March 2009 Guardian & Elder Law: CPLR New and Noteworthy Update 2009 by DAVID H

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Queens County Bar Association / 90-35 One Hundred Forty Eighth Street, Jamaica, NY 11435 / (718) 291-4500 Vol. 72 / No. 6 / March 2009 Guardian & Elder Law: CPLR New and Noteworthy Update 2009 BY DAVID H. ROSEN, ESQ. BY JOHN R. DIETZ, ESQ. remaining assets in the trust upon the beneficiary’s death”. This article continues There is much that is new and noteworthy in Are SNT’s as valuable a planning tool now from Part I, which was Guardianship and Elder Law. The Courts, as before the Court’s decision? There are published in the February including the Court of Appeals, have rendered many advocates who contend that disabled 2009 issue of the Queens an array of interesting decisions. The legisla- individuals, their families, and attorneys, must Bar Bulletin. ture has been active in making new laws. And now give a hard critical look at the SNT, of course at the beginning of each new year the Medicaid, and other options before routinely The two-judge dissent, administrative agencies are busy promulgating creating and funding this popular legal tool. while agreeing that “good program changes. What follows is a selective MHL §81.29: MHL §81.29 (d) has been cause” is not shown here survey of some of the recent Court decisions, David H. Rosen, Esq. amended in connections with the authority of merely by the merit of the new laws, and administrative changes. John Dietz the Courts to vitiate wills and codicils of an underlying application and lack of prejudice to the Supplemental Needs Trusts: In Matter of Incapacitated Person. In Matter of Ruby S., adversary, was unwilling to adopt the strict attitude Abraham XX, 165, the Court of Appeals addressed the N.Y.L.J., Feb. 11, 2002, Justice Thomas, Supreme Court, of the majority. In particular, the dissent pointed out question as to whether the State can recover its remainder Queens County, took the then extraordinary step of void- that the Brill and Miceli decisions simply ruled out interest in an amount equal to the total medical assistance ing the Last Will & Testament of an Incapacitated Person. late summary judgment motions: the would-be paid or whether the State is limited to the amount expend- The decision was both decried and hailed. The decision movant was not ultimately deprived of his day in ed from the trust’s effective date to the recipient’s death. seemed logical and fair. Why was it necessary to wait court. Here, the effect of a strict construction was to Unfortunately, the Court decided the case in favor of the until the death of the Incapacitated Person, sometimes deprive the plaintiff wife of an “enormous money State. many years later, to challenge the validity of a will? judgment granted. . .against an opponent who had The facts are familiar. Abraham XX suffered an injury Especially, when one considers that the Incapacitated thrown every possible obstacle in her path”. at birth. His institutional care was paid for by Medicaid. Person may still be alive, the witnesses available, and the In reversing, the Court of Appeals did not address A personal injury suit was brought on behalf of Abraham events fresh in everyone’s minds. the Appellate Division’s application of Brill and its XX. The matter settled and the Medicaid lien at the time, On appeal Justice Thomas’ decision was left intact. The progeny to Rule 202.48. Rather, it held the rule inap- $1.7 million, was paid in full. After years of litigation the Appellate Division deflected any decision on the grounds plicable under the facts. The plaintiff wife was enti- sum of $2.17 million was retroactively placed into a that the appellant, who was the nominated executor and tled to the money judgment as a result of the original Supplemental Needs Trust (SNT). There was an 18 month the attorney drafter, lacked standing. Two months later, 1966 decision, which specifically directed the entry gap, however, from the time of verdict and the date the however, In the Matter of Lillian A., 307 A.D.2d 921, 762 of a money judgment “without further order.” Thus, trust was funded. Abraham died on June 11, 2003. N.Y.S.2d 899 (2d Dept 2003), the Court stated that the no settlement was required and Rule 202.48 was Medicaid sought reimbursement for payments made dur- Supreme Court did not have authority to revoke a last will inapplicable34. The point was reiterated in the 1996 ing the gap. Abraham’s mother argued the State was only and testament, citing to MHL § 81.29(d). judgment and again in the decision on the 2000 entitled to recovery of Medicaid payments made after the The legislature has now put the issue to rest. The Court motion. There was thus no time limit on the entry of SNT was funded. During the gap the payments were “cor- has no authority to invalidate a will or codicil, according the money judgment, and no need for the 2000 rectly paid” and not subject to recovery. to the amended MHL 81.29 (d). While the Supreme Court motion for leave to enter the money judgment. That The Court rejected the mother’s argument. The Court may amend, modify or revoke any previously executed Supreme Court had “unaccountably” added a direc- held that when an SNT is established pursuant to Social power of attorney, power of appointment, health care tion to “settle judgment” as a money judgment the Services Law 366(2)(b)(2)(iii)(A) “the beneficiary explic- proxy, or any contract, conveyance, or disposition during wife was entitled to without a further order did not itly provides the State with a right to recover the total lifetime or to take effect upon death, made by the inca- change the result. Medicaid paid on behalf of the individual. There is no pacitated person prior to the appointment of the guardian With the result reached by the Appellate temporal limitation. The sole, though substantial, stated if the court finds that the person was incapacitated or if Division having been reversed, but its rationale not limitation on the State’s recovery is the existence of ______Continued On Page 13 having been addressed, it remains an open question whether or not Rule 202.48 will remain subject to the strict construction of time limits set forth in the original Farkas decision. The prudent approach is to assume that it will be, and to take great care to Check inside this month’s edition of the submit or settle orders and judgments in a timely fashion. It must not be assumed that the court will excuse late submissions merely because there has Queens Bar Bulletin been no change in circumstances or prejudice to the adversary. In Wilson v Galicia Contr. & Restoration Corp.,35 for an update to the the Court of Appeals illustrated, yet again, that a defendant whose answer has been stricken for a will- 2009 Queens County Bar Association Annual Directory ful failure to disclose is in the same position as if he ______Continued On Page 14

INSIDE THIS ISSUE Guardian & Elder Law...... 1 New Rules of Professional Conduct. . . . 5 CPLR Update ...... 1 Culture Corner...... 6 The Docket ...... 2 Pretrial Advocacy: An Ethical Checklist . 9 President’s Message...... 3 Photo Corner ...... 10-11 NYSBA Honors Dr. Parveen Chopra . . . . 4 Court Notes ...... 12 H-1B Visa Investigation Gets It Wrong . 4 Marital Quiz ...... 15 Matthew Lupoli Wins Award...... 4 Service Directory ...... 19 2 THE QUEENS BAR BULLETIN – MARCH 2009

THE DOCKET . . . QUEENS COUNTY BAR ASSOCIATION being the official notice of the meetings and programs listed below, which, unless otherwise noted, will be held at the Bar SCHOLARSHIP FUND Association Building, 90-35 148th St., Jamaica, New York. More information and any changes will be made available to members via written notice and brochures. Questions? Please call (718) 291-4500. PLEASE NOTE: Dear Members: The Queens Bar Association has been certified by the NYS Continuing Legal Education Board as an Accredited Legal Education Provider in the State of New York. The Queens County Bar Association’s Scholarship fund was creat- 2009 SPRING CLE Seminar & Event Listing ed to offer financial assistance to law students who are residents of Queens County or attend law school in Queens County. March 2009 The recipients of the QCBA Scholarship are carefully chosen based Wednesday, March 4 Court Evaluator Training on academic achievement, community service and financial need. Thursday, March 12 How to Obtain Court Appointments Your tax deductible donation will help to support and recognize Wednesday, March 18 CPLR & Evidence Update those law students who provide community service to the residents of Monday, March 23 Past Presidents & Golden Jubilarians Night Queens County. It also enhances the good name of our Association. As President of the Queens County Bar Association, I urge you to April 2009 support this valuable community-based program. Wednesday, April 1 Equitable Distribution Update Thursday, April 2 Ethics Seminar Monday, April 6 MHL Article 81 Guardianship Training Tuesday, April 21 Judiciary Night Sincerely, Wednesday, April 22 Selection of a Jury Thursday, April 23 Basic Criminal Law Seminar – Part 1 STEVEN S. ORLOW Wednesday, April 22 No Fault Arbitration 2009 President Thursday, April 30 Basic Criminal Law Seminar – Part 2

May 2009 Thursday, May 7 Annual Dinner & Installation of Officers Thursday, May 14 Lawyers Assistance Seminar Tuesday, May 19 Bankruptcy Seminar Wednesday, May 20 All You Might Want to Know About LLC’s 2008-2009 Thursday, May 21 Wine & Cheese - TENTATIVE Officers and Board of Managers CLE Dates to be Announced of the

Elder Law Real Property Law Queens County Bar Association Juvenile Justice Law Surrogate’s Law Labor Law Taxation Law STEVEN S. ORLOW - President GUY R.VITACCO, JR. - President-Elect NEW MEMBERS CHANWOO LEE - Vice President

Jeffrey Lawrence Davis Chanjoo Moon Joseph Francis Sensale JOSEPH JOHN RISI, JR. - Secretary Manuel Fabian Helene C. Praeger Olga Someras Usman Ahmed Farooqui Teresa Principe RICHARD MICHAEL GUTIERREZ - Treasurer Mark Friedman Jonathan Rice Jennifer Garcia Juan San Pedro Class of 2009 Class of 2010 Class of 2011 Joseph F. DeFelice Gregory J. Brown David L. Cohen Gary Francis Miret Joseph Carola, III Paul E. Kerson NECROLOGY George J. Nashak, Jr John Robert Dietz Timothy B. Rountree Jerome D. Patterson Mona Haas Zenith T. Taylor George C. Godfrey, Jr. Nelson E. Timken James J. Wrynn

Arthur N. Terranova . . . Executive Director QUEENS BAR BULLETIN If you or someone you know is having EDITOR - LESLIE S. NIZIN a problem with alcohol, drugs or gambling, we can help. Associate Editors - Paul E. Kerson, Michael Goldsmith & Peter Carrozzo Send letters and editorial copy to: Publisher: Queens Bar Bulletin, 90-35 148th Street, To learn more, contact QCBA LAC for Long Islander Newspapers, LLC. Jamaica, New York 11435 a confidential conversation. under the auspices of Queens County Bar Association. Editor’s Note: Articles appearing in the Queens Bar Queens Bar Bulletin is published Bulletin represent the views of the respective authors and do not necessarily carry the endorsement of the Confidentiality is privileged and monthly from October to May. Association, the Board of Managers, or the All rights reserved. Editorial Board of the Queens Bar Bulletin. assured under Section 499 of the Material in this publication may Judiciary Laws as amended by not be stored or reproduced in “Queens Bar Bulletin” any form without permission. (USPS Number: 0048-6302) is published monthly except Chapter 327 of the laws of 1993. ©2009 June, July, August and September by Long Islander Newspapers, LLC., 149 Main Street, Huntington, NY 11743, The Queens County Bar under the auspices of the Queens County Bar Association. Lawyers Assistance Committee Entered as periodical postage paid at the Post Office at Jamaica, Association, Advertising Offices, New York and additional mailing offices under the Act of Confidential Helpline 718 307-7828 Long Islander Newspapers, Congress. Postmaster send address changes to the Queens 149 Main Street, Huntington, County Bar Association, 90-35 148th Street, Jamaica, NY New York (631) 427-7000 11435. THE QUEENS BAR BULLETIN – MARCH 2009 3

PRESIDENT’S MESSAGE

A "CULTURE OF CIVILITY" and insult the attorneys in a "Culture of Civility" in our Relations Committee of the Bar courtroom by their courtroom courts. Association has endeavored in the past, Arguably, aside from an actual battle- demeanor and, perhaps most As for civility between with more success than not, to affect and field, the legal field, and in particular, the distressing of all, the utter attorneys, we must all con- alter the distressing proclivities of cer- courtroom is the most inherently adver- lack of consideration often tribute to that goal. First, act tain judges that are brought to the sarial arena in our society. Would it not exhibited by some attorneys in good faith and then, make Committee’s attention by attorneys, so behoove us, as participants in that scene, for their colleagues by the the assumption that your too this committee will endeavor to deal to endeavor to minimize in every way cavalier attitude they seem to opposing attorney is acting in with situations involving attorneys, possible contributing factors to the stress demonstrate through tardy good faith as well. And com- clerks or court officers that are brought in that environment? appearances and the failure to municate! You will be late for to its attention. The committee will take The courtroom and the litigation exert an effort to communi- an appearance, you can only action – but the true key is that situations accompanying it is, indeed, a forum that cate. Steven Orlow make "second call", let the requiring attention MUST be brought to by its very nature invites strain, tension To have the inherent stress- other attorneys know. You the Committee’s attention – and it is only and even anxiety. The sources of this are es of the litigation process will appear on a discovery you that can do that! Have a judge that is almost endless. Waiting idly for hours aggravated by what amounts to extrane- motion, call your "adversary" and make a problem, tell us. A fellow attorney that while work pressures build in your ous exasperating annoyances is unneces- an effort to work out details that may cur- is obnoxious, let us know. A clerk or office, appearing before jurists who seem sary. Just as the Bar Association is tail the time necessary to be in court. If court officer that skipped those days in unreasonable in their demands (each of endeavoring to streamline court proce- you have to run to another part, leave your kindergarten when manners were taught, hundreds of jurists setting forth different dures and bring the courthouse into the cell number on the posted calendar, or don’t keep it a secret. requirements), clerks that are convinced 21st century so, too, we should under- with your adversary, so both your adver- There is so much we can do if we put that you, the attorney, are an annoyance take a concerted effort to improve the sary and the judge need not be kept wait- our minds to it. Also rest assured that and the fact they assist you is a gift from courthouse "quality of life" for the liti- ing and guessing when you will return. your Bar Association is both eager and them to you, court officers who belittle gating attorney by striving to create a As the Administration of Law/Judicial ready to do its part as well. New York State Bar Association Honors Dr. Parveen Chopra With The Distinguished Haywood Burns Memorial Award

The New York State Bar Association W. Haywood Burns, was a longtime (NYSBA), with over 76,000 members, is civil rights advocate who worked with the the largest voluntary association of attor- Rev. Dr. Martin Luther King Jr., He grad- neys in the United States founded in 1876. uated from Harvard College with honors This year has decided to confer Dr. and from Yale University Law School in Parveen Chopra with the Prestigious 1966. Mr. Burns joined the New York law Haywood Burns Memorial Award for his firm of Paul, Weiss, Rifkind, Wharton & outstanding work in civil and Human Garrison, and later became law clerk to Rights. Of major significance, Dr. Chopra Judge Constance Baker Motley of United is the first South Asian honored in the his- States District Court. From there, he tory of the One Hundred Thirty Three year became counsel to the NAACP Legal old organization. Defense and Education Fund Inc and The award was presented by the where he served as general counsel to Committee on Civil Rights Chair Martin Luther King Jr.'s Poor People's Fernando Bohorquez Esq. (Baker Hosteler Campaign in 1968. llp) at the New York Marriott Marquis in Five leaders who shared their views on Manhattan, as part of the Association’s Dr. Chopra’s community activism includ- 132nd Annual Meeting. Every year only ed NYSBA Chairperson of Civil Rights one person is chosen for this award based Mr. Fernando Bohorquez who said Dr. Mr. Samir Chopra, Mrs. Usha Chopra, Fernando Bohroquez (NYSBA Chair of Civil on outstanding contributions of an Chopra has a long standing in Asian com- Rights), Dr. Parveen Chopra (2009 Haywood Burns Memorial Honoree) American Civil rights leader who had sig- munity and American public life in human handicap and helped countless people to and Chair of Finance David Weprin from nificantly impacted civil rights in rights and civil rights in America. His get their jobs back or appropriate settle- New York City, Hon. Councilman John America. Previous award winners of the work with so many diverse organizations ments in regards to compensation and pen- Liu, Hon. Councilwoman Gail Bewer, Award include Honorable United States in protecting the rights of common man is sion benefits. Under his leadership of the Hon. Councilman Thomas White, Hon. Federal Judge Cornelius V. Blackshear; very admirable. Padam Shri Dr. P. Commission they set up policies to fight Councilwoman Leslie Gross from Town of Honorable Justice Ellen M. Yacknin; Jayaraman emphasized Dr. Chopra’s work discrimination in housing as well as public North Hempstead, Mr. Steven Richman – Honorable Pam Badoria Jackman Brown. as President of the Federation of Indian conveniences. Dr. Chopra lead the team to General Counsel NYC Board of Elections, Dr. Chopra has a long history of com- Associations, as National Secretary of prepare rules of procedure for discrimina- Ms. Nara Rampilla – Special Counsel to munity service including previously serv- National Federation of Indian tion in housing to be followed by the the United Nations, Hon. Padam Shree Dr. ing as the first Asian Commissioner of Associations in organizing India Day judges and also lead the team to interview P. Jayaraman founder of Bhartiya Vidya Human Rights for 20 years and the first Parade, functions in various cities of and select Housing Court Judges that will Bhavan USA, Dr. A.M. Gondane Deputy Indian American appointed to Public America, liason with the White House and reduce discrimination even further in Council General in New York, Rev. Office on the Eastern Seaboard of the many American leaders and particularly these areas in the future. Mr. Giri Chhabra, Reginald Tuggle African American leader United States. He also served as with the Bhavan USA where he is a great President of Hindu Center in New York of Council of Churches, Mr. Julius Pearse Commissioner of Planning in Nassau asset. Rev. Reginald Tuggle, a national said his leadership to Indian-American founder President of Dr. Martin Luther County for six years improving the quality African American leader said that Dr. community and particularly to Hindu King Foundation, Rabbi Anchelle Perl a of life of 1.3 million Americans. He cur- Chopra’s work for the Dr. Martin Luther Center for the last few years has been national Jewish leader who has his own rently serves on the Board of the Bhartya King Executive Committee where he exemplary and outstanding. national radio and television programs, Vidhya Bhavan, UNYFCE, and the serves as a treasurer has helped it tremen- Dignitaries who attended the function Rabbi Moses Birnbaum of Kew Gardens NYCLU in Nassau. He has previously dously in raising enormous amounts of included Honorable Judge Frank synagogue, Mr. Tony Patino chairperson of been honored with Awards of distinction scholarship funds and also realizing Dr. Schellace of Supreme Court; Hon. Judge Coalition of Association of Hispanic from the One Hundred Black Men USA, King’s dreams in rooting out discrimina- Sharon Stern Gertsman of Supreme Court, Americans, Ms. Petsy Chen President of Martin Luther King Jr. Award and the tion through Human Rights Commission, Hon. Thomas Levin, Hon. Judge Elizabeth Taiwanese Center, Mr. Giri Chhabra highly distinguished Ellis Island Medal of Civil Liberties Board and several national Dalal Pessala from Long Island, Hon. President Hindu Center and Temple, Mr. Honor a distinction he shares with former organizations. Rabbi Perl who was Judge Helena Heath-Roland from Albany Kailash Sharma President of Nargis Dutt Presidents, several noble laureates and Commissioner of Human Rights, National City Court, Hon. Senator Toby Stavisky, Memorial Foundation, Brahma Kumari other distinguished Americans. His contri- Executive Director of National Coalition Hon. Senator Hiram Monserrate, Hon. Anjani from Global Harmony House, Mr. butions to American life have been consid- for Furtherance of Jewish Education and Assemblyman Andrew Hevesi, Hon. Darshan Bagga chairperson of Sikh Forum ered as outstanding and also recognized by Chhabad of Mineola, New York men- Assemblywoman Nettie Mayersohn, Hon. and Senior representatives from the the US Congress and Senate. Dr. Chopra tioned in his speech that under Dr. Assemblywoman Vivian Cook, Hon. United States Attorney’s Office in has been a life time educator and Professor Chopra’s leadership the Commission Assemblyman Michael Den Dekker, Hon. Manhattan, Queens and Kings County as in Graduate Schools of Business and holds investigated cases of discrimination and Assemblyman Mark Weprin, Hon. well as District Attorney’s Offices from a PhD, MBA, LLB and 4 other Masters made determinations based on race, reli- Assemblyman Jose Peralta, Hon. New York City, Long Island, Albany, degrees. gion, sex, age, national origin, physical Assemblywoman Meng, Hon. Councilman Buffalo and other cities. 4 THE QUEENS BAR BULLETIN – MARCH 2009 “Investigation” of Banks’ Usage of H-1B Visas Gets It Wrong

BY ALLEN E. KAYE "TARP" legislation from hir- granted under the program in used to enforce these law comes from the ing a single foreign profes- any given fiscal year. Had they H-1B employers, who pay government The Associated Press continues to run sional under the H-1B pro- looked at the available data, fees of $2,320 each time they file an H-1B, poorly researched pieces on H-1B visas gram. they would have found figures including $500 earmarked specifically for and the Banks receiving "bailout" money Let's set the record straight. that undercut their allegations. enforcement of the law! from the Federal Government. The articles The AP article refers to the It is not possible to get a A recent edition of the New York Times leave the false impression that as the Banks number of "labor condition clear idea of numbers of H-1B includes a business section article that were taking bailout money, they were applications" (LCAs) filed by visas by looking at LCAs. One points out how foreign companies with simultaneously firing U.S. workers and hir- certain banks over the past 5 must look at petitions filed U.S. subsidiaries and U.S. companies with ing "cheap" foreign labor. The AP articles years. The LCA applications Allen E. Kaye with the U.S. Citizenship and international operations are absolutely are based on faulty interpretations of pub- are a precursor to an actual Immigration Services, which critical to the stimulus plan working. A licly available data, and totally ignore the petition for an H-1B worker. Multiple is what the National Foundation for senior manager of Sanyo's solar division strong labor market protections required to LCAs are usually filed for each employee American Policy (NFAP) did. In fact, says that America is positive about solar bring H-1B professionals to the U.S. due to heavy regulatory requirements, according to the NFAP, the largest finan- energy, "but it doesn't have enough pro- The faulty and inflammatory AP articles such as the need to file LCAs for different cial institution in the country, in terms of duction capacity to cover its demand." are now being used by Senators Sanders geographic locations to comply with wage employees, actually received a grand total These are the very companies that need to and Grassley to push an amendment onto rules, and many LCAs never turn into of 155 approved petitions for new H-1B be able to target talent in the international the pending economic stimulus bill that actual petitions. The reporters neglected to professionals in 2007, out of a total work- market to make their U.S. operations grow would bar banks and other financial insti- understand, or to examine, the actual peti- force of 387,000! Bank of America and prosper. tutions that accept funding under the tions for H-1B professionals that were received approved petitions for 66 new H- U.S. economic recovery and growth 1B professionals in a total workforce of depends on the U.S. remaining competi- 210,000. In another recent study, the tive in a globalized economy with a glob- NFAP found that for every H-1B profes- alized work force. These are the facts that Oh yeah sional hired, a company will increase its Congress needs to consider as it crafts new overall workforce by 5 workers. legislation. What is needed is a proper, – gotta remember – Existing law carefully protects wages by well-documented study on H-1B visa requiring that companies pay the higher of numbers and usage, and an agreement on put in my ad subscription the wage paid by their competitors for the appropriate amount of H-1B visas comparable positions or the wage the com- needed to meet real and legitimate need, in for the pany itself pays to other comparable work- the context of employment rate rise or fall. 2009 QCBA ers. These protections are enforced by the Legislation based on faulty and inflamma- Department of Labor and non-compliance tory allegations will only cripple our econ- Annual Dinner Journal! includes heavy penalties, including com- omy, undermine our nation's global complete bars from petitioning for any foreign petitiveness, and demagogue an issue worker. To further show the current rather than deal with real solutions that (Annual Dinner is May 7th) strength of the H-1B program, the monies serve the national interest. Matthew Lupoli - 2009 EMPLOYMENT & LABOR LAW Sheeger Award Winner STEPHEN D. HANS & ASSOCIATES P.C. BY MARK WELIKY* Counsel to the Profession Queens Family Court can be a difficult place to carry on your law practice. ❏ Sexual Harassment ❏ Union Representation At least the current courthouse (pictured ❏ Americans with Disabilities Act ❏ Title VII - Discrimination above) is a lot nicer venue since the ❏ Education Law ❏ Pension Issues court was moved from Parsons ❏ Arbitrations Boulevard. The old courthouse was Counsel to the Profession - over three decades originally the main branch of the Queensborough Public Library and Chairperson - Labor Relations Committee - Queens County Bar. should never have been a courthouse in Association of the Bar - Employment Law Panel Member. the first place! Although family law can be a challenging arena some of our members still find time within their The Queens County Family Court 45-18 Court Square, Suite 403, Long Island City, New York 11101 practice to volunteer for pro bono Telephone 718-275-6700 Fax 718-275-6704 assignments for these cases. pro bono program and for the numerous One such volunteer lawyer is Matthew cases for which he has provided pro E-mail: [email protected] M. Lupoli. Matthew has been selected bono representation over these many to be the recipient of the Floyd Alan years. Over the years he has served on Sheeger Award for 2009. This award several QCBA committees, including presented by the Queens County Bar Judiciary, Family Law, Appellate Association (QCBA) and the Queens Practice and the Elderly and Disabled DUFFY & POSILLICO AGENCY INC. Volunteer Lawyers Project (QVLP) is in committee. He is a past president of the Court Bond Specialists recognition of outstanding pro bono Queens County Columbian Lawyers and service by a Queens family law practi- a member of the Flushing Lawyer’s BONDS * BONDS * BONDS * BONDS tioner. Floyd Sheeger was himself one Association and of the Long Island City of our most exceptional pro bono volun- Lawyers Club. Mr. Lupoli recently Administration • Appeal • Executor • Guardianship teer lawyers in Queens Family Court joined with many of his QCBA col- Injunction • Conservator • Lost Instrument until his untimely death in late 2004. leagues in volunteering for our new This award is presented to lawyers who foreclosure prevention initiative. Past Stay • Mechanic’s Lien • Plaintiff & Defendant’s carry on his tradition of service to those recipients of the Sheeger Award are Bonds least able to cope with the serious issues QCBA members Michael M. Cohen and Serving Attorneys since 1975 that low-income persons may be facing Regina Alberty. We salute Matthew and Complete Bonding Facilities with family law situations. congratulate him for this honor and Matthew, a Flushing solo practitioner thank all of our pro bono volunteers for IMMEDIATE SERVICE! with a focus on family and elder law, is their service to our association and to the a graduate of Fordham Law School, a community of Queens County. member of the QCBA since 1974 and a 1-800-841-8879 FAX: 516-741-6311 member of the QVLP pro bono panel *Mark Weliky is the Pro Bono 1 Birchwood Court • Mineola, NY 11501 (Across from Nassau County Courts) since its inception in 1991. He is being Coordinator of the Queens County Bar NYC Location: 108 Greenwich Street, New York, NY 10006 honored for his continuing service to the Association. THE QUEENS BAR BULLETIN – MARCH 2009 5 New Rules of Professional Conduct Effective April 1, 2009, a new “Rules of • Rule 1.6(a)(2) permits disclosure of government entity upon informed consent. able request for information. Professional Conduct” will replace the confidential client information impliedly Duties to Prospective Clients (Rule 1.18) • Rule 1.12 applies conflicts rules to arbi- existing Disciplinary Rules in New York. authorized to advance the client’s best • Rule 1.18 governs a lawyer’s duties trators and mediators, other third-party In February 2008, the New York State interests when it is reasonable or custom- to a prospective client when that person neutrals and law clerks. Bar Association submitted to the ary. and the lawyer ultimately do not form • Rule 1.14 provides guidance to a lawyer Administrative Board of the Courts a five- • Rule 1.6(b) permits a lawyer to reveal an attorney-client relationship. It whose client has diminished capacity. It year study that included a proposed new or use confidential client information nec- applies the same duty of confidentiality allows the lawyer to take action to protect ethics code. An internal committee essary to “prevent reasonably certain death owed to former clients. However, a the client from substantial physical and appointed by the Administrative Board or substantial bodily harm.” lawyer or law firm may nonetheless financial harm, and permits disclosure of carefully analyzed the State Bar’s pro- • Rule 1.6(b)(4) permits a lawyer to oppose a former prospective client if the confidential client information to the extent posed rules over a period of several reveal confidential information to the lawyer’s current client and former reasonably necessary to protect the client’s months before issuing its recommenda- extent necessary to secure legal advice prospective client give informed written interests. tions to the Board. The Board in turn about compliance with ethical rules or consent, or the law firm may do so if • Rule 2.4 deals with lawyers serving as approved most of the State Bar’s propos- other laws. certain conditions are met, including third-party neutrals, such as arbitrators and als, though in some instances it retained • Rule 3.3 requires a lawyer to correct a timely screening of the disqualified mediators, and sets forth their obligations the language of existing Disciplinary false statement of material fact or law pre- lawyer and prompt written notice to the with respect to unrepresented parties. Rules in whole or in part. The Board also viously made to the tribunal by the lawyer former prospective client. • Rule 3.2 prohibits a lawyer from using approved the State Bar’s recommended or the client and to take necessary remedi- • The protections of Rule 1.18 are means that have no substantial purpose transition to the ABA Model Rules for- al measures, including disclosure of confi- expressly denied to a prospective client other than to delay or prolong a proceeding mat. The Rules were formally reviewed dential client information. who communicates with a lawyer in order or cause needless expense. and adopted by the Justices of the four • Rule 3.3 requires a lawyer who knows to disqualify the lawyer from handling a • Rule 3.9 requires a lawyer to alert leg- Appellate Divisions last week. that a person intends to, is or has engaged materially adverse representation in the islators and administrative agencies as to Highlights of significant ethics changes in criminal or fraudulent conduct related to same or a substantially related matter. when the lawyer is speaking as a paid contained in the new Rules of Professional the proceeding to take reasonable remedial Voluntary Pro Bono Service (Rule 6.1) advocate rather than a public citizen. Conduct are set forth below: measures, including disclosure of confi- • Though not enforceable through the • Rule 4.3 sets forth a lawyer’s obliga- Adoption of ABA Model Rules Format dential client information. disciplinary process, Rule 6.1 reaffirms a tions when dealing, on behalf of a client, • This standardized format, used in 47 Current Clients: Specific Conflict of lawyer’s responsibilities to provide at least with a person who is not represented by other states, is organized according to a Interest Rules (Rule 1.8) 20 hours of pro bono legal services each counsel. lawyer’s role as litigator, counselor, nego- • Rule 1.8(c) prohibits a lawyer from year to poor persons, and to contribute • Rule 6.4 sets forth a lawyer’s duties tiator, etc., and will facilitate a lawyer’s soliciting any gift from a client, including a financially to organizations that provide when participating in law reform activities ability to assess specific ethical issues in testamentary gift, for the benefit of the legal services to poor persons. that may affect the interests of the lawyer’s context. It has generated a national body of lawyer or a person related to the lawyer; or Other Noteworthy Developments clients. ethics law that will ease ethical research from preparing on a client’s behalf an • Rule1.3 (Diligence) mandates that a • Rule 8.2 expands the prohibition and guidance by New York lawyers as well instrument giving a gift to the lawyer or a lawyer "shall not neglect" a legal matter against false statements of fact regarding as out-of-state lawyers seeking to research person related to the lawyer, unless the and obliges a lawyer to “act with diligence “qualifications” of judges or judicial candi- and follow New York’s rules. lawyer or recipient of the gift is related to and promptness” in representing a client. dates to include false statements about Scope of Representation and Allocation the client and a reasonable lawyer would • Rule 1.4 (Communication) codifies a “conduct or integrity.” of Authority Between Client and Lawyer find the transaction fair and reasonable. lawyer’s duty to communicate effectively The new Rules of Professional Conduct (Rule 1.2) • In a business transaction between with the client, including keeping the client are available at • Rule 1.2 codifies a lawyer's obligation lawyer and client, Rule 1.8(a) requires the reasonably informed about the status of the www.nycourts.gov/rules/jointappellate/. to abide by a client’s decisions regarding lawyer to advise the client in writing to matter promptly complying with a reason- the objectives of representation, including seek the advice of independent counsel and whether to settle a civil matter or to enter a to give the client a reasonable opportunity plea, waive a jury trial or testify in a crim- to do so; and the client must give informed inal matter. written consent that addresses the lawyer’s Fees and Division of Fees (Rule 1.5) role in the transaction and whether the • Rule 1.5(b) requires a lawyer to com- lawyer is representing the client in the municate fees and expenses to the client transaction. before or within a reasonable time after Special Conflicts of Interest for Former commencement of representation, thereby and Current Government Officers and extending the current letter of engagement Employees (Rule 1.11) rule (22 NYCRR 1215), without the neces- • Rule 1.11 governs the lawyer’s obliga- sity of a writing, to all matters currently tions based on conflicts presented when a excepted under that rule. lawyer moves from government to private Confidentiality of Information (Rule 1.6) employment and vice versa, and provides and Conduct Before a Tribunal (Rule 3.3) that such conflicts may be waived by the 6 THE QUEENS BAR BULLETIN – MARCH 2009

THE CULTURE CORNER

BY HOWARD L. WIEDER chamber music with musi- Tickets are $48/$38 (ages 35 presents the final concert of their season on cians from the New York and younger, $25) and may be March 20, 2009 in the Rose Theater, THE 92ND STREET Y continues its Philharmonic and his regular purchased by calling Home of Jazz at Lincoln Center. Under phenomenal Spring 2009 program. The recital partner, pianist Saleem 212.415.5500, visiting the leadership of music director Kent MET OPERA has tickets left for Cycle 1 Abboud Ashkar. This concert www.92Y.org/concerts, or at Tritle, the evening’s program celebrates of Wagner’s RING, so please do not wait continues the 92nd Street Y's the box office. The 92nd Street the confluence of well-established artists for the last minute to order your tickets, partnership with the New Y is located at 1395 Lexington and the next generation of musical talent. since Cycles 2 and 3 are already sold out. York Philharmonic, which Avenue at 92nd Street. Highly-regarded pianist Margo Garrett Also, The Met Opera’s production of IL gives audiences the opportunity The Zukerman pairs with the Sorel Organization’s TROVATORE runs through mid-May to hear these preeminent ChamberPlayers' final 92nd Medallion in Collaborative Piano winner with two all star casts. Both THE 92ND orchestral players in a chamber Street Y concert of the season, Sunglee Victoria Choi to accompany the STREET Y and the MET OPERA, even music setting with guest Howard L. Wieder on Sunday, March 22, wel- chorus in performing Brahms’s rarely in his hard economy, deserve and merit soloists from around the world. comes world-renowned pianist heard piano four-hands version of Ein your patronage, since they constantly The program begins with Felix YEFIM BRONFMAN, a long-time friend Deutsches Requiem, featuring soprano present programs and productions of Mendelssohn's popular Piano Trio No. 1 of both Pinchas Zukerman and the Y. Leslie Fagan and Lindemann Young Artist excellence. in D minor, Op. 49, the work that prompt- Joined by double bassist Joel baritone John Michael Moore. Ms. ed Schumann to state that "Mendelssohn is Quarrington, the ensemble's performance Garrett and Ms. Choi will also collaborate THE 92ND STREET Y PRESENTS the Mozart of the nineteenth century, the features an up-close and personal look at in Schubert’s Fantasia in F minor, while Shai Wosner will make his 92nd Street most illuminating of musicians." The sec- the two electrifying chamber works fea- Ms. Choi will accompany Mr. Moore for Y debut in the final concert of the Masters ond piece, Johann Sebastian Bach's tured on the May 2008 Sony Classical Mahler’s Lieder eines fahrenden Gesellen. of the Keyboard series, Saturday, March Sonata for Violin & Harpsichord No. 4 recording by the Zukerman Founded in 1964, Musica Sacra is the 14, 2009. This talented young pianist will in C minor, BWV 1017, which will be ChamberPlayers and Bronfman: Mozart's longest continuously performing profes- perform Schumann’s Nachtstücke performed with piano, is one of six duo Quartet for Piano and Strings in E-flat sional chorus in New York City. In a city (Nightpieces) and Carnaval, as well as sonatas written with fully realized parts for Major, K. 493, and Schubert's popular rich with cultural life and activity, Musica Claude Debussy's popular, contemplative, both instruments. The afternoon's final "Trout" Quintet. Sacra stands out as one of the few out- and adventurous Préludes, Book 1. work, Mendelssohn's String Octet in E- A prodigious talent recognized world- standing presenters of choral music dedi- Despite the chronological distance between flat Major, Op. 20, was written when the wide for his artistry, PINCHAS ZUK- cated to communicating art through the these two composers, Mr. Wosner draws composer was only 16 years old and pre- ERMAN has been an inspiration to profound human experience and connect- perceptive parallels between their piano miered at one of his family's famous young musicians throughout his adult edness of ensemble singing. In addition to works, making this performance an exam- Sunday musicales. life. In a continuing effort to motivate its acknowledged affinity for Baroque ple of the Y’s unique ability to present con- Born in Denmark to Polish-Israeli par- future generations of musicians through music, Musica Sacra has performed in all certs that are both musically rich and intel- ents, NIKOLAJ ZNAIDER studied with education and outreach, the renowned styles, from the chant of Hildegard to com- lectually stimulating. the eminent Russian pedagogue Boris artist teamed up with four protégés to missioned works and first performances of Shai Wosner performs a wide-ranging Kushnir, and has already worked with form the Zukerman ChamberPlayers leading contemporary composers, such as repertoire, from Mozart and Beethoven to many of the world's top ensembles and during the 2002–03 season. Diamond, Britten, Khatchaturian, Convery, Ligeti and composers of his own genera- soloists. Drawing from an eclectic back- Yefim Bronfman was born in Tashkent and Rorem. They have recorded on RCA, tion. In recent seasons, Wosner has ground, his playing has been heralded in in the Soviet Union in 1958. After immi- BMG, and Deutsche Grammophon. appeared with numerous major orchestras the Strad as “extraordinarily intelligent, grating to Israel with his family in 1973, Tickets are $25-$110 and are available in North America and Europe, including soulful and impassioned, yet without a hint he made his international debut two years at www.MusicaSacraNY.com/tickets or re-engagements with the Los Angeles of indulgence.” In January 2008, Znaider later with Zubin Mehta and the Montreal by calling CenterCharge at 212-721-6500 Philharmonic, the Philadelphia Orchestra, made his recital debut at the Vienna Symphony. He made his New York (TTY 212-957-1709). the symphony orchestras of Chicago, Musikverein to much critical acclaim, and Philharmonic debut in May 1978, his The 92nd Street Y's Art of the Guitar Baltimore, San Francisco and Atlanta; Die Presse wrote, “for many, the 32- Washington recital debut in March 1981 at series celebrates the 50th anniversary of Staatskapelle Berlin, the Gothenburg year-old is already today the best violin- the Kennedy Center, and his New York Los Romero, “the royal family of the Symphony, the Barcelona Symphony, the ist of the world.” recital debut in January 1982 at the guitar.” The group marking this amazing Frankfurt Radio Symphony, and Orchestre A keen recitalist and chamber musician, 92nd Street Y. In addition to acclaimed milestone with an entire year of concerts National de Belgique, among others. In Znaider has shared the stage with today's solo, orchestral, and recording careers, across the globe, and will make its only 2006 he debuted with the Vienna foremost artists, including Daniel Bronfman is a devoted chamber music per- New York appearance of the season at Philharmonic during the 250th anniversary Barenboim, Leif Ove Andsnes, Yuri former who has collaborated with the the Y on Saturday, March 21, 2009. celebrations of Mozart's birth, in Salzburg. Bashmet, Yefim Bronfman, Lynn Darrell, Emerson, Cleveland, Guarneri, and These three generations of master gui- As a chamber musician, he has collaborat- Lang Lang, and Pinchas Zukerman. Also Juilliard String Quartets, as well as the tarists are a musical phenomenon, known ed with numerous esteemed artists includ- passionate about musical education, Chamber Music Society of Lincoln for taking audiences on journeys exploring ing Pinchas Zukerman, Lynn Darrell, Znaider is Founder and Artistic Director Center. He has also played chamber music the genre’s most beautiful, challenging Who-Lang. Lin, and Christian Tetzlaff. of the Nordic Music Academy, an annual with Yo-Yo Ma, Joshua Bell, Lynn and thrilling works. At the Y, Pepe, Celin, Tickets are $48/$38 ($25 for ages 35 summer school that aims to foster con- Darrell, Shlomo Mintz, Jean-Pierre Celino, and Lito will celebrate the ensem- and younger) and may be purchased by scious and focused musical development Rampal, Pinchas Zukerman, and many ble's 50th anniversary, and have chosen calling 212.415.5500, visiting based on quality and commitment. Znaider other artists. highlights of its career: Tomás Bretón's www.92Y.org/concerts, or at the box is an exclusive RCA RED SEAL/BMG Tickets may be purchased by calling Prelude to La Verbena de la Paloma, office. The 92nd Street Y is located at SONY MASTERWORKS recording 212.415.5500, visiting www.92Y.org/con- Gaspar Sanz's Suite española, Joaquín 1395 Lexington Avenue at 92nd Street. artist, and his most recent project, a certs, or at the box office. The 92nd Street Rodrigo's Tonadilla, Jeronímo The 92nd Street Y's Distinguished recording of the complete Mozart Piano Y is located at 1395 Lexington Avenue at Giménez's La boda de Luís Alonso, Artists in Recital series continues Trios with Barenboim and Kyril 92nd Street. Georges Bizet's Carmen Suite, Selections Sunday, March 15, when violinist NIKO- Zlotnikov, has just been released on EMI Musica Sacra, one of New York’s most ______LAJ ZNAIDER performs an afternoon of Classics. distinguished professional choruses, Continued On Page 7 Brooklyn Books & Antiques DIANA C. GIANTURCO We are looking to buy Collections of ATTORNEY AT LAW old Books, and entire Estates. P.O. BOX 419 LONG BEACH, NY 11561 We buy Libraries of Books, Antique Furniture & Furnishings, Tel: 888-805-8282 Autographs, Fine Art, Records, Old Magazines, Fax: 516-706-1275 Photographs, Postcards, Posters, Old Toys. APPEARANCES IN WE DO CLEAN-OUT SERVICES QUEENS COUNTY

Please call 347-742-0134 E-mail:[email protected] E-mail: [email protected] THE QUEENS BAR BULLETIN – MARCH 2009 7 The Culture Corner

Continued From Page 6 ______York debut at the 92nd Street Y in 2007, Debut in Carnegie’s Weill Recital Hall, a infinite and eternal Creator with the mortal the Nash Ensemble was promptly re-invited performance highlighted by the United universe, each ‘spark’ aims to illustrate the from Heitor Villa-Lobos's Five Preludes back to give New York audiences another States Premiere of Israeli composer Gil nature of some of life’s most universal and for Guitar, selections from Enrique taste of its electrifying music making. Shohat’s Sparks from the Beyond. The esoteric concepts in an attempt to achieve Granados Danza españolas, Francisco The first work of the Nash Ensemble's afternoon’s program will showcase Ms. spiritual realization: Infinity, Existence, Tárrega's Jota aragonesa, and two works March program, Wolfgang Amadeus Stavreva’s specialization in 20th- and 21st- Motion, Material, Faith, Beauty, and Love. by Pepe Romero: Farrucas de Sabicas Mozart's Trio for Piano, Clarinet & century music through a diverse selection In addition to presenting the US Premiere and De Cádiz a la Habana. The concert is Viola, K. 498, is rumored to have been of composers, including Alberto of Sparks from the Beyond, Ms. Stavreva preceded by a 7 pm talk with Art of the written while the composer was participat- Ginastera, Alexander Scriabin, Carl will perform a variety of fundamental 20th- Guitar's artistic director Benjamin Verdery. ing in a game of skittles (a type of bowling). Vine, Claude Debussy, and Alexander and 21st-century repertoire: Alberto In addition, on Sunday, March 22 at The next piece, the Quintet for Clarinet, Vladigerov. Ms. Stavreva is the recent win- Ginastera's Piano Sonata No. 1, Op. 22, 11:30am, as part of the 92nd Street Y's Horn, Piano & Strings, is an early work ner of Artists International Presentations Alexander Scriabin’s Vers la Flamme, Guitar Institute, Los Romero will offer a by one of Britain's most popular and annual performance competition, which Australian composer Carl Vine’s Sonata guitar master class. accomplished composers, Ralph Vaughan awards its recipients with a New York City No. 1, a selection from both the first and Grandfather Celedonio Romero origi- Williams. The third work, the Suite from recital debut. second books of Claude Debussy’s nally founded Los Romero with his sons L'histoire du Soldat for Clarinet, Violin & Bulgarian-born pianist Tania Stavreva Préludes, individual masterpieces that rep- Celin, Pepe, and Angel. Celedonio began Piano, was arranged by Igor Stravinsky has established herself as a gifted young resent the pinnacle of Debussy's keyboard his solo career in Franco's Spain, and as based on his popular theatrical work about artist in the standard repertoire, as well as a art; and Alexander Vladigerov’s each of his sons reached the age of two or a soldier who trades his fiddle to the devil devoted student of 20th- and 21st-century Variations on a Bulgarian Folk Song three they began guitar lessons with their for a book that predicts the economy's works. Ms. Stavreva is a graduate of “Dilmano Dilbero.” father. All three made their debuts in Spain future. The Nash completes the program Bulgaria's "Dobrin Petkov" School for gift- Tickets are $25 General Admission, and by the age of seven. In 1957, while the boys with the second of Antonín Dvorák's two ed young musicians, where she studied with $20 for students and senior citizens with were still in their teens, the family emigrat- piano quartets, the Quartet for Piano and renowned pedagogue Rositsa Ivancheva for valid identification. Tickets are on sale at ed to the United States and "The Romeros" St rings in E-flat Major, Op. 87. thirteen years. She went on to earn her Weill Recital Hall (57th Street & 7th entered the world's stage as its first guitar Presenting works ranging from Haydn to Bachelor's Degree from Boston Avenue) quartet. The ensemble added its third gener- the avant-garde, the Nash Ensemble is Conservatory, where she was a student of ation when Celin's son, Celino, replaced acclaimed for its bold programming and Michael Lewin and the winner of the 2005 MET OPERA’S RING CYCLE Angel in 1990. Angel's son Lito joined the virtuosic performances. It is a major con- Chamber Music Honors Competition, the Don’t miss your final opportunity to see quartet upon the death of his grandfather in tributor towards the recognition and promo- 2006 Lee Piano Scholarship and the 2007 Otto Schenk’s landmark production of the 1996. tion of contemporary composers: by the Piano Honors Competition. She is one of world’s greatest theatrical journey, Spanish composer Joaquín Rodrigo says: end of this season the group will have the first pianists of her generation to per- Wagner’s Ring cycle, Cycles 2 and 3 are "The Romeros have developed the tech- performed over 260 premieres, of which form contemporary classical music at such sold out, but tickets are still available for nique of the guitar by turning what is dif- 145 have been specially commissioned. rock venues as Webster Hall in New York Cycle 1; this Saturday matinee series, fea- ficult into something easy. They are, The Nash has received many accolades, and Paradise Rock Club in Boston. Ms. turing James Morris, Johan Botha, without a doubt, the grand masters of the including two Royal Philharmonic Society Stavreva has appeared with the Boston Waltraud Meier, and Christine Brewer, is guitar." Awards in the chamber music category. An Conservatory Symphony Orchestra and conducted by James Levine. See Los Romero has performed hundreds of impressive collection of recordings illus- Sinfonia Perugina under conductors Bruce www.metopera.com.Performance dates concerts all over the world, inspiring enthu- trates the same varied and colorful com- Hangen and Enrico Marconi. She is a regu- for Cycle 1: siastic praise from both critics and audi- bination of classical masterpieces, little- lar participant at numerous summer festi- March 28 - - DAS RHEINGOLD ences. The ensemble has also worked to known and neglected gems, and impor- vals, including Boston’s New Music (Saturday, 1:00 P.M.)April 11 - - DIE enrich the guitar quartet repertoire, premier- tant contemporary works. The Festival, Pianofest in the Hamptons, Music WALKÜRE (Saturday, 12:00 P.M.)April 18 ing works by distinguished composers Ensemble's British Composers series for Fest Perugia and Varna Summer - - SIEGFRIED (Saturday, 12:00 including Joaquín Rodrigo, Federico Hyperion Records has received much International Music Festival in Bulgaria. P.M.)April 25 - - GÖTTERDÄMMERUNG Moreno Torroba, Morton Gould, Francisco acclaim: the recent CD of chamber works Central to Tania Stavreva’s recital is the (Saturday, 12:00 P.M.) de Madina, Lorenzo Palomo and others. by Coleridge-Taylor was nominated for a United States Premiere of Israeli composer THE MET OPERA’S New Production Los Romero has appeared on numerous tel- BBC Music Magazine Award and was Gil Shohat’s Sparks from the Beyond, of Verdi’s Il Trovatore,with two all-star evision programs including the Today and Editor's Choice in the November '07 edition which won Mr. Shohat the 1997 Arthur casts, runs through May 8 Tonight shows, as well as numerous PBS of Gramophone. The Ensemble's most Rubinstein Composition Competition. A cast of internationally most acclaimed specials, including Evening at Pops. recent CD releases include Beethoven's Both at home and abroad, Gil Shohat is one Verdi singers is showcased in the Met’s Tickets are $48/$38 (Ages 35 and string quintets, Mozart's piano quartets, of the most important and influential per- new production of the Italian master’s younger, $25) and may be purchased by Brahms's string sextets and Piano Quartets sonalities of Israeli classical music. He is melodic tour de force, IL TROVATORE, calling 212.415.5500, visiting Nos. 1 and 3, and chamber works by Saint- the composer of nine large-scale sym- opened February 16. Renowned director www.92Y.org/concerts, or at the box office. Saëns. Future recordings will include phonies, ten concertos for various instru- David McVicar makes his Met debut, and The 92nd Street Y is located at 1395 Mozart's string quintets, Brahms's Piano ments, three operas, various oratorios, can- Gianandrea Noseda conducts a cast that Lexington Avenue at 92nd Street. Quartet No. 2 and Clarinet Trio, and cham- tatas, solo vocal pieces, and dozens of includes Marcelo Álvarez in his first Met With the Great Ensembles series, the ber works by David Matthews. chamber and piano pieces, as well as the performances of the heroic title role, and 92nd Street Y continues its tradition of giv- Tickets are $48/$38 (Ages 35 and performer of more than 80 concerts a year three singers who are celebrated inter- ing international ensembles the opportunity younger, $25) and may be purchased by worldwide, both as a conductor and pianist. preters of their parts: Sondra to perform for New York audiences. The calling 212.415.5500, visiting Divided into seven short movements, Radvanovsky as Leonora, Dolora Zajick series' next concert, on March 28, 2009, www.92Y.org/concerts, or at the box office. Sparks from the Beyond is inspired by the as Azucena, and Dmitri Hvorostovsky as features the Nash Ensemble of London, The 92nd Street Y is located at 1395 philosophies and symbolism of Count di Luna. Kwangchul Youn makes recognized as one of the UK's most talented Lexington Avenue at 92nd Street. Kabbalah, the mystical teachings of his Met role debut as Ferrando. In later per- and adventurous chamber ensembles. On April 4, 2009, pianist Tania Judaism. In the same way that Kabbalah ______Following its critically acclaimed New Stavreva will make her New York Recital seeks to explain the relationship between an Continued On Page 8

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Continued From Page 7 ______repertoire with the company also includes HASMIK PAPIAN adds the role of lished with various media partners. The Musetta in La Bohème, Donna Anna in Leonora in Il Trovatore to her Met reper- Metropolitan Opera Radio on SIRIUS formances, Marco Berti is Manrico; Don Giovanni, and Roxane in Alfano’s toire this season. She made her company channel 78 and XM Radio channel 79 is Hasmik Papian is Leonora; Luciana Cyrano de Bergerac, a role she sang in the debut in 1999 in the title role of Aida, a role broadcasting performances on March 16 D’Intino is Azucena, Zeljko Lucic is di work’s United States premiere in 2005. she repeats in the 2009-10 season, and last and the final live broadcast of the season, Luna, and Burak Bilgili is Ferrando, con- Though she focuses on Verdi, this season season sang two of the most challenging May 8. The February 16 premiere will also ducted by Riccardo Frizza. Performances the American soprano earned raves for her roles in the soprano repertory: the title role be available via RealNetworks internet run through May 8. performance in the title role of Puccini’s of Bellini’s Norma and Lady Macbeth in streaming at the Met’s web site, www.met- When this staging premiered in Chicago, Suor Angelica at the Los Angeles Opera Verdi’s Macbeth. This season she stars in opera.org. The Globe and Mail said it was “packed and for her Washington National Opera La Forza del Destino at the Vienna State Under the leadership of General with drama-ripping good theater.” debut in the title role of Donizetti’s Opera, sings Norma with the Monte Carlo Manager Peter Gelb and MUSIC McVicar’s new production, featuring sets Lucrezia Borgia. Opera, and in her debut at the Dallas Opera DIRECTOR JAMES LEVINE, the Met by Charles Edwards and costumes by As Azucena, DOLORA ZAJICK “ruled takes on the bel canto role of Elizabeth in has a series of bold initiatives underway Brigitte Reiffenstuel in their Met debuts, is the stage more like a force of nature than a Roberto Devereux. that are designed to broaden its audience inspired by the work of Francisco Goya – mezzo-soprano playing a part,” the “It was hard to resist such robust and dra- and revitalize the company’s repertory. The particularly his famous prints “The Chicago Tribune critic wrote in 2006. The matic singing,” The New York Times critic Met has made a commitment to presenting Disasters of War,” with their haunting American singer has a large repertoire, and wrote in 2005, when Italian mezzo-soprano modern masterpieces alongside the classic depictions of that time, and his nightmarish is especially renowned for the dramatic LUCIANA D’INTINO made her Met repertory, with highly theatrical produc- “Black Paintings.” The sets are designed on Verdi parts. Azucena was the role of her debut as Eboli in Don Carlo. With tions featuring the greatest opera stars in the a turntable to minimize scene change Met debut in 1988; she last sang it here in Azucena, she adds a third Verdi role to her world. breaks. Jennifer Tipton returns to the Met to 2001. She is equally well-known as Met repertoire, which also includes Building on its 77-year-old radio broad- create the lighting design. This Il Trovatore Amneris in Aida (a role she has sung an Amneris in Aida. D’Intino has appeared cast history – currently heard over the Toll is a co-production with the San Francisco astonishing 62 times at the Met and which with such major companies as the Royal Brothers-Metropolitan Opera International Opera, where it will open in September, and she returns to sing next season), Eboli in Opera, Covent Garden, and Parma ’s Teatro Radio Network – the Met now uses the Lyric Opera of Chicago. Don Carlo, and Ulrica in Un Ballo in Regio. This season both La Scala and the advanced media distribution platforms and In addition to repertory from his native Maschera. Last season, she returned to the Vienna State Opera hear her Amneris, and state-of-the-art technology to attract new Russia, the exceptionally gifted, charismat- role of Adalgisa in Norma, which she had she also brings her Azucena to the Zurich audiences and reach millions of opera fans ic, and handsome DMITRI HVOROS- sung at the production’s premiere in 2001. Opera. around the world. TOVSKY, playing the evil and vindictive Zajick appeared in the Met premiere of When _ELJKO LU_I_ played the title The Emmy Award-winning The Met: Count di Luna, has made a specialty of Rusalka (1993) and the world premiere of role in last season’s new production of Live in HD series reached more than Verdi’s lyric baritone roles, with his Met An American Tragedy (2005). Among her Macbeth, which was transmitted worldwide 935,000 people in the 2007-08 season, repertoire including Renato in Un Ballo in performances elsewhere this season were as part of The Met: Live in HD, the New more than the number of people who saw Maschera, which he sang last season, Don Carlo at La Scala’s opening night and York Times praised his “affecting perform- performances in the opera house. These Germont in La Traviata, and Rodrigo in Cavalleria Rusticana at the Houston Grand ance of an intimidating role,” as well as his performances began airing on PBS in Don Carlo. He made his Met debut in The Opera and Chicago’s Lyric Opera. “elegant legato and burnished sound.” The March 2008, and nine of these HD per- Queen of Spades, in 1995, and has also per- KWANGCHUL YOUN makes his role Serbian-born baritone adds the role of formances are now available on DVD. formed the Russian parts of Andrei debut as Ferrando, capping a busy season at Count di Luna to his Met repertory this sea- Live in HD in Schools, the Met’s new Bolkonsky in the Met premiere of War and the Met, where he has already appeared as son, and next season returns for his first per- program offering free opera transmissions Peace, and the title role of Eugene Onegin, the Commendatore in Don Giovanni and formances with the company of Michele in to New York City schools in partnership which was transmitted as part of The Met: King Marke in Tristan und Isolde. The Puccini’s Il Tabarro. He made his Met with the New York City Department of Live in HD in 2007. He has also sung the Korean bass made his Met debut in 2004 as debut in 2006 as Barnaba in La Gioconda. Education and the Metropolitan Opera title role of Mozart’s Don Giovanni, Sarastro in Die Zauberflöte and has also Elsewhere this season, he appears in Guild, reached more than 7,000 public Belcore in L’Elisir d’Amore, and Valentin sung Ramfis in Aida, Hermann in Macbeth, La Traviata, and Luisa Miller school students and teachers during the in Faust at the Met, as well as the song Tannhäuser, and the Old Hebrew in Samson with the Bavarian State Opera; Don Carlo 2007-08 season. This season, Live in HD in cycles, Mahler’s Lieder eines fahrenden et Dalila with the company. Earlier this sea- at the Frankfurt Opera, and Rigoletto at Schools expands to reach schools in 18 Gesellen and Ravel’s Don Quichotte à son he sang Méphistophélès in a new pro- Madrid’s Teatro Real. cities and communities nationwide. Dulcinée with the MET Orchestra, conduct- duction of Faust at the Vienna State Opera. BURAK BILGILI made his Met debut Continuing its innovative use of elec- ed by James Levine. This season he appears Conductor GIANANDREA NOSEDA in 2004 as Leporello in Don Giovanni. The tronic media to reach a global audience, in Simon Boccanegra at the San Francisco made his Met debut in 2002 conducting young Turkish bass made his professional the Metropolitan Opera introduces Met Opera and in Il Trovatore at the Royal Prokofiev’s War and Peace and returned to operatic debut at La Scala as Alfonso in Player, a new subscription service that Opera House, Covent Garden, and in con- lead Verdi’s La Forza del Destino in 2006 Donizetti’s Lucrezia Borgia in the 2002-03 will make its extensive video and audio certs worldwide, including a tour with and Un Ballo in Maschera last season. The season. He has since sung with leading catalog of full-length performances avail- pianist Evgeny Kissin. Italian conductor holds the titles of music opera companies in Europe and America. able to the public for the first time online, Tenor MARCELO ÁLVAREZ makes director of Turin’s Teatro Regio, chief con- Conductor RICCARDO FRIZZA made and in exceptional, state-of-the-art quality. his Met role debut as Manrico in the new Il ductor of the BBC Philharmonic, and artis- his Met debut last month with Rigoletto, The new service currently offers almost Trovatore. Next season, he adds the role of tic director of the Stresa Festival on Lake winning praise from The New York Times 200 historic audio recordings and 50 full- Cavaradossi to his company repertoire, Maggiore . After winning Spain’s for the “lively and full-bodied” perform- length opera videos will be available, when he sings in the new production pre- Cadaqués Orchestra International ance he drew from the orchestra. After including over a dozen of the company’s miere of Tosca on Opening Night, opposite Conducting Competition in 1994, he adding Il Trovatore to his Met repertory acclaimed The Met: Live in HD transmis- Karita Mattila in the title role. Manrico is became the orchestra’s principal conduc- with this production, he returns next season sions, known for their extraordinary sound the Argentinean tenor’s third major Verdi tor. Three years later, he became the first to conduct the new production of Rossini’s and picture quality. New content, includ- role at the Met; he made his debut as foreigner to be named principal guest con- rarely performed Armida, starring Renée ing HD productions and archival broad- Alfredo in Franco Zeffirelli’s new produc- ductor of the Mariinsky Theatre (Kirov Fleming in the title role. casts, will be added monthly. tion of La Traviata in 1998 and has also Opera) in St. Petersburg, where he has led, DAVID MCVICAR makes his Metropolitan Opera Radio on SIR- sung the Duke in Rigoletto. His diverse Met among many other operas, the company’s Metropolitan Opera debut directing Il IUS XM Radio is a subscription-based repertoire also includes Don José in first-ever performance of La Sonnambula. Trovatore. Last month, he staged Siegfried audio entertainment service broadcasting Carmen, which he performed last season, This season the maestro conducts Thaïs at the Opéra du Rhin in Strasbourg, the both an unprecedented number of live per- Edgardo in Lucia di Lammermoor, Des and The Queen of Spades at the Teatro third production in a projected full cycle of formances each week throughout the Grieux in Manon, Rodolfo in La Bohème, Regio and later this year will lead perform- Der Ring des Nibelungen there. Among his Met’s entire season, as well as rare histor- and the Italian Singer in Der Rosenkavalier. ances with the Israel Philharmonic, the numerous acclaimed opera productions are ical performances, newly restored and He has sung Don José with many compa- Swedish Radio Orchestra, and the Finnish Rigoletto (Olivier Award nomination), Le remastered, spanning the Met’s 77-year nies, including the Royal Opera, Covent Radio Symphony Orchestra. Nozze di Figaro, Faust, and Die broadcast history. Garden, and the Théâtre du Capitole in Italian tenor MARCO BERTI makes Zauberflöte at Covent Garden (all tele- In addition to providing audio recordings Toulouse; Alfredo at the Zurich Opera, and his Met role debut as Manrico, following vised); The Rape of Lucretia (Olivier through the new Met on Rhapsody on- Cavaradossi in Tosca at the Royal Opera his appearances last season in another Award nomination) with the Aldeburgh demand service, the Met also presents free House, Covent Garden. Later this season he Verdi role, Radamès in Aida. He made his Festival; La Clemenza di Tito (Olivier live audio streaming of performances on its sings Maurizio in Adriana Lecouvreur at company debut in 2004 as Pinkerton and Award Nominations), and Tosca with website once every week during the opera Turin’s Teatro Regio. later sang Don José in Carmen. Elsewhere English National Opera. McVicar won the season with support from RealNetworks®. SONDRA RADVANOVSKY has sung this season, his schedule includes South Bank Show Award for his production some of Verdi’s most demanding soprano Cavaradossi in Tosca and Riccardo in Un of Giulio Cesare at the Glyndebourne HOWARD L. WIEDER is the writer of roles at the Met, including Elvira in Ernani, Ballo in Maschera at the Vienna State Festival in 2005. Known for his innovative both "THE CULTURE CORNER" and the Elena in I Vespri Siciliani, Elisabeth in Opera, Don José at the Bavarian State and sometimes controversial style, he has "BOOKS AT THE BAR" columns, appearing Don Carlo, the title role in Luisa Miller, Opera and Bilbao Opera, and Dick staged opera throughout the world. regularly in THE QUEENS BAR BUL- and Leonora in Il Trovatore, which she Johnson in La Fanciulla del West in IL TROVATORE is being heard by mil- LETIN, and is JUSTICE CHARLES J. first sang here in 1999. Radvanovksy is a Seville . In September, Berti opens the San lions of people around the world this season MARKEY’s Principal Law Clerk in IAS Part graduate of the Met’s Lindemann Young Francisco Opera season in this production on the radio and via the internet, through 32 of Supreme Court, Civil Term, in Long Artist Development Program, and her of Il Trovatore. distribution platforms the Met has estab- Island City, Queens County, New York. THE QUEENS BAR BULLETIN – MARCH 2009 9 Pretrial Advocacy: An Ethical Checklist BY GERALD LEBOVITS 26(a) disclosure certifies that the disclo- an attorney learns that a client has materi- AND JOSEPH CAPASSO* sure is “complete and correct as of the time ally misled a party or the court by offering it is made.”33 Rule 26(g)(2)(A) provides false evidence. The Rule provides that a This article continues from Part I, which that an attorney’s signature on a discovery lawyer shall not knowingly “offer or use was published in the February 2009 issue request, response, or objection certifies evidence that the lawyer knows to be false. of the Queens Bar Bulletin. that the discovery document is “consistent If a lawyer, the lawyer’s client, or a wit- with these rules and warranted by existing ness called by the lawyer has offered mate- C. Ethical Considerations During the law or a good faith argument for the exten- rial evidence and the lawyer comes to Discovery Stage of Litigation. sion, modification, or reversal of existing know of its falsity, the lawyer shall take Ethical situations arise during discov- law.”34 The requirements Rule 26(g) reasonable remedial measures, including, ery. Although attorneys have numerous imposes on discovery papers parallel the if necessary, disclosure to the tribunal.”35 procedural tools to aid in gathering infor- Rule 11 requirements imposed on plead- ABA Model Rule 3.3(a)(3) adds that a Gerald Lebovits Joseph Capasso mation, attorneys must be vigilant not to ings, motions, and other papers. “lawyer may refuse to offer evidence . . . If an attorney has offered material evi- abuse these tools. An ethical checklist N.Y. Rule of Professional Conduct that the lawyer reasonably believes is dence believing it was true but later learns reminds attorneys of their duty to supple- 3.3(a)(3) addresses the situation in which false.” ______Continued On Page 17 ment or correct information provided during discovery and to refrain from tactics designed to delay litigation or harass opposing litigants or third parties.

Attorneys must not abuse procedural tools. The use of interrogatories during discovery presents attorneys with ethical questions. C.P.L.R. 3132 and F.R.C.P. Rule 33(a) dictate that only a party to a civil action may promulgate an interrogatory to another party to that same action. To get information from a non-party, the attorney must use other discovery tools. These rules influence plaintiff’s counsel to determine who should be named as defendants. ABA Model Rule 3.1 dictates that attorneys must refrain from naming a person as a defendant merely to benefit from discovery procedural tools. Comment 1 to ABA Model Rule 3.1 provides that “[t]he advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure.” Naming a person as a defendant to gain information about the case through interrogatories is one example of an abusive use of legal procedure. Although the Model Rules note that the law establishes the limits within which an advocate may proceed, the law is often unclear. To determine the proper scope of advocacy, attorneys must be wary of the potential for abuse. A related idea is the use of a lawsuit to obtain information for non-litigation purposes. The attorney has an ethical duty to refrain from such conduct, as directed by ABA Model Rule 3.1.

Attorneys must supplement or correct information provided during discovery. Attorneys engaged in civil discovery must be familiar with F.R.C.P. Rule 26(e) and C.P.L.R. 3101(h), which require attorneys to supplement discovery documents and disclosure when they learn new information. A party is required to supplement or correct a Rule 26(a) disclosure to include information acquired after the disclosure was made if the court so orders it or “if the party learns that in some material respect the information disclosed is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.”32 In New York, C.P.L.R. 3101(h) requires a party to “amend or supplement” information provided through disclosure after “obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading.” Attorneys must also be familiar with F.R.C.P. Rule 26(g)(1). This Rule provides that an attorney’s signature on a Rule 10 THE QUEENS BAR BULLETIN – MARCH 2009

PHOTO CORNER Solo and Small Firm Practitioners Meeting Monday, February 23, 2009

Hon. Rudolph Greco, Moderator for the program. Program Committee Chair, Joseph Carola QCBA President, Steven Orlow

Barbara Zahler-Gringer, Assistant Counsel to Hon. David Cohen giving his view on an issue. Ed Rosenthal making a point regarding the discus- Ann Pfau. sion.

Hon. Jeremy Weinstein, Administrative Judge, Barbara Zahler-Gringer giving feedback to an Richard Lazarus giving his thoughts on the topic at Queens County. attendee. hand.

Jeff Boyar stating a point. Jim Pieret at open forum presenting suggestions Kenneth Kanfer responding to a question from the from the audience. audience.

Photos by Walter Karling THE QUEENS BAR BULLETIN – MARCH 2009 11

PHOTO CORNER Solo and Small Firm Practitioners Meeting Monday, February 23, 2009

Kenneth Kanfer, partner in the law firm of Snitow, Steven Orlow, Hon. Jeremy Weinstein and Hon. Wally Leinheardt, Tracy Catapano-Fox and Hon. Kanfer, Holtzer & Millus, LLP. Seymour Boyers Allen Beldock

Zenith Taylor, Joseph Ledwidge and Michael Robert Ostertag, partner in the firm Ostertag, Robert Ostertag giving his opinion of an inquiry. Davidov O'Leary & Barrett and Past President of the NYSBA.

Annamare Policriti, Cathy Lomuscio and Agnes Jeff Boyar, Barry Seidel, George Nicholas and Hon. Bernice Siegal, Hamid Siddiqui and Joe Kirschner Richard Lazarus Carola

Hon. Jeremy Weinstein, Kenneth Kanfer and Arthur Terranova. Howard Angione, Karina Alomar, Angelo Picerno, Hon. Carmen Velasquez and Gary Miret

Photos by Walter Karling 12 THE QUEENS BAR BULLETIN – MARCH 2009

COURT NOTES

The Following Attorneys Were own use and benefit funds Judicial Department: addition, Robert Guido, Esq., was appoint- Disbarred By Order Of The belonging to the Estate of ed as inventory attorney, to take custody of Appellate Division, Second Anibal Tellez and commin- Barry L. Goldstein and inventory the respondent’s files and gling funds belonging to the (December 30, 2008) return them to his former clients; take cus- Judicial Department: Estate with his own funds. The After a disciplinary hearing, tody of and safeguard the records of any Appellate Division noted, the respondent was found business, escrow, trust or special Donahue G. George “Throughout the proceeding guilty of engaging in conduct account(s) of the respondent; receive, (December 16, 2008) the respondent…evinced an adversely reflecting on his fit- open, and read mail addressed to the The respondent was found guilty, on inability to grasp the concept ness to practice law by con- respondent at the respondent’s former default, of failing to cooperate with three that his actions, albeit not venal verting funds and/or failing to place of business; and take “such further investigations into allegations of profes- in nature, [were] in direct con- maintain a duly constituted action as is deemed proper and advisable sional misconduct. travention of the Disciplinary escrow account in breach of his to protect the interests of the respondent’s Rules…” Diana J. Szochet fiduciary duty; failing to obtain former clients in discharging the aforesaid David A. Gross escrow checks bearing the title duties, and secondarily, the interests of the (December 16, 2008) Devon F. Clarke, admitted as Devon “Attorney Escrow Account”, “Attorney respondent attorney..” On July 13, 2007, the respondent plead- Fitzgerald Clarke (January 13, 2009) Special Account” or “Attorney Trust ed guilty in the United States District The respondent tendered a resignation Account;” engaging in conduct adversely Ihab Hussam Tartir (January 15, 2009) Court for the Eastern District of New York wherein he acknowledged that he could reflecting on his fitness to practice law by On October 14, 2008, the respondent to conspiracy to commit money launder- not successfully defend himself on the failing to comply with a lawful request of was convicted, after a jury trial in the ing, a Federal felony. merits against allegations of irregularities the Grievance Committee; failing to main- United States District Court for the Inasmuch as the Federal felony of con- involving his attorney escrow account tain required records for his attorney Southern District of New York, of one spiracy to commit money laundering is arising from a dishonored check report. escrow account; engaging in conduct count of aiding and abetting marriage “essentially similar” to the New York adversely reflecting on his fitness to prac- fraud and two counts of conspiracy to felony of conspiracy to commit money Edwin E. Drakes, admitted as Edwin tice law by failing to account to the commit that crime, all Federal felonies. On laundering in the second degree, the Eustace Drakes, a suspended attorney Grievance Committee as to the source of the Appellate Division’s own motion, the respondent ceased to be an attorney and (January 13, 2009) funds deposited in, the purpose of funds respondent was immediately suspended counselor-at law upon his conviction, pur- After a disciplinary hearing, the respon- disbursed from, and the names of all per- from the practice of law, pending further suant to Judiciary §90. dent was found guilty of improperly con- sons for whom funds were held in, escrow; proceedings, as a result of his conviction verting funds entrusted to him as a fiduci- engaging in conduct involving dishonesty, of a “serious crime” pursuant to Judiciary Laurence S. Jurman ary; engaging in the unauthorized practice fraud, deceit or misrepresentation by mak- Law §90. (December 16, 2008) of law following his suspension as an ing dishonest, false or misleading state- On February 5, 2008, the respondent attorney; improperly using his attorney ments in an article regarding a child cus- Lisa L. Cox (January 16, 2009) entered a plea of guilty in Supreme Court, escrow account following his suspension tody matter in which the he represented the The respondent was immediately sus- Suffolk County (Doyle, J.) to possession as an attorney; making materially false mother; engaging in conduct that adverse- pended from the practice of law, pending of a forged instrument in the second statements on an application to renew his ly reflects on his fitness to practice law by further proceedings, based upon her failure degree, a class D felony. Pursuant to real estate broker license; and failing to reason of the foregoing; engaging in con- to cooperate with the Grievance Judiciary Law §90, the respondent ceased comply with lawful orders of the United duct involving dishonesty, fraud, deceit or Committee, substantial admissions under to be an attorney upon his felony convic- States Bankruptcy Court for the Eastern misrepresentation by preparing and filing oath and other uncontroverted evidence of tion. District of New York. a petition for a writ of habeas corpus and a professional misconduct. petition in a proceeding pursuant to CPLR Michael S. Feit, admitted as Michael Stephen Lawrence Brotmann article 78, which contained sworn state- The Following Attorney Was Scott Feit (December 23, 2008) (January 20, 2009) ments which were dishonest, false or mis- On February 27, 2006, the respondent Publicly Censured By Order Of The respondent tendered a resignation leading; engaging in conduct involving pleaded guilty in Supreme Court, Kings The Appellate Division, Second wherein he acknowledged that he could dishonesty, fraud, deceit or misrepresenta- County (Walsh, J.) to grand larceny in the not successfully defend himself on the tion by preparing and filing an affirmation Judicial Department: second degree, a class C felony; falsifying merits against allegations that he violated in which he wrongfully accused a judge of business records in the first degree, a class Disciplinary 9-102 of the Lawyers Code of “initially refusing to provide” a contempt Donald J. Neidhardt E felony; and attempted grand larceny in Professional Responsibility [22 NYCRR order and having “delayed presenting an (December 23, 2008) the second degree, a class D felony. By 1200.46]. order;” engaging in conduct adversely The respondent was publicly censured virtue of his felony convictions, the reflecting on his fitness to practice law by by order of the Supreme Court of Montana respondent ceased to be an attorney pur- Joseph R. Maddalone, Jr. reason of the foregoing; engaging in con- dated July 19, 2006. Upon the Grievance suant to Judiciary Law §90. (January 20, 2009) duct involving dishonesty, fraud, deceit or Committee’s motion for reciprocal disci- On April 15, 2008, the respondent misrepresentation based upon false asser- pline pursuant to 22 NYCRR §691.3, he Dorothy Baratta (December 30, 2008) entered a plea of guilty to one count of tions against a court-appointed visitation was publicly censured in New York. The respondent tendered a resignation grand larceny in the second degree, a supervisor; engaging in conduct reflecting wherein she acknowledged that she could felony, in the County Court, Suffolk adversely on his fitness to practice to law The Following Suspended Or not successfully defend herself on the mer- County (Doyle, J.) Pursuant to Judiciary by reason of the foregoing; engaging in Disbarred Attorneys Were its against allegations that, in the course of Law §90, the respondent ceased to be an conduct prejudicial to the administration a real estate transaction, she used monies Reinstated To The Practice Of attorney upon his felony conviction. of justice by failing to abide by one or entrusted to her as escrow agent without Law By Order Of The Appellate more court directives; engaging in conduct permission or authority. Division, Second Judicial The Following Attorneys Were prejudicial to the administration of justice by entering into a retainer agreement that Department: Mayank V. Munsiff Suspended From The Practice failed to comply with the requirements set (December 30, 2008) Of Law By Order Of The forth in 22 NYCRR §1400; and engaging John C. Lopes, a disbarred attorney After a disciplinary hearing, the respon- Appellate Division, Second in conduct prejudicial to the administra- (December 16, 2008) dent was found guilty of converting to his tion of justice and/or conduct reflecting adversely on his fitness to practice law, by Daivery Taylor, admitted as Daivery submitting a motion to a court containing Gerard Taylor, a disbarred attorney advertise unsupported statements made without rea- (December 16, 2008) sonable inquiry into the accuracy of those to 27000 lawyers statements. He was suspended from the David C. Kobrin, admitted as David practice of law for a period of five years, Culman Kobrin, a disbarred attorney in Queens, Kings, New York, commencing January 30, 2009, and con- (January 13, 2009) tinuing until further order of the Court. Scott F. Saidel, a suspended attorney Nassau & Suffolk Counties (January 13, 2009) Edward A. Christensen (January 15, 2009) Diana J. Szochet, Assistant Counsel to The respondent was immediately sus- the State of New York Grievance pended from the practice of law, pending Committee for the Second, Eleventh and further proceedings, based upon his failure Thirteenth Judicial Districts and President to comply with lawful demands of the of the Brooklyn Bar Association, compiled Grievance Committee for the Tenth this edition of Court Notes. This material 866-867-9121 Judicial District and other uncontroverted is reprinted with permission of the evidence of professional misconduct. In Brooklyn Bar Association. THE QUEENS BAR BULLETIN – MARCH 2009 13 Guardian & Elder Law: New and Noteworthy

Continued From Page 1 ______neys’ fees, liens and other debts. The next four sections (§b-e) include personally benefit from the principal’s MHL 81 Guardian & Gifts: In Matter designation of the Agent and Successor assets. The agent is warned that if it is the court determines that there has been a of Mildred A., NYLJ, Page 27, Column 3, Agent(s), a statement that the power of found that he has violated the law or acted breach of fiduciary duty by the previously two daughters attorney shall not be affected by the sub- outside the authority granted, he may be appointed agent. “The court shall not, bought financial assistance from their sequent disability of the principal (dura- liable under the law for such violation. however, invalidate or revoke a will or a mother, an Incapacitated Person. bility), unless modified, and a statement The Principal may authorize an agent codicil of an incapacitated person during Daughter A sought a loan in the amount of that the power of attorney revokes any and to make gifts, but only by making use of the lifetime of such person.” $150,000.00 from the guardianship estate. all power prior powers of attorney, unless the optional “New York State Statutory MHL §81.44: Speaking of the death of Daughter B sought permission to invade modified. Modifications are be made in Gifts Rider”. The new law provides a an Incapacitated Person there is a new two custodial accounts set up by the inca- subsequent §g, Modifications: Optional. sample rider. The rider provides for lim- section of the Mental Hygiene Law. MHL pacitated person for the benefit of her The subjects of the authority of the ited gifts to the principal’s spouse, chil- 81.44, effective January 3, 2009, makes grandchildren. And both daughters sought agent are listed in §(f). The Principal dren, and more remote descendants, and certain requirements of the MHL 81 gifts in the amount of the annual exclusion selects the authority to be given to the parents, not to exceed, for each, the Guardian on the death of the Incapacitated from the guardianship. Justice Asarch, agent by either placing his initial in the annual federal gift tax exclusion amount. Person. Supreme Court, Nassau County, denied bracket next to each power, or writing or If the principal wants to make gifts in Within 20 days of the date of death of the loan. Since most of the incapacitated typing the letters for each authority on excess of the annual exclusion there is a the Incapacitated Person the Guardian person’s assets were in IRA’s, the loan the blank line (P). This is the same pro- modification section. The principal may must serve a copy of the “statement of would result in both a loss of principal and cedure utilized in the current power of also authorize the agent to make self death” upon the court examiner, the per- income tax consequences to the incapaci- attorney form. The authority to be given gifts. The rider must be signed and sonal representative of the decedent's tated person. He also declined to invade to the agent includes some old standbys: acknowledged by the principal, and estate, or, if no person representative has the custodial accounts. The Court was real estate transactions, chattel and goods signed by two witnesses. been appointed, then upon the personal deeply concerned with the potential situa- transactions, banking, business, insur- Medicaid 2009 Regional Rates: The representative named in the decedent's tion of the infant children supporting their ance and estate transactions, claims and New York State Department of Health has will or any trust instrument, if known, and mother. litigation, and some new subjects: per- issued the new 2009 Medicaid regional upon the public administrator of the chief The Court approved the annual exclu- sonal and family maintenance, and health rates. The regional rates are used to deter- fiscal officer of the county in which the sion gifts. Still, the Court expressed con- care billing, payment, records, reports mine a transfer of assets penalty period. guardian was appointed, and file the orig- cerns about the effect of the gifts on and statements. There is no gifting Based on the average cost of a nursing inal statement of death together with proof prospective Medicaid eligibility under the authority of any kind, including making home in different parts of the state, the of service upon the personal representa- Deficit Reduction Act of 2005, and the use of the annual exclusion. Gifting is new rates are as follows: tive and or public administrator or chief financial impact of gifts in general. The reserved to the new optional “Power of Central $ 6.938.00 fiscal officer, as the case may be, with the decision seems to stand as a reminder that Attorney New York Statutory Major Long Island $10,852.00 court which issued letters of guardianship. there are limits, practical and legal, to the Gifts Rider”. New York City $ 9,838.00 The statement of death is defined in the Court’s application of the gifting power of In the next section (§h) the principal Northeastern $ 7,766.00 law as a statement, in writing and Guardian’s under the substitution of judg- expresses his desire to make “major gifts” Northern Metro $ 9,439.00 acknowledged, containing the caption and ment doctrine. and other “transfers of property”. The Rochester $ 8,720.00 index number of the guardianship pro- Power of Attorney: The legislature has principal must initial the statement in §h Western $ 7,418.00 ceeding, and the name and address of the once again amended the Statutory Short and at the same time execute the Medicaid 2009 Income & Resource last residence of the deceased incapacitat- Form Power of Attorney. On January 27, “Statutory Major Gifts Rider”. The form Levels: The New York State Department ed person, the date and place of death, and 2009, Governor Patterson signed into law suggests that the preparation of the of Health has issued the new 2009 the names and last known addresses of all Chapter 644 of the New York State Laws Statutory Major Gifts Rider should be Medicaid income and resource levels. The persons entitled to notice of further of 2008. The law creates a new Statutory supervised by a lawyer. new income and resource will apply to guardianship proceedings pursuant to Short Form Power of Attorney. On March The new form includes the designation budgets with a “from date” effective paragraph three of subdivision (c) of 1, 2009, the Governor signed legislation of a Monitor (§I). The monitor is a new January 1, 2009. MHL §81.16, including the nominated extending the effective date of the new term. The monitor is a third party. The Single Individual and/or appointed personal representative, law until September 1, 2009. The new monitor is further protection for the prin- Exempt Resources $ 13,800.00 if any, of the deceased incapacitated per- law, including the new form, can be cipal and check on the agent. The Monitor Community Spouse son's estate. reviewed at www.nysba.org/POALeg. is statutorily defined (GOL 5-1501(8) as a Resource Allowance $109,560.00 Within 150 days of the death of the The new law provides definitions and person appointed in the power of attorney Minimum Monthly Incapacitated person, the guardian shall general requirements for the validity of who has the authority to request receive, Need Allowanc $ 2,739.00 serve upon the personal representative of powers of attorney, describes the duties and seek to compel the agent to provide a Single Individual the decedent's estate or where there is no and responsibilities of the agent, liabilities record of all receipts, disbursements, and Monthly Income $ 767.00 personal representative, upon the public of the agent and third parties, requires the transactions entered into by the agent of Medicare 2009 Deductibles and Co- administrator or chief fiscal officer, a agent to sign the power of attorney form, behalf of the principal. Insurance: The Centers for Medicare & statement of assets and notice of claim, provides procedures for the revocation of The Principal may provide for compen- Medicaid Services has issued the new and, except for property retained to secure the power of attorney, provides for civil sation to the agent for services rendered. 2009 Medicare premiums and any known claim, lien or administrative proceedings with respect to the power of The new form §(j) specifically provides deductibles. costs of the guardianship pursuant to sub- attorney, and furnishes a new power of that the agent is entitled to be reimbursed The Medicare Part A premiums and division (e) of this section, shall deliver attorney form. Below is a description of from the principal’s assets for reasonable deductibles are as follows: all guardianship property to: the new form. expenses, and may be entitled to reason- Hospital Deductible $1,068.00 1. the duly appointed personal represen- The new form consists of 15 sections able compensation if the principal so Hospital Co-Insurance $267.00 per tative of the deceased incapacitated (§a-m) and a new optional “Power of elects. The principal can define reason- day for days 61-90, $534.00 per day for person's estate, or Attorney New York Statutory Major Gifts able compensation and include that in the lifetime reserve days. 2. the public administrator or chief fis- Rider”. Modification section (§g). Skilled Nursing Facility$133.50 day cal officer given notice of the filing of The form starts with a new plain lan- Third parties acting and relying on the for days 21-100 the statement of death, where there is guage warning (§a). The principal is cau- power of attorney are afforded protection The Medicare Part B premiums are as no personal representative. tioned that the power of attorney is an in §k. The new form, mirroring the current follows: 3. any dispute as to the size of the prop- important document; that the appointed form, provides for indemnification of Annual Deductible $ 135.00 erty retained shall be determined by agent has “authority to spend your money third parties by the principal for all claims Monthly Premium $ 96.40 the surrogate court having jurisdic- and sell or dispose of your property” and against the third party. Higher income beneficiaries pay higher tion of the estate. “without telling you”. The principal is told The Power of Attorney continues until Within one hundred fifty days of the that the agent must act according to the revocation or death, §l. Summary: The above is only a selective incapacitated person's death, the guardian principal’s instructions, or in the absence The principal signs and acknowledges survey of some of which is new and note- must also file the Final Account of of instructions in the “best interest” of the the document at §m. The new form worthy in Guardianship and Elder Law. Guardian with the clerk of the court of the principal and in accord with the duties and requires that the agent also sign and The Elderly & Disabled Committee of the county in which annual reports are filed, responsibilities enumerated later on in the acknowledge the power of attorney. Before Queens County Bar Association will be and seek judicial approval and settlement form (§n). The principal is reminded that signing, however, the Agent is reminded of meeting each month, April through June, upon such notice as required by MHL the power of attorney is revocable at any his duties, responsibilities, and liabilities in to discuss these and other issues affecting §81.33, including notice to the person or time and for any reason. Principals who §n “Important Information For The attorneys and their clients. Practitioners entity to whom the guardianship property want more information about the law are Agent.” This is a brand-new section. The are invited to attend the monthly commit- was delivered. told that the law is available at a law agent is reminded that he must act in accor- tee meetings. In connection with the Final Account library or online at www.senate.state.ny.us dance with the instructions of the principal. the Guardian may continue to hold assets or www.assembly.state.ny.us. The warn- That he is a fiduciary and as such must This article is written by John R. Dietz, of the Incapacitated Person in an amount ing makes it clear that making health care avoid conflicts of interest, keep the princi- Esq., Chair of the Elderly & Disabled equal in value to the claim for administra- decisions is the province of a health care pal’s property separate and apart from Committee and Past President of the tive costs, statutory commissions, attor- proxy, not an agent. one’s own assets, keep records, and not Queens County Bar Association. 14 THE QUEENS BAR BULLETIN – MARCH 2009 CPLR Update 2009 ______Continued From Page 1 long after the plaintiff has discontinued the Constitution and statutes. replaced by a statute holding to the contrary. had not appeared, and will not be allowed to action as to the co-defendants, would make it The Full Faith and Credit Clause does not The Court of Appeals affirmed. New York present evidence as to liability, and will not prejudicial to reverse the judgment. make the sister state judgment a judgment of recognizes foreign judgments under princi- be heard to complain of fraud when evidence The fact that the Court was willing to view the State of New York. To create a New York ples of comity, by which foreign judgments turns up which might have exculpated it. the argument as unpreserved bears on an judgment requires a New York action. In the will be accorded recognition absent a show- Another issue related to the sufficiency of unresolved question as to the validity of absence of a New York judgment, the ing of fraud, or that recognition would violate proof on the motion for default judgment. default judgments. As has been noted in this Louisiana judgment has the same “credit, a strong public policy of this state. Comity The case involved a 16-year-old plaintiff, Update in previous years, the cases are in validity and effect” here as it has in refers to a spirit of cooperation between tri- who claimed to have been struck by a piece conflict as to whether the entry of a default Louisiana. Neither CPLR Article 54 nor the bunals of this state an other sovereign states. of metal that supposedly fell into his eye judgment on insufficient proof (typically by Full Faith and Credit Clause require that New As stated by the US Supreme Court, “ while he walked under a scaffold assembled way of an attorney–verified complaint) is a York give the judgment greater effect than it ‘Comity’ in the legal sense, is neither a mat- by the defendant Safway Steel Products. The “nullity,” 37or merely a procedural irregular- has in Louisiana. ter of absolute obligation, on the one hand, piece of metal was surgically removed, and ity not affecting the validity of the judgment. Comity does not require enforcement here. nor of mere courtesy and good will, upon the left damage to his retina. Safway was one of In Woodson v Mendon Leasing, 100 N.Y.2d To the contrary, comity is a voluntary deci- other. But it is the recognition which one several defendants. After failure to comply 62; 760 N.Y.S.2d 727 [2003], 38 the Court sion to defer to the policy of another state, nation allows within its territory to the leg- with a preliminary conference order and expressly did not reach the issue of whether and here requires deference to the laws of the islative, executive or judicial acts of another plaintiff’s demands, the trial court issued a non–compliance with that section would ren- original forum. New York has no interest in nation, having due regard both to internation- self-executing conditional order directing that der a default judgment a “nullity,” leaving the providing redress here. The flood, the dam- al duty and convenience, and to the rights of Safway’s answer would be stricken unless it question unresolved. A necessary conse- age and the resulting litigation all occurred in its own citizens, or of other persons who are complied by July 1, 2002. Since Safway still quence of a judgment being a “nullity,” how- Louisiana. The wiser course is to defer to under the protection of its laws.”42 failed to comply, its answer was stricken as of ever, is that it is void for all purposes and at Louisiana’s limits on its own liability. CPLR Article 53 is the Uniform Foreign that date. The effect of the answer being all times, and an objection to it does not need Byblos Bank Europe, S.A. v Sekerbank Country Money-Judgment Recognition Act, stricken was that Safway was now unable to to be preserved. Turk Anonym Syrketi, 40 involved conflicting which gives recognition to a foreign judg- contest plaintiff’s allegation that his injury There was a dissent by Judge Pigott, who judgments of other states, and the Court of ment which is “final, conclusive and enforce- was due to a dangerous condition on its prem- was concerned that the judgment might have Appeals declined to enforce the most recent able where rendered.” A foreign judgment is ises. After its answer had been stricken, in been procured by fraud. He recognized that judgment. The underlying matter involved a not viewed as conclusive, and hence not enti- August of 2002, and pursuant to the demand Safway had not even argued the fraud issue in fraudulent loan obtained by an employee of tled to 43recognition, where the foreign tribu- of another defendant, plaintiff produced the the Court of Appeals. He wanted to reach it the defendant Sekerbank, a Turkish bank, nal is not impartial or fails to accord due piece of metal that had been removed from anyway, on the grounds that “courts have a from the plaintiff Byblos, a Belgian bank. process, or where the tribunal lacked person- his eye for expert examination. fundamental duty to ensure that judgments The Sekerbank employee apparently embez- al jurisdiction over the defendant. Among the The co-defendant’s expert offered the are not procured by fraud.” The majority zled the proceeds of the loan. discretionary grounds listed in CPLR 5304(b) opinion that the metal piece was in fact an air- declined this invitation to do the “lawyering” Byblos commenced proceedings against for refusing to give a foreign judgment recog- gun pellet that had been fired into plaintiff’s on behalf of the defendant. Its view was that Sekerbank in Belgium, Turkey and nition is that it conflicts with another judg- eye by an air-gun. Plaintiff thereupon discon- the integrity of the judicial process and the Germany. The Turkish court dismissed the ment which is final and conclusive. The tinued the action against the remaining defen- objective of prevention of fraud are best proceeding on the merits in 1992, a decision Belgian judgment which plaintiff sought to dants. served by the parties’ compliance with court which was upheld on appeal in Turkey in enforce conflicts with the original Turkish In June of 2003 plaintiff’s motion for an orders during the entirety of the litigation, 1994. Sekerbank then pursued recognition of judgment, and with the German judgment inquest against Safway was granted, and especially when both parties are represented the Turkish dismissal in the German and which recognized it. Thus, CPLR 5304(b) Safway’s motion to dismiss was denied. by counsel whose purpose is to zealously rep- Belgian courts where the related proceedings allows the court to refuse to recognize one or Safway made three attempts to vacate the resent them. were pending. In 1996, the German court both of the conflicting judgments. The Court striking of its answer and the order directing In Boudreaux v State of La., Dept. of granted recognition of the Turkish judgment, noted that under 5304 the New York courts an inquest. A motion based upon a claim of Transp., 39 the Court of Appeals held that sis- which was upheld on appeal in Germany. may recognize the earlier judgment, the later, “justifiable excuse” was denied, with the ter-state judgments which are unenforceable Later in 1996, the Belgian court of first or neither. The last-in-time rule need not be Appellate Division affirming on the grounds in the state of origin are equally unenforce- instance dismissed on res judicata grounds. applied to conflicting foreign court judg- of the lack of an acceptable reason for an able here, even under the Full Faith and However, the Belgian intermediate appellate ments. These rules are applied here by deny- extended pattern of non-compliance with Credit Clause of the US Constitution and the court reversed, refusing to grant the Turkish ing recognition to the Belgian judgment, demands, orders and the conditional order. doctrine of comity. Or, to put it more baldly, judgment res judicata effect, relying on a pro- which itself failed to apply res judicata or to The second attempt was based on the argu- if the State of Louisiana can simply refuse to vision of Belgian law (since repealed) that observe comity by permitting the plaintiff to ment that plaintiff’s claim had been shown to pay a judgment entered against it by its own required an on-themerits review of a foreign relitigate the merits of the underlying contro- be fraudulent. The trial court denied this courts, the plaintiff can not do an end run judgment. The intermediate Belgian court, versy and failed to recognize the Turkish motion, since the striking of Safway’s answer around the refusal and enforce the judgment conducting its own review judgment. A sheriff (or as here a marshal) and the order directing an inquest was unre- against Louisiana’s assets in New York. of the merits pursuant to that law, found the who serves an execution on a judgment, but lated to the claim of fraud, but was entirely The class action in Louisiana found the Turkish judgment a product of substantial fails to actually collect anything, may still be the result of Safway’s own conduct in the lit- state liable for flood damage in 1983 due to error, and entered judgment in favor of entitled to poundage where the judgment igation. The third motion was due to a claim negligent construction of a bridge. After the Byblos. This judgment was upheld by the debtor has affirmatively interfered with the of a stay relating to another action, which the Louisiana exhausted its appeals, the judg- Belgian High Court in September, 2005. collection process. The question presented in trial court denied as well on the grounds that ment was for over $91 million. Plaintiffs Byblos now sought to enforce this Belgian Solow Mgt. Corp. v Tanger 44was whether the stay did not apply to this action. After the docketed the judgment in 18 Louisiana judgment in New York, seeking an order of the filing of an appeal bond constitutes such inquest and subsequent judgment, the parishes, but were unable to collect, since attachment and summary judgment in lieu of affirmative 45 interference. The Court of Appellate Division affirmed the liability find- under Louisiana law the judgment is not complaint. Sekerbank cross-moved to vacate Appeals held that it did not. The action grew ing (although it reduced the amount of dam- payable against the state, until (and unless) the attachment. Byblos relied on the last-in- out of a 1991 rent strike. A final judgment ages). the Louisiana legislature appropriates the time rule applicable to conflicting judgments was entered in 2004, attorneys fees against The Court of Appeals stated that Safway’s funds. The Louisiana Legislature has, so far, of sister states: the last judgment will gener- the defendants of $655,241.10. Plaintiff default in complying with the conditional failed to do so. ally be considered controlling. Sekerbank began enforcement proceedings, which order resulted in its answer properly being Plaintiffs attempted to docket the judgment argued that this rule need not be applied in included the service of an execution on regarded as stricken, and it was therefore with the Supreme Court in New York cases of foreign country judgments, and that Merrill Lynch against the defendants’ properly deemed to have admitted all the tra- County, but the clerk refused to accept it, due the Belgian judgment should not be given accounts, on August 17, 2004. The day after versable allegations of the complaint, includ- to technical defect. A motion for leave to cor- recognition as conflicting with the Turkish the service of the execution, defendants filed ing the allegation of liability, and to have rect the defects was denied, and the plaintiffs judgment. Supreme Court denied the motion an appeal bond with the Supreme Court, stay- been precluded from introducing evidence to appealed. The Appellate Division affirmed, to confirm the attachment, declining to rec- ing all collection proceedings. The judgment defeat plaintiff’s claim. on the grounds that the judgment was as ognize the attachment under CPLR was eventually reversed, and in July of 2005 In the Court of Appeals, Safway attempted unenforceable here as it was in Louisiana, as 5304(b)(5) due to the conflicting judgment.41 the restraint on defendants’ accounts was lift- to argue that the plaintiff’s proof on the a matter of comity. The Appellate Division went further, dis- ed and the marshal released the assets, except motion for inquest was insufficient pursuant The Court of Appeals upheld the Appellate missing the action on the motion for summa- for $32,912.55 in poundage and other to CPLR 3215(f), and that the entire judg- Division and refused to allow execution in ry judgment in lieu of complaint, and other- claimed fees. ment was therefore a nullity. The Court New York. Louisiana’s waiver of sovereign wise affirmed. It held that the last-in-time rule The Supreme Court held in favor of the rejected the argument, on the grounds that it immunity is limited by the provisions of its was not required where the last foreign judg- marshal, accepting the argument that the had not been raised in any of the prior Constitution and statutes which provide that a ment was rendered with the adverse party appeal bond constituted affirmative interfer- motions, and was therefore unpreserved. As judgment against it in its state courts are not being denied any opportunity to assert that ence. The Appellate Division reversed, and the Court noted,” the requirement of preser- to be “exigible, payable, or paid” until funds the earlier judgment should be binding. the Court of Appeals affirmed. The posting of vation is not simply a meaningless technical for the payment are appropriated by the legis- Further, Sekerbank was entitled to non- an appeal bond cannot be viewed as affirma- barrier to review.” Had it been raised timely, lature. The Supreme Court of Louisiana has enforcement of the Belgian judgment under tive interference. The appeal bond does not the plaintiff might easily have cured any defi- recognized that the rule effectively provides CPLR 5304(b)(5), since it was itself issued in require the vacatur of the levy, but stays ciency in his papers on the motion. 36 The the plaintiff with a right but not a remedy, but violation of principles of comity, pursuant to enforcement of it until the determination on failure to raise an objection until this late date, viewed itself as constrained by the state a statute that has since been repealed and ______Continued On Page15 THE QUEENS BAR BULLETIN – MARCH 2009 15 CPLR Update 2009 Continued From Page 14______barred by the one-year limitations period on a ly favorable to defamation plaintiffs on issues threatened by the process server, who said: proceeding to confirm an arbitration award. procedural and substantive. "You had better respond, Sheikh bin the appeal. If the appeal is unsuccessful, the Supreme Court denied the motion, since the The communications to Ehrenfeld in New Mahfouz is a very important person, and you levy remains in place and the marshal is free disciplinary proceeding was not an arbitra- York, on which she sought to rely for juris- ought to take very good care of yourself." to collect. A contrary holding would “dis- tion. dictional purposes, were all made in further- (The process server denied making any such courage” aggrieved litigants from pursuing Next up was NASD’s motion for summa- ance of the suit in the English court. Bin statements or threats.) Bin Mahfouz’ English an appeal lest they add poundage fees to the ry judgment, which was granted. It viewed Mahfouz’ English counsel wrote to her and counsel also contacted Ehrenfeld at her home underlying judgment amount. the action as a collection case, to recover the asked her to make certain assurances, specif- in New York by mail and email, providing Judgment debtors whose income is exempt fines and costs imposed in the disciplinary ically: (I) to promise the "High Court in her with the claim, statements of witnesses, from execution, because it is derived from proceeding. England" that she would refrain from repeat- and court orders, including an injunction Social Security, disability, pensions, public The Appellate Division affirmed. ing similar allegations, (ii) to destroy or deliv- directing her to prevent copies of Funding assistance, child support, or veteran's bene- The Court of Appeals, however, noted that er to him all copies of Funding Evil, (iii) issue Evil from entering England and Wales and fits, may nonetheless find their exempt funds the Securities Exchange Act gives the a letter of apology (to be published at plain- that a failure to do so could lead to her being frozen due to restraining notices if the funds Federal District Courts exclusive jurisdiction tiff's expense), (iv) make a charitable dona- held in contempt. have been deposited in bank accounts. The over violations of the Act, rules and regula- tion and (v) pay his legal costs in exchange Ehrenfeld did not appear in the English Legislature has added numerous provisions tions promulgated under it, and all suits in for defendant's agreement to not bring a action, due to the expense, the difficulties to CPLR 5205, 5222, added a new 5222-a, law or equity to enforce liabilities and duties defamation action against her. This demand defending a libel case under English law, and and amended 5230, 5231 and 5232 to provide created under them. NASD’s suit originated procedure is apparently a predicate to suit her belief that the bin Mahfouz was attempt- for meaningful exemption of these funds. It in violations of the Exchange Act, and the under English law. ing to chill her rights of speech in New York establishes a procedure for claiming exemp- disciplinary proceedings and penalties were When Ehrenfeld refused to accede to these by litigating in a jurisdiction to which she tion of certain income 46 from levy of execu- provided for by the Exhange Act and rules demands, bin Mahfouz commenced suit in lacked any real connection. The English court tion by judgment debtors; provides that cer- created under its authority. England, in the High Court of Justice, entered a judgment by default against tain accounts shall be exempt from execution. Even though the issue was not raised in the Queens Bench Division. Papers were served Ehrenfeld and her publisher, providing for CPLR 8012 has been amended, to the cir- Supreme Court or the Appellate Division, the upon her at her New York City residence on damages and an injunction against any fur- cumstances and amount of poundage due to lack of subject matter jurisdiction is not waiv- four occasions between October, 2004 and ther publication of the allegations in England a sheriff where the parties have reached a able and may be raised at any time. A court, May, 2005. She claimed that on at least one ______Continued On Page16 settlement after the execution of a judgment. upon recognizing that it lacks subject matter of these occasions, March 3, 2005, she was Poundage fees 47 are due on the judgment jurisdiction, may refuse to proceed further amount or settlement amount, whichever is and dismiss the action, and that is what the less. Additionally, this legislation clarifies Court did. that if the parties settle the judgment after Marital Quiz the Sheriff serves an execution, the Sheriff is Jurisdiction - In Personam - Basis - still due the poundage fees on the settlement Long-Arm - “Libel Tourism” BY GEORGE J. NASHAK JR.* Question #7 - In a amount. The Legislature has acted to allow for stipulation of settle- long-arm jurisdiction over a non-resident Question #1 - DRL §250 provides for a ment, which was Jurisdiction - Subject Matter who has\ obtained a “libel tourism” judgment three year statute of limitations of prenup- incorporated into a Financial Indus. Regulatory Auth., Inc. v in a foreign country, and also to prevent tial agreements that is tolled until a matri- judgment of Fiero 48 went all the way to the Court of enforcement of such judgments in New monial action is filed or the death of one of divorce, but not Appeals without anyone questioning whether York.49 The Legislature was reacting to one the parties. This law became effective July merged therein, the George Nashak the state courts had subject matter jurisdiction of the most interesting cases of 2007, 3, 2007. Does the tolling extend to agree- father agreed to pay to collect penalties imposed under the Ehrenfeld v bin Mahfouz, 9 N.Y.3d 501, 851 ments barred by the six-year statute of lim- 100% of the children’s college education. Securities Exchange Act. They don’t, and the N.Y.S.2d 381[2007], in which the Court of itations on or before July 3, 2007? The father sought to allocate the college Court dismissed the action without consider- Appeals addressed the issue of when a party Your answer - costs based upon his reduced income and ing the merits. who has never set foot in New York may the mother’s increased income. The child Defendants Johm Fiero and his firm were nonetheless be said to have “transacted busi- support provision in the agreement provided members of the National Association of ness” here for purposes of assertion of long- for reallocation. The College provision was Securities Dealers (NASD, now known as arm jurisdiction under CPLR 302(a)(1). Question #2 - Can the non payment of separate and apart from the child support “Financial Industry Regulatory Authority,” or In order to understand the Legislature’s child support be a crime? provision and did not provide for such real- “FINRA”). NASD and FINRA are self-regula- actions, it is necessary to review the Your answer - location. Should the father’s obligation to tory organizations, that is, quasi-governmental Ehrenfeld facts. pay 100% of the children’s college educa- organizations with regulatory functions under The complaint in Ehrenfeld sought to tion costs be reallocated? the Securities Exchange Act, and are regulated address the hot topic of “libel tourism,” in Your answer - by the Securities Exchange Commission. The which a defamation plaintiff finds a claimant- Question #3 - Does the Child Support case involved fines and costs of over a million friendly jurisdiction, where neither he nor the Collection Unit charge a fee for its services? dollars imposed upon the defendants by a hear- writer have any substantial ties, presence or Your answer - ing panel of NASD, due to securities violations resources, and uses the resulting judgment to Questions #8 - If a non-custodial parent under the Securities Exchange Act, implement- chill the writer’s free speech. The actual issue presents insufficient and incredible evi- ing regulations, and violations of NASD rules. before the Court, however, was the much less Question #4 - What must be shown in order dence to establish his or her income, how Defendants pursued an internal appeal to the juicy consideration of jurisdictional basis: to modify a maintenance award contained is the court to fix child support? NASD National Adjudicatory Council, which whether the libel claimant’s communications in a stipulation of settlement incorporated Your answer - affirmed. Under applicable Federal law, the with the writer in New York are sufficient but not merged in a judgment of divorce? defendants could have sought review of “transaction of business” to justify long-arm Your answer - jurisdiction when the writer institutes an NASD’s determination by the Securities and Question #9 - Does a parties’ lack of con- action to enjoin enforcement of the foreign Exchange Commission, (and from there, to the tribution to the marriage effect the per- judgment here. The “libel tourism” issue was US Court of Appeals) but they did not do so. centage of the marital assets that party actually not before the Court. Question #5 - In a stipulation of settle- The SEC could have brought an action in fed- receives in equitable distribution? The case was a prime example of the limi- ment, if you intend the alternate payee to eral court to enforce the NASD sanctions, but Your answer - that also was not done. Rather, NASD sued in tations on New York’s long-arm jurisdiction, share in the New York City Police Supreme Court to recover the fine and costs, compared to the maximum permissible juris- Department pension benefits of his or her plus interest. diction under Federal law. Ehrenfeld is an spouse whether those benefits are based on Defendants moved to dismiss, on the author, who wrote a book which, in part, a service retirement benefit or a disability Question #10 - Lower court permitted grounds that the fine and costs had not been accused bin Mahfouz, a Saudi national, and benefit, is it necessary to include both an counsel to withdraw as defendant’s attor- affirmed by the SEC or converted into a judg- his family of providing funding to al Qaeda ordinary disability pension and accident ney for the defendant’s failure to provide ment. Supreme Court denied the motion, and other Islamist terror groups. The book, disability retirement benefit? financial information. Was it error for the finding that the matter was grounded in con- Funding Evil, was published in the United Your answer - lower court to refuse to adjourn the trial to tract law. It viewed NASD as a private mem- States. It was available in the United give the defendant the opportunity to bership organization, with the right to impose Kingdom through the Internet, and 23 copies retain new counsel? fines on its members as authorized by statute, were apparently sold in that manner. A chap- Your answer - charter or by-laws, and further as a self-regu- ter of the book was also available in the Question # 6 - Can maintenance be award- latory organization operating under federal United Kingdom through the Internet. The ed after a divorce, when the divorce judg- law to regulate and discipline its members. connection to the United Kingdom was thus ment makes no provision for mainte- The NASD rules authorize the imposition tenuous, at best. Ehrenfeld’s connection to nance? *Editor’s Note: Mr. Nashak is a Past and collection of the fines. the United Kingdom was essentially nonex- Your answer - President of our Association and Vice-Chair Defendants then moved for summary judg- istent. Bin Mahfouz, asserting the falsity of of our Family Law Committee. He is a part- ment on limitations grounds, viewing the plaintiff’s claims, nevertheless turned to the ner in the firm of Ramo Nashak & Brown. fines as arbitration awards and therefore English courts and their libel laws, notorious- ANSWERS APPEAR ON PAGE 18 16 THE QUEENS BAR BULLETIN – MARCH 2009 CPLR Update 2009 Continued From Page 15 ______state.” In New York, however, the analogous since they forbid the United States resident to equivalent in that jurisdiction. statute is CPLR 302(a)(3), which requires a do something in England and Wales, but do In Morgenthau v Avion Resources Ltd. 52 and Wales, and a second order declaring the demonstration not merely of an intentional not compel him to do anything in New York. the Court of Appeals considered whether statements to be false, fixing damages to bin act, but a tortious act, and not merely of harm The foreign judgments involved are, of there were additional requirements, arising Mahfouz and his sons in the amount of £ here, but of “injury to person or property.” In course, limited to those of foreign countries, out of comity or treaty, which prevented serv- 10,000 each, requiring Ehrenfeld and her effect, allowing jurisdiction under the test not of sister states, since those judgments are ice from being made in Brazil according to publisher to publish an apology, continuing employed in Yahoo! would superimpose entitled to full faith and credit under the fed- the CPLR and not by letters rogatory. The the earlier injunction, and awarding bin CPLR 302(a)(3) onto (a)(1), which is a eral Constitution. Court concluded that there were none, and Mahfouz his costs of litigation. determination for the Legislature. As it was, The subdivision also carries the proviso sustained service. The lawsuit at issue here was commenced the New York Legislature had conferred that the publication as issue was published in This action involves the alleged fruits of a by Ehrenfeld against bin Mahfouz in the US jurisdiction over non-residents in a limited New York, disallowing jurisdiction in favor criminal international money transfer scheme District Court for the Southern District of set of cases, and Ehrenfeld was is not one of of an otherwise eligible plaintiff who pub- originating in Brazil. The matter was first New York, seeking a declaration that the them. lished elsewhere. The subdivision then adds prosecuted by Federal authorities, who seized statements in the book are not libelous under The Court, therefore, was simply applying the provisos noted above, that the resident or over $21 million in assets deposited by the either federal or New York law, and that the well-established jurisdictional law, observing\ non-resident amenable to jurisdiction must defendants and their associates in a New English judgment is not enforceable in the the limits on New York’s long-arm jurisdic- have assets here which might be used to sat- York bank. After the United States District US generally or New York specifically. Bin tion as established by the Legislature. The isfy the judgment, or might have to take Court held that the government had not Mahfouz moved to dismiss for lack of subject Legislature has acted to expand our long-arm actions here to satisfy it. This would seem to shown entitlement to the funds, the Federal matter and personal jurisdiction. The District jurisdiction, by adding a new subdivision (d) have the effect of disallowing jurisdiction to authorities sought the involvement of the Court dismissed, on the grounds of lack of to CPLR 302, specifically aimed at foreign a New York resident whose only assets are plaintiff, the New York County District personal jurisdiction, holding that the com- defamation judgments. It allows for personal exempt from enforcement procedures under Attorney, who commenced this civil forfei- munications to Ehrenfeld in New York, how- jurisdiction over any person obtaining a CPLR Article 52. Even if there are New York ture action pursuant to CPLR Article 13-A. 53 ever objectionable they might have been, did defamation judgment outside the US for the assets which might be subject to enforcement The defendants included 14 individuals not support a business objective. Ehrenfeld purpose of rendering declaratory relief on a of a money judgment, it is an open question and five corporations who were served with appealed, and the Second Circuit certified to claim that the foreign should be deemed non- whether that fact alone, without any attempt the summons and complaint in Brazil. the Court of Appeals the question of whether recognizable under New York law. having been made to enforce the judgment, Certain of the defendants were served by or not the transactions described would be Getting past the cause célèbre which gave would be sufficient. expedient service on their attorneys, author- sufficient to confer jurisdiction over the rise to the amendment, the most important In addition to CPLR 302, the Legislature ized by an order of Supreme court. Others defendant under CPLR 302(a)(1).50 The thing to notice is that it expands long-arm added a new paragraph (8) to CPLR 5304, were served by personal delivery in Brazil by Court of Appeals was careful to restrict its jurisdiction only in a specific case. which deals with non-recognition of foreign Brazilian law enforcement officials.54 opinion to the certified question of jurisdic- Notwithstanding the clause in the new subdi- country judgments. That paragraph allows Supreme Court dismissed the complaint, tion, offering no opinion on English law and vision that it is intended to expand New for nonrecognition “unless the court before finding that the service of process in Brazil its differences from American and specifical- York’s long-arm jurisdiction “to the fullest which the matter is brought sitting in this failed to comply with either the Inter- ly New York law, and rejecting the invitation extent permitted by the United States consti- state first determines that the defamation law American Convention on Letters Rogatory or from Ehrenfeld to discuss the issue of “libel tution,” it does so only in these “libel applied in the foreign court's adjudication with service requirements under Brazilian tourism.” tourism” cases. Our law still stops short of the provided at least as much protection for free- law, and violated principles of comity. The Ehrenfeld’s claim of jurisdiction rested on full jurisdiction allowed under the dom of speech and press in that case as would Appellate Division affirmed, finding that the the notion that bin Mahfouz purposefully Constitution. be provided by both the United States and service of process violated Brazilian law, communicated with her in the state in order Plaintiffs entitled to invoke jurisdiction are New York constitutions.” failed to defer to international comity, and to conduct a “foreign litigation scheme” a New York resident or a person amenable to It is entirely an open question as to how the also failed to comply with the Mutual Legal intended to chill her free speech. Bin jurisdiction in New York who has assets in court is to make this determination. It is an Assistance Treaty on Criminal Matters. Mahfouz responded that the communica- New York or who may have to take actions open question whether or not there are any The DA argued that no treaty or interna- tions were mere incidents to the foreign liti- in New York to comply with the foreign jurisdictions, anywhere, which would satisfy tional agreement applied to supersede service gation, and that he did not transact any busi- judgment. this standard. procedures under the CPLR, and that the ness here. The Court looked to the basic cri- At first blush, it would seem that this intro- Moreover, one of the fundamental issues principles of comity do not compel deference terion for “transacting business”: whether or ductory language allows jurisdiction in favor concerning the English judgment in to another country’s rules for service of not the defendant did some act to purpose- of any New York resident, or any non-resi- Ehrenfeld was not the substantive law of process. fully avail himself of the privilege of con- dent who may have assets here or who would defamation, but the procedural law which Looking at the plain words of CPLR 313, ducting activities in New York. If his acts have to take action here to satisfy the foreign allowed the case to be heard at all. In the the Court noted that it contains no require- have invoked the benefits of our laws, juris- judgment. That is not so, since the provisos Ehrenfeld case itself, the underlying determi- ment to serve a defendant according to the diction is proper here and can reasonably which follow make it clear that even a New nation in the English court was made on laws of the place where he is found. The prin- expect to defend his actions here. None of York resident must either have assets here Ehrenfeld’s default. If the positions had been ciple is well established in New York law that the bin Mahfouz’ actions, however, met this which may be used to satisfy the judgment or reversed, a New York court might well have service may be made outside the state in the standard. Rather than invoking New York’s may be required to take actions here to satis- denied a judgment, despite the default, upon same manner as service within the state. The laws, his acts furthered his litigation in fy the judgment. determining that it did not have personal statute thus has the purpose and effect of England. As to non-residents, it is not clear what the jurisdiction over the defendant. What is to be removing state lines as a consideration in The communications were all apparently phrase “amenable to jurisdiction in New done in cases where the substantive law of determining the manner of service. A plain- required under English law, and did not tend York” may mean in this context. The lan- the foreign jurisdiction is as protective of the tiff may use any of the various methods to further New York transactions or invoke guage of the new subdivision makes it possi- rights of speech and press as New York, but allowed under the CPLR to serve an out-of- New York laws or procedures. ble for a non-New Yorker, burdened with a the procedural law is as liberal as England’s? state defendant. Plaintiff asked the Court to endorse the foreign defamation judgment, to place assets Finally, and undoubtedly of lesser signifi- The Court then looked to the issue of comi- holding of a Ninth Circuit case, Yahoo! v La into New York and declare himself willing to cance, the legislation in no way addresses one ty, and found no reason why comity should Ligne Contre Le Racisme. There, applying submit to New York’s jurisdiction solely to of the fundamental issues of the Ehrenfeld interfere with service of process. Comity is a California law, the court held that personal 51 invoke the right to challenge the enforece- case, which is that bin Mahfouz himself had matter of cooperation with the laws and inter- jurisdiction was properly asserted over ability of the foreign judgment in our courts. no connection to England. It was that fact, ests of other states, and is applied as a matter French citizens who had obtained French The clause concerning taking actions in New after all, which put the “tourism” in the “libel of the court’s sound discretion. The doctrine court order requiring the California-based York to comply with the foreign judgment tourism” label. Had American procedural usually arise in the context of enforcement of plaintiff to alter its practices so as to prevent seems to have been inspired by the California standards been applied, Ehrenfeld might have foreign-country judgments, but has never users of its French website from accessing Yahoo! case, where the French judgment had a strong argument for dismissal of forum been applied so as to make foreign laws con- Nazi-related web pages. Yahoo! sued in fed- would have required Yahoo! to take action in non conveniens grounds. trolling in a New York lawsuit. The New eral court in California, demanding a declara- California by altering its servers, which were York plaintiff was therefore not required, as a tory judgment that the French orders were not physically located there. It is an open ques- Jurisdiction - In Personam - Service matter of comity, to comply with Brazilian enforceable in the US as interfering with tion whether, put to the decision, the Court of Outside the State law requiring service by way of letters rogato- Yahoo!’s First Amendment rights. Appeals would agree with the Ninth Circuit CPLR 313 allows service of process, ry. Comity, a discretionary principle, should Our Court of Appeals, however, viewed that the mere existence of such a foreign including a summons and complaint, to be be distinguished from treaty law. A treaty is the case as demonstrating why jurisdiction in judgment, without any attempt having been served beyond New York’s borders in the the supreme law of the land, and would super- New York was not proper. California’s long- made to enforce it, would be sufficient to sus- same manner as service is made within the sede the CPLR if applicable. The Court found arm statute is designed to be as broad as pos- tain constitutional due process. state. The requirements are that the person that there was no treaty applicable to the cir- sible, to the limits of jurisdiction allowed Similarly open is whether the actions served be a New York domiciliary or subject cumstances which would have required a dif- under the US Constitution. The Ninth required of Ehrenfeld which might be done in to jurisdiction here, that service is made in the ferent procedure. The Hague Convention is Circuit, applying California’s broad statute, New York, the issuance of an apology and same manner as it would be within the state, not controlling, since Brazil is not a signatory held that jurisdiction was proper since the ensuring that copies of the book did not reach and that the process server be any of: (a) a to it. Both the US and Brazil are signatories to French citizens had “(1) committed an inten- English jurisdiction, would be sufficient. The New York resident authorized to make serv- the Inter-American Convention on Letters tional act, (2) expressly aimed at the forum cease-and-desist portions of the English judg- ice, (b) a person authorized to make service Rogatory, but it is well established that the state, (3) causing harm that the defendant ment would not seem to be sufficient for a by the laws of the place where service is treaty does not limit the means of service to knows is likely to be suffered in the forum non-New Yorker to invoke jurisdiction here, made, or (c) an attorney, solicitor, barrister or ______Continued On Page17 THE QUEENS BAR BULLETIN – MARCH 2009 17 Pretrial Advocacy: An Ethical Checklist - Part II

Continued From Page 9 ______should consider not only tactical but also sonably and vexatiously” and ordered him outcome of the negotiation, the attorney ethical and professionalism issues a to pay the defendant’s attorney’s fees.48 must remember who the client is. N.Y. that the evidence was false, the attorney motion or application might present. When The N.Y. Standards of Civility address- Rule of Professional Conduct 1.8(f) pro- must correct the situation. If the attorney another attorney requests additional time es attorneys’ interactions with other attor- hibits an attorney from accepting compen- knows of false statements made by a client to respond to a motion or meet a deadline, neys.49 Attorneys should respect the sation for representing a client “from one during a deposition (called an “examina- opposing attorneys should recall that at schedule and commitments of opposing other than the client unless: (1) the client tion before trial” in New York), the attor- some later point in the litigation they counsel while protecting their client’s gives informed consent; (2) there is no ney must act immediately. Comment 10 to might be in the same position. interests. Attorneys should agree to rea- interference with the lawyer’s independent ABA Rule 3.3 provides that the “advo- sonable requests for extensions of time, professional judgment or with the client- cate’s proper course is to remonstrate with Attorneys must treat other attorneys with consult with other attorneys to avoid lawyer relationship; and (3) the client’s the client confidentially, advise the client respect and grant their reasonable scheduling conflicts, and promptly notify confidential information is protected as of the lawyer’s duty of candor to the tribu- requests. opposing attorneys and the court when required by Rule 1.6.” Attorneys should nal and seek the client’s cooperation with The court in Regional Transportation they must cancel or postpone hearings, rely on the N.Y. Rules of Professional respect to the withdrawal or correction of Authority v. Grumman Flexible Corp. examinations before trial, meetings, or Conduct and the Model Rules to structure the false statements or evidence.” If that addressed the issue of how attorneys treat conferences. As the Preamble to the their negotiations. fails, then the attorney must withdraw their fellow attorneys, noting that “[i]t is a Standards notes, the civil-litigation The attorney must relay to the client all from the representation, if the court per- truism that a commission and a uniform process cannot work unless attorneys treat legitimate settlement offers for approval or mits. If withdrawal is not an option or will may make someone an officer, but not an each other with civility and respect. rejection.52 It is good practice when possi- not undo the effect of the false evidence, officer and a gentleman. Apparently the ble to relay all offers to the client in writ- “the advocate must make such disclosure same may be said of a license to practice Attorneys must reveal to the court binding, unless the offer is not serious. A writ- to the tribunal as is reasonably necessary law.”41 In that case the defendant’s reply ing, adverse authority. ten offer serves many purposes: (1) it helps to remedy the situation, even if doing so brief was due on a Friday, immediately fol- Attorneys must act professionally when avoid later confusion concerning the exact requires the lawyer to reveal information lowing an immobilizing snowstorm in they communicate with the court. The focus terms of the offer; (2) it documents the that otherwise would be protected by Washington, D. C., where defendant’s in written motion papers should be on the exact terms presented to the client; and (3) [ABA Model Rule 1.6, Confidentiality of local counsel’s offices were located. The major points on which the motion turns. it enables the attorney to comply with the Information].”36 attorney was unable to travel to his office Attorneys should always address and N.Y. Rule of Professional Conduct 1.4(b) to complete the brief for a timely filing. attempt to rebut their opponent’s arguments. requirement to explain a matter to the Attorneys may not use discovery tactics The attorney telephoned plaintiff’s counsel Ignoring opposing counsel’s difficult issues extent reasonably necessary to permit the to delay litigation or force settlement. to ask whether he would agree to a four- will not make them disappear. Attorneys client to make an informed decision.53 The Discovery abuse is a persistent problem day extension. The plaintiff’s attorney should file motions only if they have client should counter-sign and date a copy in the legal profession. Legal commenta- twice refused, forcing defendant’s Chicago answers to their opponent’s arguments. of the letter if the settlement is acceptable. tors continue to call for reform, while crit- counsel to serve a notice of motion and Attorneys have an ethical duty to call to icizing the effectiveness of “moralistic ser- appear in court for an extension. The plain- the court’s attention directly adverse and A settlement for multiple clients requires mons about the breakdown of civility in tiff’s attorney did not appear at the motion controlling legal authority in the applicable each client’s informed consent. the legal profession and nostalgic yearning call. In granting the extension, the court jurisdiction. N.Y. Rule of Professional N.Y. Rule of Professional Conduct 1.7 for the good old days when lawyers acted noted that because the brief was the final Conduct 3.3(a)(2) provides that an attorney permits attorneys to represent multiple like gentlemen.”37 In SCM Societa brief on the motion, there was no reason for shall not knowingly “fail to disclose to the clients in civil cases if they can adequately Commerciale S.P.A. v. Industrial & the plaintiff’s attorney not to have acqui- tribunal controlling legal authority known represent the interests of each and if the Commercial Research Corp., one of many esced to the requested extension.42 to the lawyer to be directly adverse to the clients give informed consent to the multi- cases on the subject, the court wrote after The court criticized the plaintiff’s attor- position of the client and not disclosed by ple representation. Attorneys who represent a year-and-a-half battle between the par- ney’s behavior. The court wrote that plain- opposing counsel.” Federal and New York multiple clients have additional duties when ties over discovery motions that “the only tiff’s attorney “continued to show the same courts have disciplined attorneys for failing their clients receive a settlement offer. N.Y. things accomplished in this time span are myopic view of the matter that caused the to do so.50 The attorney is always free, Rule 1.8(g) provides that “a lawyer who the production of incomplete answers to needless effort in the first place” and that however, to argue that the cited authority is represents two or more clients shall not par- Plaintiff’s first set of interrogatories, the he continued to “characteriz[e] the issue as not sound or that the court should not fol- ticipate in making an aggregate settlement impregnation of my file cabinets, the gen- whether anyone may be forced to stipulate low it. Comment 4 to ABA Model Rule 3.3 of the claims of or against the clients . . . eration of legal fees and the fact that I have to an extension.”43 The court explained adds that “[t]he underlying concept is that unless each client gives informed consent, aged a year. Or is it ten?”38 The court that the plaintiff’s attorney was missing the legal argument is a discussion seeking to in a writing signed by the client.” The Rule noted that many defendants instruct their point and that “[w]hat is rather involved is determine the legal premises properly adds that “[t]he lawyer’s disclosure shall attorneys to delay litigation to make the the responsibility of a lawyer in dealing applicable to the case.” include the existence and nature of all the plaintiff lose money and interest in the with his fellow lawyer.”44 The court then claims . . . involved and of the participation lawsuit. Although this practice deters summarized “what every lawyer is expect- E. Ethical Considerations During of each person in the settlement.”54 Clients future litigation and is desirable from a ed to know and live by”45: lawyers shall Pretrial Negotiations. must consent to the individual settlement defense standpoint, it is “indefensible seek their clients’ lawful objectives Negotiation ethics have received much offers made to each client in a joint repre- under the Federal Rules of Civil through reasonably available lawful means attention in recent years. The American sentation. Procedure”39 and potentially sanctionable under the disciplinary rules but that “rea- Bar Association Litigation Section has under Rule 37. sonably available means” do not include adopted guidelines on the ethics of settle- Attorneys must not make false represen- The ABA Model Rules impose an ethical refusing to accede to an opposing counsel’s ment negotiation.51 Ethical boundaries tations during negotiations. duty to avoid using discovery delay tactics. reasonable requests that do not prejudice play an important role in negotiations Ethical constraints limit attorneys’ Canon 31 of the ABA Canons of Professional the client’s rights. Attorneys should be because of the conflicting duties that arise. attempts to negotiate favorable settlements. Ethics, a predecessor to the Model Rules, courteous to opposing counsel and consent Although the attorney’s primary duty is to N.Y. Rule of Professional Conduct 4.1 pro- provided that “[t]he responsibility for advis- to reasonable requests about court proceed- the client, ethical proscriptions impose vides that “[i]n the course of representing a ing as to questionable transactions, for bring- ings, settings, continuances, waiving of duties on attorneys in their dealings with client, a lawyer shall not knowingly make a ing questionable suits, for urging question- procedural formalities, and similar matters other attorneys and parties. false statement of fact or law to a third per- able defenses, is the lawyer’s responsibility. that do not prejudice client rights. son.” This Rule can conflict with an attor- He cannot escape it by urging as an excuse When the plaintiff’s attorney appeared Clients come first in the negotiation. ney’s “puffing” tactics during negotiations. that he is only following his client’s instruc- in court on the motion to tax fees, his No matter the stage of litigation, the Puffing is not unethical; it is a common tions.”40 ABA Model Rule 3.4 provides that explanation was that he did not agree to attorney always owes the client a duty to negotiation tactic. Comment 2 to ABA an attorney shall not, “in pretrial procedure, the extension because his client did not. In provide competent representation. N.Y. Model Rule 4.1 addresses puffing: “Under make a frivolous discovery request or fail to response, the court stated that “the thrust Rule of Professional Conduct 1.1 provides generally accepted conventions in negotia- make reasonably diligent effort to comply of the [Model] Code [of Professional that “a lawyer should provide competent tion, certain types of statements ordinarily with a legally proper discovery request by an Responsibility] is that such a decision–cer- representation to a client. Competent rep- are not taken as statements of material fact. opposing party.” N.Y. Rule of Professional tainly in the circumstances here–is for the resentation requires the legal knowledge, Estimates of price or value . . . and the Conduct 3.2 similarly prohibits an attorney lawyer and not for the client at all.”46 The skill, thoroughness and preparation rea- party’s intentions as to an acceptable settle- from using means “that have no substantial court was also alarmed that the attorney’s sonably necessary for the representation.” ment of a claim are ordinarily in this cate- purpose other than to delay or prolong the argument in response to the motion for Negotiations outside the courtroom call gory . . . .” The attorney must draw a line proceeding.” N.Y. Standard of Civility VI(A) fees, after having had the Code provisions for the same degree of preparation and separating ethically acceptable estimates advises attorneys to avoid discovery proce- called to his attention, remained the same, competence that the attorney must exhibit and intentions from unethical misrepresen- dures designed to place an undue burden or namely that his conduct was justified. The inside the courtroom in the presence of a tations of material fact. expense on a party. Attorneys should advise court reprimanded the attorney to “relieve judge and the public. Attorneys place One helpful technique to conform with clients that they will not use delay tactics. the defendant of a burden in unjustly- client interests ahead of (1) the attorney’s the N.Y. Rules of Professional Conduct caused attorneys' fees and expenses that it personal interests; (2) the desires of other and the ABA Model Rules is to separate D. Ethical Considerations During the should not have been required to incur and attorneys in the firm; (3) third parties; and statements concerning the negotiation Motion Stage of Litigation. should not be required to bear.”47 The (4) the judge’s desires. itself (“He won’t take a penny less!”) from In contemplating responses to another court wrote that the attorney had multi- Negotiations present unique challenges. ______party’s motion or application, attorneys plied the proceedings in the case “unrea- When a third party has an interest in the Continued On Page18 18 THE QUEENS BAR BULLETIN – MARCH 2009 CPLR Update 2009 Continued From Page 17 ______35. Wilson v Galicia Contr. & Restoration Corp., 10 [2008] there was no jurisdiction, three others found the case not N.Y.3d 827, 860 N.Y.S.2d 417 [2008] 41. CPLR 5304(b)(5) states, relevant part: “[a] foreign ripe for determination. The six votes were combined, and 36. Plaintiff submitted neither a verified complaint or country judgment need not be recognized if . . . the judg- the result was a dismissal. letters rogatory. Rather, relevant Federal case an affidavit of merit on the motion, or for that matter at ment conflicts with another final and conclusive judg- 52. Morgenthau v Avion Resources Ltd., 11 N.Y.3d law establishes that the treaty controls the the inquest, and Safway never objected. ment.” 383, ___ NYS2d ___, 2008 NY Slip Op 09006 [2008] mechanism for transmittal and 56 delivery of 37.Goodyear v. Weinstein, 224 AD2d 387, 638 42. Hilton v Guyot, 159 US 113, 163-164 [1895] 53. After the determination that Federal authorities letters rogatory among signatory states, and N.Y.S.2d 108; Zelnik v. Bidermann Industries U.S.A., 43. CPLR 5302 were not entitled to the funds, they were initially trans- Inc., 242 A.D.2d 227, 662 N.Y.S.2d 19; Wolf v. 3540 44. Campbell v Cothran, 56 NY 279, 285 (1874) ferred into the DA’s custody. The DA sought several does not preclude service by other means. Rochambeau Associates, 234 A.D.2d 6, 650 N.Y.S.2d 45. Solow Mgt. Corp. v Tanger, 10 N.Y.3d 326, 858 orders of attachment, which did not go smoothly for rea- The remaining question was whether serv- 161; Feffer v. Malpeso, 210 A.D.2d 60, 61, 619 N.Y.S.2d 63 [2008] sons not germane to the appeal here. Eventually, the ice had indeed been effected pursuant to the N.Y.S.2d 46; Mullins v. DiLorenzo, 199 A.D.2d 218, 46. L. 2005 ch. 575 money was returned to Federal control, by reason of a CPLR in Brazil, and the Court concluded that 219, 606 N.Y.S.2d 161; Income Property Consultants 47. L. 2008, ch. 443 request from the Brazilian government and an order of they had, except for four served by substitute Inc. v. Lumat Realty Corp., 88 AD2d 582, 449 N.Y.S.2d 48. Financial Indus. Regulatory Auth., Inc. v Fiero, the US District Court for the District of Columbia. As the 799; Georgia Pacific Corp. v. Bailey, 77 A.D.2d 682, 10 N.Y.3d 12, 853 N.Y.S.2d 267 [2008] Court of Appeals noted, the attachment issues were thus service or nail-and-mail. 429 N.Y.S.2d 787; Union Nat. Bank v. Davis, 67 A.D.2d 49. L. 2008, ch. 66, effective April 28, 2008 rendered moot, leaving the service issues as the only The Court therefore reversed so much of 1034, 413 N.Y.S.2d 489; Red Creek Nat. Bank v. Blue 50. Plaintiff also attempted to justify jurisdiction ones in the the Appellate Division’s decision as dis- Star Ranch, 58 A.D.2d 983, 396 N.Y.S.2d 936 under the “tortious act” provisions of CPLR302(a)(3), case. missed for lack of jurisdiction. 38.Bass v. Wexler, 277 A.D.2d 266, 715 N.Y.S.2d but the federal courts did not need input from the New 54. The Court noted that attempts were made to serve 873 [stating that cases to the contrary are no longer to be York courts to hold that, however defendant’s acts may four of the defendants in Brazil by followed]; Roberts v Jacob, 278 A.D.2d 297, 718 be characterized, they were not “tortious” within the substituted service pursuant to CPLR 308(2) or “nail- FOOTNOTES N.Y.S.2d 201 meaning of that statute. and-mail” pursuant to CPLR 308(4), but that service was 34. The Court cited Funk v. Barry, 89 N.Y.2d 364, 39. Boudreaux v State of La., Dept. of Transp., 11 51. Yahoo! v La Ligue Contre Le Racisme et not completed. 653 N.Y.S.2d 247 [1996] as establishing that the rule is N.Y.3d 321, ___ NYS2d ___ [2008] L'Antisemitisme, 433 F3d 1199 [2006] [en banc] 55. Dobkin v Chapman, 21 NY2d 490, 501 [1968] invoked only where there is an explicit direction to sub- 40. Byblos Bank Europe, S.A. v Sekerbank Turk Interestingly, Yahoo! wound up dismissed. Three 56. Kreimerman v Casa Veerkamp S.A. de C.V., 22 mit or settle an order or judgment. Anonym Syrketi, 10 N.Y.3d 243, 855 N.Y.S.2d 427 judges on the eleven-judge en banc panel found that F3d 634, 640 [5th Cir 1994]

Professional aviators from Orville and 35 22 N.Y.C.R.R. 1200, Rule 3.3(a)(3). (imposing sanctions and awarding attorneys fees for, Pretrial Wilbur Wright to Chuck Yeager have 36 Model Rules of Prof’l Conduct R. 3.3 cmt. 10. among other indiscretions, plaintiff’s attorney’s 37 failure to cite adverse authority). always counseled student pilots to main- Charles Yabon, Stupid Lawyer Tricks: An 51 Essay on Discovery Abuse, 96 Colum. L. Rev. 1618, See American Bar Association, Section of Advocacy: An tain checklist discipline. Checklists save 1619 (1996) (proposing that the best solution for Litigation, Ethical Guidelines for Settlement lives. Just as the most competent commer- lawyer misconduct in discovery proceedings is the Negotiations (2002). 52 Model Rules of Prof’l Conduct R. 1.2 cmt. 1. cial aviator can forget to deploy the land- same one parents use when their kids act up on long 53 Ethical Checklist ing gear, attorneys engaged in pretrial liti- car trips—tell them to “shut up and knock it off”). Dessem, supra note 9, at 585. ______38 54 22 N.Y.C.R.R. Part 1200, R. 1.8(g). Continued From Page 17 gation can forget that cases are fraught 72 F.R.D. 110, 112 (D.C. Tex. 1976). 55 39 Id. Dessem, supra note 9, at 587. with potential ethical quagmires. Ethical statements concerning objective facts out- 40 Code of Prof’l Ethics Canon 31, available at checklists save careers, protect the public, *Gerald Lebovits is a judge of the New York City side the context of the negotiation (“He http://www.abanet.org/cpr/1908-code.pdf. and promote the good administration of 41 532 F. Supp. 665, 668 (N.D. Ill. 1982). Civil Court, Housing Part, in Manhattan and an paid $16,000 for the car in 2005”). 42 adjunct professor at St. John’s University School of justice. Id. at 667. Statements about the negotiation are more 43 Id. Law in Queens, New York, where he teaches trial likely to be estimates or intentions that fall 44 Id. and appellate advocacy. Joseph Capasso, J.D. FOOTNOTES 45 (expected 2009), St. John’s University School of within Comment 2 protection, while ABA Id. 32 46 Id. Law. Mr. Capasso, who graduated from the U.S. Air Model Rule 4.1 prohibits misrepresenting Fed. R. Civ. P. 26(e)(1). Rule 26(e)(1) further 47 Force Academy in 1996 and served as a U.S. Air defines the duty to supplement Rule 26(a)(2)(B) Id. at 668. objective facts. Another helpful technique 48 Id. Force pilot for 10 years, won first-place honors in expert- witness disclosures. This duty “extends both 49 the 2007 St. John’s Tinnelly Moot Court is for attorneys to put themselves into the to information contained in the [expert’s] report and See Standards of Civility, supra note 2, at III. 50 See, e.g., Jorgenson v. Volusia County, 846 F.2d Competition and in the 2008 St. John’s Reardon opposing attorney’s shoes to assess to information provided through a deposition of the Moot Court Competition and was a member of the whether a negotiation statement is abusive expert.” Fed. R. Civ. P. 26(e)(2). 1350, 1352 (11th Cir. 1988) (imposing Rule 11 sanc- 33 tions on attorney for failing to cite adverse authority); St. John’s team that received the 2008 Best Brief or misleading.55 Fed. R. Civ. P. 26(g)(1). Award at the National Moot Court Competition New 34 Fed. R. Civ. P. 26(g)(2)(A). Nachbaur v. Am. Transit Ins. Co., 300 A.D.2d 74, 75- F. Conclusion. 76, 752 N.Y.S.2d 605, 607-08 (1st Dep’t 2002) York City Regional Rounds.

ANSWERS TO MARITAL QUIZ ON PAGE 15 Question #1 - DRL §250 provides for a es? Practice Note - Remember if you exclude three year statute of limitations of prenup- disability benefits, the alternate payee will Questions #8 - If a non-custodial parent tial agreements, that is tolled until a matri- Answer: Yes, beginning with federal fis- lose his or her share of Variable presents insufficient and incredible evi- monial action is filed or the death of one of cal year October 1, 2008 to September 30, Supplement Benefits. The recipient of a dence to establish his or her income, how the parties. This law became effective July 2009, and then each year thereafter, when disability pension receives 25% higher is the court to fix child support? 3, 2007. Does the tolling extend to agree- they collect in excess of $500.00 during pension benefit, but is not entitled to ments barred by the six-year statute of lim- the fiscal year, an annual service charge of receive any Variable Supplement Benefits. Answer: Award child support based on itations on or before July 3, 2007? $25.00 will be deducted from the child the needs of the child. Evans v. Evans 870 support collected. A fee may not be Question # 6 - Can maintenance be award- N.Y.S.2d 394 (2nd Dept. 2008) Answer: Yes, provided a court did not charged to anyone who has ever received ed after a divorce, when the divorce judg- previously bar an action relating to that cash assistance from the federal Title IV-A ment makes no provision for mainte- Question #9 - Does a parties’ lack of con- agreement because it violated the six-year program. nance? tribution to the marriage effect the per- statute of limitations. Amendment to DRL centage of the marital assets that party §250 enacted May 21, 2008. Question #4 - What must be shown in Answer: Yes, Wilson v. Pennington 301 receives in equitable distribution? order to modify a maintenance award con- A.D.2d 445; 752 N.Y.S.2d 887 (1st Dept. Question #2 - Can the non payment of tained in a stipulation of settlement incor- 2003). Answer: Yes, in Evans v. Evans 870 child support be a crime? porated but not merged in a judgment of N.Y.S.2d 394 (2nd Dept. 2008), the divorce? Question #7 - In a stipulation of settle- Appellate Division affirmed the trial Answer: Yes, New York Penal Law ment, which was incorporated into a judg- court’s award of 15% of the value of the §260.05(2) became effective November 1, Answer: Extreme hardship. DiVito v. ment of divorce, but not merged therein, marital assets and 10% of the pension. 2008. If a parent, guardian or other person DiVito 56 A.D.3d 601; 867 N.Y.S.2d 334 the father agreed to pay 100% of the chil- obligated to make child support payments (2nd Dept. 2008) dren’s college education. The father Question #10 - Lower court permitted by an order of a court of competent juris- sought to allocate the college costs based counsel to withdraw as defendant’s attor- diction, for a child under the age of 18, Question #5 - In a stipulation of settle- upon his reduced income and the mother’s ney for the defendant’s failure to provide knowingly fails or refuses, without lawful ment, if you intend the alternate payee to increased income. The child support provi- financial information. Was it error for the excuse, fails to provide such support when share in the New York City Police sion in the agreement provided for reallo- lower court to refuse to adjourn the trial to he or she is able to do so or becomes Department pension benefits of his or her cation. The College provision was sepa- give the defendant the opportunity to unable to do so, when though employable spouse whether those benefits are based on rate and apart from the child support pro- retain new counsel? he or she voluntarily terminates employ- a service retirement benefit or a disability vision and did not provide for such reallo- ment, voluntarily reduces his or her earn- benefit, is it necessary to include both an cation. Should the father’s obligation to Answer: No, generally CPLR §321(c) ing capacity or fails to diligently seek ordinary disability pension and accident pay 100% of the children’s college educa- requires that there be a 30-day stay of pro- employment, said person is committing a disability retirement benefit? tion costs be reallocated? ceedings after counsel is permitted to with- Class A misdemeanor. draw. An exception is when the attorney’s Answer: Yes. Berardi v. Berardi 54 Answer: No, Colucci v. Colucci 54 withdrawal is caused by a voluntary act of Question #3 - Does the Child Support A.D.3d 982; 865 N.Y.S.2d 245 (2nd Dept. A.D.3d 710; 864 N.Y.S.2d 67 (2nd Dept. the client. Sarlo-Pinzur v. Pinzur 2009 NY Collection Unit charge a fee for its servic- 2008) 2008). Slip Op 01207 (2nd Dept. 2009) THE QUEENS BAR BULLETIN – MARCH 2009 19

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