franklin Persefoni Kapellaki Ron Geoffrey Lugbill Koichi Ono Keya C. Denner Greenstone Evan Kaplan Paul Joseph Lukas Aimee Lee Onofrio Pierre Detrie Alyssa Blair Greenwald Dimitri Luke Karapelou Elaine Esther Lukic Roshan Ouseph Elizabeth Napier Dewar Joseph William Gruss Asli Karatas Joann Marie Lytle Jennifer Lynn Owens Caroline Dimitri Yan Guan Nyasha Madren Randi Nicole Macdonald Orin Paliwoda Alfred Alfredo Zenaide De Abreu Guerra Karimakwenda Shazia Malik Lidong Pan Divincentis Jonathan Thomas Guldin Rachel Liza Kastenberg Sasha A. Mandakovic Matthew Raymond Panas Manuela Doeller-hauner Li Guo Melanie Carrie Keene Yury Borisovich Natalie Aghavni John Anthony Dominic Qinghe Guo Tornike Keshelava Mandzhiev Panossian Alexandra Emily Zehra Olzlem Gurakar Alexander Karl Kessler Mariam Ming Li J. Andrea Park Donnelly Olabisi Iyabode Habib Nirav Kaushik Khakhar Manichaikul Jiwan Park Eric David Dorsky Jan Hahnwald Stephen James Killen Malini Manickavasagam Joseph Seungmin Park

68 | January 2008 | NYSBA Journal Soyun Park Scott Jacob Schwartz Ryan Noah Unruch William Hyun Chul Park Joseph Brusett Sconyers Alexander Joseph Urbelis Noble Lawrence Parsons Charles Russell Scott Sietske Klazina Maria Jeremee Pecache Anna Maria Scroger Van’t Hooft Yung-Ching Peng Mark Lawrence Seeley Vittorio Vella Foundation Memorials Hernan Perez Loose Katherine Dacey Seib Howard Joel Victor Jeremy David Peterson Monica Preet Sekhon Joseph M. Vigliotti Amer S. Pharaon Marc Israel Seldin Susannah Hawkins fitting and lasting tribute to a Jeremy Steven Piccini James Thomas Seymour Vining deceased lawyer can be made John Mark Pierce Jatin A. Shah Gregory Charles Walker A Joshua Ralph Pini Tejas Niranjan Shah Karol Corbin Walker through a memor ial contribution to The Carlos A. Piovanetti Tyler Laughlin Shannon Davida Michelle Walsh New York Bar Foundation. This highly Daniela Anamaria Pirvu Bashist M. Sharma Samuel Taylor Walsh Robert Scott Plosky Anthony Sharnov Mei-ling Wang appropriate and meaningful gesture on Jason Andrew Pozner Reema Murtaza Sheikh Shih-ying Wang the part of friends and associates will Nicole M. Pratt Wenhao Shen Eric James Warner be felt and appreciated by the family of Christy Mcquality Qian Sheng Akira Watanabe Prendergast Hideto Shindo Nobuyuki Watanabe the deceased. Tharusha Sanduni Masakazu Shirai Justin R. Waytowich Rajapakse Gal Sides-Machay Tina Marie Weber Contributions may be made to The Amita Ramesh Jeffery Alan Siedsma Timothy James Webster New York Bar Foundation, One Elk Saviprasad Hebbur Jessica M. Silverman Shirley Nan-chih Wei Rangaswamy Robert Peter Silvers Sarit Weitz Street, Albany, New York 12207, stating Asif Ranginwala Jennifer Elizabeth Michael Welch in whose memory it is made. An officer Sean Lockwood Rankin Silversmith Brad Franklin Westerfield of the Foundation will notify the family Martha Suzette Recinos Olivia Tina Sim Peter Michael Whelan Ravi Kumar Reddy Ramona Veronica Singh Kenyatta Lynne Whelchel that a contribution has been made and Christine Falk Reidy Guy Gordon Sirois Lisa Jane White by whom, although the amount of the Michael J. Reilly John Sarafim Skoutelas Nicola Claire White contribution will not be specified. Carol Iorianni Renehan Fredrik Skribeland Nicole Melissa White Lory Alissa Skwerer Justin M. Whittaker Katherine Diane All lawyers in whose name contri- Renshaw Lindsay Bogdan Sloan William Richard Wildman Meghan Grier Rhoad Nicole Patrice Smith Jennifer Helen butions are made will be listed in a Robert Rivera Eric Michael Snyder Winterhalder Foundation Memorial Book main- Heather Marie Somers Jinying Wu Rodolfo Rivera tained at the New York State Bar Center Brian Jeffrey Robinson Justine Patricia Sorrentino Min Wu April Theresa Roman Steven Michael Wanli Xu in Albany. In addition, the names of Denise R. Rosenhaft Stadtmiller Kenichi Yagi deceased members in whose memory Jacob Gustav Rosoff Lora Stavropolsky Aiko Yamada bequests or contributions in the sum Tovah Lynn Ross Kenneth Ephriam Stroup Alexey Yanchenko Matthew Casey Rowan Elizabeth J. Sudler Xinxin Yang of $1,000 or more are made will be per- Steven Robert Ruby Pradeek Susheelan Yuhua Yang manently inscribed on a bronze plaque Joaquín Ruiz Echauri Gregory Michael Sy Derek T.J. Yap Michael Collins Rupe Melissa Erica Sydney Kaloust Douglas mounted in the Memorial Hall facing the Jason David Russell Elizabeth Rebecca Tabas Yedibalian handsome courtyard at the Bar Center. Kirill Dmitrievich John Matthew Tanski Junghoon Yee Ryurikov Erica Lightfoot Teagarden Elizabeth Chung Yoo Luz Aurea Saenz Arana Yordanos Teferi Gi Il Yoon Joshua Marc Salzman Robert Wolfgang Akane Yoshida Sarah Marie Samp Eberhard Thamm Takahiko Yoshida Jonathan Matthew Susan Emily Timmons Jaime Lynn Young Sandler Bradley David Tishman Hengli Yu Kyra Maura Sanin Marianna Vasilovski Junghoon Yum Ranit Saposh Shiff Toma Tarik Omar Zahzah John Francis Scanlon Brian Robert Tomkins Sarir Zandi Timothy Michael Schafer Edward Dean Totino Lan Zhang Matthew J. Schiller Silvina Marie Traba Vladlen David Zvenyach Kimberly M. Schmid Berta Treitl Naomi Tobah Wen-li Tseng Schoenbaum Yi-min Tseng Elliot Schon Veronique Hoangdiep Tu Stephen Wayne Schwab Adeayo Olatunji Turton Jeffrey Martin Schwaber Ijeoma Adaku Ugoez

NYSBA Journal | January 2008 | 69 “Eugene Clifton Gerhart died on Saturday, October 27, 2007, at age 95. He was learned, literate and wise, a lawyer’s lawyer, a true gentleman and a trailblazer. I am very grateful that I had the opportunity to be his student and friend, and that I get to walk in some of his footprints.” Professor John Q. Barrett St. John’s University School of Law

Eugene Gerhart was known as the lawyer in Binghamton and the surrounding areas. He was a founder of Coughlin & Gerhart LLP, and the author of many books, including several important works on the life of Supreme Court Justice Robert H. Jackson. Gerhart met Jackson at an ABA meeting in Atlantic City, New Jersey, in the fall of 1946. Justice Jackson had come to speak, and Gerhart had come to accept a prize for his essay on labor disputes. Their friendship lasted until Jackson’s death in 1954. While a longer, more fitting piece on Eugene Gerhart is slated for a later issue of the Journal, it is impor- tant that we pay tribute to him now, however briefly, because for us, at the Bar Association, his greatest contribution to the bar was in his “part-time” job, Editor-in-Chief of the Journal. For nearly 38 years, from February 1961 to October 1998, Eugene Gerhart was, with his incomparable assistant Lorraine Wagner, the Journal’s editor in chief, editor, copy editor and proofreader. He gathered the articles and edited them, helped expand the format and set the standard for the journal we produce today. A remarkable achievement. We are in his debt.

It is with great sadness that I inform the members of our Bar Association of the untimely death of Thomas A. McTigue, Esq., a dear and highly regarded attorney with my firm. Tom was diagnosed in January 2007 with Acute Lymphocytic Leukemia at the age of 38 and fought mightily throughout the last 10 months to survive and be with his wife, Stephanie, their two-year old daughter Kendall, and their new daughter, Summer, who was born in May in the midst of the family’s turmoil. I particularly want to honor Tom here, because he gave me such invaluable assistance and support in my role as editor of the Journal. His opinions and ideas were always thoughtful and his advice was invariably spot on. All who knew Tom will remember him not only for his many accomplishments – as West Point cadet, attack helicopter pilot, champion bagpiper, commercial real estate executive, and talented attorney – but even more for his warmth, kindness, and the natural charisma and purity of heart that endeared him to so many, both clients and adversaries. Tom passed away the day before Thanksgiving, in the comfort of his home, surrounded by family, and close friends. Tom will be greatly and forever missed; I am fortunate to have known him as a colleague, editorial advisor and loyal friend. A foundation has been set up in Tom’s honor: The Tom McTigue Foundation c/o TD BankNorth N.A. 224 Route 4 East Paramus, New Jersey 07652

David C. Wilkes Editor-in-Chief

70 | January 2008 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

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NYSBA Journal | January 2008 | 73 The Legal Writer (3) dangling modifiers; and (4) awk- Eric told his daughter he would play Continued from Page 80 ward separations. with her after the meeting? Two correct A misplaced modifier occurs when versions: “Eric told his daughter he another adverb. Adverbs tell when, you improperly separate a word, would play with her when the meet- where, why, or under what conditions phrase, or clause from the word it ing was over.” Or: “When the meeting something happens or has happened. describes. Some commonly misplaced was over, Eric told his daughter that he Most adverbs end in “ly.” Examples: words: “almost,” “even,” “exactly,” would play with her.” “badly,” “completely,” “happily,” “hardly,” “just,” “merely,” “nearly,” Where you position a squinting “lazily,” “quickly,” and “slowly.” You “only,” “scarcely,” and “simply.” adverb (“almost,” “even,” “exactly,” can’t rely on this rule to recognize Example of a misplaced word: “She “hardly,” “just,” “merely,” “nearly,” adverbs; some adjectives end in “ly”: almost sold all her used law books at “only” “scarcely,” “simply,” or “sole- “friendly,” “lovely.” the garage sale.” The writer isn’t try- ly”) affects the sentence. Incorrect: “The Some adverbs are hard to recog- ing to say that “she almost sold all her court attorney only made one mistake.” nize. Examples: “afterward,” “almost,” used law books.” The writers means Becomes: “The court attorney made to say, “She sold almost all her law only one mistake.” Examples: “She only books at the garage sale.” Example of nominated Matthew for partner.” (She Run-on sentences a misplaced phrase: “Throw your sister didn’t vote for him.) “She nominated are hard to read, out the window the Bluebook.” The only Matthew for partner.” (She didn’t writer isn’t trying to say “Throw your nominate anyone else.) therefore, never sister out the window.” The writer A modifier dangles when the noun means to say: “Throw the Bluebook or pronoun to which a phrase or clause use them. to your sister.” Therefore: “Throw the refers is in the wrong place or miss- Bluebook out the window to your sis- ing. Sometimes the dangling modi- “already,” “back,” “even,” “far,” “fast,” ter.” Example: “She served punch to the fier is at the beginning of the sentence. “hard,” “here,” “how,” “late,” “long,” attorneys in paper cups.” The writer Sometimes it’s at the end. Example “low,” “more,” “near,” “never,” “next,” isn’t trying to say that “the attorneys of a dangling participle: “Once edited “now,” “often,” “only,” “quick,” “rath- were in paper cups,” but that’s the and rearranged, Bill received an A+.” er,” “slow,” “soon,” “still,” “then,” effect. Therefore: “She served punch in This suggests that “Bill” was edited “today,” “tomorrow,” “too,” “when,” paper cups to the attorneys.” Example and rearranged. Therefore: “Once he “where,” and “yesterday.” of a misplaced clause: “She returned the edited and rearranged his law-school Put the adverb next to the word it car to the dealer that was defective.” paper, Bill received an A+.” Example modifies. Incorrect: “It almost seems This sentence suggests that the dealer, of a dangling gerund: “After editing for impossible to finish the brief by July.” not the car, was defective. Therefore: an hour, the brief looked good.” This Becomes: “It seems almost impossible “She returned the defective car to the suggests that “the brief” was editing to finish the brief by July.” Incorrect: dealer.” Example: “He remembered that for an hour. Therefore: “After I edited “Don’t you ever remember writing the he forgot his brief when he reached the brief for an hour, the brief looked brief?” Becomes: “Don’t you remember the courthouse.” This suggests that good.” Example of dangling infinitive: ever writing the brief?” “he forgot his brief when he reached “To write a brief, a computer is needed Incorrect: “He drove slow.” In this the courthouse.” Therefore: “When he for efficiency.” Because “a brief” is example, you want “slow” to modify reached the courthouse, he remem- positioned next to “a computer,” the the verb “drive.” To determine wheth- bered that he forgot his brief.” Or: writer suggests that a computer can er “slow” is correct, ask yourself: How “He remembered when he reached the write a brief. Therefore: “For efficiency, did he drive? Slowly. Therefore: “He courthouse that he forgot his brief.” a computer is needed to write a brief.” drove slowly.” Incorrect: “Use adverbs A squinting modifier is a modifier Or: “To write a brief, you’ll need a correct.” Ask yourself: How should I that might refer to a preceding or a fol- computer for efficiency. Or: “To write use adverbs? Correctly. Therefore: “Use lowing word. Like a misplaced modi- a brief, an attorney needs a computer adverbs correctly.” fier, a squinting modifier creates con- for efficiency.” Example of a dangling Put adverbs at the beginning of sen- fusion. Unlike a misplaced modifier, elliptical clause: “When just five years tences for emphasis or when you want the adverb might function perfectly in old, my father taught me how to cross- to qualify the entire sentence. Correct: the sentence structure but its meaning examine my sister.” Because “when “Fortunately, no one was in the court- might be ambiguous. Example: “Eric just five years old” is positioned next room when the ceiling fell down.” told his daughter when the meeting to “my father,” the sentence suggests 14. Modifiers. Writers encounter was over he would play with her.” that “my five-year-old father taught four modifier problems: (1) misplaced Is it that Eric spoke to his daughter me how to cross-examine my sister.” modifiers; (2) squinting modifiers; when the meeting was over? Or that Therefore: “When I was just five years

74 | January 2008 | NYSBA Journal old, my father taught me how to cross- “dessert” to mean “sweet.” Examples: “Who” is the subject. Example: “Who examine my sister.” “His partner deserted him in the wrote the brief? Jane!” “Whom” can be An awkward separation creates con- hall.” “Bring plenty of water and a an object or a subject. Object example: fusion. Incorrect: “Many students have, hat when you travel in the desert.” “I “Whom did you see at the corner?” by the time they finish law school, love decadent desserts.” Use “its” to Subject example: “Jane is the person interned for a judge.” The sentence is show possession. Use “it’s” to mean whom defendant shot.” Here’s a tip: confusing because the auxiliary verb “it is” or “it has.” Examples: “What is Answer the implicit question the sen- “have” is separated from the main its color? It’s beige.” “It’s freezing in tence raises to see whether “he” (“she”) verb “interned.” Therefore: “By the time the courtroom.” Use “less” for things or “him” (“her”) can replace “who” they finish law school, many students that can’t be counted or which can be or “whom.” “He” or “she” replac- have interned for a judge.” Or: “Many counted, but only as a group, not indi- es “who.” “Him” or “her” replaces students have interned for a judge by vidually. Use “fewer” for things that “whom.” Incorrect: “Who do you want the time they finish law school.” can be counted individually. Example: to argue the case?” Becomes: “Whom do Misplaced prepositions lead to mis- “Less sand; fewer grains of sand.” Use you want to argue the case?” Answer: I cues. Make sure, for example, not to “loose” when you mean “unfastened.” want him or I want her to argue the put the word “with” is in the final Use “lose” when you mean “misplace.” case. An unnecessary “whom”: “Jane position of a sentence. Incorrect: “The Example: “My button is loose.” “I’ll lose is the person whom defendant shot.” defendant robbed a bank with money.” my tie if I don’t fasten it.” Use “princi- An unnecessary “who”: “Jane is the In this example, the reader might won- pal” when you mean “main” or “head person who defendant shot.” Becomes: der why the defendant didn’t use a of school.” Use “principle” when you “Jane is the person defendant shot.” gun. mean “rule.” Examples: “In this town, 17. The Sentence Extra. Eliminate 15. Problem Words and Pairs. You this is the principal road.” “The prin- the unnecessary “that” in a string of can’t “bare” it when two words sound cipal, Mr. Discipline, isn’t my friend.” clauses. Incorrect: “The law clerk said alike or when they’re spelled alike. Or “I follow all the principles of writing.” that although she will draft the opin- is it “bear” it? Don’t let it “affect” you. Use “than” to compare. Use “then” to ion, that no one will read it.” Correct: Or is it “effect” you? mean “at that time.” Examples: “New “The law clerk said that although she Use “accept” when you mean York has more attorneys than Hawaii.” will draft the opinion, no one will read “take.” Use “except” when you mean “New York was then unpopulated.” it.” Also eliminate extra prepositions. to “leave out.” Example: “Please accept Use “their” when you mean “belong- Consider this James Bond lyric from my apology.” Or: “Everyone except for Lawyer Lee went to court.” Use “affect” when you mean “ to influence” Misusing words will effect your writing. or “a feeling or state.” Use “effect” Pick on the right idiom. when you mean “something resulting from another action” or “to come into Use adverbs correct. being.” Example: “Mr. X, whose manner is affected, put his theory into effect. ing to them.” Use “there” when you the Wings’ classic “Live and Let Die”: His theory had a profound effect. It mean “place.” Use “they’re” when you “But if this ever changing world in affected many things.” Use “already” mean “they are.” Examples: “They used which we live in . . . .” Boring but cor- when you mean “before.” Use “all their car to get to New York.” “How do rect: “But if this ever changing world in ready” when you mean “prepared.” I get there?” “They’re coming to New which we live . . . .” Or: “But if this ever Example: “She already left for court.” York.” Use “weather” to mean “envi- changing world that we live in . . . .” Or: “She was all ready to go to law ronmental conditions.” Use “whether” 18. “That” Versus “Which.” “That” school.” Use “all together” when you to mean “if.” Examples: “The weather is a demonstrative pronoun. “Which” mean “everyone at once.” Use “alto- will be hot and muggy tomorrow.” “I is an interrogative pronoun. Examples: gether” when you mean “completely.” don’t know whether it will be hot or “that brief”; “which brief?” “That” is Example: “We jumped off the court- muggy tomorrow.” Use “your” when restrictive or defining. “That” intro- house stairs all together.” Or: “Lawyer you mean “belonging to you.” Use duces a restrictive clause: a clause Lee is altogether lazy.” Use “bare” “you’re” when you mean “you are.” necessary to the sentence’s meaning. to mean “uncovered.” Use “bear” to Examples: “Your argument was bril- “Which” isn’t restrictive or nondefin- mean “animal” or “endure.” Examples: liant.” “You’re brilliant.” ing. “Which” introduces a nonrestric- “The baby’s head was bare.” “I saw 16. Who and Whom. It isn’t egre- tive clause: a clause unnecessary to the bear climb a tree.” “I can’t bear gious to use “who” instead of “whom.” the sentence’s meaning. Use “that” to to sit in court.” Use “desert” to mean But it’s unforgivable to use “whom” introduce essential information. Use “leave behind” or “arid region.” Use instead of “who” to sound erudite. “which” to define, add to, or limit

NYSBA Journal | January 2008 | 75 information. Commas usually set off a hopeful.” “Jack is the least competent case” or “dissent from the majority clause beginning with “which.” attorney in the firm.” “As a litigator, he opinion.” “Equivalent with” becomes Here’s a tip: If the word or con- became most successful.” “equivalent to” or “equivalent of.” cept before the “that” or the “which” Some adjectives have irregular “Free of” becomes “free from.” “Grad- is one of several, use “that.” If the comparative and superlative forms. uated law school” becomes “graduated word or concept before the “that” or Examples: “bad” (ill) becomes “worse” or from law school” or “was graduated the “which” expresses a totality, use “worst.” “Far” becomes “farther” (dis- from law school.” “Identical to” becomes “which.” Example 1: “Judge Right must tance) or farthest.” “Far” also becomes “identical with.” “In accordance to” impose a sentence, which he doesn’t “further” or “furthest” (additional or becomes “in accordance with.” want to impose.” Example 2: “Judge distance). “Good” (well) becomes “bet- “Inadmissible for evidence” becomes Right must impose a sentence that he ter” or “best.” “Little” becomes “less,” “inadmissible into evidence” or “inad- doesn’t want to impose.” Use “which” “lesser,” or “littler” in the comparative missible for the purpose of impeach- if Judge Right must impose but one form. “Little” becomes “least” or “lit- ment.” “In search for” becomes “in search sentence and doesn’t want to impose tlest” in the superlative form. “Much” of.” “Insured from a loss” becomes it. Use “that” if Judge Right, who has (many) becomes “more” or “most.” “insured against loss” or “insurance on several sentences to impose, doesn’t 20. The Right Idiom. An idiom is a the property” or “insurance for the busi- want to impose only one of them. phrase whose meaning is greater than ness.” “Plead the Fifth Amendment” Another tip: If you can drop the the sum of its parts. Some incorrect becomes “take [or invoke] the Fifth clause and still retain the meaning of idiomatic expressions in legal writing: Amendment.” “Prefer . . . over” becomes the sentence, use “which.” If you can’t, “Abide from a ruling” becomes “abide “prefer . . . to.” “Relation with” becomes use “that.” Example 1: “The trial exhib- by a ruling.” “Accord to” becomes “relation to.” “Relations to” becomes its that were damaged in the fire were “accord with.” “Adverse against” “relations with.” “Released from a debt” my exhibits.” Example 2: “My trial becomes “adverse to.” “Angry at” or “released into custody” or “released exhibits, which were 8 x 10 inch color becomes “angry with.” “Appeal at a by the court.” “Stay for awhile” becomes photographs, were damaged in the court” becomes “appeal to a court.” “As “stay a while” or “stay for a while.” “Ties fire.” In Example 1, if you drop the regards to” becomes “as regards.” with” becomes “ties to.” “Warrant for “that” clause” (“that were damaged”), “Authority about” becomes “authority eviction” becomes “warrant of eviction.” the entire sentence would lose its mean- on.” “Blame it on me” becomes “blame In the next issue, the Legal Writer ing. In Example 2, if you drop the me for it.” “Centers around” becomes will discuss the do’s and don’ts of “which” clause (“which were 8 x 10 “revolves around” or “centers on,” punctuation. ■ inch color photographs”), the sentence “centers in,” or “centers at.” “Comply would make sense. The “which” clause to” becomes “comply with.” “Contrast in Example 2 adds information. In to” becomes “contrast with.” “Convicted GERALD LEBOVITS is a judge of the New York City Example 1, the “that” clause defines the for [or in] a crime” becomes “convicted Civil Court, Housing Part, in Manhattan and an entire sentence and gives it meaning. of a crime.” “Correspond with,” as a adjunct professor at St. John’s University School 19. Comparisons. Use the compara- comparison, becomes “correspond to.” of Law. He thanks court attorney Alexandra tive degree to compare two persons You “correspond with” when you write Standish for assisting in researching this column. or things. Use the superlative degree a letter to someone. “Desirous to” Judge Lebovits’s e-mail address is GLebovits@ when you want to compare more than becomes “desirous of.” “Dissent from aol.com. two persons or things. this case” becomes “dissent in this For some adjectives that have one syllable and some adjectives that have two syllables, form the comparative by adding “er” and form the superla- tive degree by adding “est.” Examples: “Fine” becomes “finer” or “finest.” “Friendly” becomes “”friendlier” or “friendliest.” For some two-syllable adjectives and most adjectives that have more than two syllables, form the compara- tive by adding “more” or “less.” For these adjectives, form the superlative by adding “most” or “least.” Examples: “The recent decision seemed more

76 | January 2008 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK

uestion: More frequently than touch with the outside practical “consulting a doctor.” Since its origin ever, I find writers using the world. in Middle English, the noun doctor had Qterm “Ivory Towered” when The pejoration and amelioration of narrowed. In Middle English (1066 it seems to me that they should be say- language are on-going processes in all to 1400AD), any learned person was ing “Ivy Covered Tower.” I believe that living languages. One example of the called “doctor.” The noun originated “Ivy Covered” describes absent-mind- process of amelioration is the word in the Latin verb doceo (“teach”). All ed professors who are insulated from nice, which in Chaucer’s time meant teachers were once called “doctor,” the real world, and the term became “silly.” It came from the Latin combina- and no “doctorate” was required for corrupted to “Ivory Covered Tower” tion of ne (“not”) and scire (“to know”), that title. So a word that originally had with the same meaning. I know of and in Middle English, “unknowing” a broad meaning has narrowed and many ivy-covered buildings in the old people were considered to be both perhaps is beginning to expand once colleges of New England which once ignorant and foolish. Through the cen- more. served as the habitat of absent-minded turies nice has improved so that now it Other words have followed that professors. I know of no ivory-covered is flattering to be considered nice (that route. The verb starve originally had the towers. I look forward to reading your is “polite, considerate, and generally broad meaning of “die” before it came views. pleasant”). Along with amelioration, to designate a narrower meaning of Answer: My thanks to Syracuse nice has expanded in meaning, now “to die of hunger.” In the phrase “meat attorney Milton J. Crystal for his inter- applying to things (“a nice vacation”) and drink,” the word meat has its origi- esting question. The two terms “Ivy- as well as to persons. nal meaning “food,” but now means towered” and “Ivory-towered” are On the other hand, the word silly one kind of food. I have recently heard much alike, and “ivy-towered” does has taken the opposite route (down- the noun meat used in an expanded seem to more closely identify the col- ward) to reach its present pejorative sense in the context: “Just eat the meat lege buildings in many states. But the meaning, “foolish.” In Old English, of the orange, not its skin.” noun phrase “Ivory-covered tower” silly (spelled saelig) meant “blessed” A conspicuous expansion of mean- is the source of the phrase “Ivory- or “saintly,” Jesus having been called ing is seen in the small adjective hot, towered.” That phrase has a long heri- “that harmless silly babe.” The adjec- which once referred only to tempera- tage, biblical in origin. It was first tive silly also described holy men, who ture. Now it has a myriad of meanings: recorded in the Song of Solomon (7,4) were both blessed and unworldly. But attractive, charged or energized with in the context: “Your neck is like an the “unworldly” characteristic of silly electricity, successful (“a hot item”), ivory tower.” It’s true that that does also implied that persons so described fresh (“hot off the press”), in trouble seem an unlikely origin for the current could easily be duped, and Shakespeare (“in hot water”), and others. meaning of the phrase, so how did the called his rustic characters, who were Its original opposite, cool, has also current sense come about? weak and defenseless, “silly.” From expanded, with added meanings hav- In its modern sense of an unworldly there, silly took on its current meaning: ing little to do with temperature. It dreamer, the term first appeared in an “foolish, lacking good sense.” can mean “composed,” “indifferent,” early 19th-century French poem which Besides improving or degrading in “full” (“a cool million”), and even contrasted the socially engaged author meaning, words can also narrow or “hot,” in “That’s a cool idea.” When Victor Hugo with the less-worldly poet broaden in scope. A New York editor “cool” can mean “hot,” you can under- Alfred de Vigny. In England, the twin wrote that her mother and her moth- stand why English is so hard for for- towers of All Souls College in Oxford er’s friends use the word “doctoring,” eigners to learn. University, its only purely research when discussing various ailments, to My thanks to both correspondents towers, epitomized the idea of academ- mean “Are you seeing a doctor about for their interesting questions. ■ ic purity and separation from worldly this problem?” The writer added that concerns and desires. she has “doctored” many a pot of But over the years the term suffered jarred tomato sauce with garlic and pejoration because of the conflicting basil, but had never before heard the GERTRUDE BLOCK is lecturer emerita at the implications in the term “ivory- new meaning. University of Florida College of Law. She is the towered scientist.” One is the image of That new meaning does seem to author of Effective Legal Writing (Foundation a noble researcher, isolated from temp- indicate an expanded meaning for Press) and co-author of Judicial Opinion Writing tations of self-interest and corruption. “doctoring,” which traditionally meant (American Bar Association). Her most recent The other is the image of an academic “performing in the role of a doctor book is Legal Writing Advice: Questions and researcher so deeply involved in by applying remedies.” The meaning Answers (W. S. Hein & Co., 2004). abstract studies that he or she has lost of her mother’s phrase seems to be

NYSBA Journal | January 2008 | 77 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION

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78 | January 2008 | NYSBA Journal 2007-2008 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES

KATHRYN GRANT MADIGAN FIRST DISTRICT Longo, Mark A. Edmunds, David L., Jr. Aaron, Stewart D. Romero, Manuel A. Embser, James T. President Abernethy, Samuel F. Sunshine, Hon. Jeffrey S. Evans, Lydia V. Binghamton † * Alcott, Mark H. Sunshine, Hon. Nancy T. Fisher, Cheryl Smith Alden, Steven M. Szochet, Diana J. * Freedman, Maryann Saccomando BERNICE K. LEBER Anello, Robert J. THIRD DISTRICT Gerstman, Sharon Stern President-Elect Badner, Lisa Ray Ayers, James B. * Hassett, Paul Michael Badway, Ernest Edward Breen, Michael L. Lamantia, Stephen R. New York Barson, Alan D. Casserly, Timothy E. Manias, Giles P. Bartlett, Linda G. Cloonan, William N. McCarthy, Jeremiah J. JAMES B. AYERS Bienstock, Peter Copps, Anne Reynolds McCarthy, Joseph V. Treasurer Blanchard, Kimberly S. Davidoff, Michael Meyer, Harry G. Borsody, Robert P. Dolin, Thomas E. O’Donnell, Thomas M. Albany Boyers, Hon. Seymour Doyle, Hon. Cathryn M. Porcellio, Sharon M. Brett, Barry J. Farley, Susan E. Sconiers, Hon. Rose H. MICHAEL E. GETNICK Brown Spitzmueller, Janiece Fernandez, Hermes Subjack, James P. Secretary Brown, Geraldine Reed Gold, Majer H. Young, Oliver C. Brown, Peter Utica Greenberg, Henry M. NINTH DISTRICT Burns, Howard W., Jr. Greenthal, John L. Burke, Patrick T. † Campos-Galvan, Manuel Higgins, John Eric Byrne, Robert Lantry MARK H. ALCOTT Caraballo, Dolly Higgins, Patrick J. Campanaro, Patricia L. Immediate Past President Chambers, Hon. Cheryl E. Kelly, Matthew J. Casey, Bridget M. Cheng, Pui Chi New York Kretser, Hon. Rachel Dohn, Robert P. Chin, Sylvia Fung Lally, Sean P. Enea, Anthony J. Christian, Catherine A. Liebman, Bennett M. Fontana, Lucille A. Cohen, Carrie H. Lynch, Margaret Comard Gordon Oliver, Arlene Antoinette VICE-PRESIDENTS Collazo, Ernest J. Meislahn, Harry P. Gouz, Ronnie P. * Cometa, Angelo T. Miranda, David P. Kranis, Michael D. FIRST DISTRICT Crespo, Louis Moy, Lillian M. Lagonia, Salvatore A. Davis, Tracee E. Netter, Miriam M. Markhoff, Michael S. Claire P. Gutekunst, New York Donoghue, Gail Perino, Justina Cintron Marwell, John S. Susan B. Lindenauer, New York Draper, Thomas G., Jr. Potter, James T. * Miller, Henry G. Drayton, Joseph Michael Powers, John K. Murray, Conal E. Eppler, Klaus † * Ostertag, Robert L. ECOND ISTRICT Salkin, Prof. Patricia E. S D Finerty, Hon. Margaret J. Sandner, James R. Sciortino, Sandra B. Barry Kamins, Brooklyn Fink, Rosalind S. Schofield, Robert T., IV Selinger, John * Forger, Alexander D. † * Tharp, Lorraine Power † * Standard, Kenneth G. Frank, Paul M. THIRD DISTRICT Thornton, Timothy B. Thornhill, Herbert L., Jr. Fries, Richard S. * Williams, David S. Townley, Rosemary A. Hon. Rachel Kretser, Albany Gesinsky, Loren M. * Yanas, John J. Van Scoyoc, Carol L. * Gillespie, S. Hazard. Wallach, Sherry Levin Grays, Taa R. FOURTH DISTRICT FOURTH DISTRICT Breedlove, Brian H. Welby, Thomas H. Gredd, Helen A. Wilson, Leroy, Jr. Nicholas E. Tishler, Niskayuna Gross, Marjorie E. Burke, J. David Gutekunst, Claire P. Caffry, John W. TENTH DISTRICT Coffey, Peter V. * Bracken, John P. FIFTH DISTRICT Haig, Robert L. Hariton, David P. Cullum, James E. Buonora, John L. David M. Hayes, Syracuse Harris, Joel B. Ferradino, Stephanie W. Cartright, Valerie M. Hoffman, Stephen D. Haelen, Joanne B. Castillo, Nelson A. Rider, Mark M. Chase, Dennis R. SIXTH DISTRICT * King, Henry L. Kobak, James B., Jr. Rodriguez, Patricia L. R. Clarke, Lance D. David A. Tyler, Ithaca Kougasian, Peter M. Sterrett, Grace Elder-Howell, Andrea M. † * Krane, Steven C. FIFTH DISTRICT Fishberg, Gerard SEVENTH DISTRICT Kuntz, Dr. William F., II Gall, Erin P. Franchina, Emily F. Larson, Wallace L., Jr. Getnick, Michael E. Gann, Marc David M. Schraver, Rochester † Leber, Bernice K. Gingold, Neil M. Giorgio, Frank, Jr. Leo, Robert J. Greeley, Kristin B. Gross, John H. EIGHTH DISTRICT Lieberman, Ellen Hayes, David M. † * Levin, A. Thomas Lindenauer, Susan B. Larose, Stuart J. Levy, Peter H. Sharon Stern Gerstman, Buffalo * MacCrate, Robert Longstreet, Ami S. Luskin, Andrew J. Martin, Edwina Frances McClusky, James P. Makofsky, Ellen G. NINTH DISTRICT Mazzarelli, Hon. Angela M. Mitchell, Richard C. Margolin, Linda U. Mihalick, Andrew J. John S. Marwell, Mount Kisco McEnroe, Diane Crosson Pellow, David M. Miller, Michael Peterson, Margaret Murphy * Pruzansky, Joshua M. Millett, Eileen D. Priore, Nicholas S. Purcell, A. Craig ENTH ISTRICT T D Minkowitz, Martin Richardson, M. Catherine * Rice, Thomas O. John H. Gross, Hauppauge Moreland, Thomas H. Stanislaus-Fung, Karen Robinson, Derrick J. Morril, Mark C. Smolowitz, Barry M. SIXTH DISTRICT Steinberg, Harriette M. ELEVENTH DISTRICT Nathanson, Eugene Cummings, Patricia A. O’Neill, Paul J., Jr. Stempel, Vincent F., Jr. Denton, Christopher Thompson, Charlene R. Seymour W. James, Jr., Kew Gardens * Patterson, Hon. Robert P., Jr. Egan, Shirley K. Paul, Gerald G. Walsh, Owen B. Gorgos, Mark S. Winkler, James R. TWELFTH DISTRICT Reed, Thomas A. † Madigan, Kathryn Grant Rifkin, Richard Marris, Karin Huntley ELEVENTH DISTRICT Steven E. Millon, Bronx Robertson, Edwin David May, Michael R. Cohen, David Louis Rosenthal, Lesley Friedman Sheehan, Dennis P. Dietz, John R. Rosner, Seth Smyk, Stephen D. Goldblum, A. Paul MEMBERS-AT-LARGE OF THE Rothstein, Alan Tyler, David A. Haskel, Jules J. Russell, William T., Jr. James, Seymour W., Jr. SEVENTH DISTRICT EXECUTIVE COMMITTEE * Seymour, Whitney North, Jr. Leinheardt, Wallace L. Barney, Brian J. Lomuscio, Catherine Sherman, Carol R. Brown, T. Andrew Vincent E. Doyle, III Sherwin, Peter J.W. Lonuzzi, John A. Buholtz, Eileen E. Nashak, George J., Jr. Sigmond, Carol Ann † * Buzard, A. Vincent David L. Edmunds, Jr. Silkenat, James R. Terranova, Arthur N. Castellano, June M. Wimpfheimer, Steven Hermes Fernandez Smith, Hon. George Bundy Doyle, Hon. John D. Sonberg, Hon. Michael R. TWELFTH DISTRICT Michael Miller Lawrence, C. Bruce Steinberg, Lewis R. Lightsey, Mary W. Chavez, Daniel M. David P. Miranda Stenson, Lisa M. * Moore, James C. Friedberg, Alan B. Tesser, Lewis * Palermo, Anthony R. Millon, Steven E. Peter J.W. Sherwin Wachtler, Lauren J. Reynolds, J. Thomas * Pfeifer, Maxwell S. Williams, Bryan R. Lauren J. Wachtler Schraver, David M. Schwartz, Roy J. Younger, Stephen P. Schultz, Jill K. Stansel, Lynn Stephen P. Younger Zulack, John F. Smith, Thomas G. Summer, Robert S. SECOND DISTRICT * Vigdor, Justin L. Weinberger, Richard Adler, Roger B. * Witmer, G. Robert, Jr. OUT-OF-STATE Branda, Rose Ann C. EIGHTH DISTRICT Cahn, Jeffrey Barton Cohn, Steven D. Brady, Thomas C. * Fales, Haliburton, II Golinski, Paul A. Doyle, Vincent E., III Tilton, Samuel O. Kamins, Barry * Walsh, Lawrence E. † Delegate to American Bar Association House of Delegates * Past President

NYSBA Journal | January 2008 | 79 THE LEGAL WRITER BY GERALD LEBOVITS

Do’s, Don’ts, and Maybes: Legal Writing Grammar — Part II

n the last column, the Legal Writer put on a jacket.” In this example, there’s a subject complement. Example: “The discussed 10 grammar issues. We no punctuation between the two inde- attorney is an intelligent man.” “A” Icontinue with another 10. pendent clauses. The first clause is “It’s precedes a word that begins with the 11. The Run-on Sentence. A run-on cold in the courtroom”; the second sound of a consonant, even if the word sentence isn’t a long sentence. A run-on is “I should put on a jacket.” To fix begins with a vowel, such as “eulogy.” sentence is formed when (1) a conjunc- this run-on sentence, put a semicolon “An” precedes a word that begins with tive adverb separates two independent or a period between the independent a vowel sound, even if the word begins clauses (clauses that could serve as clauses. If appropriate, include one of with a consonant. Use “an” before a separate sentences) and a semicolon or the conjunctive adverbs listed above. silent “h”: “an heir.” Use “a” before a period doesn’t precede the adverb; Becomes: “It’s cold in the courtroom; I an aspirated, or pronounced, “h”: “a (2) no punctuation separates two inde- should put on a jacket.” Or: “It’s cold historic occasion,” “a history book.” pendent clauses; or (3) a comma splices in the courtroom. I should put on a “The” is a definite article that refers to two independent clauses. jacket.” Or: “It’s cold in the courtroom; someone or something specific. “The” Example 1 — the conjunctive adverb thus, I should put on a jacket.” Or: “It’s begins a noun phrase to refer to some- run-on: “Judge Doe wrote the opinion, cold in the courtroom. Thus, I should thing already known to listeners or however, he never read it to the liti- put on a jacket.” to assert the existence of something. gants.” In this example, “however” is Example 3 — the comma-splice run-on: Examples: “The courthouse is across the the conjunctive adverb separating two “It’s cold in the courtroom, I should put street.” “The shortest attorney in New independent clauses, or clauses that on a jacket.” In this example, a comma York County was the most successful could be a full sentence. Examples of separates the independent clauses. Fix attorney.” conjunctive adverbs are “accordingly,” this run-on sentence the same way as in Use an article before a count noun: “again,” “also,” “anyway,” “besides,” Example 2: Put a semicolon or a period a noun that names something that “certainly,” “consequently,” “finally,” between the independent clauses and can be counted. Don’t use an article “for example,” “further,” “further- include a conjunctive adverb. before a noncount noun or a mass more,” “hence,” “however,” “inciden- It’s not a run-on sentence to sep- noun: a noun that can’t be counted. tally,” “indeed,” “instead,” “likewise,” arate two independent clauses with Incorrect: “My law clerk celebrated “meanwhile,” “moreover,” “neverthe- a coordinating conjunction such as birthday yesterday.” Becomes: “My law less,” “next,” “nonetheless,” “on the “and,” “but,” “or,” “for,” “nor,” “so,” clerk celebrated a birthday yesterday.” other hand,” “otherwise,” “rather,” or “yet.” Example: “Lawyer X read the (“Birthday” is a count noun.) Incorrect: “similarly,” “still,” “then,” “thereafter,” decision, but he didn’t understand a “The witness asked for glass of water.” “therefore,” “thus,” and “undoubt- word of it.” Becomes: “The witness asked for a glass edly.” In Example 1, no semicolon or Exception: It’s not a run-on sentence of water.” (Glasses can be counted.) period precedes the conjunctive adverb to use asyndetons: independent claus- Incorrect: “He showed a courage when “however.” To fix this sentence, put a es not joined by conjunctions. Example: he jumped into the lake to save the semicolon or a period after “opinion.” “I came, I saw, I conquered.” baby.” Becomes: “He showed courage Then put a comma after the conjunctive Run-on sentences are hard to read; when he jumped into the lake to save adverb. Example 1 becomes: “Judge Doe therefore, never use them. the baby.” (“Courage” is a mass noun. wrote the opinion; however, he never 12. Articles. “A” and “an” are indef- An article may not precede “courage,” read it to the litigants.” Or: “Judge Doe inite articles that refer to someone or which can’t be counted.) wrote the opinion. However, he never something general. Use “a” and “an” 13. Adverbs. Adverbs are words read it to the litigants.” to begin a noun phrase. Example: “A that modify a verb, an adjective, or Example 2 — the no-punctuation run- juror was disqualified for speaking on: “It’s cold in the courtroom I should with the press.” Use “a” or “an” as Continued on Page 74

80 | January 2008 | NYSBA Journal The latest NYSBA Monograph Series © 2008

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