FEBRUARY 2009 VOL. 81 | NO. 2 JournalNEW YORK STATE BAR ASSOCIATION
Also in this Issue It’s No Joking Matter Issuance and Acceptance Our Profession Requires Greater Civility and Respect of Delaware LLC Opinions by Hon. Mark D. Fox and Michael L. Fox City Sidewalk Trees and the Law New Criminal Law and Procedure Legislation Independent Contractors or Employees?
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BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside
PUBLISHER Patricia K. Bucklin Executive Director
NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES “My NYSBA membership is invaluable for the benefits One Elk Street Albany, NY 12207 that it offers me as a solo practitioner—the professional (518) 463-3200 FAX (518) 463-8844 camaraderie and the highest quality of continuing legal www.nysba.org education offerings by some of the best in the business ADVERTISING REPRESENTATIVE is unparalleled.” Network Media Partners Chris Martin Executive Plaza 1, Suite 900 Roberta Chambers 11350 McCormick Road Hunt Valley, MD 21031 Member since 1999 (410) 584-1960 e-mail: [email protected]
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Thank you for your membership support. CONTENTS FEBRUARY 2009
IT’S NO JOKING MATTER Our Profession Requires Greater Civility and Respect by Hon. Mark D. Fox and Michael L. Fox 10
DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 16 Burden of Proof 20 More Than Bargained For? by David Paul Horowitz Topics for Consideration in the 42 Computers & the Law Issuance and Acceptance of by Steven C. Bennett Delaware LLC Opinions 44 Law Practice Management by BRIAN M. GOTTESMAN and SCOTT E. SWENSON by Gary A. Munneke and Deb Volberg Pagnotta 47 Metes & Bounds 24 City Sidewalk Trees and the Law by Lawrence Schnapf and Joshua Stein by JUDITH S. KAYE, RALIA POLECHRONIS, ANNE 50 Planning Ahead REDDY and JONATHAN REBOLD by Eric W. Penzer and Robert M. Harper New Criminal Law and Procedure 54 Attorney Professionalism Forum 28 Legislation 58 New Members Welcomed by BARRY KAMINS 60 Classified Notices 60 Index to Advertisers 36 Legal Requirements That Influence 61 Language Tips Control of Independent Contractors by Gertrude Block and Employees 63 2008–2009 Officers by ROBERT W. WOOD 64 The Legal Writer by Gerald Lebovits Cartoons © CartoonResource.com
The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207.
NYSBA Journal | February 2009 | 3
PRESIDENT’S MESSAGE BERNICE K. LEBER
Win, Win, Win, Win, Win1
awyers in America, including blueprint for New York and the nation. our House of Delegates, as my Salient highlights in the Report include Lprior columns have noted, have the following:5 historically played a critical role in 1. New York should adopt a state- shaping the debate on and direction wide comprehensive climate change of important legal issues affecting our strategy that has a specific, measurable society. This year is no exception. Thus and binding reduction target of reduc- far, we have deliberated on the right ing greenhouse gas (GHG) emissions of habeas corpus for Guantanamo Bay (to take into account other energy-sav- detainees, laws affecting the privacy ing measures). By utilizing a common of lawyers and their clients, same-sex metric, the State will be able to assess Governor Paterson has called for such a marriage and soon, climate change. periodically whether the GHG reduc- raise in his “State of the State” address Our sections and committees con- tion goal is being achieved and make in January 2009.8 tribute thoughtful, often provocative adjustments as warranted. 6. New York should consider allow- reports that enliven our discussions. 2. Nationwide, buildings account for ing the PSC to require time-of-use (or The State Bar does more, however, nearly 40% of total energy consump- time-differentiated) pricing in circum- than just debate issues. We advocate tion and contribute nearly that much stances where such rates are found to our views to State and (starting this in total GHG emissions.6 Improving be in the public interest. Time-of-use year on a regular basis) federal leg- buildings’ energy efficiency decreases pricing is a method by which the price islators, rule-makers, judges and the the amount of fossil fuel consumed of electricity charged to consumers public. With more than 76,000 State in producing energy used by build- varies with the time of day, which Bar members as of December 2008, we ings, which leads to a corresponding allows the price to more closely track have strength in numbers.2 decrease in overall GHG emissions. the actual cost of producing electric- The convergence of three seismic New York should improve energy effi- ity in each hour. Under time-of-use events in our lifetimes forces us to con- ciency in the new construction and pricing, consumers are able to save sider where our State and nation are renovation of buildings.7 on electricity costs by shifting their headed environmentally: here global 3. The State should assist local usage from peak periods when prices warming, global flattening (the rise of governments in providing training to are highest to non-peak periods when the middle class in India, Brazil, Russia building inspectors in order to enforce prices are lower. Customers must have and China, whose consumption pat- building energy efficiency standards “advanced” or smart meters to take terns mirror those of Americans) and and to reward municipalities that vig- advantage of time-of-use pricing, so global crowding (compared to 1953, orously enforce the codes. the law should be amended to require when there were 2.68 billion people 4. The State should reward “climate that all multi-unit buildings be sub- living on earth, by 2020, it is estimated friendly” projects by allowing them to metered.9 that nine billion, or three times the “move to the front of the line” when 7. New York should amend the number will inhabit the planet) meet.3 undergoing review by a State agency. Town Law, the General City and Global warming thus became one of Municipalities should also be autho- Municipal Laws and the regulations my six initiatives during my term.4 rized to provide for such expedited under the State Environmental Quality The Task Force on Global Warming, processing for projects undergoing Review Act (SEQRA) to incorporate headed by Michael Gerrard, Director local review, such as subdivision and climate change considerations.10 of the Center for Climate Change Law site plan approval. 8. The State Revenue Maximization at Columbia Law School, has delib- 5. New York should raise the renew- Commission should look into the pos- erated and will be proposing at our able portfolio standard to 30%. This April 4 House of Delegates meeting in is currently under consideration by Bernice K. Leber can be reached at Albany a far-reaching, comprehensive the Public Service Commission, and [email protected].
NYSBA Journal | February 2009 | 5 PRESIDENT’S MESSAGE
sibility of leasing state lands (with 2. Our Membership Committee Chair Claire payback requirement. These are not present in the the exception of parkland), including Gutekunst and her committee as well as Senior International Energy Conservation Code (IECC), Director Patricia Wood and Membership Services which is the model code for New York as well as offshore in Lake Ontario, for wind Manager Megan O’Toole deserve our special thanks many other states. The State Legislature should enact farms, as well as establishing a wind for upping the ante this year. a similar law that eliminates these exemptions. energy goal. 3. Hot, Flat & Crowded, at 20–26. 8. The text of this speech is available at http:// www.ny.gov/governor/keydocs/speech_0107091. 9. A “feebate” bill should be adopt- 4. The other five are: Privacy (co-chaired by Kelly html. ed, implementing an adjustable scale Slavitt and Alison Besunder), the State of Our of fees and rebates that apply to the Courthouses (co-chaired by Sharon Porcellio, Hon. 9. The installation of submeters in master-metered Melanie Cyganowski and Greg Aronson), Wrongful buildings reduced electricity consumption in the purchase of new motor vehicles. In Convictions (chaired by Hon. Barry Kamins), Small individual units between 18% and 26%. essence, a fee would be imposed on and Solo Firms (chaired by Robert Ostertag) and 10. Massachusetts’ equivalent statute (MEPA) new vehicles with low fuel economy, Federal Legislative Priorities (chaired by Stephen requires certain agency projects to analyze both Younger). while a rebate would be given to pur- direct and indirect greenhouse gas emissions; quan- 5. The Report is available at the Task Force Web site, tify energy consumption and projected emissions; chasers of new vehicles that have high http://www.nysba.org/GlobalWarmingTaskForce. and commit to mitigation efforts. California is in the midst of developing CEQA guidelines “for miti- fuel economy. Such a law would foster 6. See U.S. Envtl. Protection Agency, Buildings gation of greenhouse gas emissions or the effects continuous and significant improve- and the Environment: A Statistical Summary (2004), of greenhouse gas emissions.” The Governor’s available at http://www.epa.gov/greenbuilding/ ment in vehicle emission characteris- Office of Planning and Research is “required to pubs/gbstats.pdf. See also J. Cullen Howe, Green ‘prepare, develop, and transmit’” guidelines before tics while strongly discouraging the Financing: Governmental and Private Programs July 1, 2009, and such guidelines must be certi- sale of dirty vehicles. Concerning Financing of Green Buildings fied and adopted by the Resources Agency by (LexisNexis 2008). 10. New York is a member of the January 1, 2010. In addition, Attorney General Jerry Regional Greenhouse Gas Initiative 7. The State Energy Code Act (Article 11 of the Brown settled several cases involving challenges (RGGI), a regional cap-and-trade sys- Energy Law) applies to new building construc- to projects approved without consideration of cli- tion and to renovations of existing buildings only mate impacts and has submitted comments to 13 tem covering all electric-generating if the renovation is “substantial” – i.e., only if the local governments in an effort to include climate units with a generation capacity of 25 renovation involves the replacement of more than change analyses in CEQA reviews. King County megawatts (MW) or greater. Given the 50% of a “building subsystem” such as exterior in Washington State has taken a different approach walls, floors, and ductwork. Thus, many renova- and has addressed the issue through an executive modest anticipated reductions in CO2 tions and building system replacements that do order, requiring county agencies to consider climate since it only applies to large electric- not meet this threshold are not required to comply change in their project assessments. with the Energy Code. Article 11 also prohibits 11. “America is dealing death, not only to people generating units, RGGI should build any amendment of the Energy Code imposing in other lands, but to its own people. . . . We think on its success and expand to include new requirements that would cost more than the of America as an incredibly rich country, but we are present value of the expected energy savings over additional GHG emitters. beginning to realize that we are also a desperately a 10-year period. Article 11 further provides a poor country – poor in most things that throughout 11. The State should promote blanket exemption from the Energy Code for any history of mankind have been cherished as riches,” methane capture by requiring it in all property that is on the National or State Registry cited in R.D. Citron, Charles Reich’s Journey from the of historical places and for any “property” that is municipal solid waste (MSW) facilities. Yale Law Journal to the New York Times Best-Seller List: determined to be eligible for listing on the State The Personal History of the Greening of America, 52 In addition, it should consider banning Registry by the Commissioner of Parks, Recreation N.Y.L.S.L.R. 387 (2008) at 415. the flaring of methane. and Historic Preservation. New York is the only In the 1970s many of you probably state that incorporates the 50% rule and the 10-year read Greening of America. In it, Yale Law School Professor Charles Reich described the 1960s student counter- NYSBA LPM: Solo and Small Firm Resource Center culture as a critique of American soci- ety. Although derided for its naivete in some circles, it has long been associated with the environmental movement.11 More than 57% of the New York State Bar Association’s members could be The Report and our upcoming House defined as a solo practitioner or a member of a small firm. With this in mind, the debate on climate change remind us of Law Practice Management Web page now includes a comprehensive online Solo/ our unique place as lawyers in society Small Firm Resource Center. The Resource Center offers free sample forms and and of our fundamental responsibility law firm policies, articles on law practice management, marketing tips, and free as a profession to improve life around downloadable publications. us, to do the public good and to issue a wake-up call for change. ■ Visit us today at www.nybsa.org/LPM 1. “The second biggest decision Barack Obama has to make – the first is deciding the size of the stimulus – is whether to increase the federal gaso- LPM provides members with education and information on line tax or impose an economy-wide carbon tax.” See managing your law office. LPM can be reached at Thomas L. Friedman, N.Y. Times, Dec. 28, 2008, and generally Friedman’s Hot, Flat and Crowded (Farrar 1-800-699-5636 or by e-mail at [email protected]. Straus & Giroux 2008) (“Hot, Flat & Crowded”).
6 | February 2009 | NYSBA Journal
NYSBACLE Partial Schedule of Spring Programs (Subject to Change)
The New York State Bar Association Has Been Certified by the New York State Continuing Legal Education Board as an Accredited Provider of Continuing Legal Education in the State of New York.
Construction Site Accidents Starting Your Own Practice Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; (8:30 am – 5:00 pm) 3.0 professional practice/practice management April 21 New York City February 27 Albany † International Trusts and Estates Law Institute † 13th Annual New York State and City Tax Institute (two-day program) Fulfills NY MCLE requirement (8.0): 7.0 professional practice/practice April 23–24 New York City management; 1.0 ethics † Advanced Tax Return and Financial Statement Analysis for March 11 New York City Matrimonial Lawyers Legal Malpractice Litigation April 24 Rochester; Westchester (9:00 am – 1:00 pm) May 8 Long Island March 20 Albany; New York City; Tarrytown May 29 Syracuse March 27 Long Island; Syracuse June 5 New York City June 12 Albany Bridging-the-Gap Fulfills NY MCLE requirement for all attorneys (16.0): 6.0 skills; 7.0 Civil Trial Practice in the Ninth Judicial District professional practice/practice management; 3.0 ethics April 30 White Plains (two-day program) International Practice Day/Beginner Level March 25–26 Live session – New York City April 30 New York City Video conferences in Albany; Buffalo Practical Skills Series: Basic Elder Law Practice Women on the Move (9:00 am – 4:20 pm) Fulfills NY MCLE requirement for all attorneys (4.5): 2.0 skills; 1.5 May 5 Albany; Buffalo; Long Island; New York City; professional practice/practice management; 1.0 ethics Rochester; Syracuse; Westchester (12:30 pm – 5:00 pm) April 2 Albany DWI on Trial – The Big Apple VIII Seminar (two-day program) Introductory Strategies on Ethics and Civility in Everyday May 7–8 New York City Lawyering (9:00 am – 1:00 pm) † International Practice Day/Advanced Level April 3 Rochester May 15 New York City April 17 Albany; New York City Practical Skills Series: How to Commence a Civil Lawsuit April 24 Buffalo; Long Island (9:00 am – 4:00 pm) Practical Skills Series: Family Court Practice May 19 Albany; Buffalo; Long Island; New York City; Fulfills NY MCLE requirement for all attorneys (7.0): 4.0 skills; 1.5 Rochester; Syracuse; Westchester professional practice; 1.0 ethics Operating the New York Not-for-Profit Organization April 20 Albany June 9 Albany April 21 Buffalo; Long Island; New York City; June 16 Rochester Rochester; Syracuse; Westchester June 18 New York City
Coming in June: Practical Skills Series: Collections and the Enforcement of Money Judgments Albany; Long Island; New York City; Syracuse; Westchester
To register or for more information call toll free 1-800-582-2452 In Albany and surrounding areas dial (518) 463-3724 • Or fax your request to (518) 487-5618 www.nysba.org/CLE (Note: As a NYSBA member, you’ll receive a substantial discount)
† Does not qualify as a basic-level course and, therefore, cannot be used by newly admitted attorneys for New York MCLE credit.
HONORABLE MARK D. FOX is a Retired United States Magistrate Judge, Southern District of New York. He is a former Member of the Committee on Security and Facilities of the Judicial Conference of the United States (former Vice Chair, Subcommittee on Space Management). Judge Fox earned his law degree from Brooklyn Law School and his undergraduate degree from the State University of New York at Buffalo.
MICHAEL L. FOX ([email protected]) is an attorney practicing in New York. He earned his law degree from Columbia University School of Law (Harlan Fiske Stone Scholar) and his undergraduate degree from Bucknell University. It’s No Joking Matter Our Profession Requires Greater Civility and Respect
By Hon. Mark D. Fox and Michael L. Fox
Rule Number One: Respect for Colleagues. Rule Number Two: The Law Is a Profession, Not a Business.
Rule Two behavior of one or two attorneys or law firms, but a Let us address Rule Two first, as a lead-in to a discussion of much broader problem that has affected the practice Rule One. There is an unfortunate trend in our profession of law generally over the last twenty or thirty years in which both the public and some attorneys see law as and has in the eyes of many turned what was once a profession into more of a business.1 evolving (perhaps we should say regressing) into a busi- ness. We have heard attorneys say that law is no longer Judge Baer then quoted from a decision by the a profession, it is now a business. Time and money – not Honorable Charles D. Breitel, former Chief Judge of the creativity, learning and scholarship – are the new marks State of New York: of a “great” lawyer. This is a dangerous development A profession is not a business. It is distinguished by that is threatening our profession. And we believe it is a the requirements of extensive formal training and profession and refer to it as such in this article and in our learning, admission to practice by qualifying licensure, personal and professional lives. . . . a duty to subordinate financial reward to social We are not alone in noting with dismay the current responsibility, and, . . . an obligation on its . . . members state of the profession. In a recent decision in the Southern . . . to conduct themselves as members of a learned, disciplined, and honorable occupation.2 District of New York, District Judge Harold Baer stated: The instant case, unfortunately, has been marked by a The court noted that as the profession has grown, myriad of . . . “reliable evidence” of attorney miscon- expanded and developed, civility has declined, and duct serious enough that this Court felt compelled to “the naked competition and singular economic focus of act. Sadly, the nub of the problem may not be just the the marketplace have begun to infiltrate the practice of the
NYSBA Journal | February 2009 | 11 law, subordinating high standards of service, collegiality, assistance of the federal courts.”8 The lesson: courts are and professionalism as a result.”3 Following an exten- less tolerant of attorneys who are unable to navigate the sive discussion of the case and the numerous improper fires of combat to courteously and civilly resolve minor actions by counsel, the court lamented the state to which issues on which agreement is a benefit to everyone – cli- the sanctioned attorneys had fallen, and imposed penal- ent, attorney, adversary and court. ties. Unacceptable behavior by attorneys further manifests The President of the Boston Bar Association, Anthony itself in the misleading of opponents and the courts, Doniger, has similarly criticized the new trend of practice. and occasional outright hostility. Take the recent case of He notes that as firms focus more and more on money, GMAC Bank v. HTFC Corp.,9 in which the court sanctioned the detrimental impact on the profession increases. For both the client and counsel for outrageous and unaccept- example, says Mr. Doniger, able conduct during deposition. Although the details [a]ssociates are expected to bill more hours than ever of the client’s behavior and misfeasance are beyond the before; one rarely hears of firms lowering the hour scope of this article, we do provide a brief synopsis here expectations of associates, and often we hear of firms to illustrate how erroneous and flawed the actions of the reminding associates of the price to be paid for their attorney were. high and ever increasing salaries. The result, of course, In GMAC Bank, the court summarized the client-depo- is that associates have less time for professional and nent’s egregious conduct as follows: “Wider’s assault on other non-billable activities. We hear again and again the deposition proceedings involved three types of inap- that associates work too hard to participate in bar asso- propriate behavior: (1) engaging in hostile, uncivil, and 4 ciation or pro bono activities. vulgar conduct; (2) impeding, delaying, and frustrating Furthermore, other effects of focusing on finance have led fair examination; and (3) failing to answer and providing to (1) lower ages of forced retirement for partners, reduc- intentionally evasive answers to deposition questions.”10 ing the fulfillment of careers; (2) fewer associates making For example, the court noted at one point that “[i]n fact, partner; and (3) concomitant with (2), fewer minorities Wider used the word ‘f--k’ and variants thereof no less achieving the upper echelons of the profession.5 None of than 73 times. To put this in perspective – in this commer- these things are valuable or helpful to the future of the cial case . . . the word ‘contract’ and variants thereof were law as a profession. used only 14 times.”11 The client also became combative and abusive with the questioning attorney. Part of one Rule One exchange went as follows: Along with the stresses of time and money come the Q. [T]his is your loan file, what do Mr. and Mrs. pressures that have led to negative practices, a reduction Fitzgerald do for a living? in civility and collegiality, and an environment in which A. I don’t know. Open it up and find it. opposing counsel are increasingly seen and treated like Q. Look at your loan file and tell me. enemies in wartime.6 Attorneys, sometimes at the behest A. Open it up and find it. I’m not your f--king bitch. of their clients and sometimes thinking that they are . . . “zealously” representing their clients, will dispute the A. I’m taking a break. F--k him. You open up the docu- smallest details of a case – from the granting of an exten- ment. You want me to look at something, you get the 12 sion of time to the location of a deposition. This, in turn, is document out. Earn your f--king money a--hole. leading to a rise in the frustration levels of courts, which The numerous other examples cited by the court are are already struggling with overloaded dockets. no improvement on the poor display just quoted. For One court in Florida decided enough was enough: instance, later in the deposition this exchange occurred: [T]he Court will fashion a new form of alternative Q. Well, do you know the purpose for these transac- dispute resolution, to wit: at 4:00 P.M. on Friday, tions? June 30, 2006, counsel shall convene at a neutral A. Why the f--k would I know that? site agreeable to both parties. If counsel cannot agree Q. I’m just asking you whether you know. on a neutral site, they shall meet on the front steps of A. Why the f--k would I know that? the . . . U.S. Courthouse. . . . Each lawyer shall be enti- Q. I’m asking whether or not you know that. tled to be accompanied by one paralegal who shall act A. It’s got nothing to do with the transaction. Don’t ask as an attendant and witness. At that time and location, stupid questions. Ask smart questions.13 counsel shall engage in one (1) game of “rock, paper, scis- Let us address the question of what the attorney rep- sors.” The winner of this engagement shall be entitled resenting the deponent should have done. Apparently, to select the location for the 30(b)(6) deposition.7 the attorney did call for several breaks, but did little This creative order found its genesis in what the court to control the client, reprimand the client, or otherwise called “the latest in a series of Gordian knots that the par- remedy the hostile and inappropriate conduct. The judge ties have been unable to untangle without enlisting the noted that
12 | February 2009 | NYSBA Journal Work Our Hardest, Help People, Do Justice [a]s evidenced by the portions of the record quoted . . . throughout the deposition, notwithstanding the severe We would like to quote from remarks given and repeated nature of Wider’s misconduct, Ziccardi by Lucille A. Fontana, Esq., who practices in [the attorney] persistently failed to intercede and cor- Westchester County, New York, as a partner rect Wider’s violations of the Federal Rules. . . . Instead, in the firm of Clark Gagliardi & Miller, P.C. Ms. [the attorney] sat idly by as a mere spectator to Wider’s abusive, obstructive, and evasive behavior; when he Fontana was honored by her alma mater, Pace did speak, he either incorrectly directed the witness Law School, in 2000. On that occasion, she spoke not to answer, dared opposing counsel to file a motion of the practice of law: to compel, or even joined in Wider’s offensive con- duct.14 It is a noble and honorable practice. . . . Counsel’s conduct was abhorrent as well. At one point, The practice of law is noble because we are the attorney taking the deposition had to request that required to put the client’s interests before our opposing counsel stop snickering at his client’s antics – own and to avoid anything that would conflict because that just served to encourage him.15 The court with those interests. But while we are nobly found that counsel for the deponent was on notice of his charged with zealous representation, we must client’s behavior very early on, yet allowed the deposition always remember that our clients are not above to continue for two days (a total of about 12 hours).16 all else. Paramount to them is the law. . . . As Indeed, near the end of the opinion, the judge stated lawyers we are in the thick of the human condi- that tion and the pressure to win is relentless. I think that there is actually a real peace that descends [w]hat is remarkable about [the attorney’s] conduct upon us when we accept that there are certain is not his actions, but rather his failure to act. Despite parameters; that ethically there is only so much the pervasiveness of Wider’s evasive and incomplete we can do. And there is also real motivation answers and his repeated failure to answer ques- that comes from knowing that what we can tions, [the attorney for the deponent] failed to take remedial steps to curb his client’s misconduct. . . . The do, we must do well. How does this translate nature of . . . misconduct was so severe and pervasive, into practice? We have to work hard. We have and . . . violations of the Federal Rules . . . so frequent to care. . . . And sometimes we are going to and blatant, that any reasonable attorney representing lose. We cannot lie to our clients. We cannot [the deponent] would have intervened.17 lie for our clients. And we cannot facilitate a In addition to sanctions imposed on the client, the reinvention of the facts. Integrity is the driving court sanctioned the attorney $16,296.61, jointly and engine, but it is candor, compassion, civility severally with the client, for the fees and costs associated and collegiality that provide the lubrication to with the deposition.18 The court further warned that, if keep it all going. Can it be done? Absolutely. misconduct continued, it would make a referral to the The honorable and noble practice of law isn’t disciplinary authorities for review.19 a fanciful notion. It is the foundation of a just While this is an extreme case of misconduct, it serves society. to illustrate the decline in civility and courtesy in the profession. Not only is such behavior impolite and unprofessional, it is a violation of the rules of profes- for thousands of years. We are only its stewards. We safe- sional conduct. In New York State, Ethical Consideration guard our clients and seek to better society. In doing so, (EC) 1-5 explicitly states: “A lawyer should maintain high we must remember that with growing discourtesy and standards of professional conduct and should encour- incivility will come cracks in the foundation of our great age other lawyers to do likewise. A lawyer should be institution – and cracks do not centuries of strength and temperate and dignified.”20 Furthermore, an attorney surety make. “should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, Not So Funny: Pernicious Lawyer Jokes Demean a court employees, and other persons involved in the legal Great Profession 21 process.” To do otherwise will likely be seen as action What do you call 1,000 lawyers at the bottom of the serving to prejudice the system and administration of ocean? – A good start.23 justice.22 What is the difference between a catfish and an attor- We all experience stress and pressures – whether they ney? – One is a scum-sucking bottom feeder, the other are professional pressures, family pressures, health pres- is a fish.24 sures or financial pressures. However, when we chose to enter the profession of law, we joined an institution that is How can you tell when a lawyer is lying? – His lips are moving.25 larger than ourselves. Law is a profession that has existed
NYSBA Journal | February 2009 | 13 Santa Claus, the tooth fairy, an honest lawyer and an escaped serious injury to their person.33 Today, we have old drunk are walking down the street together when a system that, everyone can agree, is likely to produce a they simultaneously spot a hundred dollar bill. Who fairer and more accurate result. Indeed, there is a reason gets it? – The old drunk, of course, the other three are that trial by jury replaced trial by ordeal.34 mythological creatures.26 As the stewards of the law, lawyers in an orderly soci- These are four examples of traditional cocktail-party ety are the ones nominated to do “battle” for the client; lawyer jokes. Judges are not immune from cutting one- we are the campaigners for our clients’ causes. Our obli- liners either. gation is to make principled, honest and effective efforts. What do you call a lawyer with an IQ of 10? – A law- When our lips move, it is to advance truthful arguments yer. intended to advocate justice. We practice a profession. A profession is a vocation, What do you call a lawyer with an IQ of 15? – Your a calling, requiring knowledge of some department of Honor.27 learning or science, and our profession is, indeed, a 28 What do you call a lawyer gone bad? – Your Honor. learned one. The work that the members of our profession As members of the legal profession, we hold lawyer have done and still do benefits all of society. jokes in contempt. While we each believe that we have a • It is due to the efforts of members of our profes- good sense of humor, lawyer jokes, as inane generaliza- sion over the past 50 years that children of all races tions, are an unwarranted insult to our profession as a attend school together. whole. One of the most offensive “jokes” is also most often • It is due to the efforts of our profession over the past taken out of context – the line from William Shakespeare’s 50 years that all persons accused of crimes are pro- Henry VI, Part II, Act IV, Scene II: “The first thing we do, vided with legal counsel when they face prosecu- let’s kill all the lawyers.”29 If any of the disparagers took tion. the time to check the full context of Shakespeare’s work, • It is due to the efforts of members of our profession they would see that the characters who were speaking over the past 50 years that abused and neglected were plotting to overthrow the king and the whole order children have their interests represented by compe- of society. To succeed, the anarchists knew that the first tent, certified law guardians in family courts. thing they would have to do was “kill all the lawyers.” • It is due to the efforts of members of our profession The legal profession – our profession – was recognized as that the lives of millions of people have improved, one of the bulwarks of an ordered society of laws. Before because the quality of justice has improved. the ordered society of laws could be successfully chal- Law is a wonderful, satisfying, exciting profession, in lenged, any potential challenger would first have to kill spite of the tribulations of everyday practice. Very often all the lawyers, the guardians of law and justice.30 our legal profession is brilliant and stimulating. We are able to work our hardest to right wrongs, help people, “do It Is a Profession justice” – and earn a living while doing it. Virtue, morality Every lawyer has handled matters involving issues of and uprightness are our goals, our strengths, and our pro- great import in the life of a fellow human being. Perhaps fessional sustenance. Let us never forget that because of it was for a person facing a long term of imprisonment, a those qualities, we safeguard society. We are the base upon parent seeking to keep or gain custody of a child, a person which our democratic government “of the people, by the seeking to purchase a home, or any other person seek- people, for the people”35 finds its foundation. ing assistance on some issue of importance. No matter During commencement ceremonies at Columbia what the circumstances, clients are concerned about their University in the City of New York, each of the college problems and seek the help of attorneys to deal with a deans stands and requests that the University President complex legal system which, to a greater or lesser degree, confer upon their graduating students the degrees earned, they do not understand. with all attendant rights and privileges. In May 2003, when In ancient and medieval times, by comparison, the then-School of Law Dean David Leebron stood, he request- “legal” landscape was much different. Disputed legal ed that the President confer upon the Doctors of Law their issues were tried by test of arms or actual battle – a contest degrees so they could go out into the world to preserve and in which each party fought, or certain members of society protect the rights and privileges granted to all of the other had the right to nominate a champion to fight by proxy.31 graduates, in addition to protecting all members of society. In this process – another version of which was called the Dean Leebron’s sentiments say it all – and it is time for “ordeal” – guilt or innocence, or victory in a civil dispute, those sentiments to be recognized by a larger audience. was determined by who was triumphant in battle, or who was spared injury during a torturous physical test (i.e., In Sum . . . ordeal by fire, trial by water).32 The idea was that God Be aggressive – yet civil – in your representations. To would see to it that the right side won, or the innocent quote the Bard once again, remember that as attorneys
14 | February 2009 | NYSBA Journal we must “do as adversaries do in law – Strive mightily, wealthy class, and how the new kingdom would feature an equality of all class- 36 es only achievable by ridding England of the lawyers who created contracts of but eat and drink as friends.” While caring about our serfdom. (Many across the Internet and other forums advance this argument.) clients, and making every effort in the best interests of As charitably as we can state it, this argument is unsupportable. Taking Henry VI in full context, it is clear that while some lawyers in society may be less than our clients, civility and courtesy amongst members of altruistic, by and large attorneys are the ones who perpetuate an ordered civi- the bar will ensure that, at the end of the day, we remain lization of laws, and who must be eliminated in order for traitorous mutineers or other dark souls to find success. Indeed, in other Shakespearean works – see, colleagues. for example The Merchant of Venice act 4, sc.1 – attorneys (doctors of law) are Honor the Law as it honors us. Work to put an end to accorded great respect. lawyer jokes, and reproach those you hear tell them. Be 31. Members of the clergy, women and children, and persons disabled by age or infirmity could nominate a “champion.” See Encyclopaedia Britannica 73–74 proud of our Profession. It and we deserve no less. After (15th ed. 1994). all, if attorneys wish to be accorded the respect and status 32. The Columbia Encyclopedia 2020 (5th ed. 1993). enjoyed in decades and centuries past, we must strive to 33. Id. conduct our practice in a manner that is consistent with 34. Id. the high standards demanded of our profession. ■ 35. Abraham Lincoln, Sixteenth President of the United States, Gettysburg Address (Nov. 19, 1863). President Lincoln was a gifted orator and attorney. 1. Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 525 F. Supp. 2d 448 (S.D.N.Y. 36. William Shakespeare, The Taming of the Shrew act 1, sc. 2. 2007) (Baer, D.J.). 2. Id. at 450. NEW YORK STATE BAR ASSOCIATION 3. Id. at 450–51. 4. Anthony Doniger, A Different Measure of Success, Boston B.J., Mar./Apr. 2008, at 2. Although it should be noted that Stroock is one of the firms at which an exception to this trend is found, with associates and partners often involved in pro bono representations and bar association committees and activities. 5. See id. 6. The decline in civility in our profession is very much reflective of the decline in courtesy and respect within our society as a whole. 7. Avista Mgmt., Inc. v. Wausau Underwriters Ins. Co., Case No. 6:05-CV1430ORL31JGG, 2006 WL 1562246 (M.D. Fla. June 6, 2006) (Presnell, D.J.) (emphasis added). 8. Id. 9. 248 F.R.D. 182 (E.D. Pa. 2008) (Robreno, D.J.). 10. Id. at 8. 11. Id. at 11. 12. Id. at 9. Lawyer Referral and 13. Id. at 12. 14. Id. at 30–31. Information Service 15. Id. at 31 n.17. 16. Id. at 33. 17. Id. at 38. Interested in expanding your 18. Id. at 41. client base? 19. Id. at 41 n.23. 20. New York Lawyer’s Code of Prof’l Responsibility, EC 1-5. Join the Lawyer Referral & Information Service 21. Id. at EC 1-7. Why Join? 22. See N.Y. Comp. Codes R. & Regs. tit. 22, § 1200.3(A)(5) (DR 1-102(A)(5)). > Expand your client base See also Model Rules of Prof’l Conduct R. 8.4(a), (d); Fed. R. Civ. P. 30(d)(2). > Benefit from our marketing strategies 23. Heard at any number of cocktail parties. > Increase your bottom line 24. Id. Overview of the Program 25. Id. See also Lawyer Jokes at http://www.lawlaughs.com/short/honesty. The New York State Bar Association Lawyer Referral and Information html (last visited Apr. 24, 2008). Service (LRIS) has been in existence since 1981. Our service provides referrals to attorneys like you in 40 counties (check our Web site for a list of the eli- 26. Id. See also Michael L. Fox, To Tell or Not To Tell: Legal Ethics & Disclosure gible counties). Lawyers who are members of LRIS pay an annual fee of $75 After Enron, 2002 Colum. Bus. L. Rev. 867, 923 (2002) (for another common ($125 for non-NYSBA members). Proof of malpractice insurance in the iteration, using the Easter Bunny instead of Santa Claus). minimum amount of $100,000 is required of all participants. If you are 27. Judge jokes at http://www.lawyer-jokes.us/modules/mylinks/viewcat. retained by a referred client, you are required to pay LRIS a referral fee of php?cid=13 (last visited Apr. 24, 2008). 10% for any case fee of $500 or more. For additional information, visit www.nysba.org/joinlr. 28. Id. 29. William Shakespeare, The Second Part of King Henry the Sixth act 4, sc. Sign me up 2. Among some modern versions are: “What is the ideal weight for a lawyer? Download the LRIS application at www.nysba.org/joinlr or call – Ten pounds - but that includes the urn.” See http://www.lawlaughs.com/ 1.800.342.3661 or e-mail [email protected] to have an application sent to you. short/observations.html (last visited Apr. 24, 2008). “Where can you find a good lawyer? – In the cemetery.” See http://www.lawlaughs.com/short/ simple.html (last visited Apr. 24, 2008). GGiveive uuss a call!call! 30. The authors are familiar with the competing line of thinking – that the Butcher and Cade were discussing how lawyers protected the landed and 8800.342.366100.342.3661
NYSBA Journal | February 2009 | 15 BURDEN OF PROOF BY DAVID PAUL HOROWITZ
How About Some Courtesy?
ales of New York lawyers engag- It is commendable that all counsel Indeed, when I teach New York ing in sharp practice, hurling here showed each other profes- Practice and we arrive at the point in Tinsults at one another, even sional courtesy. The court deserves the syllabus where summary judgment brawling, are legion. To eradicate this the same consideration. The IAS motions are covered, I ask the class bad behavior, members of the bar have court demonstrated a remarkable “What is the first thing you do when been bombarded with directives to willingness to permit counsel to you are served with a motion for sum- be civil, courteous, and professional. complete discovery on their own mary judgment?” After fielding well- These directives take the form of court terms. However, orders, including intentioned answers that include “have rules, continuing legal education pro- so-ordered stipulations, “are not the client come in and prepare an affi- grams, and frequent (justified) admo- options, they are requirements, to davit,” “re-read every scrap of paper in nitions from the bench. be taken seriously by the parties. the file,” and “consider whether or not Along with most of my colleagues, Too many pages of the Reports, a cross-motion for summary judgment I have welcomed and supported this and hours of the courts, are taken is warranted,” I tell them the only pos- effort. I have always endeavored to up with deadlines that are simply sible correct answer, one every lawyer work collaboratively with opposing ignored.” “If the credibility of court who has been practicing for more than counsel, without sacrificing the inter- orders and the integrity of our judi- 15 minutes knows: “Call your adver- ests of my clients, and have striven to cial system are to be maintained, a sary and get an extension of the time do so in both a professional and pleas- litigant cannot ignore court orders to oppose the motion.” ant manner. The old adage “you catch with impunity.”2 So, when the inevitable phone call more flies with honey than vinegar” from opposing counsel comes request- has always seemed particularly apt “Can I Get An Adjournment?” ing, inter alia, that a scheduled court- in litigation, nowhere more so than in It always surprises new lawyers that ordered deposition be adjourned, sus- disclosure. the most frequently asked question pend your initial, professional, and While few mourn the demise of (FAQ, for those readers who are mem- very courteous inclination to agree the “Rambo Litigator,” it is doubtful bers of GenX and GenY) in each and to the adjournment. Before granting that the last vestiges of discourtesy every phase of litigation is some vari- the request, first consider carefully and lack of professionalism will ever ant of “can I get an adjournment?”3 whether there is an order or rule that be fully obliterated from practice, so From 30-day extensions of time to requires obtaining permission from the we must all continue our efforts to get answer through an additional week to court for the adjournment and, second, along with one another. This involves, submit reply briefs on appeal, the one whether the adjournment is one that as every introductory lecture to good constant in our legal landscape is that should be considered as requiring judi- practice tells us, extending “profes- lawyers generally want more than the cial permission, even in the absence of sional courtesies” to one another. time allotted by the rules for accom- an explicit directive. Unfortunately, this beneficent ten- plishing any legal task. dency often runs smack into the wall of disclosure deadlines set by the court, DAVID PAUL HOROWITZ ([email protected] or [email protected]) practices often through a mélange of preliminary as a plaintiff’s personal injury lawyer in New York and is the author of New York Civil Disclosure and compliance conference orders, (LexisNexis), the 2008 Supplement to Fisch on New York Evidence (Lond Publications), and the individual justice’s rules, and “local Syracuse Law Review annual surveys on Disclosure and Evidence. Mr. Horowitz teaches New York rules.” In Ford v. City of New York,1 the Practice, Evidence, and Electronic Evidence & Discovery at Brooklyn, New York and St. John’s Law First Department reminded litigators Schools. A member of the Office of Court Administration’s CPLR Advisory Committee, he is a frequent that the court is included in the pen- lecturer and writer on these subjects. umbra of “professional courtesy”:
16 | February 2009 | NYSBA Journal Depositions, a particular source of court, requiring use of the disclosure were submitted more than 60 days adjournment requests, were at issue in question. beyond the date set for comple- in Ford. Because so many disclosure This is what happened in Ford, where tion of discovery, the motions were orders specify “on or before” dates for the courtesies the litigants extended to untimely. The court did not con- 5 conducting depositions, it is often only one another included stipulating to sider the merits of the motions. discovered in the afternoon of the day adjourn pending summary judgment The First Department, after chroni- before the “on or before” date (which motions. Unfortunately for some of the cling the myriad delays and adjourn- is, of course, the last date on which the lawyers and their clients, Justice Paul ments in the case, described the “final deposition may be conducted pursu- A. Victor would not ratify this post hoc conference” that set the stage for the ant to the order) that [choose all that evisceration of his order: denial of the motions as untimely: apply]: The court rejected the application This “final conference” resulted in 1. The witnesses scheduled to be to adjourn, deemed the motions a stipulation signed by counsel for deposed prior to this witness submitted and entered an order all parties and “so-ordered” by have not yet been deposed; on March 20, 2007, denying all the court, providing that deposi- 2. Disclosure necessary to adequate- motions on the ground that they tions were to be completed on ly question the witness, which were untimely. Citing the so- various dates, the latest being July was supposed to be exchanged ordered stipulation requiring all 25, 2006. Any independent medical has not been exchanged; EBTs to be conducted on specific examinations were to be conduct- ed before July 28, 2006. The stipu- 3. The witness is not available; dates, the last being July 25, 2006, lation provided that defendants’ 4. The witness cannot be contacted; with no adjournments without time to move for summary judg- 5. One or more of the attorneys is prior court approval, the court ment “is extended to 60 days after not available; and/or noted that no such approval was completion of EBTs.” The court 6. Your three-attorney office has six sought or given. Since all motions depositions court-ordered for the added the following language: same date and time. Because this realization often occurs late in the day, contacting the court, assuming doing so is even on the attor- ney’s radar, is often not possible. A post-adjournment call or letter is prob- ably not what the court had in mind. Everyone knows that adjournments are routinely granted between and among the attorneys in a given case without judicial permission and with- out the court being notified, either before or after the fact. So long as the litigants honor and adhere to their “side” agreement, no party is adverse- ly impacted and the court is “none the wiser.” Attorneys who request and acquiesce to adjournments in this man- ner argue that the practice falls within the “no harm, no foul” exception to the command “a litigant cannot ignore court orders with impunity,” set forth by the Court of Appeals in Kihl v. Pfeffer.4 Problems arise, however, when the agreement is not honored or when the scheduling contained in the “side” agreement bumps up against or oth- erwise conflicts with summary judg- ment, trial or other deadlines set by the
NYSBA Journal | February 2009 | 17 “Failure to comply with the fore- The final arrow in the appellants’ closure in a case, and all deadlines and going may warrant imposition of quiver, that the order from the final future court appearances. Fifth, having sanctions, including waiver of dis- conference was “ambiguous,” failed to done all of the above, err on the side of covery. No EBT may be adjourned hit its intended target: contacting the court and, having done without Court approval.” Another so, document the contact. “final conference” was scheduled Here, the court specifically inserted language requiring court approval for October 27, 2006. At that con- Conclusion ference, the matter was set down for adjournments of the sched- I know. Tons of “c.y.a.”9 correspon- for trial on March 12, 2007, with uled dates of the EBTs, something dence. Offending your colleagues. Not the court records noting that “all absent from the order in Vila. As being a “regular” guy or gal. And, parties request this date.” There is a result, the order here was nei- no indication in the record that any ther vague nor ambiguous, and worst of all, not being courteous. discussion regarding outstanding counsel’s claims of “good cause” The answer, I suppose, is friends discovery took place at this confer- for the untimely submission of the don’t ask friends to jeopardize their ence.6 motions are without merit.8 clients’ cases. So, work out disclosure conflicts and issues as you always The First Department was in full What to Do? have, with the added step of includ- agreement with Justice Victor: Lest my recitation of Ford appear one- ing the court in the loop. Then, offer sided, I practice in the same world as to buy your offended adversary We simply cannot accept defen- ■ dants’ claims concerning alleged the litigants in that case do, and regu- lunch. ambiguities in the so-ordered stip- larly grant and receive adjournments, on occasion without extending to the 1. 54 A.D.3d 263, 863 N.Y.S.2d 180 (1st Dep’t ulation, particularly in light of the 2008). court the same “professional courtesy” fact that, according to the City’s 2. Id. at 266 (citations omitted). as I extend to my adversaries. Ford papers, the deposition of a defen- 3. Variants include “can we put this over,” “can dant still had not taken place as serves as a vivid warning of the risks we re-schedule,” or, in Kings County, any number of the time of the motions. To in this practice. of phrases beginning with the salutation “Yo.” accept this argument would mean So, what to do? 4. 94 N.Y.2d 118, 700 N.Y.S.2d 87 (1999). that counsel, not the court, can set First, scrutinize orders, including 5. Ford, 54 A.D.3d at 265. the schedule and pace of discov- all pre-printed language, for any spe- 6. Id. at 264–65. ery, and that the end of discovery cific directives concerning disclosure. 7. Id. at 267. would be a fluid, moving goal, not Second, familiarize yourself with the 8. Id. (discussing Vila v. Cablevision of N.Y. City, 28 a fixed point in time. The court “local rules” and individual justices’ A.D.3d 248, 813 N.Y.S.2d 401 (1st Dep’t 2006)). system simply cannot be run in rules. Third, know your adversary. 9. You didn’t really think I would write that in a scholarly legal publication, did you? this fashion.7 Fourth, be aware of all scheduled dis-
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18 | February 2009 | NYSBA Journal
BRIAN M. GOTTESMAN ([email protected]) is an associate with the Business Law Group of Connolly Bove Lodge & Hutz LLP and is a member of the firm’s Opinions Committee. Mr. Gottesman graduated from the University of Rochester and received his law degree from Harvard Law School. He is a member of the Bars of the State of Delaware and the District of Columbia.
SCOTT E. SWENSON (sswenson@ cblh.com) is an associate with the Business Law Group of Connolly Bove Lodge & Hutz LLP and is a member of the firm’s Opinions Committee. Mr. Swenson is a graduate of the University of Maryland and received his law degree from the University of Pennsylvania Law School. He is a member of the Bar of the State of More Than Delaware.
The authors would like to thank the members of the Opinions Bargained For? Committee of Connolly Bove Lodge & Hutz LLP and N. Christopher Griffiths for their Topics for Consideration in the Issuance and assistance in preparing this article. Acceptance of Delaware LLC Opinions By Brian M. Gottesman and Scott E. Swenson
word of caution to preparers of third-party closing Delaware Limited Liability Company LLC Act5 (the “LLC opinions on Delaware limited liability companies: Act”) provides maximum deference to the parties’ free- A there is more behind these opinions than meets dom of contract. The LLC Act consists largely of a series the eye. For many non-Delaware lawyers engaged in of default rules for an LLC failing to specify otherwise in this practice, especially those who may be accustomed its operating agreement.6 As such, the Delaware LLC is a to offering opinions on Delaware corporations, opinions creature of contract.7 This fundamental characteristic of on Delaware LLCs1 may pose significant and unforeseen Delaware LLCs means, according to the TriBar, that opin- risks to both preparer and recipient. These risks come ions rendered concerning Delaware LLCs must cover not from the deceptively broad scope of LLC opinions, opin- only the substance of the LLC Act and its related case law, ion-givers’ possible unfamiliarity with requisite Delaware but also the broader body of Delaware contract law.8 contract law and recent Delaware case law exposing Issuing an opinion on Delaware LLC law is therefore opinion-givers to the jurisdiction of the Delaware courts. unlike other forms of Delaware-related legal services routinely provided by attorneys across the nation. The Integrating Delaware Contract Law opinion-giver has not been admitted by any court body In February 2006, the TriBar Opinion Committee (“TriBar”) pro hac vice, which would require association with a issued a report addressing third-party closing opin- Delaware-licensed attorney and assurances of adherence ions on LLCs.2 The report placed special emphasis on to Delaware law. It is also distinguishable from issuing Delaware LLCs because Delaware is the venue of choice opinions on corporations, where accepted practice per- for many practitioners forming LLCs, especially for trans- mits attorneys to limit their opinions to the four corners of actional purposes.3 The Committee observed that, unlike the DGCL and related case law.9 In stark contrast, because the Delaware General Corporation Law4 (DGCL), which Delaware LLC operating agreements are inherently prod- as a statute is relatively rigid and comprehensive, the ucts of contract law, attempts to limit an LLC opinion to
20 | February 2009 | NYSBA Journal the terms of the LLC Act and its related case law may duties of care and loyalty on both directors and officers very well prove unenforceable.10 of corporations.17 A recent illustration of these principles can be found in Further evidence of this contrast can be found in the a 2008 Chancery Court decision in the case of Fisk Ventures, court’s treatment of another third-party respondent, H. LLC v. Segal.11 In Fisk, a member of a Delaware LLC filed Fisk Johnson. Dr. Johnson filed for dismissal of claims a petition for dissolution. The petitioner raised claims against him for lack of personal jurisdiction. This was against certain third-party and counterclaim respondents granted due to the petitioner’s failure to demonstrate including allegations that they had breached (1) the LLC any nexus between the claims against Dr. Johnson and agreement, (2) the implied covenant of good faith and fair his contacts within the state of Delaware.18 The petitioner dealing, and (3) fiduciary duties. The respondents filed had based his claims in part on the grounds that, as a con- a motion to dismiss under Delaware Court of Chancery trolling member of the LLC, Dr. Johnson owed duties to Rule 12(b)(6) for failure to state a claim on which relief the other parties that he had breached.19 The court found, could be granted. however, that neither Delaware’s long-arm statute20 nor In adjudicating the issue of the alleged breaches, the the provision for service of process on managers found in court began its analysis with a discussion of basic con- the LLC Act21 allowed for service on a member of an LLC tract principles: who did not enjoy the status of manager under the LLC The sine qua non of pleading an actionable breach agreement. The fact that a member could exercise control 22 is demonstrating that there was something to be was immaterial to the court’s analysis. breached in the first place. In other words, before the The question to preparers of LLC opinions, then, is Court can start worrying about whether or not there one of familiarity with Delaware’s body of contract law. was a breach, the Court needs to determine that there As with other states, contract law in Delaware is fluid and was a duty. In the context of limited liability compa- ever-changing, consisting of a few statutory fixed points nies, which are creatures not of the state but of con- amidst a vast sea of case law. As opinions on Delaware tract, those duties or obligations must be found in the LLCs necessarily have a basis in Delaware contract law, 12 LLC Agreement or some other contract. an ongoing understanding of the judicial decisions that The court further noted that it must “interpret con- make up Delaware contract law is the only way to ensure tracts to mean what they objectively say.”13 With respect accuracy in these opinions. to the claims that the respondents had violated the LLC Recipients of Delaware LLC opinions, along with agreement, the court carefully analyzed the contractual other parties who may rely upon such opinions,23 should provisions and ruled that be aware of two things: first, that any language purport- [t]here is no basis in the language of the LLC Agreement ing to limit the opinion to the scope of the LLC Act may for Segal’s contention that all members were bound by ring hollow at law or at equity; and second, that the inclu- a code of conduct, but, even if there were, this Court sion of such language calls into question the effectiveness could not enforce such a code because there is no limit of the opinion as a comprehensive opinion on a Delaware whatsoever to its applicability. Under Segal’s reading, LLC. a Genitrix member would be liable to the Company or other members for any damage caused by gross Opinion-Giver Qualifications negligence, willful misconduct, or a knowing violation In light of the TriBar’s stance on Delaware contract law of law. There is no guidance as to how or when this and its inseparable connection to the Delaware LLC, it “code of conduct” applies, and this Court declines to behooves opinion-givers to ensure that they are com- follow Segal’s invitation to turn an expressly exculpa- petent to render opinions on Delaware contract law tory provision into an all encompassing and seemingly before opining on matters of LLC law. The American Bar boundless standard of conduct.14 Association’s Model Rule of Professional Conduct 1.1 Moreover, no breach of fiduciary duties had occurred. states that “[a] lawyer shall provide competent represen- Relying upon the language permitting abrogation of fidu- tation to a client. Competent representation requires the ciary duties in 6 Delaware Code § 18-1101(c), Chancellor legal knowledge, skill, thoroughness and preparation rea- Chandler held that the LLC agreement at issue effectively sonably necessary for the representation.” Delaware has eliminated the respondents’ fiduciary duties “to the adopted this rule in full.24 Both the ABA and Delaware maximum extent permitted by law by flatly stating that rules hold: members have no duties other than those expressly artic- In determining whether a lawyer employs the req- 15 ulated in the Agreement.” The ruling establishes that uisite knowledge and skill in a particular matter, where, as here, the LLC agreement does not expressly relevant factors include the relative complexity and articulate fiduciary obligations, such obligations do not specialized nature of the matter, the lawyer’s general exist.16 This ability to exclude fiduciary duties stands in experience, the lawyer’s training and experience in the stark contrast to Delaware corporate law, which imposes field in question, the preparation and study the lawyer
NYSBA Journal | February 2009 | 21 is able to give the matter and whether it is feasible to State on behalf of a Delaware corporation had subjected refer the matter to, or associate or consult with, a law- the outside counsel to the court’s jurisdiction. The court yer of established competence in the field in question. implied that its election to focus on the filing of the cor- In many instances, the required proficiency is that of a porate certificate in Delaware was intended to simplify general practitioner. Expertise in a particular field of law its analysis; however, given the broad interpretation of 10 may be required in some circumstances.25 Delaware Code § 3104(c) adopted by the court, it is highly While a lawyer is not required to be an expert in a likely that the provision of legal services with respect to particular area of law before taking on representation in issues of Delaware law would suffice to give the court that area, he or she is expected to engage in the “neces- jurisdiction under the long-arm statute.31 sary study” in order to attain competence under Rule The court then addressed the due process issues with 1.1.26 Thus an attorney who seeks to opine on Delaware respect to asserting jurisdiction over the out-of-state limited liability company law, without the requisite counsel. The Vice Chancellor noted: understanding of Delaware contract law and other areas The United States Supreme Court has held that it of relevant Delaware law, may find that he or she has is constitutionally permissible to exercise personal unwittingly run afoul of Rule 1.1. Courts around the jurisdiction over a non-resident defendant when that country have held that failure to familiarize oneself with defendant should have “reasonably anticipated . . . the jurisdictional statutes, case law and rules necessary to that his . . . actions might result in the forum state provide competent representation is a violation of Rule exercising personal jurisdiction over him in order to 1.1 and worthy of disciplinary action.27 It is therefore the adjudicate disputes arising from those actions.” To responsibility of the opinion-giver to navigate Delaware satisfy this test, the defendant need not have ever entered common law prior to rendering a Delaware LLC opinion, the forum state physically because the Supreme Court and to keep abreast of its shifting landscape. has rightly focused the test on the more relevant ques- tion of whether the defendant has engaged in such Dela-where? conduct directed toward the forum state that makes it reasonably foreseeable that that conduct could give In addition to the problems noted above, lawyers or law rise to claims against the defendant in the forum state’s firms giving a legal opinion on matters of Delaware law, courts.32 including opinions on Delaware business entities, may find themselves hauled before a Delaware court notwith- In Sample, the constitutional test was easily satisfied. standing their contacts (or lack thereof) within the state. “As sophisticated practitioners of corporate law, the In a case recently before the Delaware Court of Chancery, moving defendants realize that Delaware, as a charter- Sample v. Morgan,28 plaintiffs in a class-action derivative ing state, has an important interest in regulating the action added as defendants a lawyer and his firm who internal affairs of its corporations, in order to ensure that had acted as outside counsel and rendered advice on the directors and officers . . . honor their obligations to Delaware corporate law. The lawyer and firm moved to operate the corporation lawfully and in the best interest dismiss on the grounds that, as non-Delaware residents, of the corporation’s stockholders.”33 Because the moving the court lacked personal jurisdiction over them. defendants had provided legal advice to a Delaware busi- In a November 27, 2007, opinion, the court denied the ness entity, the court found it “difficult to conceive how it motion to dismiss, holding that where a lawyer had filed would shock the conscience to require the moving defen- a certificate of amendment with the Secretary of State on dants to defend a lawsuit in Delaware.”34 Because, in behalf of a Delaware business entity and provided legal the court’s view, “the moving defendants knew that the counsel on matters of Delaware law, the lawyer was sub- propriety of the corporate action taken in reliance upon ject to the jurisdiction of the Court of Chancery. The court’s its advice and through its services would be determined analysis focused on two primary issues: (1) whether juris- under Delaware corporate law, and likely in a Delaware diction could be based upon Delaware’s long-arm stat- court,” they and others similarly situated could expect ute,29 which regulates service of process on non-residents; to find themselves under the personal jurisdiction of the and (2) whether subjecting the defendants to the court’s Delaware Court of Chancery. jurisdiction violated the Due Process Clause of the 14th Amendment to the U.S. Constitution. Conclusions The Vice Chancellor held that the analysis was quite The pitfalls of third-party opinion practice with respect to simple: The long-arm statute is to be broadly read and Delaware LLCs should give pause to those opinion-giv- due process analysis would be employed to “screen out ers who may be unfamiliar with the contours of Delaware uses of the statute that sweep too broadly.”30 The plaintiffs contract law, and those who may not have contemplated need not demonstrate any conspiracy between the attor- the possibility of finding themselves answerable for these neys and the corporation. Rather, the mere act of filing the opinions before a Delaware court. Likewise, those who certificate of amendment with the Delaware Secretary of receive Delaware LLC opinions ought to examine the util-
22 | February 2009 | NYSBA Journal 18. See Fisk Ventures, LLC, 2008 WL 1961156 at **6–8. ity of obtaining opinions from counsel who may not have ■ 19. Under Delaware corporate law, a controlling shareholder who actu- considered these costs. ally exercises control over his company may owe fiduciary duties to minority shareholders. See, e.g., Kahn v. Lynch Commc’ns Sys., Inc., 638 A.2d 1110, 1115 1. For purposes of this article, the term “opinions” includes opinions on (Del. 1994); Orman v. Cullman, 794 A.2d 5, 20 (Del. Ch. 2002). the status, power and action of LLCs and the enforceability of their operat- 20. 10 Del. Code § 3104. ing agreements. For more information about the nature and limitations of such LLC opinions, see Richard D. Levin & Brian M. Gottesman, Delaware 21. 6 Del. Code § 18-109. Entities and Opinion Letters, in 1 Commercial Real Estate Financing 2006: What 22. See Fisk Ventures, LLC, 2008 WL 1961156 at **6–8 (citing, inter alia, Palmer v. Borrowers and Lenders Need to Know Now 419–86 (Practising Law Inst., Moffat, No. 9C-03-114-JEB, 2001 WL 1221749 (Del. Super. Oct. 10, 2001)). The anal- 2006). ysis may well have been different had the LLC in question not had manager(s) 2. TriBar Opinion Committee, Third-Party Closing Opinions: Limited Liability and instead vested all power in the hands of its members. Id. at *8. Companies, 61 Bus. Law. 679 (2006) (the “TriBar 2006 Report”). This report 23. These parties may, and typically do, include the Delaware LLC and its supplemented the Committee’s earlier report on third-party closing opinions, members, their counsel, co-counsel preparing other necessary closing opinions, generally, which focused more heavily on corporate opinions. See TriBar lenders and rating agencies, as the case may be. Opinion Committee, Third-Party Closing Opinions: A Report of the TriBar Opinion Committee, 53 Bus. Law. 591, 599 (1998). 24. Del. Prof’l Conduct Rule 1.1. 3. TriBar 2006 Report at 681. This includes so-called “special purpose enti- 25. Model Rules of Prof’l Conduct R. 1.1, cmt. 1 (emphasis added); cf. Del. ties,” or “SPEs,” created as a vehicle to carry out a singular role in a given Prof’l Conduct Rule 1.1, cmt. 1. transaction, and nothing more; oftentimes, this role is that of an obligor. 26. Id. at cmt. 2. 4. 8 Del. Code § 101. 27. See, e.g., In re Richmond’s Case, 152 N.H. 155, 872 A.2d 1023, 1028–29 (N.H. 5. 6 Del. Code § 18-101. 2005) (respondent who “‘lacked needed knowledge and skill concerning the operation and interplay with state and federal securities legislation’ and ‘failed 6. See 6 Del. Code § 18-1101(b) (“It is the policy of this chapter to give the to . . . acquire the needed knowledge from other sources’” suspended for six maximum effect to the principle of freedom of contract and to the enforceabil- months); Attorney Grievance Comm’n of Md. v. Ward, 904 A.2d 477, 499 (Md. ity of limited liability company agreements”); see also TriBar 2006 Report at 680, 2006) (failure by attorney, inter alia, to familiarize himself with necessary law n.8. warranted indefinite suspension); In re Boykins, 748 A.2d 413, 413–14 (D.C. 7. See Poore v. Fox Hollow Enters., No. C.A. 93A-09-005, 1994 WL 150872 at *2 2000). (Del. Super. Mar. 29, 1994) (citations omitted). 28. 935 A.2d 1046 (Del. Ch. 2007). 8. See TriBar 2006 Report at 682. 29. 10 Del. Code § 3104. The language relevant in Sample provides that a party 9. Id. may be subjected to personal jurisdiction if it “[t]ransacts any business or per- forms any character of work or service in the State” or “[c]auses tortious injury 10. Id. in the State by an act or omission in this State.” 10 Del. Code § 3104(c)(1), (3). 11. Fisk Ventures, LLC v. Segal, No. 3017-CC, 2008 WL 1961156, at **1–12 (Del. 30. Sample, 935 A.2d at 1056 (citing Hercules Inc. v. Leu Trust & Banking Ch. May 7, 2008). (Bahamas) Ltd., 611 A.2d 476, 480–81 (Del. 1992); Chandler v. Ciccoricco, No. Civ. 12. Id. at *9 (citations omitted). A. 19842-NC, 2003 WL 21040185 at *10–11 (Del. Ch. May 5, 2003); Assist Stock 13. Id. (citing United Rentals, Inc. v. RAM Holdings, Inc., 937 A.2d 810, 835 (Del. Mgmt. L.L.C. v. Rosheim, 753 A.2d 974, 980 (Del. Ch. 2000)). Ch. 2007)); Seidensticker v. Gasparilla Inn, Inc., No. 2555-CC, 2007 WL 4054473 at 31. See Sample, 935 A.2d at 1056; cf. 10 Del. Code § 3104(c)(4). *1 (Del. Ch. Nov. 8, 2007). 32. Sample, 935 A.2d at 1062 (emphasis added) (citing, inter alia, In re USACafes, 14. Id. L.P. Litig., 600 A.2d 43, 50 (Del. Ch. 1991) (citing World-Wide Volkswagen Corp. v. 15. Id. Woodson, 444 U.S. 286, 292 (1980)); Asahi Metal Indus. Co. Ltd. v. California, 480 U.S. 102, 110, (1987); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985); 16. Id. William M. Richman, Understanding Personal Jurisdiction, 25 Ariz. St. L.J. 599, 17. Schoon v. Smith, No. 554,2006, 2008 WL 375826 at *5 (Del. Feb. 12, 2008) (cit- 617–18 (1993)). ing, inter alia, Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261, 1280 (Del. 33. Sample, 935 A.2d at 1064. 1988)); Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173, 179 (Del. 1986)); Ryan v. Gifford, 935 A.2d 258, 269 (Del. Ch. 2007) (officers owe fiduciary 34. Id. duties to corporation identical to those owed by directors).
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NYSBA Journal | February 2009 | 23 City Sidewalk Trees and the Law
By Judith S. Kaye, Ralia Polechronis, Anne Reddy and Jonathan Rebold
JUDITH S. KAYE is recently retired as Chief Judge of the New York Court of Appeals.
RALIA POLECHRONIS, a graduate of Harvard Law School, was law clerk to Judge Kaye from 2007 to 2008.
ANNE REDDY, a graduate of Brooklyn Law School, was law clerk to Judge Kaye from 2006 to 2008.
JONATHAN REBOLD, a graduate of Cornell Law School, was law clerk to Judge Kaye from 2007 to 2008.
n October 29, 2008, New York City Mayor larly on sidewalk trees. Once consciousness is raised as to Michael Bloomberg and Bette Midler – in her the infinite variety of these tree arrangements, it becomes Olesser-known role as founder of the New York impossible to pass without noticing and wondering about Restoration Project (NYRP) – planted tree number 111,111 them. commemorating the first anniversary of MillionTreesNYC. In Vucetovic, the plaintiff tripped on cobblestones sur- With the help of fourth-grade students from P.S. 155, they rounding the dirt area containing a tree stump on the planted a Japanese Zelkova along 117th Street in East sidewalk in front of the defendant’s building, present- Harlem, a “Trees for Public Health” neighborhood. ing the question: Is maintenance of the “tree well” (also MillionTreesNYC is a collaborative initiative between called a “tree pit” or “tree bed”) the responsibility of the the New York City Parks Department and NYRP, dedi- municipality or the property owner? As tree wells were cated to planting one million trees throughout New York not mentioned in New York City Administrative Code City by the year 2017. Just over one-fifth (or 220,000) will § 7-210 reassigning sidewalk liability from the city to the be sidewalk trees. After one year of digging, the initiative property owner, the Court of Appeals concluded that these is 20% ahead of schedule. Part of Mayor Bloomberg’s areas remained the responsibility of the municipality. PlaNYC 2030, the program envisions creating and main- As we know, however careful and comprehensive the taining a substantial urban forest as a cost-effective answer, a court decision rarely is the last word on any method of ameliorating environmental harms associated subject. In one form or another, sidewalk trees undoubt- with the city’s growth. Among their many benefits, city edly will continue to reappear on the dockets, especially trees clean the air, offset climate change and reduce pol- with the prospect of 220,000 more of them on New York lutants. But what is it about city sidewalk trees that merits Authors’ Note: Our hearts were filled with sadness at the conclusion space in the Journal? of the Court of Appeals’ December Session, as we left Albany, never to First, urban forests are themselves a fascinating sub- return to Court of Appeals Hall as the Chief Judge and her Law Clerks. ject, reflecting so much about us and our history. Second, Though there was work to be completed in New York City Home virtually every human activity involves the law, lawyers Chambers before year-end, for the first time in 25 years Chief Judge Kaye had no January cases to prepare, leaving a huge research-and- and courts. Sidewalk trees are no exception to that propo- writing void. She therefore decided to plunge into a final collaboration, sition. Third, a case argued during the Court’s 2008 ses- on a subject of her choice for a publication we all enjoy reading. sion – Vucetovic v. Epsom Downs, Inc.1 – focused particu-
24 | February 2009 | NYSBA Journal City sidewalks alone. Although these trees are techni- amended to permit the Parks Board to plant trees with cally the province of the Parks Department, and sidewalk revenues from the street improvement fund and to assess maintenance is technically the province of the abutting costs against the property as local improvements. property owners, these separate domains come into con- Public support was mixed. Manhattanites complained tact, and inevitably also into conflict. The collective his- that the trees obscured light, air and views, and even the tory of New York “tree” and “sidewalk” laws reflect the Parks Department grumbled that Manhattan soil condi- competing interests. tions were less than ideal for tree plantings. Brooklyn, by contrast, having been primarily farmland through the Early History of Sidewalk Trees turn of the century, welcomed the trees. When the Parks The public value of sidewalk trees was recognized cen- Department established a trust fund for property owners turies ago. In 1869, for example, New York State was a to plant trees, thousands of Brooklynites responded. The frontrunner in encouraging communities to beautify their borough’s early receptiveness to the plantings is evident streets by enacting laws that offered abutting property in the many verdant blocks we see there today. owners a highway tax abatement for planting trees along Fortunately, government support for urban trees con- the side of the road, leading the Second Department to tinued throughout the century and in 1978, around the observe that it was “the policy of the State to encourage time of the first federal environmental laws, the city the planting of shade trees.”2 In a similar vein, a national and state turned their focus to tree conservation. New “City Beautiful” movement to adorn neighborhoods with legislation granted the Department of Environmental trees did not escape the Court of Appeals, which noted: Conservation authority to establish a state Earth Day and Grass plots and shade trees on the sides of streets serve spread public awareness of the value of green space in a useful public purpose, consistent with the object for populated areas. Even more significantly, the legislation which streets are made, because they add to the beauty of the scene, and the trees furnish shade for pedestri- ans during the heat of summer. Both tend to increase the value of abutting property and to enlarge the range The public value of sidewalk trees of taxation.3 was recognized centuries ago. Sidewalk trees were the pride of the people at the turn of the 20th century, with damages awarded against abutting landowners for harming them. Property owners amended the General Municipal Law to empower local had a legal interest in their nearby sidewalk trees, either governments to enact and enforce regulations aimed at as bona fide owners whose fee extended to the middle of protecting trees, as an exercise of the state’s police power. the road or (for those who lacked outright ownership of Highlighting the timeless value of urban trees, the statute the street or sidewalk) in the form of equitable easements echoes the words of the Court of Appeals back in 1899, to grow and maintain the trees. In Edsall v. Howell,4 for noting that trees “abate noise, provide welcome shade to example, the court sustained a jury verdict awarding people, preserve the balance of oxygen in the air . . . and damages to the plaintiff because the defendant, who had add color and verdure to human construction.”6 sought permission for the construction of a road over his land, depreciated the value of the plaintiff’s property Trees and Courts when he cut down a tree fronting the plaintiff’s premises At the time of the Tree Planting Act of 1902, the common to make way for the road. (The plaintiff’s right derived law determined municipal liability for injuries to persons from a statute authorizing tree plantings.) In another and property resulting from sidewalk defects and pro- case, a municipality was enjoined from removing trees to vided the foundation for sidewalk tree liability. Under the make room for electrical poles without first demonstrat- common law, property owners generally had no obliga- ing that their destruction was “reasonably necessary or tion to repair streets or sidewalks adjoining their lots. As expedient for the proper enjoyment by the public of this a rule, the municipality was liable to third parties injured system of lighting the streets.”5 by defective sidewalks (including tree-related injuries), Tree pride blossomed into legislation. The 1902 so long as it had notice of the defective condition.7 This Tree Planting Act vested exclusive authority in the obligated the municipality to conduct reasonable inspec- Commissioner of Parks to care for and cultivate the tions of its trees. sidewalk trees of New York City, which inundated the Courts hesitated, however, to extend city liability for Parks Department with requests for removing old trees all tree-related injuries, specifically those resulting from and planting new ones. The Parks Board, in turn, enacted wandering tree roots. At a time when property owners ordinances both to bar unapproved meddling with side- built and maintained sewer lines from their homes to the walk trees and to prevent work on the streets within main central line, a court in Niagara County concluded three feet of any tree or shrub. Ultimately the law was that if a private sewer was improperly built, it was not the
NYSBA Journal | February 2009 | 25 city’s obligation to repair. “It would be unreasonable,” wrought-iron wickets around the perimeter of the tree stated the court, “to expect a municipality to go to the well.12 almost prohibitive expense of preventing tree roots from Enter the Department of Transportation – a new growing into improperly constructed sewers.”8 group concerned with these trees. The DOT began By the late 1990s the root question was answered (for issuing citations for illegal tree guards, prompting com- the time being): an abutting landowner was not liable for plaints from ticketed residents about the shift in think- sidewalk damage caused by tree roots.9 Courts applied ing about proper tree guards. As one resident wrote, this rule even where the owner planted the tree in ques- [i]n the present climate of municipal scandals, the first tion, as the mere planting of a tree was not an act of affir- thought that crosses my mind is that perhaps some mative negligence.10 local member of the political establishment has gone into the tree guard manufacturing business. Just think Lessons of Experience how much money could be made by declaring all The state of the law was less definitive with regard to tree existing tree guards illegal and requiring owners to wells. Consistent with New York City’s policy of encour- buy new ones!13 aging private parties to take ownership of sidewalk trees, The actual experience with sidewalk trees over the years in the mid-1970s the city began issuing illustrated manu- helps to explain the wide variety of tree wells seen on als with recommendations for planting and protecting city streets today, as the photographs accompanying this trees.11 Along with instructions as to how and what to article show. plant, the guide recommended alternative protections for each tree – in particular, surrounding them with low brick The Common Law Response walls, topping tree bases with mulch or iron gratings, and As property owners and city agencies clashed over per- covering the wells with bricks or cobblestones to protect missible types of tree guards, courts dealt with liability roots from being trampled. for injuries involving them. For the most part, courts Experience soon taught otherwise. As it turned out, followed the common law rule that a municipality must the grates, bricks and concrete strangled the roots and maintain its roadways, which included tree wells. In a raised other adverse consequences. Today, instead, the case where an intoxicated pedestrian tripped and fell in Parks Department recommends low cast-iron fences or an empty tree well, the court concluded that the tree well
26 | February 2009 | NYSBA Journal was not a “customary and appropriate urban amenity” the curb and adjacent property lines and are “intended but a “sidewalk condition,” leaving it for a jury to deter- for pedestrian use.”21 mine whether the sidewalk was defective.14 Unquestionably, human ingenuity (lawyers and cli- Other courts dismissed tree well cases against the ents) will continue to present new twists that challenge city – but not always private owners – on the theory courts. that the offending tree guards were “readily observable We end by returning full circle to the sentiment conditions,”15 or by applying the common law exception expressed in our Authors’ Note, one of regret that we will for defects created by the abutting property owner.16 Still no longer be part of the Court of Appeals, as inevitably others required that the city, regardless of whether the these and other law issues profoundly affecting daily life dangerous condition was open and obvious (a tree stump are resolved with wisdom, sensitivity and care. Truly it within a tree well, for example), demonstrate reasonable is an extraordinary process that renders justice for the care under the circumstances.17 parties while mindful of the need for both stability and growth in the law to meet the needs of a changing world. A Shift in the Law And no one does it better than the Court of Appeals of the In an effort to limit the city’s liability for personal injury State of New York. ■ claims, in 2003 New York City Administrative Code § 7-210 removed the city from liability for any injury 1. 10 N.Y.3d 517, 860 N.Y.S.2d 429 (2008). “proximately caused by the failure to maintain side- 2. Lane v. Lamke, 53 A.D. 395, 398, 65 N.Y.S. 1090 (2d Dep’t 1900). See also Richard D. Schein, Street Trees: A Manual for Municipalities 24 (Tree Works walks,” unless such sidewalk abutted a one-, two- or 1993). three-family residential property, placing the duty to 3. Dougherty v. Trustees of Vill. of Horseheads, 159 N.Y. 154, 158–59 (1899). keep the sidewalk in a reasonably safe condition on 4. 33 N.Y.S. 892 (Gen. Term, 4th Dep’t 1895). the property owner. The legislation made no mention 5. Ellison v. Allen, 30 N.Y.S. 441, 443 (Sup. Ct., Monroe Co. 1894). of tree wells. The trees themselves continued under 6. N.Y. General Municipal Law § 96-b(1). the jurisdiction of the Parks Department, and sidewalk 7. See, e.g., City of Rochester v. Campbell, 123 N.Y. 405 (1890). maintenance was delegated to the abutting property 8. Colombe v. City of Niagara Falls, 162 Misc. 594, 596, 295 N.Y.S. 84 (Sup. Ct., owners, but the in-between spaces, some filled with Niagara Co. 1937). cobblestones, others encircled by iron fences or bordered 9. Gomez v. City of N.Y., 238 A.D.2d 472, 657 N.Y.S.2d 920 (2d Dep’t 1997). in brick, others just dirt patches, were technically neither 10. See Gitterman v. City of N.Y., 300 A.D.2d 157, 751 N.Y.S.2d 478 (1st Dep’t one nor the other. 2002). In the years since the enactment of § 7-210, yet prior 11. See N.Y. Department of City Planning, Trees for New York City (1977). to Vucetovic, a number of courts grappled with liability in 12. See N.Y. City Department of Parks & Recreation, Tree Planting Standards trip-and-fall cases where pedestrians stumbled over side- (2008), available at http://www.nycparks.org/permits/trees/standards.pdf. walks made uneven by the roots of a tree that had out- 13. Letter from Richard B. Barnett to Ross Sandler, Comm’r, Bureau of grown its well. Faced with the 2003 law, and reaffirming Highway Operations, Dep’t of Transp. (Mar. 4, 1987) (on file with the N.Y. City Department of Parks & Recreation Library). earlier cases holding that the city was not negligent for 14. Moran v. City of N.Y., 153 A.D.2d 607, 608, 544 N.Y.S.2d 641 (2d Dep’t merely planting trees, courts consistently placed liability 1989). 18 with the abutting property owner. Well, almost consis- 15. See Martinez v. City of N.Y., 307 A.D.2d 989, 763 N.Y.S.2d 663 (2d Dep’t tently. In one pre-Vucetovic case, the court distinguished 2003) (refusing to dismiss case against private entity that often parked cars on injuries occurring within the tree well (no property owner the sidewalk in the area); Goldban v. 56th Realty, 304 A.D.2d 408, 758 N.Y.S.2d liability) from injuries occurring on the sidewalk as a 46 (1st Dep’t 2003) (dismissing case against property owner and city). result of tree roots (possible property owner liability), 16. See Lucciola v. City of N.Y., 12 Misc.3d 365, 814 N.Y.S.2d 480 (Sup. Ct., Bronx Co. 2005). once again blurring liability and ownership issues. 17. See Grgich v. City of N.Y., 2 A.D.3d 680, 770 N.Y.S.2d 91 (2d Dep’t 2003). Not surprisingly, Vucetovic has already sprouted 18. See DiGregorio v. City of N.Y., 19 Misc. 3d 1135(A), 862 N.Y.S.2d 814 (Sup. branches that extend beyond the wells to sidewalk addi- Ct., Kings Co. 2008); Falco v. Jennings Hall Senior Citizen Hous. Dev. Fund, Inc., 19 tions such as bus stops, signposts and pedestrian ramps. Misc. 3d 1107(A), 2008 WL 780762 (Sup. Ct., Kings Co. 2008); Moore v. Newport Courts have since held that Administrative Code § 7-210 Assoc. L.P., 16 Misc.3d 618, 842 N.Y.S.2d 268 (Sup. Ct., Kings Co. 2007); Seplow v. Solil Mgmt. Corp., 15 Misc. 3d 1138(A), 841 N.Y.S.2d 823 (Sup. Ct., N.Y. Co. does not require abutting landowners to remove snow 2007). and ice in bus stops or shelters but – applying tradi- 19. Garcia-Martinez v. City of N.Y., 20 Misc. 3d 1111(A), 867 N.Y.S.2d 16 (Sup. tional common law principles – that a property owner’s Ct., N.Y. Co. 2008). attempts at snow removal that make the condition more 20. See Raleigh v. Broadway 48th–49th Street LLC, No. 0101733/2006, 2008 WL hazardous may create liability.19 Similarly, liability for 2556248 (Sup. Ct., N.Y. Co. 2008); Asnis v. City of N.Y., No. 0111163/2004, 2008 injuries occurring due to a signpost may fall on the WL 3889212 (Sup. Ct., N.Y. Co. 2008). party who installed it.20 Most recently, a court relying 21. Blackburn v. City of N.Y., No. 105573/07, 2008 WL 5203281 (Sup. Ct., N.Y. Co. 2008). on Vucetovic held that pedestrian ramps are part of the sidewalk because they are located in the area between
NYSBA Journal | February 2009 | 27 BARRY KAMINS (bkamins@courts. state.ny.us) is a New York City Criminal Court Judge. He is co- chair of the Chief Administrative Judge’s Advisory Committee on Criminal Law and Procedure and author of New York Search and Seizure.
New Criminal Law and Procedure Legislation By Barry Kamins
he 2008 legislative session produced fewer sub- that violent offenders are appropriately monitored upon stantive pieces of criminal justice legislation than their reintroduction into society. Tin prior years. This article will first discuss three Unfortunately, in a number of cases, courts did not new laws that will have a significant impact on the crimi- inform defendants – either at the time a guilty plea was nal justice system. The balance of the article will then entered or at the time of sentencing – that they would be discuss the remaining legislation signed into law by the subject to a period of PRS following their determinate Governor. sentences. In those cases, the Department of Correctional Services (DOCS) administratively added a period of PRS Post-Release Supervision onto those sentences. On April 29, 2008, the New York As of July 9, 2008, the court system has a new process for Court of Appeals held that DOCS had no authority to returning to court for possible resentencing inmates who take this action and that only the sentencing judge is are serving determinate sentences, where the sentencing authorized to pronounce the PRS component of a sen- court failed to impose a term of Post-Release Supervision tence.1 (PRS). In 1998, the Legislature ended indeterminate sen- In a companion case, People v. Sparber,2 the Court held tences for defendants convicted of violent felonies and that when courts fail to pronounce the PRS term, rather enacted Jenna’s Law, named for Jenna Griebshaber. Ms. than striking the PRS imposed by the DOCS from the Griebshaber was a 22-year-old nursing student who was sentence, the matter must be remitted to the sentencing murdered by an individual who had been released from court for resentencing. Thus the Court concluded that if prison after serving two-thirds of his indeterminate sen- a sentencing court errs in this omission, the error can be tence for a violent felony. Jenna’s Law eliminated inde- remedied through resentencing. terminate sentences and required determinate sentences These decisions will affect the thousands of inmates for those convicted of violent felonies. Jenna’s Law also still serving determinate sentences without a judicially created a schedule of mandatory terms of PRS as part of a imposed period of PRS, as well as those who have determinate sentence, the purpose of which was to ensure been released from prison after completing the deter-
28 | February 2009 | NYSBA Journal minate sentence. The decisions have already led to the her determinate sentence, this may violate the provisions review of the sentencing records of hundreds of parolees of the double jeopardy clause.8 Perhaps in anticipation and inmates; 335 inmates incarcerated for violating the of such arguments, the statute makes clear that nothing terms of improperly imposed periods of PRS have been in the resentencing procedure shall prohibit an inmate or released. The Legislature responded to the court deci- parolee from seeking immediate relief through an Article sions by enacting a statutory framework that allows for 78 proceeding or a proceeding under N.Y. Criminal an orderly judicial resolution in these cases to determine Procedure Law § 440 (CPL). which defendants are to be subject to PRS and which are Finally, in an attempt to prevent courts from finding not.3 themselves again in an entanglement of resentencing, the The resentencing proceedings apply to all inmates in Penal Law has been amended to ensure the transparency custody of DOCS or “releasees” on parole after serving of PRS. Thus, a court is required specifically, when impos- determinate sentences for crimes committed on or after ing a determinate sentence, to state the period of PRS.9 September 1, 1998, whose original court commitment order does not indicate imposition of any term of PRS. In Identity Theft these cases DOCS or the Division of Parole must notify Another law enacted in the past legislative session will the sentencing court and the individual that resentencing significantly ease the burden of New York prosecutors in must take place. prosecuting identity theft. Within 10 days of receiving notification, the sentenc- Six years ago, the Legislature criminalized identity ing court must appoint counsel and then must calendar theft in response to the increasingly pervasive conduct of the matter within 20 days of the notification. Within 30 those who falsely assume the identity of others. Identity days of the notification, the court must commence a pro- theft may be the fastest growing crime in the United ceeding to consider resentencing. At this proceeding, the States, and it has been estimated that banks lose hun- court is required to utilize the sentencing minutes, plea dreds of millions of dollars each year to this crime. Five minutes and any other relevant documents. Forty days years ago it was estimated that 750,000 cases of identity after the original notification, the court is required to theft occur each year; unfortunately, that number has render a decision. However, all of the above time periods continued to grow each year since. may be waived upon consent of the inmate or releasee. The prosecution of identity theft presents unique Note that the new law does not compel courts to problems for a prosecutor.10 Frequently, identity theft is resentence individuals to a period of PRS. A court may a multi-jurisdictional crime. The defendant may reside decline to do so, with the consent of the prosecutor.4 This in one jurisdiction, steal a credit card from a victim in a may occur in situations where a court failed to advise a second jurisdiction and ship the proceeds of the credit defendant during a plea colloquy that the court would card fraud to a third jurisdiction. When the Legislature impose PRS as part of the sentence. The Court of Appeals criminalized this conduct, it anticipated the complexity has held that the failure to so advise a defendant would of the prosecution’s task, so it permitted a prosecution in enable the defendant to vacate the plea.5 Thus, if a defen- (1) any county where the crime was committed, regard- dant is later brought back for resentencing and the court less of whether the defendant was actually present in had failed to mention PRS in the plea allocution, the new such county; (2) the county in which a victim who suf- law permits the court to resentence the defendant to the fered financial loss resided; or (3) the county in which the original period of incarceration without imposing a peri- person whose PIN number was used, resided. od of PRS; this avoids the necessity of a plea vacatur. However, the Legislature apparently did not antici- Courts will also be faced with resentencing proce- pate the difficulty prosecutors would have in presenting dures in cases where a defendant has fully served a identity theft cases before a grand jury. It may be neces- determinate sentence and has been released from prison. sary for a prosecutor to offer the business records of the This presents a more difficult issue for courts and one credit card company whose credit card was stolen and the Legislature may have anticipated. A court is required fraudulently used by the defendant. Frequently, the credit to notify the Division of Parole when it determines that card company is located in another state and the prosecu- “it will not resentence the defendant under this section tor must produce a representative of that company before a or otherwise.”6 Thus, the Legislature has left a window grand jury in order to introduce those records. The expense of opportunity for defendants to raise other theories by involved presents a problem for prosecuting authorities which a court may decline to impose a period of PRS. whose budgets have been curtailed in recent years. One theory, raised by attorneys in the Legal Aid Fortunately, the Legislature has remedied this prob- Society, is that a court has no “inherent power to correct lem by adding a new provision to CPL § 190.30. This an illegal sentence after the defendant has served the section already contains evidentiary rules that apply judicially pronounced term.”7 Thus, if a court imposes a uniquely to grand jury proceedings and that have been period of PRS after the defendant has fully served his or utilized in the past to save the valuable time of individu-
NYSBA Journal | February 2009 | 29 als whose reports should speak for themselves before the disorders (schizophrenia, delusional disorder, bipolar grand jury. Certified reports are routinely received by the disorder, etc.); inmates who are actively suicidal; inmates grand jury in lieu of personal testimony by technicians diagnosed with organic brain syndrome; and inmates in the field of medical, fingerprint, ballistic and chemical diagnosed with a severe personality disorder. Unless evidence. In addition, the section permits the introduc- certain “exceptional circumstances” exist, an inmate with tion of sworn statements by victims of certain crimes. mental illness will now be placed in a residential mental These written statements replace testimony that would health treatment unit.
The new law explicitly criminalizes the act of residential mortgage fraud and increases the penalties depending upon the amount of funds received. merely recite cut-and-dry facts concerning the owner- The residential mental health treatment unit will pro- ship or possessory interest in property, the value of such vide housing for inmates suffering from mental illness. property and the defendant’s lack of right to possession It will be operated jointly by the DOCS and the Office of of such property. Mental Health. Inmates placed in this unit must receive at A new evidentiary rule permits the introduction least four hours a day (excluding weekends) of structured of business records provided by telephone companies out-of-cell therapeutic programs or mental health treat- and Internet providers as well as records of financial ment, in addition to exercise. Each unit will be limited to transactions provided by a bank, brokerage or insurance 38 beds. company.11 The records must be accompanied by a nota- The decision to transfer an inmate to a treatment unit rized statement that establishes the essential evidentiary must be made by a joint case management committee. requirements for the introduction of any business record: This committee can deny transfer only in exceptional the person providing the statement is a duly authorized circumstances. Thus, SHU confinement will be limited custodian of the records; the records were made in the to those inmates with mental illness who are deemed a regular course of business; and it was in the regular physical threat to themselves or others. course of business to keep such records. The new law will not apply to local correctional facili- Finally, when a business record includes other mate- ties.13 In addition, the New York State Commission on rial that would not be admissible in the grand jury, the Quality of Care for the Mentally Disabled will be given prosecutor can choose between two options: redact the the responsibility of monitoring the quality of mental extraneous material or instruct the grand jury that it may health care provided to inmates. The new treatment units not consider the material in connection with its delibera- must be in place no later than July 1, 2011. tion of the evidence. New Crimes Inmates With Mental Illness Aside from the three pieces of criminal justice legisla- In a third significant piece of legislation, the Legislature tion discussed, the Legislature created a number of new took a major step towards improving the treatment crimes. of inmates in the correctional system who suffer from some form of serious mental illness. It is estimated that Residential Mortgage Fraud approximately 8,000 inmates, or 12% of the state prison The crime of Residential Mortgage Fraud was a response population, are affected with this disability. Past studies to the current mortgage foreclosure crisis within the have documented that these inmates, who are routinely state.14 Before this enactment, no separate Penal Law subjected to solitary confinement, engage in acts of self- provision expressly prohibited this type of fraud and mutilation and commit suicide at an alarmingly high prosecutors had to pursue such cases under a variety of rate. In addition, many of these inmates are continuously other theories, including a scheme to defraud and larceny. shuttled between in-patient care in a psychiatric hospital The new law explicitly criminalizes the act of residential and the general population of prison or even solitary mortgage fraud and increases the penalties depending confinement. upon the amount of funds received. For example, fifth The new legislation is designed to prevent the DOCS degree fraud, a class A misdemeanor, can be charged from continuing to place these inmates in special hous- when less than $1,000 is received; first degree fraud, a ing units (SHU) for confinement.12 This added protection will benefit inmates who suffer from serious psychiatric Continued on Page 32
30 | February 2009 | NYSBA Journal
Continued from Page 30 Domestic Violence As in past sessions, the Legislature enacted several new class B felony, can be charged when more than a million laws to protect victims of domestic violence. One such dollars is received. law increases the number of individuals who can be protected by an Order of Protection. The amendment Children expands the definition of “same family or household” to Two new crimes address issues relating to young chil- include unrelated persons who are or who have been in dren. One new law, Luring a Child, creates a new felony an “intimate relationship” with the victim, whether or of luring a child under the age of 17 into a building, not the individuals have lived together at any time. Thus, isolated area, car or boat for the purpose of committing these individuals can now be included in an Order of certain enumerated offenses, including violent felonies Protection. However, neither a casual acquaintance nor and sex offenses. The luring crime is designated a class ordinary fraternization between two individuals in busi- E felony, but if the underlying intended offense is a class ness or social contexts shall be deemed to constitute an A or class B felony, then the luring offense is elevated to “intimate relationship.”22 a class C or D felony, respectively.15 A second law creates the crime of Facilitating a Sexual Performance by a Child Disabling/Destroying Property with a Controlled Substance or Alcohol. This crime, a In addition, the Legislature amended the crime of class B felony, is designed to prevent the exploitation of Criminal Mischief in the Fourth Degree to add a new children by those who use drugs or alcohol to engage subdivision that punishes an individual who intention- children under the age of 17 in sexual performances.16 ally disables telephone equipment in order to prevent another person from using a telephone to place a call for Miscellaneous emergency assistance. Statistics show that in approxi- In an attempt to keep pace with new technology, the mately 5% of domestic violence incident reports, it was Legislature has created a new class B misdemeanor that alleged that a telephone was pulled from a wall by the prohibits the unlawful duplication of computer-related perpetrator during a victim’s attempt to call for help. An material.17 This law is designed to prevent individuals ownership interest in the equipment is not a defense to from reducing personal records (e.g., medical histories), the crime.23 Finally, the definition of Criminal Mischief to computer data and circulating such information for was clarified to define the “property of another.” In the profit. Another new law creates the felony crime of past, courts have struggled with the interpretation of the Aggravated Identity Theft when the victim is a mem- statute when jointly owned property has been damaged ber of the armed forces and the perpetrator knows that or destroyed. As a result, one joint owner-spouse was the victim is deployed outside the continental United able to intimidate and terrorize the other spouse by dam- States.18 Finally, a new law prohibits animal owners from aging or destroying property owned by the two parties leaving their pets in a vehicle without the proper ventila- without fear of criminal consequences. Under the added tion to prevent extreme temperatures from injuring the definition, it is no defense that a person believes he or animals.19 she has a right to destroy property merely because that person is a joint owner of the property.24 Amendments Senior Citizens Expanded Definitions and Increased Penalties The Legislature has also amended several current laws As in past sessions, the Legislature has both expanded the to provide increased protection for senior citizens by definition and increased the penalties of existing crimes. increasing the penalties for existing crimes when the vic- For example, the penalties for an assault on certain tims are over the age of 65. Thus, a misdemeanor assault municipal employees have been increased. When an indi- is elevated to a class D felony when the victim is over 65 vidual causes physical injury to a city marshal or traffic and the perpetrator is more than 10 years younger than enforcement agent in the employee’s performance of his the victim. There is no requirement that the prosecutor or her duties, the penalty has been increased from a class prove that the defendant knew or had reason to know the A misdemeanor to a class D felony. The amendment also victim’s age.20 In addition, under prior law, in order to permits a person to be charged with this offense when the prosecute the felony of Scheme to Defraud, the prosecu- physical injury is caused by an animal under the person’s tor had to establish that 10 or more victims existed. Under control. This legislation was a response to the increasing a new amendment, the crime can also be committed if number of attacks on traffic agents who issue tickets and there is a scheme to defraud more than one person, one of on city marshals who evict tenants.25 In addition, the pen- whom is a “vulnerable elderly person,” i.e., a person over alties for operating recording devices in a movie theater the age of 60 who is suffering from a disease or infirmity or live theater have been increased to reflect the economic associated with advanced age.21 impact caused by the crime of motion picture piracy. It
32 | February 2009 | NYSBA Journal is estimated that this criminal enterprise costs workers defraud another.”29 It is expected that this charge will billions of dollars in lost earnings and thousands of jobs. deter those who use certain Web sites, e.g., MySpace and The penalties have been increased from a Violation to a Facebook, to steal the identity of others. The felony crime class A misdemeanor; when there is a second conviction of impersonation (First Degree) now includes imperson- within 10 years it is elevated to a class E felony.26 ation of a federal law enforcement officer. In the past only The definition of Aggravated Harassment in the First those who impersonated a police officer, as that term is Degree has been expanded to include depictions of defined in the Criminal Procedure Law, could be pros- a noose on any building or real property without the ecuted.30 express permission of the property owner. This legislation A number of other crimes have been expanded. Plastic was a response to a disturbing increase in the number of knuckles have been added to the list of weapons that are appearances of nooses around the country, including unlawful to possess.31 This weapon is just as danger- two incidents in New York – one at a Hempstead police ous as a set of brass knuckles and, in addition, many station and another on the office door of a Columbia students bring them to school without fear that the item University professor. Thus, the noose has been added to will activate a magnetometer. The crime of Disruption the Penal Law’s list of symbols that universally evoke of a Religious Service has been expanded to include the hatred and racism, e.g., swastikas and burning cross- intentional disruption of funerals or memorial services by es, and its depiction will now trigger a prosecution.27 a person within 100 feet of the service.32 This was a leg- Aggravated Harassment in the Second Degree has also islative response to a series of intemperate protests that been expanded to include communication by digital have taken place at military funerals across the state. The transmission including compact disc, cassette, CD-ROM, crime of Falsely Reporting an Incident now includes false and so on.28 reports of child abuse to a person required to report such The crime of Criminal Impersonation has been incidents pursuant to N.Y. Social Services Law § 3431(1).33 expanded. The misdemeanor crime (Second Degree) has It is expected that this change will deter the harassment been expanded to include impersonation by means of of parents, guardians and family members, particularly the Internet “with intent to obtain a benefit or injure or in connection with child custody proceedings. The crime
NYSBA Journal | February 2009 | 33 of Non-Support of a Child in the First Degree has been the Attorney General’s office into the misuse of the expanded to raise the age from 16 to 18 for which a par- Internet by sex offenders, the Legislature enacted the ent or guardian with a support order is responsible for Electronic Security and Targeting of Online Predators his or her child, when there is an order of child support.34 Act. The law requires sex offenders to register with the Coercion in the Second Degree has been expanded to Division of Criminal Justice Services any Internet account include threats that induce a person to join a street gang that belongs to them; the Internet entity, in turn, will now or similar criminal enterprise.35 Finally, the definition of be authorized to prescreen or remove sex offenders from Animal Fighting has been expanded; it is now a Violation its services. In addition, under certain circumstances, a for a person merely to attend an animal fight.36 court is now authorized, as a condition of Post-Release Supervision, Probation or Conditional Discharge, to Procedural Changes restrict the use of the Internet by sex offenders and to pro- A number of procedural changes have been enacted by hibit them from using the Internet to communicate with the Legislature. The Youthful Offender statute has been a person under the age of 18 when such offender is over amended to require a lower criminal court to seal an the age of 18. The only exception would be for parents accusatory instrument at arraignment. Under prior law, who are not otherwise prohibited from communicating
A new law provides employers with a rebuttable presumption when they are sued for negligent hiring. this sealing was discretionary with the court and rarely with their children. The same restrictions can be imposed done.37 However, the automatic sealing of the accusatory by the State Board of Parole as a condition of Parole or instrument will help to effectuate the purpose of the stat- Conditional Release. In imposing probation conditions ute, which is to minimize the stigma created by an allega- upon sex offenders, however, a court may not prohibit the tion of criminal conduct. Another procedural change per- offender from using the Internet in connection with his or mits defendants accused of first degree drug offenses to her education or search for lawful employment.41 waive indictment and plead guilty pursuant to a Superior In addition, any teacher in New York State who is Court Information.38 This harmonizes the New York convicted of a registerable sex offense will have his or State Constitution and the Criminal Procedure Law by her certificate of qualification automatically revoked, permitting a defendant charged with a class A felony not and prosecutors must now notify the Commissioner of punishable with life imprisonment to waive indictment. Education of such convictions.42 Also, a similar provi- In addition, the mandatory surcharges pursuant to con- sion now applies to individuals holding a license as a victions for felonies, misdemeanors and violations have real estate broker or real estate salesperson.43 Finally, been increased to $325, $200, and $120 respectively.39 the Legislature added three federal offenses to the list of Finally, a new law adds Herkimer County to the other 23 sex offenses for which sex offender registration is now counties in New York that utilize audio-visual equipment required in New York State: coercion and enticement to permit electronic appearances of defendants except at (18 U.S.C. § 2422(b)); transportation of minors (18 a hearing or trial.40 U.S.C. § 2423); and use of interstate facilities to transmit information about a minor (18 U.S.C. § 2425).44 Sex Offenders During the last session, the Legislature Ex-Offenders enacted numerous changes related In the last few sessions, the Legislature has begun to focus to sex offenders. Following on the re-entry of individuals into society following incar- an investigation by ceration. In New York State up to 60% of ex-offenders are unemployed one year after release. There is a strong correlation between unemployment and recidivism. Ex-offenders face a number of barriers to re-entry in the work force. For example, the employer will normally ask an applicant if he or she has been convicted of a crime. Employers must ask that question in order to avoid a pos- sible lawsuit for negligent hiring. An employer’s liability arises from its failure to take reasonable care in making
34 | February 2009 | NYSBA Journal hiring decisions. Thus,, ththereere is a strstrongonng diddisincentivesinccentive ttoo 9. Penal Laww § 70.70.4545 (20(2008008 N.YN.Y.. LLawsaws chcch.. 1141,41, efeff.f. 7/97/9/08)./08).) hire ex-offenders. A nnewew law proviprovidesdes ememployersmployo errs wiwwithith a 10. See Frey,Frey, ProsecutingProProsececuting IDI TheftTheftf Is Now EasierEasiesi rri ininnN NewNeww YorkYorork, N.Y.L.J.,N.Y.L.J.,. Aug.Augu ..1 12,12, rebuttable presumptionumptionn wwhenhen they areare suesuedd for nenegligentgligent 2008.2008. hiring. Thus,us, evevidenceidence ooff a prpriorior coconvictionnviction wouwouldld be 11. CPLCPPL § 190.30191 0.30 (8)(8) (2008(2008 N.YNN.Y.Y. LLawsawsws chch.. 2279,79, efeff.ff.f 8/68/6/08).6/0808).) excludeded iinn such litigatlitigationion if tthehe eemployermpployer cocompliesmplies witwithh 12. Corr.Corrrr.r LLaLaww § 13137(6)(d),7(6)(d),) (e) (2(2008008 N.NN.Y.Y. LawLawswssc cch.h. 1, effeff.. nnoool llateratertr tthanhan 7/7/1/11).1/11). the sisixx fafactorsctors in Article 23-A of the CCorrectionorrection LaLaww anandd 13. Corr.Corr.rr LaLawaw § 50500-K0-K-KK (2(20082008 N.NN.Y.Y.Y LawLawsssc cch.h.h 2). makesmakes a gogoodod faifaithth deterdeterminationmination that susuchch facfactorstors mmilitateillitate in favor of hiring the empemployee.loyee.45 Finally,Finally, an eex-offenderx-offender 14. 20082008 N.Y.N.Y. LawsLaws ch.ch. 4472,72, efeff.ff.f 11/1111/1/08.1/0/ 8. seeking a barbbarber’ser’s licenlicensese is no longelongerr autoautomaticallymatically didis-s- 15.5 20082008 N.Y.N.Y. LawsLaws ch.ch. 4405,05, efeff.f. 10/10/4/08.0/4/08. ququalifiedalified on tthehe basis ooff his or her pripriororr cconviction.onnvictc ion.46 16. 20082008 N.Y.N.YY. LawsLaws ch.ch. 4431,31, efeff.f. 11/11/1/08.1/08. 17.7. 20082008 N.Y.N.Y. LawsLaws ch.ch. 5590,90, efeff.f.. 11/11/1/08.1/08.
Prisonersisoners and ParoParoleeslees 18.1 20082008 N.Y.N.Y. LawsLaws ch.ch. 2226,26, efeff.f. 11/11/4/08.4/0/08. A numbermber of new laws wwillill afaffectfect pprisonersrisoners aandnd parparolees.olees. 19. 2008220088 N.Y.N.YNY. LawsLaws ch.ch. 5586,86, efeff.f. 1/21/23/09.3/09. One suchuch law correctcorrecteded aann ovoversightersight ththatat wwasass ccreatedreated by the 20042004 Drug LawLaww ReformReform Act.Act. TThathat actact providedprovided 20.20 2008 N.Y.N.Y. LawsLawsw ch.chh. 668,8, effeff.. 66/29/08./29/08. for mandatorytory termterminationinattion of ddrugrug sesentencesntences afafterter ththreeree 21. 2008 N.Y.N.YY. LawsLaws ch.ch. 2291,91, eff. 9/19/19/08./1/ 9/08. years of unrevokedevoko ed parparoleolle supervsupervisionision foforr clclassass A-A-II and 22. 200820008 N.Y.N.Y. LawsLaws ch.ch. 326, eff. 7/27/21/08./221/08.8 A-II drug feloniesnies aandnd two yyearsears ooff ununrevokedrevoked parole 23. 20082008 N.Y.N.Y. LawsLaws ch.ch. 69, eff. 7/6/08.7/6/6/08. supervision for lelessersser ddrugrug fefelonies.lonies. ThThee DiDivisionvision ooff 24. 20082008 N.Y.N.Y. LawsLaws ch.ch. 601, eff. 11/11/1/08.1/08.8 Parole, however, ass wellwell asas thethe ApAppellateppellate Division,Division, ThThirdhird Department,47 interpretedretedd tthishis lalaww as pprohibitingrohibitingg ttermi-ermi- 25. 200820008 N.Y. Laws ch.ch. 45, effeff.. 77/22/08./22/08/ . nation of supervision whwhenen tthehe pparoleearolee was ppresumptive-resumptive- 26.262 2008 N.Y. Laws ch.ch. 6639,39, efeff.f. 11/11/9/08.9/08. ly released by the DOCS.S TThehe new law mmakesakes cclearlear tthathat 27. 20082008 N.Y. LawsLawsws ch.chc . 774,4, effeff.. 111/1/08.11/1/08. offenders who are presumptivelyptively rereleasedleased aarere eeligibleligible for 28.28 200820208 N.Y.N.YY. LawsLaws ch.ch. 5510,10,0, eefeff.f. 12/3/012/3/08.8. termination of sentence underr the same circircumstancescumstances aass 29. 2008 N.Y.N.Y. LawsLaws ch.chh. 3304,04, eff. 11/11/1/08.1/ offenders released by the Paroleole BBoard.oard.48 In addition,addition, a 30. 2008 N.Y.N.Y. LawsLawsaw ch.chh. 4434,34, efeff.f 11/1/08. new law restores discretion to the BBoardoard ooff Parole to grant discharge to those prisoners sentencednced to an iindetermi-ndetermi- 31. 2008 N.Y. Laws ch.ch. 2257,5 eff. 11/1/08. nate sentence with a maximum of life.e.49 32. 2008 N.Y.N.Y. LawsLaw ch. 566, eff. 9/25/08. 33. 2008 N.Y.N.Y Laws ch. 400. eff. 12/3/08.
Miscellaneous 34. 200820 N.Y. Laws ch. 70, eff. 11/1/08.
Finally, the Legislature enacted several lawss dealing with 35. 2008 N.Y. Laws ch. 426, eff. 11/1/08. minor or technical issues. One new law willll now offer 36. 2008 N.Y. Laws ch. 308, eff. 7/21/08. the parent or guardian of a crime victim underer the aageg of 18 compensation for time spent out of work as a result 37. 2008 N.Y. Laws ch. 587, eff. 1/1/09. of the child’s hospitalization.50 Peace officer status has 38. 2008 N.Y. Laws ch. 401, eff. 11/1/08. been granted to employees of the New York City Business 39. 2008 N.Y. Laws ch. 56, eff. 7/1/08. 51 Integrity Commission. The Legislature has added two 40. 2008 N.Y. Laws ch. 317, eff. 7/21/08. crimes to the list of eligible criminal acts which qualify as 41. 2008 N.Y. Laws ch. 67, eff. 4/20/08. criminal acts for purposes of the state’s enterprise corrup- tion crime: Disseminating Indecent Materials to Minors 42. 2008 N.Y. Laws ch. 296, eff. 7/21/08. in the First Degree and Promoting Sexual Performance by 43. 2008 N.Y. Laws ch. 430, eff. 8/5/08. a Child.52 ■ 44. 2008 N.Y. Laws ch. 232, eff. 7/7/08. 45. 2008 N.Y. Laws ch. 534, eff. 9/4/08. 1. Garner v. N.Y. State Dep’t of Corr. Servs., 10 N.Y.3d 358, 859 N.Y.S.2d 590 (2008). 46. 2008 N.Y. Laws ch. 469, eff. 8/5/08.
2. 10 N.Y.3d 457, 859 N.Y.S.2d 582 (2008). 47. Sweeney v. Dennison, 52 A.D.3d 882, 858 N.Y.S.2d 845 (3d Dep’t 2008).
3. N.Y. Correction Law § 601-d (“Corr. Law”); N.Y. Penal Law § 70.85 (2008 48. 2008 N.Y. Laws ch. 486, eff. 8/5/08. N.Y. Laws ch. 141, eff. 7/9/08). 49. 2008 N.Y. Laws ch. 310, eff. 7/21/08. 4. Penal Law § 70.85 (2008 N.Y. Laws ch. 141, eff. 7/9/08). 50. 2008 N.Y. Laws ch. 162, eff. 9/1/08. 5. People v. Catu, 4 N.Y.3d 242, 792 N.Y.S.2d 887 (2005). 51. 2008 N.Y. Laws ch. 564, eff. 9/4/08. 6. Corr. Law § 601-d(5) (emphasis added). 7. Pleadings drafted by Elon Harpaz and Kerry Elgarten of the Legal Aid 52. 2008 N.Y. Laws ch. 312, eff. 10/19/08. Society. 8. Id. See, e.g., United States v. Rico, 902 F.2d 1065 (2d Cir. 1990); United States v. Silvers, 90 F.3d 95 (4th Cir. 1996).
NYSBA Journal | February 2009 | 35 Legal Requirements That Influence Control of Independent Contractors and Employees By Robert W. Wood
s a worker an independent contractor or an employ- an employee. Most of the classification methodologies ee? The distinction is important under federal, state also evaluate the degree to which the worker is integrated Iand local tax laws. It affects contract and tort liability into the company’s operations, the worker’s special skills, exposure, and raises federal and state labor law compli- the longevity of the relationship, the company’s ability ance issues. Plus, it can impact insurance, employee ben- to terminate the relationship, and so on. These and other efits and myriad other issues. factors are used as earmarks of employment. Worker classification is not determined merely by A court or agency must determine the worker’s true labels. Various government agencies and the courts can status by evaluating the governing contract and busi- make their own assessment of who is an employee. ness records. If the worker is micro-managed and subject In appropriate cases, the government can retroactively to the employer’s unfettered control, an “independent recharacterize workers, so the stakes can be huge. The contractor” label in a contract will probably not save the courts have long been divided on how to define and worker from being recast as an employee. interpret these rules. Even today, there is no single test for determining worker status. Legal Requirements The Internal Revenue Service and a variety of state Worker classification is a fact-intensive determination. and federal agencies make determinations as to worker Because virtually everything is relevant in making the status, so a worker may be classified as an employee determination, legal and regulatory requirements impact- for one purpose and as an independent contractor for ing the working relationship must also be considered. another. Quite apart from tax status, workers classified as employees have rights under federal labor and employ- ment laws. Consequently, issues of statutory coverage ROBERT W. WOOD ([email protected]) practices law with Wood & and liability may turn on whether a person is found to be Porter in San Francisco. He is the author of Taxation of Damage Awards an employee. and Settlement Payments (3d Ed. Tax Institute 2005 with 2008 update) and Legal Guide to Independent Contractor Status (4th Ed. Tax Institute Gradients of Control 2007). Mr. Wood received his undergraduate degree from Humboldt Although tests for assessing worker status have differing State University, has studied at the University of Sheffield, England and formulations, the tighter the company’s right to control received his law degree from the University of Chicago. the worker, the more likely the worker will be considered
36 | February 2009 | NYSBA Journal For example: a trucking company mandates that its testing laws and worker classification. K&D required its drivers may drive only up to a maximum of eight consec- drivers to sign agreements affirming their independent utive hours before taking a required rest. This rule may contractor status, but Missouri found the drivers to be appear to indicate employer control, which, along with employees, because K&D could require drivers to take myriad other contract provisions, rules and practices, random drug tests. Addressing the issue of the drug is relevant in assessing whether the putative employer tests, the appellate court ruled that the company had not has exercised (or reserved the right to exercise) sufficient required more from its workers than the law required. control to dictate employee status. If, however, the eight- Thus, the drug tests could not be considered employer hour driving maximum emanates from federal or state control. However, as the remaining factors demonstrated transportation rules, can this requirement fairly be seen an employer/employee relationship, the court held the as indicative of company control? In the few cases to con- truck drivers to be employees. sider such a point, the answer appears to be no. In Air Transit v. National Labor Relations Board,3 a cab Of course, employers may subject their workers to company sought reversal of an NLRB decision ruling its requirements exceeding prescribed regulations. For exam- cab drivers to be employees. Air Transit was a Virginia ple, suppose an employer requires workers to check in with corporation; the Federal Aviation Administration (FAA) the company not less than once every 24 hours because gave Air Transit the exclusive right to operate taxicab federal or state law imposes such a requirement. Suppose, services at Dulles Airport. Air Transit used the services then, that the applicable law changes to require workers of approximately 100 taxicab drivers who provided their to check in only once every 48 hours. If the employer is own vehicles and picked up passengers from a designat- ignorant of this change and continues to require 24-hour ed cab line. It put a uniformed dispatcher at the head of check in, should this enhanced level of “control” be con- the line to direct passengers and help with their luggage. sidered in assessing the worker relationship? Air Transit charged drivers $72 a week for participation Further, does it matter if the employer exercised due in the feed line but received no share of the drivers’ diligence in attempting to keep itself abreast of such legal earnings. and regulatory changes? Does it matter if the worker’s The drivers did not report their earnings to Air Transit; status is being examined two weeks or five years after did not keep trip sheets, manifests or other accounts of the pertinent legal change was made? The answers to their earnings; and had control over their own schedules. these questions are important and, to some degree, sub- Drivers received no benefits, vacation time, sick leave, jective. A degree of employer rule-making beyond bare workers’ compensation or unemployment insurance legal requirements should not necessarily constitute suf- from Air Transit. All drivers were personally responsible ficient control to characterize the worker as an employee. for their own accounting and self-employment taxes, and Nuance is important. received no training. Air Transit drivers were subject to many rules, howev- Case Law and Legal Control er, some of which were mandated by Air Transit’s contract Although one may think first of IRS involvement in with the FAA and some required by Virginia law. Drivers worker status controversies, it does not appear that the had to use a radio dispatch system, wear name tags, “legal control” issue has been expressly discussed in maintain taxicabs in safe operating condition, display the tax cases. It has, however, come up in federal labor and words “Airport Cab” and Air Transit’s telephone number employment law decisions. For example, in National on the taxicab, display rate information, possess a valid Labor Relations Board v. Associated Diamond Cabs, Inc.,1 the chauffeur’s license and license their vehicles for use in court was asked to determine whether Miami taxi drivers Louden County, Virginia. Air Transit also enforced rules were independent contractors or employees. The issue that were not provided by the FAA contract or Virginia hinged on city of Miami regulations that required taxi law, including requirements that drivers charge a flat rate drivers to fill out “trip sheets” to record all trips, their for certain customers, post a notice in their vehicles about origins and destinations, fares charged and the time of how to file a passenger complaint and purchase greater each trip. At the end of each day, drivers submitted their insurance coverage than required by Virginia law. trip sheets to the company, which were retained for city While the NLRB claimed that such controls meant inspection. The court found that such trip sheets did not that the cab drivers were employees, the appeals court evidence control by the company. In fact, the regulations ruled the drivers were independent contractors. The constituted supervision not by the employer, but by the few employee-like factors were grossly outweighed by city. The law controlled the driver, not the employer. As a factors suggesting the drivers were independent contrac- result, the court found that the regulations failed to evi- tors. Although Air Transit exercised some control over the dence control by the company. drivers, beyond the legal regulations, it was insufficient Similarly, in K&D Auto Body, Inc. v. Division of to find the drivers to be employees. Most of the “controls” Employment Security,2 the court considered federal drug- were mandated by the FAA contract or by Virginia law.
NYSBA Journal | February 2009 | 37 More Case Law on Legal Controls In SIDA of Hawaii, Inc. v. NLRB,6 a company of Taxicab companies seem to feature prominently in the independent taxicab owner-operators argued that its “legal control” cases. For example, Local 777, Democratic members were independent contractors. SIDA was a Union Organizing Committee v. NLRB4 involved two cab self-governing trade association, providing a collective companies providing taxicab service in Chicago. The body of independent drivers to compete with larger taxi NLRB ruled the cab drivers were employees.5 The court companies in bidding for the right to operate at Honolulu reversed, finding the facts insufficient to support employ- airport. SIDA had an exclusive contract to provide taxi ee status. service at the airport. An applicant qualified to be a mem- Each cab driver signed a lease under which the driver ber of SIDA by owning a suitable vehicle, having a valid paid a fixed fee ($22 for a day lease and $15 for a night license, and having an acceptable personal appearance. If lease), in addition to an hourly fee for late returns. The the applicant was approved, he or she signed a Standard driver leased the cab for two days at a time, or three days Independent Drivers Contract with SIDA. on weekends. The driver agreed to be the sole driver, not The court found an absence of actual control by SIDA to sublease the cab, to inspect it at the beginning of the for the following reasons: (1) drivers made substantial lease and report defects, and to return the cab in good personal investments in their taxicab activities, pur- condition with a full tank of gas. The company provided chasing and maintaining their own vehicles; (2) drivers the taxicab, the cab license, liability insurance, antifreeze, obtained all necessary city and state permits; (3) drivers
Driver conduct was never controlled by the cab companies. Drivers were on their own once they left the garage and were free to prospect for fares in any manner. oil, towing service, tires, and maintenance. The lease said paid their own income taxes, health insurance, Social the drivers were not required to operate taxicabs in a Security, unemployment benefits and auto insurance; prescribed manner, accept calls or dispatches, report their (4) drivers paid a monthly stall rental fee to SIDA, along location, buy gas from the company or keep the cab in a with a $0.50 trip fee for each trip made out of the air- designated location. port; (5) drivers were substantially independent in their The drivers were required to comply with all appli- operations and were free to work independent of SIDA; cable laws, ordinances, rules and regulations. Chicago (6) drivers could work for other cab companies, could municipal regulations and state law governing taxicab make their own arrangements with clients and were not drivers required that taxicabs be operated regularly to limited to operate in a particular area; (7) fares were not meet public demand for service, the meter flag be kept determined by SIDA but by local ordinances, and were down when the cab was carrying passengers and every- collected and retained by the drivers; (8) SIDA did not one requesting a ride be picked up unless the cab was pay compensation to the drivers, did not withhold taxes occupied. The municipal code established fare rates, and kept no income tax records for them; and (9) drivers’ prohibited passengers in the front seat and prohibited contracts specifically provided for an independent con- refusing to transport passengers from the airport to the tractor relationship. suburbs. Municipal regulations set rules for courtesy The NLRB argued that SIDA’s rules, regulations and to passengers, driver appearance and attire, and driver enforcement were strong evidence of the company’s conduct at cab lines. Drivers could not use drugs, carry control over the drivers. The court disagreed. Many of weapons, loiter in public outside their cabs, leave their SIDA’s regulations merely incorporated requirements cabs unattended or violate traffic laws. imposed by its commercial contracts and state and local Driver conduct was never controlled by the cab ordinances. Thus, the court found the owner-operators to companies. Drivers were on their own once they left the be independent contractors. garage and were free to prospect for fares in any manner. The only requirements the cab company enforced were Legal and Community Standards the daily rate for the cab, care and skill in driving, and Meyer Dairy, Inc. v. NLRB,7 which involved the status of compliance with applicable laws and regulations. The milk distributors as independent contractors or employ- court found that compliance with the law could not be ees, puts a particular spin on the existence of compliance deemed control by the employer and ruled the drivers to with laws. Meyer Dairy Distributors Association (the be independent contractors. “Association”) was a group of milk distributors who peti-
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Mention Code: PUB0436 tioned the NLRB to bargain with its putative employer, majority of the control Global exercised over its aides was Meyer Dairy Company (the “Company”).8 The Company to assure compliance with state requirements for home An employer’s imposition of rules only slightly stronger than legal requirements presumably will not be fatal to a claim of independent contractor status. countered that Association members were independent health care. Other aspects of control were deemed too contractors. The NLRB found the Association members minimal to be significant. (the “Distributors”) to be employees, and the Company appealed to the Tenth Circuit. Control in Excess of Regulations The Meyer Dairy Company contracted with retail In Associated Diamond, Air Transit, Local 777, SIDA of distributors who agreed to purchase the Company’s Hawaii, Meyer Dairy, and Global Home Care, the employers dairy products at fixed prices and sell the products to did not wield control significantly in excess of pertinent customers in specified areas. The Distributors, or “milk regulations. They merely imposed standards following men,” delivered dairy products to customers over fixed federal or municipal regulations. In contrast, in K&D routes. They provided their own trucks for delivery, Auto Body the control went well beyond compliance with paid all costs and expenses of operation, and could hire law. The results suggest that for workers to be reclassi- helpers if needed. The Company provided Distributors fied as employees, an employer must wield pervasive with suggested retail prices, but they were not required control exceeding to a significant degree the scope of the to adhere to them. The Distributors’ contract required government-imposed control. that they comply with regulations and policies of public The courts in these cases recognized that compliance health authorities, and meet standards established by the with laws adds complexity to the worker status mix. They Company, consistent with similar dairy businesses in the take a reasoned, realistic view of the amount by which a Greater Kansas City area. putative employer must exceed legal requirements. An Distributors had no other obligations to the Company employer’s imposition of rules only slightly stronger except to pay for the products they purchased. They had than legal requirements presumably will not be fatal to a complete control over their sales and decisions regarding claim of independent contractor status. Conversely, there credit, were responsible for losses from retail sales, paid should be no special latitude, no special allowance for their own income and Social Security taxes, controlled employer controls, just because there is also a legal frame- their vacations, and provided their own self-retirement work. The legal or regulatory environment should be plans or medical and liability insurance. The Distributors entirely neutral to the employee vs. independent contrac- were essentially holders of franchises to sell Meyer Dairy tor characterization question, at least if the employer’s products within a specified area. They were not con- regimen of rules exactly tracks the legal requirements. trolled by the Company except to maintain certain stan- dards required by state law; thus the court found they Evaluating Extra Controls were independent contractors. Employers who subject workers to requirements and Similar issues arose in Global Home Care, Inc. v. State, standards in excess of legal requirements should be scru- Department of Labor & Employment Security,9 which con- tinized. In National Labor Relations Board v. Deaton, Inc.,10 cerned the status of live-in health care aides. The Florida the court considered the status of interstate courier driv- Department of Labor and Employment Security ruled ers in the context of Interstate Commerce Commission that the aides were employees, and Global appealed. The (ICC) and Department of Transportation (DOT) regula- Florida Court of Appeal reversed, saying that Global’s tions. Each truck traveling in interstate commerce must lack of control over the aides rendered them independent be certified. The goal of such registration is to promote contractors. Notably, the court held Global’s insistence safe operation of trucks and to ensure continuous finan- on compliance with state regulations did not constitute cial responsibility so that truck-related losses receive supervision of the aides. compensation.11 The aides were independent contractors because they The court found it unnecessary to decide whether ICC- worked for other agencies and at sites away from com- mandated controls would alone be sufficient to establish pany supervision, and the clients provided materials and employee status. The court analyzed the substantial a work place. The aides were engaged only as needed nexus of control required by federal regulations and on a temporary, per-job basis, and both parties intended found that the facts established the existence of “addi- an independent contractor relationship. Moreover, the tional control” voluntarily reserved by the employer. For
40 | February 2009 | NYSBA Journal example, although ICC regulations required Deaton to but rather as control by the pertinent legal authority. The make certain inquiries, Deaton more thoroughly checked applicability in federal and state tax law, tort cases, and out all drivers, including work references, police records, so on, however, is also unclear. and driving records. Although such legal controls should generally be dis- Moreover, although ICC regulations forbade any counted in making worker status determinations, what disqualified person from driving, Deaton’s practice of is the extent to which variations between an employer’s assessing whether a driver was a “good risk” involved rules and legal requirements should be examined? And, a subjective, employer-like inquiry. This inquiry was particularly, should any such variations be strictly con- qualitatively different from merely ensuring that drivers strued against the employer? Again, the answers are were not barred from commercial driving. Based on these largely unclear. The authorities have thus far examined controls, the court found the drivers to be employees. this issue in the context of federal labor and employment laws; but, the same issues may be expected to arise in Conclusions federal and state tax cases, state tort law cases, and in The cases discussed illustrate that an overlay of legal legal disputes between the workers themselves and the controls on work performance can make tougher still the company over their true status as either independent already tough task of determining whether a worker is an contractors or employees. employee or an independent contractor. At minimum, the As with so much else in the field of employee-inde- analysis requires reference to applicable law and evalua- pendent contractor classification, the presence of laws tion of whether the putative employer merely tracks the regulating worker and/or company conduct in a par- law or goes beyond it. The problem is exacerbated where ticular industry or location will require careful thought legal or regulatory standards are amorphous. and attention. One must consider the factual setting, the How, for example, should one evaluate a require- specifics of the relevant laws and the manner in which the ment that salespeople receive training that is “thorough employer incorporates legal compliance into its opera- and adequate”?12 Although rules from regulatory bod- tions, as well as into its relationship with its workers. ■ ies ought not to bespeak employment,13 exactly what is required by the government’s rules may not be clear. It 1. 702 F.2d 912 (11th Cir. 1983). may be particularly difficult to determine fairly whether 2. 171 S.W.3d 100 (Mo. App. W.D. 2005). the employer is merely trying to duplicate legal require- 3. 679 F.2d 1095 (4th Cir.1982). ments or inject its own standards. 4. 603 F.2d 862 (D.C. Cir. 1978). In theory, rules imposed by law should be neutral to 5. Yellow Cab Co., 229 N.L.R.B. 1329 (1977). contractor-employee determinations. At least in the con- 6. 512 F.2d 354 (9th Cir. 1975). text of labor and employment law decisions, the courts 7. 429 F.2d 697 (10th Cir. 1970). have consistently held that governmental regulations do 8. Meyer Dairy, Inc., subsidiary of Milgram Food Stores, Inc., 178 N.L.R.B. 454 not evidence control by the employer.14 Rules imposed (1969), vacated by 429 F.2d 697 (10th Cir. 1970). by the government constitute supervision not by the 9. 521 So. 2d 220 (Fla. Dist. Ct. App. 2d Dist. 1988). employer but, rather, by the state.15 However, even such 10. 502 F.2d 1221 (5th Cir. 1974), cert. denied, 422 U.S. 1047 (1975). a seemingly sensible rule may be very difficult to apply 11. Id. at 1224. in practice. Suppose a multi-state employer requires inde- 12. Cal. Code Regs., tit. 10, § 2695.6 (2003) (applying to insurance salespersons). pendent contractor and employee painters alike to wear 13. See K&D Auto Body, Inc., 171 S.W.3d 100. protective gear when spraying. Further, what if such 14. Nat’l Labor Relations Bd. v. Associated Diamond Cabs, Inc., 702 F.2d 912, 922 protection is not required in two of the 15 states in which (11th Cir. 1983). the employer operates, but uniformity and ease of admin- 15. Local 777, Democratic Union Org. Comm., 603 F.2d at 875; Global Home Care, istration explain the company’s uniform policy? Inc., 521 So. 2d 220. Technically, this may place the employer’s safety rules outside the protective umbrella of legal require- Pro Bono Opportunities Guide Now Online ments in the two nonconforming states. But perhaps this www.nysba.org/volunteer kind of discrepancy should not be held against the com- pany in a worker classification dispute. Alternatively, Looking to volunteer? perhaps it should be held against the company only in This easy-to-use guide will help you find the these two states. The answer is unclear. At the very least, right opportunity. You can search by county, by subject area, and by population served. where worker status issues are examined, the presence of laws and regulations affecting that relationship must Questions about pro bono service? Visit the Pro Bono Dept. Web site for more be considered. The case law (at least in the labor and information. www.nysba.org/probono employment law field) demonstrates that applying a (518) 487-5641 • [email protected] legal regimen should not be treated as employer control,
NYSBA Journal | February 2009 | 41 COMPUTERS & THE LAW BY STEVEN C. BENNETT
STEVEN C. BENNETT ([email protected]) is a partner at Jones Day in New York City and Chair of the firm’s E-discovery Committee. Michael Dailey, a summer associate at Jones Day, assisted in the preparation of this article. The views expressed are solely those of the author and should not be attributed to the author’s firm or its clients.
Implications of a “Keep It All” Data World
ociety has moved into a new such data is often an afterthought. Inadequate attempts to categorize era of near-universal connectiv- Companies typically employ archiving data can have serious consequences Sity, aided by virtual private net- systems that divide documents into for a company in litigation – especially works, secure ID cards, smart phones, two broad categories – “official” and since electronically stored information flash drives, wi-fi hotspots, and other “other” documents – which determine (ESI) is often a key part of modern technology. Employers have come to how documents are stored. Documents litigation.4 Yet, in a recent survey, more expect their employees to be always deemed “official,” such as human than 69% of companies said they are “plugged in,” regardless of whether resources files, are kept for finite peri- “not ready to respond” to litigation. they are in the office, at home, or loung- ods and then purged in accordance Only 6% said they could “immediately ing on the beach. It no longer matters with document retention schedules. and confidently” handle e-discovery where you are, so long as someone Some of these records (such as cor- requests.5 can reach you electronically. This porate charters) are treated as perma- In addition, the costs associated marked increase in user connectivity nent. The “other” documents, includ- with improperly archiving documents and communication has produced an ing drafts, day-to-day correspondence, can greatly affect litigation. Courts unprecedented rise in the number and e-mail, instant messages, deal and proj- have shown little sympathy for par- variety of documents generated daily. ect files, are often kept haphazardly, ties that claim ignorance as a defense With storage capacities continuously with few consistent document reten- for their failure to archive relevant enlarging to accommodate this surge, tion policies in place. files.6 From a practical standpoint, companies face the daunting task of This archiving model, which relies managing a mass of archived data organizing this data to aid them in on classification of document type, can can be extremely inefficient and bur- their business operations and meet seem inefficient, for several reasons: densome if the archives are spotty their regulatory obligations. • Many companies find it difficult and poorly organized. If the company This article focuses on the current to enforce policies regarding must resort to restoring backup tapes model by which companies attempt proper retention and archiving of because of such poor archiving, costs to organize their data, and an emerg- documents, especially when such can greatly increase.7 Further, “[a] res- ing trend in some companies – to documents can easily be manipu- toration of personal mailboxes from archive nearly every piece of data in lated, deleted, or migrated to local a backup tape does not recover any general archive files and sort it out devices by individual employees.1 e-mails deleted by the user before later, referred to here as the “Keep It • Today’s business and technology the backup tape was made.”8 Thus, All” model. This article outlines the systems involve vastly increased dependence on backup tape restora- implications of a “Keep It All” model numbers of data sources.2 tion or selective archiving can lead to and its impact on electronic discovery, • The surge in data sources has out- problems in litigation. and closes with some practical guid- paced the ability to synchronize ance for companies considering a shift and manage data in real time. The Potential “Keep It All” Model to this model. Thus, data can be overlooked The “Keep It All” archiving model when requested in litigation or has a rather straightforward design – The Current Model and the regulatory proceedings. archive everything (or nearly every- “Keep It All” Model • Although some automated thing) and sort it later, when (and if) Although electronic communications archiving systems exist, their abil- required. Commentators predict that and word processing have become ity to categorize documents accu- many major companies may move in near-universal in business, archiving rately may be questionable.3 this direction.9
42 | February 2009 | NYSBA Journal The “Keep it All” model arguably pass muster under general standards change over time as the company’s solves the main problems associated for reasonable search capabilities. technology systems are upgraded, with the current model. Retaining all This could also reduce disputes regulations change, and approaches to data may quell fears of regulatory about the accessibility of particular the archiving process are revised. The violations or litigation charges of spo- documents. With massive storage sys- essential issues involved in a “Keep It liating documents.10 Moreover, with tems available to opposing parties, All” archiving system, however, will a “Keep It All” approach, employers electronic document production may remain. Given the emerging trend need not rely on employees to archive focus less on collection and more on toward this system, companies would their documents correctly. The cost of search of the document system. Parties be well-advised to begin to analyze storing everything, moreover, which may focus their efforts on negotiating the issues and carefully weigh their was once a concern for some business- search terms and date restrictions that options as the trend develops. ■ es, may shrink with the sharp decrease will tend to locate relevant documents. in storage prices. This negotiation should occur at the 1. See John Montaña, Strategies for Minimizing Litigation Risks, Costs, Information Mgmt. J., Jan. With the capability to store every- start of discovery, as the parties begin 1, 2008 (employees must be educated to archive thing centrally, and wirelessly in some to propound document requests, rather adequately). instances, employees need no lon- than in the middle of production, or in 2. Browning E. Marean, Evaluating E-Discovery ger pull data off a central system some cases during the trial.12 Solutions to Reduce Cost and Risk, and Comply with the FRCP, LJN’s Legal Tech Newsl., May 2008. and onto local storage devices. The 3. Mark Fellows, Retention Still Critical, Kalamazoo key to making this system work in a Practical Guidance Gazette, Mar. 29, 2007. mobile computing setting is to ensure For companies contemplating a “Keep 4. Brian Fonseca, E-discovery Rules Still Causing IT that individuals are (1) provided with It All” approach to archiving, the Headaches, Computerworld, Jan. 7, 2008. access to the central system while out practical consequences of such a shift 5. Nikki Swartz, Firms Unprepared for E-Discovery, of the office, and/or (2) easily able to should be carefully examined. Courts Information Mgmt. J., Nov. 1, 2007. upload documents created or man- will generally hold companies to the 6. “Judges have broad discretion to impose aged locally when returning to the standards they create for themselves spoliation sanctions based upon the degree of fault weighed against the prejudice to the injured office. Such a streamlined archiving in terms of data archiving, assuming party.” John Ruhnka & John W. Bagby, Litigation process should, in theory, capture all that they otherwise comply with appli- Support and Risk Management for Pretrial Discovery business documents. cable discovery rules and administra- of Electronically Stored Information, 77 CPA J. 5, May 1, 2007. See, e.g., Coleman (Parent) Holdings, Inc. v. tive regulations. Thus, a company that Morgan Stanley & Co., No. CA 03-5045 AI, 2005 WL What Happens to E-Discovery in a claims that it has a complete, central- 674885 (Fla. Cir. Ct. Mar. 1, 2005). “Keep It All” World? ized archive of all its documents must 7. In one recent case, “the cost to produce e-mails The decision to archive everything be able to deliver on that claim. from 350 to 400 backup tapes would be anywhere from $3,750 to $4,300 per tape.” Michael Osterman, may greatly reduce reliance on disas- In addition, although the costs asso- Not Preserving Data Properly Can Cost You, Network ter recovery backup tapes as a source ciated with potential spoliation claims World (Apr. 8, 2008). of document collection. Further, rather and inefficient collection methods 8. Dan Froomkin, Congress to Bush: You’ve Lost than gathering all locally saved docu- should decrease with a “Keep It All” Mail, Washingtonpost.com, Feb. 28, 2008. ments from each employee who may approach, the cost of searching larg- 9. See, e.g., David Farris, Expect to Archive Everything, Ferris Research, www.ferris.com (last have information relevant to the litiga- er archives could offset those gains. visited May 17, 2008). But see John Harney, The tion, the company should, in the event Thus, the subject matter of discovery Drive to Email Archive, 21 AIIM E-Doc Mag. 6, Nov. of litigation, simply be able to search disputes could shift from a focus on 1, 2007 (unnecessary for companies to archive everything). its central archives. This centralization collection sources and cost sharing to 10. “Every industry has government-mandated should, in turn, lead to a decrease in the adequacy of search terms and date retention requirements. On the legal side, general costs associated with collection of data, restrictions. If searches are too broad, counsel and human resources may worry that criti- since it is generally less expensive to the expense associated with attorney cal pieces of information that could support their positions – in [a] case of employment discrimina- search archives than it is to retrieve review of potential “hits” may drive tion or harassment claims, for example – may be and restore backup tapes or individual up litigation costs. For these reasons, destroyed.” Andrew Conry-Murry, Comply or Die: hard drives. (Many companies have companies in litigation should actively Data Disposition Must Be a Priority, InformationWeek welcomed this move away from the participate in negotiation of reasonable (June 7, 2008). use of backup tapes for litigation pur- search terms, in order to limit costs. 11. See Deni Connor, FRCP and e-discovery: One Year Later, Network World, Dec. 6, 2007 (“All the 11 poses. ) The particular approach to customers on our advisory board agreed that they Moreover, implementing a univer- archiving will, of course, depend upon need to get rid of backup tapes.”). sal archiving system should lead to a the individual company’s business 12. Rebecca Sausner, Email Archiving: Banks’ New decrease in spoliation claims. A stream- and technology needs. The centralized Quandary: Retain or Destroy?, 116 US Banker 10, Oct. 1, 2006. lined, central document archive should archiving approach, moreover, may
NYSBA Journal | February 2009 | 43 LAW PRACTICE MANAGEMENT BY GARY A. MUNNEKE AND DEB VOLBERG PAGNOTTA
GARY A. MUNNEKE ([email protected]) is a professor of law at Pace University School of Law in White Plains, where he teaches Professional Responsibility, Law Practice Management, and Torts. Professor Munneke is the Chair of the New York State Bar Association’s Law Practice Management Committee, Co-Chair of the New York Fellows of the American Bar Foundation, and a member of the Board of Governors of the American Bar Association. The opinions included in this article represent the personal views of the author and do not reflect the policy of the American Bar Association or its Board of Governors.
DEB VOLBERG PAGNOTTA ([email protected]) has been a lawyer since 1981. For the last 10 years, she has served as president of Interfacet, Inc. Unexpected Career Transitions
Introduction have not lost jobs personally have had Reluctantly, I started a solo practice in Among the skills broadly defined as to contemplate the possibility of pro- employment law, focusing on discrimi- practice management skills, those fessional dislocation. Ms. Pagnotta’s nation. Within several years I joined dealing with career development and insightful observations should connect a small firm in White Plains as an advancement are often overlooked. with more than a few Journal readers. employment practice partner. In 1999, As lawyers, we are forced to address as my interests and client base shift- career issues when we are in law “The One Less Traveled By” ed from litigation to counseling and school, and on those occasions when, In 1995, the year I turned 40, I was training, I created a consulting prac- by intent or necessity, we make profes- abruptly fired from my job as acting tice, which provided corporate train- sional transitions in our professional general counsel at a state agency. A ing on harassment, cultural diversity, employment. Yet many lawyers do new governor had just been elected, and conflict resolution. These issues not recognize that career skills are and the winds of change blew most of meshed well with my college stud- closely related to long-term success, my law colleagues out of their jobs. I ies in anthropology and linguistics. In however they define it, and personal had been in public service for 12 years 2000, when my law firm merged with satisfaction. Many lawyers deal with and had fully anticipated remaining another and my husband and I were in their careers only when circumstances there for at least 12 more. the process of adopting our daughter arise that force them out of the status Change did not sit well with me or from China, I realized that it was time quo. And those who work in one firm my fallen colleagues, despite assur- to reassess my work/life priorities. or other employment setting for their ances from well-meaning friends and After much soul searching, I decided entire professional lives may never counselors that “this could be the best to give up the traditional practice of confront these fundamental questions: thing that ever happened to you.” At law to pursue my consulting practice What do I want to achieve in my the time, I remember tucking into my exclusively. Now, almost 10 years later, career as a lawyer? What path should wallet a tiny copy of William Ernest I love my work; I make my own hours; I follow to attain my goals? What skills Henley’s poem “Invictus”: and, amazingly, I am able to weave my will I need to attain my expectations? Under the bludgeonings of various interests together daily. This month, the Law Practice chance, Management column turns to someone The New Realities. who has not only made her own career My head is bloody, but unbowed Beginning in 2008 and continuing into transitions, but who coaches lawyers . . . . 2009, lawyer layoffs from firms of all in the career transition process. Deb I am the master of my fate: sizes have occurred in record num- Volberg Pagnotta is the president of I am the captain of my soul. bers. In contrast to the years before Interfacet, Inc., a White Plains-based This was to be my mantra; I was the economic downturn, these lawyers human management consulting prac- determined to march forward as the face unique challenges in transition- tice. Her insights on career transitions sole master of my fate, and forge my ing to new work. First, we face the are particularly relevant in an eco- new future singlehandedly. Much harsh economic reality that law jobs nomic downturn, during which sig- to my surprise and distress, nothing themselves are decreasing, whether in nificant numbers of lawyers have been turned out the way I had envisioned. firm practice, the government sector, forced to come to grips with job loss First, law jobs were not abundantly or general counsel.1 So, less soup is in in a market where new opportunities available, and, second, competition the pot. Second, lawyers are used to seem limited, and even lawyers who was fierce for the ones that existed. being the advisors, the thinkers, and
44 | February 2009 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION the doers, not the ones who are “done- to.” Third, it is difficult to maintain optimism in a market where jobs are scarce, competition is great and the end is not in sight. Fourth, many, if not most, lawyers have developed a niche area of expertise. This creates a sense of limited opportunities, in their own and in others’ perceptions. Fifth, lawyers often have pursued a legal career since NEW youth, rendering this sudden, unwant- ed change additionally painful. However, as my own career coun- selors told me, these challenges also SENIOR LAWYERS present great possibilities. If you are a laid-off lawyer, or one who is contem- plating an intentional career change, consider the following measures to assist you in following your unique SECTION path. Welcoming new members Finding Your Own Path. Carefully explore what you – not This past November, the State Bar’s House of Delegates took an historic step others – want to do. Many will offer and created a new section dedicated solely to the needs and interests of advice on various options, but remem- attorneys who are age 55 and higher – more than 18,500 members. ber nobody else walks in your shoes. The new Senior Lawyers Section has been charged with the mission of: Take time to review what you liked • Providing programs and services in matters such as job opportunities; and what you didn’t like about your CLE programs; seminars and lectures; career transition counseling; past work. Assess your real financial pro bono training; networking and social activities; recreational, needs, and present assets. Make choic- travel and other programs designed to improve the quality of life of es that are best for you. senior lawyers; and professional, financial and retirement planning; Dealing With Circumstances. • Providing opportunities to utilize the expertise of senior lawyers in This may be an unexpected and dev- such activities as delivering pro bono and civic service, mentoring astating change for you, but it serves younger lawyers, serving on boards of directors for business and little purpose to assign blame or dwell charitable organizations, and lecturing and writing; and on your misfortune. Imagine sitting • Acting as a voice of senior lawyers within the Association and the in a boat, rowing as hard as you can community across a sea tossed in a storm by angry waves. When you are swept inexora- Eleven committees have been created to go about the work of the new bly in directions you did not anticipate section, including Age Discrimination, Employment Opportunity, Law Practice and which you cannot control, you Continuity, Legislation, Pro Bono, and Retirement Planning and Investment to may feel overwhelmed. It would be name a few. At this critical point in time, as we begin to build this new futile to waste your energy rowing section, we need the participation and dedication of senior Association frantically to get back to where you members – to join this section, to become involved on committees, and started. Instead, your survival may to take on active roles as committee chairs. We urge you to join us. depend on making your way out of the Membership in the section for 2009 is FREE if you join by March 31st, open waters and into a safe port where and the first 500 members will receive a commemorative Charter you can regroup and move on to new Member lapel pin. Joining is easy – you may join online at www.nysba.org/sls, opportunities. or phone us at 518-487-5578. Please act now – join the Senior Lawyers Section for your benefit, and the benefit of the Association, Your Choices Are Varied. the profession, and the community. You can work towards landing at an organization very similar to the one you recently left, with the goal of doing
NYSBA Journal | February 2009 | 45 the exact type of work you’ve always works such as LinkedIn. Call on col- the beginning). This hexagram “con- done. Or, you can transpose your legal leagues, or friends of colleagues, and notes a blade of grass pushing against skills – the ones you enjoy – to other other contacts for advice. It can feel an obstacle as it sprouts out of the types of legal work. Were you doing depressing to call and ask strangers to earth.”2 Career transition, particularly commercial work? Your writing skills talk with you, but framing the request involuntary transition, is not easy at all. might serve you well in appellate work, as one for an “information interview” It feels chaotic, wildly unpleasant, and legal journalism, or in-house counsel. changes the dynamic. People really even, dare I say it, humbling. By recog- If you love the advocacy of litigation, do like to help and talk and make nizing the difficulties that accompany explore other types of litigation that contacts. When you call, ask for 20 career change, you will be better posi- are seeing an upswing. Perhaps bank- minutes of that person’s time, rather tioned to move to a different place than ruptcy, foreclosure, or employment law than an hour. This reduces pressure, you would ever have thought or imag- makes sense for you. Alternatively, you and you will find most (although not ined. While you cannot control outside can use your diverse interests to create all) contacts receptive. As basic as this events, you can learn from them and a niche practice of your own. Are you a sounds, follow up the interviews with respond creatively and pro-actively. sports buff? You could focus on sports a thank you e-mail or note. As for me, since my own forced law. A great reader? What about intel- transition in 1995, I have replaced lectual property law? Do you have Becoming Your Own Best Advocate. “Invictus” with a different poem. an interest in adoption? Think about Use the tremendous skills – verbal, col- Hiking in Switzerland last year, all establishing a practice relating to the laborative, competitive, written – that along the hiking paths, stones, fences, myriad aspects of reproductive pro- you have developed over the years and trees were marked with white and cesses. What about a scientific back- since you graduated from law school. red paint marked the trails, and these ground in college? Consider patent Use real time to craft reasonable, con- markers were peculiarly comforting law; technology is only increasing and temporary resumes and cover letters. and resonant to me; even though these legal issues relating to hardware, soft- Do not put off this process, no mat- markers did not designate precisely ware and the Internet are blooming. ter how daunting it might feel. Tailor where I was hiking, they did tell me Last, perhaps this is the time to leave these documents to the jobs you are that I was indeed upon a path. Yet, I law altogether. Your specific skills are seeking and focus on real-life skills also know that there are times when transportable. This option may require and achievements. Review different the markers are uncertain, or altogether additional education, and now might resume styles and find the one that missing from the pathways, both in hik- be the time to get that master’s or best suits your search. ing in Switzerland and in our lives gen- Ph.D. that you’ve thought about over erally. On these occasions, “Invictus” these years. Creating and Using Support offers little guidance on where to go. Networks. Instead, these words from “The Road Seeking a Job Takes Time. Lawyers are used to being the counsel- Less Traveled,” by Robert Frost, offer You need to approach your job search ors, but now is the time to seek counsel more hopeful but more realistic advice: as a job in and of itself. Allocate several from others, whether close friends, Somewhere ages and ages hence: hours a day, if not more, to the search. partners or spouses, career coaches, Two roads diverged in a wood, Assume it may take many months. or therapists. You do not have to do and I Learn to network in the modern world. this on your own. Indeed, you cannot. While fantasy is wonderful, the chanc- Being laid-off inevitably shakes your I took the one less traveled by, es of simply being offered a perfect job sense of security and strength, no mat- And that has made all the 3 ■ immediately are small. ter how much you know the cause is difference. external not internal. As a lawyer, you Reaching Out for Help. have been in control, an advocate for 1. The U.S. Department of Labor has reported since June 2008 a steady decrease in legal sector You need to use all the tools you can others, or at the least, a wise counsel jobs. Across the board, it is reported that, as Wall to enhance your chances and visibility. to your clients. You have had rules to Street contracts, “the job losses will spread through- There is no shame in having been laid- follow, and you know how to play the out the economy, with private sector job loss reach- ing 175,000 in [New York City] and 225,000 [New- off. Seek out law school classmates. game. Now, you must reinvent your- York-statewide].” http://www.workforce.com/ Use your law school alumni and bar self, from the inside out. This takes section/00/article/25/99/02.php. The economy association networks. Let family and time, patience and humor. clearly will get worse before it gets better. friends know you are exploring new 2. The I Ching or Book of Changes, Bollingen Series XIX, The Richard Wilhelm translation, rendered options. If you belong to social groups, “Chun.” into English by Cary F. Baynes (11th edition 1974, let people know you are looking. Learn The Chinese Book of Changes, embody- Princeton University Press). new networking skills – specifically, ing Taoist philosophy, provides an apt 3. “The Road Less Traveled” in Mountain Interval begin to work with online social net- hexagram entitled “chun” (difficulty at by Robert Frost (Henry Holt & Co. 1920).
46 | February 2009 | NYSBA Journal METES & BOUNDS BY LAWRENCE SCHNAPF AND JOSHUA STEIN
LAWRENCE SCHNAPF ([email protected]) practices environmental law at Schulte Roth & Zabel LLP. He co-chairs the Hazardous Site Remediation Committee of NYSBA’s Environmental Law Section and chairs the Brownfields Committee of the Environmental Business Association.
JOSHUA STEIN ([email protected] or www.joshuastein.com) practices commercial real estate law at Latham & Watkins LLP. He previously chaired the NYSBA Real Property Law Section and has pub- lished extensively on commercial real estate law and practice.
The authors thank Karl Holtzschue for suggesting this article.
New Legislation Requires Property Owners to Disclose Air Contamination Reports
egislation that became effective The legislation sounds relatively The regulatory landscape changed late last year requires New York innocuous but, as is so often true, the a few years ago. After having deter- Lproperty owners to notify their full picture is much more complicated. mined that certain cleaned-up sites tenants and other occupants about would not pose a health risk, DEC was certain air contamination reports con- Vapor Intrusion and VOC surprised to discover significant levels cerning their property. The require- Contamination of VOCs in residences near those sites. ment may arise if a property owner The new disclosure statute responds to By 2005, DEC estimated that VOCs receives a report (referred to here as a phenomenon known as vapor intru- may have caused similar problems for an “air contamination report”) show- sion, which occurs when VOC vapors up to 750 sites in the state. DEC there- ing that air in the building has, or may migrate from the ground upwards or fore announced that for any VOC- have, concentrations of volatile organic sideways through soil into buildings. contaminated site then being inves- compounds (VOCs) that exceed gov- In extreme cases, these vapors can accu- tigated or remediated, DEC would ernmental guidelines. Typically such mulate to levels that create immediate require an evaluation of vapor intru- reports are made as part of an environ- safety hazards (such as explosions), ill- sion risks. In performing or requiring mental investigation or cleanup. VOCs nesses, or aesthetic problems (such as that evaluation and deciding when to include, for example, chlorinated sol- odors). More typically, however, when require remediation, DEC follows the vents such as trichloroethylene (TCE) VOC vapors migrate into buildings, the policies of the state’s Department of and perchloroethylene (“perc” or PCE, levels are much lower, creating the more Health (DOH). often used in dry cleaning). VOCs can insidious risk of chronic health problems DEC is now systematically review- arise wherever solvents were used. arising from long-term exposure. ing hundreds of VOC-contaminated The new law became effective on Until recently, the state’s Department sites that were pronounced “clean” December 3, 2008, as an amendment to of Environmental Conservation (DEC) before 2003. In its review, DEC looks Title 24 of New York’s Environmental focused primarily on soil and ground- for possible vapor intrusion problems. Conservation Law (ECL).1 Provisions water contamination. DEC did not To the extent it finds them, DEC may already in the ECL required that regard vapor intrusion as a signifi- not only require additional remediation responsible parties remediating a site cant potential risk unless VOC con- but may also require responsible par- under certain state remedial programs, tamination occurred directly next to an ties to give nearby property owners air including the state Superfund pro- occupied building or directly below its contamination reports. Under the new gram, give landowners copies of air foundation. Therefore, DEC remediation statute, those nearby property owners contamination reports. The ECL did programs usually focused on reducing would face disclosure obligations. not, however, require property owners soil or groundwater contamination, to disclose those reports to tenants and or at least eliminating pathways by Scope of Disclosure Obligations occupants. The new ECL section has which such contamination could reach The new disclosure statute does not taken that step. people. distinguish between residential and
NYSBA Journal | February 2009 | 47 commercial property, and hence seems held to discuss”3 the air contamination within ECL Title 24, and the original to apply to both. The definition of “test report. If a tenant or occupant requests sponsor’s memo for Title 24 suggests results” applies not only to actual indoor a copy of the air contamination report the Legislature enacted Title 24 spe- air sampling results but also to sample or notice of any closures, the property cifically in response to vapor intrusion results from “subslab air, ambient air, owner must provide it within 15 days. problems associated with VOCs. subslab groundwater . . . , and subslab If a property has an “engineering In addition, DEC’s regulatory defi- soil.”2 DOH uses very conservative control” in place to mitigate indoor air nition of “contaminant” refers only thresholds to determine when con- contamination or a monitoring pro- to petroleum and hazardous wastes. centrations of VOCs require further gram as part of a continuing reme- If the state has ordered a property The disclosure obligation does not seem to arise, however, if a property owner receives air contamination reports from a party identifi ed as a “volunteer” under the BCP or DEC’s previous Voluntary Cleanup Program. action. Based on these other sample diation program, the property owner owner to remediate asbestos debris or results, DOH and DEC may require must give prospective tenants the same radon waste, then the new disclosure disclosure even without requiring information as existing tenants. The requirement could conceivably extend or receiving any air contamination property owner must do this before a to these pollutants. But the Superfund reports. Moreover, indoor air test sam- prospective tenant signs any “binding program excludes naturally occurring ples may mislead, because they may lease or rental agreement.” radon, asbestos-containing materials, detect indoor air contamination arising To seek to assure compliance, prop- and lead-based paint that remain part from other chemicals used in the build- erty owners subject to the new dis- of a building. Thus, as a practical ing, such as paint, carpeting, or clean- closure obligation now must include matter, these issues seem unlikely to ing supplies, rather than from genuine a disclosure notice in their “rental or trigger air contamination reports from environmental problems. lease agreement.” This notice must issuers that would require disclosure. The disclosure obligation applies appear in at least 12-point bold face It seems reasonable to conclude that to any “test results” that a property type on the first page. It must read as the new disclosure obligations apply owner receives from (1) an “issuer,” follows: only to VOC-related air contamination defined as a party subject to a consent NOTIFICATION OF TEST reports. But the words of the statute order under the state Superfund pro- RESULTS paint a broader picture, and a conser- gram or an order or agreement under The property has been tested for vative property owner, or its counsel, the Navigation Law; (2) a “participant” contamination of indoor air: test may not want to read the statute as under the Brownfields Cleanup Project results and additional information limiting itself to VOC air contamina- (BCP)”; (3) a municipality operating are available upon request.4 tion reports. under an ECL Title 56 Environmental Any property owner that receives an Restoration Program contract; or (4) a air contamination report from anyone Contamination Reports party subject to Public Health Law should consult counsel to see whether Previously Received Title 12-A. the new disclosure requirements apply. The statute became effective on The disclosure obligation does not As a practical matter, the requirements December 3, 2008. Without doubt, it seem to arise, however, if a prop- should encourage property owners to applies to any air contamination report erty owner receives air contamination resolve any air quality problems quick- that a property owner receives on or reports from a party identified as a ly, if possible, so they no longer have after that date. But what if a prop- “volunteer” under the BCP or DEC’s to disclose the problems to prospective erty owner received air contamination previous Voluntary Cleanup Program. tenants. The Legislature may have had reports in 2007, or 2001, or 1985? Under the statute, within 15 days this in mind. The statute does not say whether after a property owner receives an air By its terms, the new statute requires property owners must dig through contamination report from an issu- disclosure of any air contamination their files to look for old air contami- er, the property owner must give all reports – not just reports about vapor nation reports. A fair reading suggests, tenants and occupants the follow- intrusion involving VOCs. Some envi- however, that the statute applies only ing: (1) fact sheets, to be prepared by ronmental consultants have therefore to information a property owner first DOH, about the contaminants at issue; suggested that the law also applies receives on or after the effective date. (2) notices of resources providing more to air contamination reports arising By its terms, the statute applies to any information; and (3) “timely notice of from asbestos, lead-based paint, radon, property owner to whom air contami- any public meetings required to be and mold. But the new statute resides nation reports “have been provided.” If
48 | February 2009 | NYSBA Journal the information was “provided” more typically requires such a report only A property owner that violates the than 15 days before the effective date, for hazardous substances that exceed a new disclosure requirement could face the property owner could not have “reportable quantity.” The new statute, the general criminal or civil penalties complied with the notification obliga- in contrast, seems likely to require a provided by the ECL.5 If the indoor air tion. Assuming that the Legislature property owner to disclose contami- contamination is determined to create did not intend to impose an unper- nation that might not rise to a report- an imminent and substantial endan- formable obligation, it is probably fair able release (e.g., historical contamina- germent, the property owner could to conclude that the new disclosure tion newly discovered, as opposed to face injunctive relief as well as fines of requirements disregard “old” air con- an actual discharge), yet which could up to $2,500 for each violation and $500 tamination reports. potentially require disclosure for VOC per day for each day it continues. If the Further, the legislative summary of concentrations that exceed government property owner becomes a responsible the new law speaks prospectively, stat- guidelines. party under the state Superfund law, ing that “this bill would require individ- Vapor intrusion problems often arise the violations could cost as much as uals, municipalities and the Department because of contamination on other $37,500 per day. of Environmental Conservation that nearby sites. Those problems could be conduct testing” to take certain actions. serious enough to trigger air contami- Conclusion and Overview This language suggests that the law nation reports, thus forcing a property The new statute, particularly when applies only to air contamination owner to disclose air quality problems placed in its historical context, reminds reports a property owner receives on or for which the property owner has no property owners of just how many after the effective date. responsibility. To avoid liability to its environmental problems and surprises The new law does not require prop- own tenants, the property owner might can travel with ownership of real prop- erty owners to conduct their own tests need to take remedial measures to pre- erty – even property that was believed or to perform any retesting. In cases vent vapors from migrating into its to be “clean.” where test results did not use actual building. A property owner could try Aside from the burden of clean- indoor air samples but instead were to recover the costs of these measures ing up an environmental mess, prop- extrapolated using modeling based on from a responsible party in a contribu- erty owners must now also bear the soil or groundwater samples, a proper- tion or cost-recovery action. burden of announcing the problem ty owner may (but also may not) want A property owner may also want to to their tenants – and possible ten- to take samples to determine whether try to treat some or all cleanup costs ants. This requirement cannot possi- air in the building complies with appli- as operating expenses for purposes of bly come as good news for landlords cable guidelines. operating expense escalations in its already facing a dramatically worsen- The new disclosure statute does leases. Whether tenants will accept that ing marketplace and now, perhaps, an not seem to apply if a property owner may represent another issue entirely, unexpected, and possibly substantial, unilaterally discovers air contamina- one that goes beyond this article. cleanup expense. ■ tion problems – unless it qualifies as an The ECL does not give property issuer – such as from public records or owners any remedy for loss of rent, 1. ECL § 27-2405 (2008 N.Y. Laws ch. 521). transactional due diligence. Of course, property damage, or toxic tort claims 2. ECL § 27-2405(1)(a). the property owner might have dis- that might result from nearby con- 3. ECL § 27-2405(2). closure obligations under other envi- tamination. Those issues remain the 4. ECL § 27-2405(3). ronmental laws or the common law. province of the common law. 5. ECL §§ 71-4001, 71-4003 Moreover, a violation of the new stat- ute might serve as evidence of breach of duty in a negligence action against the property owner.
Interaction With Other Law; Penalties When the new statute applies, it proba- bly imposes disclosure obligations that go beyond the common law. Disclosure obligations to tenants may also vary from a property owner’s obligations under environmental law to report contamination to government agen- cies. For example, environmental law
NYSBA Journal | February 2009 | 49 PLANNING AHEAD BY ERIC W. PENZER AND ROBERT M. HARPER
ERIC W. PENZER ([email protected]) is a partner in the trusts and estates litigation department at Farrell Fritz, P.C. Mr. Penzer is a graduate of the State University of New York at Stony Brook and received his J.D. from Fordham University School of Law.
ROBERT M. HARPER ([email protected]) is an associate at Farrell Fritz, P.C. He is a graduate of Boston College and earned his J.D. at Hofstra University School of Law.
Cutting Family Ties: The Inheritance Rights of Adopted-Out Children
n “adopted-out child” is “a to reflect the legal theory that an order beneficiary of a trust.11 The decedent, child who has been adopted of adoption changed the status of the Jessie C. Best (“Best”), had died leav- away from his [or her] natural adopted-out child’s right to inherit ing a Last Will and Testament (the A 1 parents” by order of adoption. Until from his or her biological family in “Will”) in which she provided for recently, the question of whether an intestacy.6 On the one hand, § 117, as the creation of a residuary trust and adopted-out child could share in a amended, ended the legal relationship designated her daughter, Ardith Reid class gift to a biological parent’s issue between the adopted-out child and his (“Ardith”), as the income beneficia- remained unsettled in the state of New or her parents for intestate distribution ry.12 Best’s Will directed the trustees York. In re Accounting by FleetBank2 purposes; on the other, the amended of the residuary trust “to divide [the] clarified the inheritance rights of section gave an adopted-out child the trust fund into as many shares or adopted-out children, and this article right to inherit from his or her adop- parts as there shall be . . . issue . . . addresses the development of the law tive family.7 In 1966, the Legislature and to continue to hold each of such with respect to these rights. added, among other things, a saving shares or parts in trust during the life provision to § 117, which authorized a of one of said persons” upon Ardith’s Early Developments biological parent to provide a bequest death.13 New York law was far more liberal to an adopted-out child by last will and Although the trustees of the resid- with regard to the inheritance rights testament.8 uary trust initially concluded that of adopted-out children before 1963. In addition to the saving provision, Ardith had only one son, Anthony R. Indeed, from 1896 to 1963, the New the 1966 amendments also addressed Reid (“Anthony”), they later learned York Domestic Relations Law permit- the inheritance rights of a child who is that Ardith had given birth to a non- ted adopted-out children to inherit adopted by a stepparent. Essentially, marital child and placed that child for from their biological parents in intes- the amendments extinguished the right adoption.14 In an effort to complete tacy.3 For example, in 1917, in In re of such a child to inherit from his or jurisdiction in their accounting pro- Landers’ Estate, the Surrogate’s Court, her non-custodial biological parent in ceeding, the trustees elected to cite Oneida County, held that the dece- intestacy.9 A judicially created excep- Ardith’s then-unknown, non-marital dent’s biological sister could inherit tion to this statutory principle applies child, and secured Ardith’s consent to from his estate, notwithstanding the where the child is adopted following ascertain that child’s identity.15 After sister’s adoption out of the family.4 the non-custodial parent’s death.10 consulting with a caseworker from The court premised its decision on the the agency that oversaw the child’s theory that the inheritance rights of the In re Best adoption, the child’s adoptive parents decedent’s sister, much like those of all In In re Best, the Surrogate’s Court, identified the child as David Lawson other adopted-out children, remained Westchester County, the Appellate McCollum (“David”).16 unaffected by the adoption.5 Division, Second Department, and the Following Ardith’s death, the trust- In 1963, however, the New York Court of Appeals addressed whether ees initiated a construction proceeding State Legislature amended N.Y. an adopted-out individual is entitled in order to determine whether to treat Domestic Relations Law § 117 (DRL) to receive income as a secondary life David as a secondary income benefi-
50 | February 2009 | NYSBA Journal ciary.17 Opining that it had a duty to the child’s complete assimilation into biological family as a class gift benefi- construe DRL § 117 narrowly, the sur- the adoptive family.”27 ciary, if (1) the child’s adoptive parent rogate’s court answered that question The Court also referenced other fac- is (a) “married to the child’s birth in the affirmative, holding that David tors, such as the necessity to maintain parent,” (b) “the child’s birth grand- was entitled to a share of the trust the confidentiality of adoption records parent” or (c) “a descendant of such established for the benefit of Ardith in order to encourage the development grandparent”; and (2) “the testator or and her issue.18 The court reasoned of relationships between the adopted- creator is the child’s grandparent or a that § 117 applied to intestate distribu- out child and the adoptive family, a descendant of such grandparent.”35 tion, but not to dispositions made by goal which would be breached with In In re Seaman, the Court of Appeals, will or trust, and, therefore, did not great haste if the child were to be noting the 1987 amendments, held that preclude David from being included included as the beneficiary of a class § 117 did not preclude the petitioner, as one of Ardith’s issue.19 As support gift from his or her biological family.28 the decedent’s niece, from securing for that holding, the court noted that Another factor was the possibility that letters to administer the decedent’s the Will did not contain any indication surrogate’s court decrees would be estate simply by virtue of the fact that as to an intention on the part of Best to devalued by the inclusion of the child in her father, the decedent’s half-brother, disinherit David or any other adopted- the class of permissible beneficiaries.29 was adopted by his stepfather after his out child of Ardith from the class of The concern was that decrees would biological father, the decedent’s father, beneficiaries of the residuary trust.20 never be final, because there might be divorced his mother.36 Anthony appealed the surrogate’s an unknown, adopted-out child lurking decree to the Appellate Division.21 Like in the background and waiting to take In re Accounting by FleetBank the surrogate’s court, the Appellate as a class gift beneficiary.30 Most recently, in In re Accounting Division referenced the fact that § 117 by FleetBank, the Surrogate’s Court, applied to intestacy, but not to inheri- Post-Best Amendments to § 117 Monroe County, the Appellate tance by will.22 The court also noted that In 1986, following the Best decision, the Division, Fourth Department, and the the term “issue” included marital and Legislature amended § 117 to reflect the Court of Appeals addressed whether non-marital children alike, and thus Court of Appeals’s reasoning that once an adopted-out child was entitled to
The Court discussed the public policy considerations that “militate[d] against construing a class gift to include a child adopted out of [a] family.”
David’s status as a non-marital child a child is adopted out of his or her bio- a share of a class gift established in was not dispositive.23 Accordingly, the logical family, the child is deemed to be an irrevocable trust for the benefit of Appellate Division, noting that there a “stranger” to the biological family for the child’s biological parent and that was insufficient evidence of Best’s inheritance purposes.31 Under the 1986 parent’s issue.37 In FleetBank, Florence intent to exclude David from the class amendments, the general rule applies Woodward (“Woodward”) established of Ardith’s issue, affirmed the decree whether the adopted-out child seeks irrevocable trusts in 1926 and 1963 for of the surrogate’s court.24 to inherit as a class gift beneficiary of the benefit of her daughter, Barbara The Court of Appeals reversed.25 a will or trust or through intestacy.32 W. Piel (“Piel”), and Piel’s issue.38 In doing so, the Court discussed the Of course, an adopted-out child can The 1926 trust instrument directed the public policy considerations that still inherit from his or her biological trustee to distribute that trust’s net “militate[d] against construing a class family if a biological family member income to Piel’s descendants, in equal gift to include a child adopted out executes an instrument evidencing an shares, upon Piel’s death, while the of [a] family.”26 Chief among those intent to include the adopted-out child 1963 trust instrument provided for the considerations were two interrelat- in the class of beneficiaries provided distribution of that trust’s principal to ed rationales: (1) the theory that the for in a will or trust.33 Piel’s living children, in equal shares, Legislature intended to sever the legal In 1987, the Legislature once again at Piel’s death.39 relationship between an adopted-out amended § 117 to create exceptions to Although she gave birth to three child and his or her biological fam- the general rule prohibiting an adopt- children, Piel raised only two of her ily when it enacted § 117, and (2) the ed-out child from inheriting from his three biological children, having placed notion that permitting an adopted-out or her biological family.34 The 1987 her first-born child, Elizabeth McNabb child to inherit from his or her biologi- amendments provide that an adopted- (“McNabb”), for adoption shortly after cal family “would be inconsistent with out child can inherit from his or her McNabb’s birth in 1955.40 Piel forfeited
NYSBA Journal | February 2009 | 51 her parental rights with respect to Applying those principles to 11. In re Best, 116 Misc. 2d 365, 365 (Sur. Ct., Westchester Co. 1982), aff’d, 102 A.D.2d 660, 477 McNabb, and an Oregon court formal- FleetBank, the Court opined that the N.Y.S.2d 431 (2d Dep’t 1984), rev’d, 66 N.Y.2d 151, ized the adoption in an order later Domestic Relations Law in effect at 495 N.Y.S.2d 345 (1985). that year.41 From that point forward, the time Woodward executed the 1926 12. In re Best, 66 N.Y.2d 151, 153–54, 495 N.Y.S.2d McNabb lived with her adoptive fam- and 1963 irrevocable trust instruments 345 (1985). ily, as a member of the adoptive family, did not establish a right on the part 13. Id. and had no further contact with Piel.42 of McNabb, or any other adopted-out 14. Id. Piel died in 2003. Following her child, to take a share of a class gift to 15. Id. death, FleetBank commenced proceed- Piel, her issue, or the issue of another 16. Id. ings to judicially settle its final accounts biological family member by implica- 17. Id. for the two irrevocable trusts.43 The tion.54 In addition, the Court noted the 18. Id. at 371–75. bank declined to include McNabb or public-policy considerations discussed 19. Id. at 373–75. her children as interested parties in the in Best – especially the necessity to 20. Id. proceedings.44 McNabb objected on the fully assimilate an adopted-out child 21. In re Best, 102 A.D.2d 660, 660, 477 N.Y.S.2d 431 ground that she was entitled to one- into the adoptive family and the need (2d Dep’t 1984), rev’d, 66 N.Y.2d 151, 495 N.Y.S.2d 345 (1985). third shares of the net income from the for finality in surrogate’s court pro- 22. Id. at 660–61. 1926 trust and principal from the 1963 ceedings – and concluded that those 23. Id. 45 trust. Relying on the Best decision, considerations required the same result 24. Id. 55 the surrogate’s court held that McNabb in FleetBank as in Best. 25. In re Best, 66 N.Y.2d 151, 155–56, 495 N.Y.S.2d did not qualify as Piel’s “descendant” 345 (1985). or “child” because she was adopted Conclusion 26. Id. out of Piel’s family; therefore, she was Since 1963, New York’s Legislature 27. Id. not entitled to a share of either the 1926 and the Court of Appeals have consis- 28. Id. or 1963 trust.46 Accordingly, the sur- tently limited the overtures of adopt- 29. Id. rogate’s court approved FleetBank’s ed-out children to inherit from their 30. Id. accounts.47 biological family members, except in 31. N.Y. Dom. Rel. Law § 117(2)(a); Scheinkman, supra note 6. McNabb appealed. The Fourth certain statutorily prescribed circum- 32. Scheinkman, supra note 6. Department reversed the surrogate’s stances. This is primarily because of 33. Id. 48 decrees premised on the theory the underlying legislative desire to 34. Id. that New York law did not exclude further the assimilation of adopted-out 35. N.Y. Dom. Rel. Law § 117(2)(b). an adopted-out child from the perti- children into their adoptive families. 36. In re Seaman, 78 N.Y.2d 451, 453–62, 576 N.Y.S.2d nent class of beneficiaries at the time In keeping with § 117 of the Domestic 838 (1991). Woodward executed the irrevocable Relations Law and the policy-based 37. In re Accounting by FleetBank, 38 A.D.3d 1235, 49 1236–38, 831 N.Y.S.2d 609 (4th Dep’t 2007), rev’d, 10 trust instruments – 1926 and 1963. As justifications for said section, it logi- N.Y.3d 163, 165, 855 N.Y. S.2d 41 (2008). the court explained, McNabb’s “status cally follows that New York courts will 38. Best, 10 N.Y.3d at 165–66. . . . as an adopted-out child [did] not continue to consider most adopted-out 39. Id. exclude her from the class of [Piel’s] children to be “strangers” from their 40. Id. descendants or children.”50 biological families for inheritance pur- 41. Id. The Court of Appeals reversed the poses. ■ 42. Id. Appellate Division.51 At the outset, 43. Id. 1. Eve Preminger et al., N.Y. Practice: Trusts & the Court explained that it is unneces- Estates Practice in N.Y. § 7:42 (2007). 44. Id. sary to consider extrinsic evidence of 2. In re Accounting by FleetBank, 10 N.Y.3d 163, 167, 45. Id. a grantor’s intent to include a person 855 N.Y.S.2d 41 (2008). 46. Id. in a class gift where the terms of a 3. Id. 47. Id. trust instrument are clear.52 However, 4. In re Landers’ Estate, 100 Misc. 635, 640–42, 166 48. In re Accounting by FleetBank, 38 A.D.3d 1235, N.Y.S. 1036 (Sur. Ct., Oneida Co. 1917). 1236–38, 831 N.Y.S.2d 609 (4th Dep’t 2007), rev’d, 10 where, as in FleetBank, the terms of the 5. Id.; see also FleetBank, 10 N.Y.3d at 167. N.Y.3d 163, 165, 855 N.Y.S.2d 41 (2008). trust instrument are ambiguous and 6. Alan D. Scheinkman, Commentary, N.Y. Dom. 49. Id. there is no evidence as to the grantor’s Rel. Law § 117 (2007). 50. Id. (citation omitted). intent to include or exclude a person 7. FleetBank, 10 N.Y.3d at 167; Alan D. Scheinkman, 51. In re Accounting by FleetBank, 10 N.Y.3d 163, 165, in the class of beneficiaries, a court Commentary, N.Y. Dom. Rel. Law. § 117 (1999). 855 N.Y.S.2d 41 (2008). may create general, but rebuttable, 8. FleetBank, 10 N.Y.3d at 167. 52. Id. at 166–67. principles of construction on the basis 9. Id. 53. Id. of statutory interpretation and public- 10. In re Karron’s Will, 52 Misc. 2d 367, 368–70, 275 54. Id. at 168–69. N.Y.S.2d 933 (Sur. Ct., Kings Co. 1966). policy concerns.53 55. Id.
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To the Forum: between the firm and the client. These which may be proscribed is entering I am an associate in a large Man- varying degrees of participation in the into a sexual relationship with a cur- hattan firm. Most of my clients are representation will determine how rent client, where emotional involve- large corporations with thousands of problematic the romantic relationship ment may cloud objective professional employees. I have contact with several is from a professional responsibility judgment, and commencing a sexual employees of one particular company perspective. relationship with a client he represents on a daily basis, and attend events There are few bright line rules who is wholly dependent on him and sponsored by the company. with regard to romantic relationships in a very vulnerable state. That could Here is my question. I have recently in the context of the attorney-client be considered an abuse of his position” begun dating one of this company’s relationship. Ethical Consideration 5-1 (emphasis in original). This argument employees, although I still interact (EC) provides generally that a lawyer seems to be reflected in the language with her professionally. I have not should exercise professional judgment of DR 5-111(B), which prohibits sexual been asked to refrain from contact solely for the benefit of the client, conduct resulting from intimidation, with her as a result of our romantic free from compromising influences or or as a condition of representation. relationship, nor do I think that my loyalties, and the lawyer’s personal However, it is not “the sexual relation- legal judgment has been or will be interests should not be permitted to ship per se which constitute[s] a breach compromised. However, some of my dilute the lawyer’s loyalty to the client. of professional responsibility but rath- colleagues have suggested that these DR 5-101(A) further emphasizes this er the attorney’s attempt to exploit circumstances ultimately might cause point by stating that a lawyer should the professional relationship to gain problems for me and for our firm. Is not accept or continue employment if unsolicited sexual favors.” Edwards there any reason to be concerned? the exercise of professional judgment v. Edwards, 165 A.D.2d 362, 367, 567 Sincerely, on behalf of the client will be or reason- N.Y.S.2d 645 (1st Dep’t 1991). Involved ably may be affected by the lawyer’s There are more general reasons to own personal interest. avoid romantic relationships with cli- Dear Involved: Only one clear rule exists with ents. These include the potential for an Whether a romantic relationship regard to sexual relations with a cli- abuse of power by lawyers, negative between an attorney and an attor- ent within the context of a current publicity about lawyers, emotional ney’s client runs afoul of the profes- representation. DR 5-111(B) states that sional disciplinary rules depends on a lawyer shall not: (1) “demand sexual the scope of the representation, and relations with a client . . . as a condition The Attorney Professionalism Committee the role of the attorney and the client of any professional representation”; (2) invites our readers to send in comments in that representation. “[e]mploy coercion, intimidation, or or alternate views to the responses In your situation, the romantic inter- undue influence in entering into sexual printed below, as well as additional est is a client’s employee (a “client rep- relations with a client”; and (3) “[i]n hypothetical fact patterns or scenarios to resentative”), and not a direct client, as domestic relations matters, enter into be considered for future columns. Send might be the case in a domestic relations sexual relations with a client during your comments or questions to: NYSBA, matter (where romantic relationships the course of the lawyer’s representa- One Elk Street, Albany, NY 12207, Attn: during the representation are expressly tion of the client.” (DR 5-111(C) permits Attorney Professionalism Forum, or by prohibited by the Disciplinary Rules sexual relationships that predate the e-mail to [email protected]. (DR), as noted below). Even in the case attorney-client relationship. It would This column is made possible through of a client representative, however, the also seem that relationships entered the efforts of the NYSBA’s Committee on scope of the representation and the cli- into after the end of the representation Attorney Professionalism. Fact patterns, ent representative’s own role can vary, are acceptable as well.) The reason names, characters and locations presented and with it the lawyer’s responsibili- often given for the express prohibition in this column are fictitious, and any resem- ties. The attorney could be defending of sexual relations in domestic rela- blance to actual events or to actual persons, the client representative’s deposition, tions cases is the danger of exploita- living or dead, is entirely coincidental. These or the attorney could be doing no more tion of a vulnerable client by the more columns are intended to stimulate thought than drafting and reviewing basic powerful attorney. and discussion on the subject of attorney documents. The client representative’s Although DR 5-111(B) may not professionalism. The views expressed are role could also vary, from a situation prohibit most romantic client relation- those of the authors, and not those of the where she is an important decision ships, it may still be best to avoid Attorney Professionalism Committee or maker who relies on the advice of the engaging in one. In Sanders v. Rosen the NYSBA. They are not official opinions attorney, to one where she serves a (159 Misc. 2d 563, 605 N.Y.S.2d 805 on ethical or professional matters, nor purely administrative function, such (Sup. Ct., N.Y. Co. 1993)), Justice should they be cited as such. as coordinating the flow of documents Greenfield stated that “[t]he conduct
54 | February 2009 | NYSBA Journal harm to clients, potential conflicts of from the representation will depend revealing a client confidence without interest, incompetent representation on the circumstances in which you the client’s consent. I am also con- (i.e., a cloud on a lawyer’s judgment find yourself. For example (and there cerned that a potential or actual adver- stemming from the lawyer’s romantic is not enough information to indicate sary might read my post and obtain an interest or emotional entanglement), that this fits your situation), if a junior advantage by knowing my thoughts and loss of attorney-client privilege associate engages in a romantic rela- about the matter. Does posting a hypo- (pillow talk is not necessarily lawyer- tionship with a high-ranking director thetical about a specific client matter client communication). or officer of the company, this might violate the obligation to keep client It is clear that it is unethical to take be perceived as an opportunity for communications confidential? advantage of a vulnerable client in that associate to use that relationship Sincerely, domestic relations matters, and per- for personal gain. That would not be Lawyer Online haps even in other cases of direct rep- good for the associate, or for the client resentation of an individual, especially representative. where the lawyer is solely responsible A romantic relationship between a From the NYSBA Book Store for professional judgments on behalf client representative and an attorney, Foundation Evidence, of the client. The situation becomes far whether their relative positions in their Questions and Courtroom less clear, however, when the client is a firms are widely disparate or equal, Protocols, Second Edition large institution with many employees, might pose no difficulty for either. On the nature of the work is transactional, the other hand, it could jeopardize and where little to no professional the attorney’s work product, attorney- judgment is exercised on behalf of the client privilege and the interest of other individual with whom the lawyer is clients of the firm. These risks should involved. Furthermore, the identity of be strongly considered when deciding the actual client can be unclear when to enter into such a relationship, even the named “client” is an organization, where it is not expressly prohibited by but the attorney interacts with cli- firm or company policy, or by the pro- ent representatives, as is the case you fessional disciplinary rules. present here. As discussed above, an The Forum, by analysis of the propriety of the rela- Anastasia V. Byrnes tionship will depend on the scope of New York City the representation and the roles of the Foundation Evidence, Questions and parties within the representation. Courtroom Protocols, Second Edition aids litigators in preparing appropriate foundation Although you do not specify the QUESTION FOR THE scope of the representation, or the role testimony for the introduction of evidence of you as the attorney and the client NEXT ATTORNEY and the examination of witnesses. representative, it appears that your ser- PROFESSIONALISM FORUM: vices are currently not being affected AUTHORS Hon. Edward M. Davidowitz by the romantic relationship. However, I am a member of a bar association Bronx County Supreme Court given the mercurial nature of these listserve in which members discuss Criminal Court relationships, one should err on the legal issues that affect their practices. Robert L. Dreher, Esq. Office of the Bronx County side of caution. You should inquire as Often, a member will post a question Executive Assistant District Attorney to whether the firm has a policy on that relates to a specific matter he or relationships with clients or client rep- she is handling, and begins by writing, PRODUCT INFO AND PRICES resentatives. (It should be noted that a “I have a client who . . . ” The posting 2009 | 208 pp., softbound | PN: 41078 violation of DR 5-111(B) is not imputed attorney then goes on to explain the NYSBA Members $50 / Non-members $60 to the other lawyers in a firm.) If there matter, provide an analysis, including is no such policy you are in a gray area. questions and uncertainties, and his Free shipping and handling within the continental U.S. The cost for shipping and handling outside As indicated above, your particular or her perception of the strengths and the continental U.S. will be added to your order. situation is one in which the profes- weaknesses of the client’s position. Prices do not include applicable sales tax. sional disciplinary rules provide only Such a post typically generates general guidance. Judgments about numerous responses. I have often con- Get the Information Edge what is proper can be very subjec- sidered seeking advice from the mem- 1.800.582.2452 tive, and determining when it is time bers of the listserve concerning matters www.nysba.org/pubs for you to notify a supervisor or the I am handling, but have hesitated to Mention Code: PUB0438 firm or to make a decision to resign do so because I am concerned about
NYSBA Journal | February 2009 | 55 The Legal Writer Continued from Page 64 state with words like “always” and Be Specific. Specificity accom- “never.” Persuasive advocates cau- plishes two purposes in brief writ- conclusions are powerful and effec- tiously, although confidently, under- ing. It shows that the advocate has tive. The introduction and conclusion state all their positions. They avoid researched thoroughly. It also makes should highlight the brief’s primary biased modifiers and don’t offend or the adversary’s position more difficult arguments, explain how existing law misquote adversaries, opposing coun- to prove by creating fewer loopholes in supports those arguments, and state sel, or other courts. Boundaries are one’s own argument. Providing non- what the brief is asking the court to exceeded when an advocate unfairly conclusory examples using concrete do. Articulating positions persuasively attacks and accuses the adversary, the nouns and, better, vigorous verbs is an means writing in plain, simple English, court, or a court below or comments effective way to stay detail-oriented. not in Latin, legalese, or complex con- on their motives. Advocates must also In describing a car accident, the stron- ditionals. portray the record scrupulously and ger argument recalls the color, model, Be Credible. Maintain integrity. All accurately. make, time of day, number of pas- advocates hope the judge will agree Cite Accurately. Persuasive advo- sengers, and intersection at which the with them on every issue. The per- cates use relevant sources carefully accident occurred, as opposed merely suasive advocate knows that this isn’t and then cite what they use and use to stating that “two black cars collided always possible. A successful advo- what they cite. An advocate’s brief can at some point in the afternoon.” cate knows the adversary’s position, cite multiple sources, including cases, Be Original. Persuasive practitio- anticipates the adversary’s arguments, other briefs, law-review articles, and ners find ways to argue their positions states the adversary’s arguments fairly, documents from the record. Regardless memorably, even when they follow a Advocates are not credible if they argue emotionally rather than about emotional facts. and rebuts the adversary’s arguments of the source cited, the advocate must generally adhered-to format for court without being defensive. Having consult the appropriate citation man- writing. For example, the less boiler- a grasp of the other side’s position ual, adhere to proper citation rules, plate, the more memorable. The same allows the advocate to argue particular and give the necessary information. applies to long, boring quotations, points more vehemently than others. The persuasive advocate uses pinpoint which go unread. Writing memorably Advocates are credible if they refute (jump) cites to tell the judge the exact means varying sentence length and the opposing argument in their oppos- page where the citation came from. sentence structure and choosing good ing papers. Advocates are credible if The more information the advocate words — not fancy ones — to convey they can distinguish which arguments gives in citations, the more persuasive positions. It means avoiding metadis- should be conceded — and when — the argument. course — running starts like “the first and which are meritorious. Advocates Be Reasonable. A persuasive advo- thing I will argue is that it is well- are not credible if they overpromise cate is reasonable. This means being settled that . . . .” — and clichés. It but under-deliver. Advocates are not logical and fair in arguing positions means referring to parties by names credible if they overargue, such as by and asking for relief. The professional that bolster positions. It means adding maintaining that the client is inno- doesn’t make requests that are far- visuals and examples that illustrate cent rather than that the prosecution fetched or unsupported by the record concepts. It means leaving lots of white didn’t prove guilt beyond a reasonable or legal authorities. The professional space in the brief to make it easy for doubt. Advocates are not credible if doesn’t make frivolous claims or raise the judge to read. The goal is to write they argue emotionally rather than frivolous defenses. More than violating for the ear but to make the brief pleas- about emotional facts. Advocates are ethical rules or risking sanctions, argu- ing to the eye. not credible if they use false emphatics ing nonmeritorious positions affects Be Short and Sweet. Make your like bold, italics, underlining, capitals, meritorious positions: The judge might argument and move on. Write it once, and quotations for effect and sarcasm assume that the advocate is unrea- all in one place. Brevity will make instead of letting the argument speak sonable and wrong about everything. the brief clearer and more persuasive. for itself. The professional stresses content, not Judges multi-task and consider mul- Know Boundaries. A persuasive adjectives, style, and drama. The pro- tiple cases simultaneously. The brief advocate knows boundaries. An fessional avoids adverbial excesses like should get to the core of the argu- advocate may never exaggerate. The “only” and “certainly.” Few things can ment quickly. Otherwise, the advo- persuasive advocate doesn’t over- be said with certainty. cate’s writing will be lengthy and dis-
56 | February 2009 | NYSBA Journal Advocates are organized. The judge will be forced and edit. A brief written without to piece together the advocate’s argu- not credible if they the advocate’s conducting effective ments. That wastes the court’s time, research, outlining arguments, and and the judge might choose not to overpromise but editing is an unpersuasive and care- read the brief. Also, the clearer and under-deliver. less brief. Persuasive advocates will more concise the brief is, the lower the have uncovered material relevant to risk that the judge will overlook an their case and their adversary’s case. argument. If the advocate’s arguments advocate weaves the facts of the par- Persuasive advocates start early and are laid out explicitly throughout the ticular case into existing, applicable edit late. brief, the judge won’t need to search law. This requires the advocate to be Proofread. The persuasive advocate through numerous pages of discus- an expert on the facts and the record must check for errors after finish- sion to understand the position being and to have a comprehensive view on ing writing. Whether the errors are advanced. favorable and unfavorable precedent. grammatical, stylistic, typographi- Give a Roadmap. The advocate An advocate who has a good under- cal, they make an advocate’s posi- should give the judge a short and sim- standing of the law relevant to the tion less persuasive. A brief with ple introduction at the start to set out case can successfully analogize and errors means that the advocate did the argument and format of the brief. distinguish the client’s position from not review the brief thoroughly and This creates a coherent and readable earlier cases. An advocate’s position carefully. This makes a judge see that text. It also puts the main points of the can be bolstered by comparing and advocate as careless. Advocates care- argument at the forefront. That allows contrasting the case from other cases. less about typos might be careless the judge to know what arguments are An advocate who succeeds in analo- about the record. To eliminate errors, being made before the judge begins gizing and distinguishing the client’s the advocate should edit and revise reading the facts and precedent. It position can weaken the adversary’s several times. The advocate should also makes it more difficult for an position. spend some time away from the brief adversary to misunderstand and mis- Have a Theme. After some pre- between the writing and editing stag- interpret the argument. This abridged liminary research has been done but es and get an editor to review the and straightforward roadmap will before the advocate begins to write, brief for errors. This allows the advo- guide the structure of the brief and the advocate should see the big pic- cate to read and re-work the brief guide the judge through the brief in ture and outline how to convey it. with a fresh thought process and find its entirety. This allows the advocate to develop errors the advocate might otherwise Organize and Limit Issues. Persua- a legal theory that can serve as the overlook. sive advocates argue issues, not giv- brief’s overarching theme. A theme Written advocacy is a powerful ens, history, or facts in the narrative. is a single idea that runs through the tool in persuading the judge. A per- The persuasive advocate then gives entire brief. The theme should be easy suasive advocate takes the time to the best argument first, supports the to understand. The theme guides the draft a brief to ensure that the final best argument by the best law first, way an advocate portrays the facts draft is polished. Persuasion requires and then applies the best facts first. and tells a story. Knowing the theme the skill and effort to move the judge’s Discussing every conceivable argu- enables the advocate to emphasize law heart and mind. The time expended ment is a losing strategy. Advocates and fact that support the theme and to aids not only the client but, in our should identify the strongest and de-emphasize law and fact irrelevant adversary system, the administration most important issues affecting their to the theme. The persuasive advo- of justice as well. Judges are only as position and argue only those. These cate will make sure that every argu- good as the advocates who appear will be the issues that have the great- ment supports that theme or rebuts the before them. ■ est possibility of success. The judge adversary’s theme. neither wishes nor has time to hear Don’t Rush. No need to speed every conceivable argument. Worse, a through brief writing. Persuasive writ- GERALD LEBOVITS is a judge of the New York City judge who hears some frivolous argu- ing takes time. It requires the advocate Civil Court, Housing Part, in Manhattan and an ments might lose focus and believe to schedule. A persuasive brief will adjunct professor at St. John’s University School that all the arguments are frivolous. have been thought out in advance — of Law. This column is adapted from a piece he A persuasive practitioner will distin- but not too well thought out, because wrote for the Advocate, the Bronx County Bar guish between strong arguments and that will delay the writing process Journal. For her research, he thanks Brooklyn weak arguments and present only the — and written in multiple stages. Law School student Brieana Winn. Judge winning ones. The successful advocate will allocate Lebovits’s e-mail address is [email protected]. Analogize. Use fact and law to enough time to research applicable articulate positions. A persuasive law, outline the argument, write,
NYSBA Journal | February 2009 | 57 NEW MEMBERS WELCOMED
FIRST DISTRICT Alice Eileen Delaney Kory A. Langhofer Ira D. Reifer Asaf J. Yeshaya Matthew Adam Abreu Christopher John Delmond Tanya E. Lawrence Morghan Leia Richardson Eric Sungchan Yoo Nicole R. Abruzzo Christopher Clare Diaz David Chunyi Lee Sarah Yasmin Rifaat Diane Yu Dina Ackermann Michael Joseph Driscoll Linda Grace Lee Antonio Phillip Riggio Minjung Yu Amit Gopal Alankar Diana Drits Sara Christine Lenet Ayana Monique Anne-Marie C. Yvon Syed Riaz Ali David Duffo Weinstock Regina Anne Lennox Robertson Ali Allen Zeren Yasmeen Alma Allen Gareth Eagles Laurie J. 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Smith Geraint Alan Chen Courtney Ann Jean David Maxwell Pantirer Gordana Vasic FOURTH DISTRICT Xinchen Chen Jason Stephen Juceam John Papachristos Ronald Warren Victor Emily Susan Cartwright Aileen Yunsoon Choo Nicole Mari Junco Ciro Anthony Carlos Estanislao Von Der Molly Elizabeth Christy Mimi M. Ka Parascandola Heyde FIFTH DISTRICT Yuan Jessica Chuang Ronald Kalungi Karen Sunhyon Park Ludwig Maximilian Von Paul L. Chapman Jason Binam Cimmiyotti Evan Ross Kaufman Amanda Frances Parsels Rigal - Von Kriegsheim Randolph Blackburn Andrew Thomas Cleary Patrick Sebastian Radden David Eric Parsly Yi Wang Soggs Barbara Allen Cole Keefe Juan Lazaro Pena Amanda L. Weiss SIXTH DISTRICT Joanne Alison Collett Claudia Junghwa Kim Megan Leigh Petrus Benjamin Stuart Whetsell Jocelyn Eleanor Getgen Devon Ann Corneal Paul Heetak Kim Lauren Jill Pincus Earl Patrick White William Gabriel Creeley Pauline S. Kim David Charles Pitluck Veronica Wissel EIGHTH DISTRICT James Anthony Croft Elizabeth Shire Klaproth Elisa Beth Pollack Michelle Wong Rhonda P. Ley Jessica Vavara Barry Jonathan Klein David W. Pollak Timothy Gavin Woods Marisa Villeda Cunningham Stacey Pamela Klein Kelly Amanda Porcella Carolyn Louise Wright NINTH DISTRICT Patrick Daniel Curran Preeti Kohli Joseph Thomas Pottanat Eric Justin Wursthorn Laura Del Gaudio Anthony Michael Christina Kyriazakos Brian Patrick Quinn Shintaro Yamaguchi Garron R. Fischmann D’Agostino Jennifer Mele Lambert John Peter Quinn Chen Yang Catherine Francis Gale Laurent Deis Matthew W. Lampe Sean F. Reid Jane Daniella Yanovsky Brian Scott Geary
58 | February 2009 | NYSBA Journal Allen James Gerrard Michael Ghirmay Zev Svirsky Eve-Christie Marie Spencer Alan Wolfson Natalie Giraldo Andegeorgis Danielle L. Trostorff Vermynck Anupama Yerramalli George Michael Groglio Bruce Lawrence Atkins Le Thi Huyen Trung Viktoriya Volodymyrivna Seong Un Yun Aileen Gutierrez-Glennon Stephen William Basedow Misha Tseytlin Volkova Xuan Yun Chrystalia King Ravi Bishnoi Tsui Kwan Tung Helena Camargo Rachel Rhein Zarghami Jill Wendy Laurence Ludivine Fatima Boisard Flavio Veitzman Williamson Aaron Bernell Zisser Michele Ann Luzio Christian Bouckaert Edward John Normand Tarek Buchmueller Renee Kelly Ogden Jungwon Chang Shari Paley Ying-lei Charles Chang Stephen Richardson David Patrick Cole In Memoriam Shealy Daniel DeMaria Ruby B. Sherwood Kimberly Dilorenzo Robert E. Becker John L. Kirschner Oscela Pope Shirin Katherine Mark Edelstein Brewster, NY Buffalo, NY Hempstead, NY Aboujawde Deana Kim El-mallawany Arthur Farberov James H. Gilroy James M. Nolan William J. Scanlon TENTH DISTRICT Hariharan Gangadharan New Hartford, NY Richmond, VA Binghamton, NY Rachita Agarwal Helen Louise Gill Omar Almanzar-Paramio Keith D. Grinstein Vincent A. O’Neil Steven D. Zerin Sergio Gregorio Patricia Mary Avidan Seattle, WA Syracuse, NY New York, NY Jeffrey Greg Hiller Ralph C. Caio Yasuhiro Izushima William R.P. Hogan Griffith T. Parry Corinne Imbert Faria Madhu Khatri New York, NY Missouri City, TX John Michael Faris Mariusz Kurzyna Mark J. Fink Alida Yvonne Lasker Theryn Gale Gibbons Morgan Evenstar Levine Nicole Emley Gutman Amber Lynn Lewis Ryan Eugene Herman Peter Libaers Alison Karmel Osnat Lupesko-Persky Matthew Lowe Erin Rose McLaughlin Matthew Markoff Jeffrey Joseph Medeiros Foundation Memorials Kelly Ann Murray Shekhar Mennon Christina N. Perrone Analia Victoria Mesquita Paul W. Roussillon Wlazlo fitting and lasting tribute to a deceased lawyer can be Marvin B. Tepper Peter Lee Michaelson made through a memorial contribution to The New Dayva B. Zaccaria A Brina Milikowsky York Bar Foundation. This highly appropriate and meaning- ELEVENTH DISTRICT Loredana Mirabela John Agyei Moldavskiy ful gesture on the part of friends and associates will be felt Shahid Ali Yasuhiko Nakayama and appreciated by the family of the deceased. Renis Ciftja Javad Mohamed Namazie Daniel Ethan Gross Gregory Joseph Nowak Contributions may be made to The New York Bar Francis P. Imperato Shigeyoshi Nozaki Zena Jihyun Kim Niels Opstrup Foundation, One Elk Street, Albany, New York 12207, stating Kathy Margie Renee Dale Paccione in whose memory it is made. An officer of the Foundation David Jacob Mazur Nadia Paola Pallares will notify the family that a contribution has been made and Denise Ann Melville Rodriguez Janai Sherrylynn Nelson Manishi Pathak by whom, although the amount of the contribution will not Dasha Olshanetskaya Ronald S. Petersen be specified. Aisha Mohamedi Richard Lisa Seperson Plaut Natalia Kendice Asha Johanna Eadie Reeves All lawyers in whose name contri butions are made will Roban Giovanni Regina John Joseph Rossi Curtis M. Roberts be listed in a Foundation Memorial Book maintained at Dalbir Singh Nell Downey Rumbaugh the New York State Bar Center in Albany. In addition, the John Tzy-fai Wong Mayra Santos Jiahui Wu Alberto F. Sarasua names of deceased members in whose memory bequests or Dawn Marie Savarese contributions in the sum of $1,000 or more are made will be TWELFTH DISTRICT Tiziana Scaramuzza Alice Chao permanently inscribed on a bronze plaque Brad Evan Schrager Belkis Fabiola Guardado Orit Barnea Seif mounted in the Memorial Hall facing the Jill Elaine Roche Jason A. Skinder Sarah E. Warne handsome courtyard at the Bar Center. Rami Smaira OUT OF STATE Erin L. Smith Zineb Afify Philip Son Roopa Ambooken Aditya B. Surti
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60 | February 2009 | NYSBA Journal LANGUAGE TIPS BY GERTRUDE BLOCK Howe’er it was, he got his trunk uestion: Please explain what “If you can’t imitate him, don’t copy Entangled in the telephunk; malapropisms are and give him,” and “The other team could make The more he tried to get it free, Qsome examples. trouble for us if they win.” The louder buzzed the telephee – Answer: A malapropism is an unin- Politicians can claim their share of (I fear I’d better drop the song tentional and ludicrous misuse of malapropisms. During the riots of the Of elephop and telephong!) words, often a word that sounds like 1960s, Chicago Mayor Richard Daley the right one. It was given its name said, “The police are not here to cre- From the Mailbag by a character called “Mrs. Malaprop” ate disorder. They’re here to preserve Several readers have suggested addi- in Richard Sheridan’s 1775 play, The disorder.” Among his other blunders: tions to the oxymorons listed in the Rivals. Sheridan coined the name from “I resent your insinuendoes”; “We October “Language Tips.” One reader the French phrase mal à pros (“out shall reach greater and greater plati- listed “sweet sorrow” and “thunderous of place”). Mrs. Malaprop, trying to tudes of achievement”; and “No man silence.” Another described her state’s impress listeners by using long words, is an Ireland.” And then-Governor Budget Committee decision as a “bril- usually chose the wrong word. For Edmund G. (“Pat”) Brown comment- liant fiasco.” Additional offerings: “final example, she spoke of her daughter as ed that a recent earthquake was “the tentative copy” and “turned up miss- a “progeny of learning” and called a worst disaster in California since I ing.” Finally, this contribution: a pedes- gynecologist a “groinologist.” was elected.” trian who had been held up and robbed Long before the tendency had a Vice President Dan Quayle famous- said the robber had communicated his name, Shakespeare was a fertile source ly misstated the motto of the United intentions by “an articulate grunt.” for malapropisms. In Much Ado About Negro College Fund (“A mind is a ter- Nothing, Constable Dogberry, named rible thing to waste”), which he quoted Erratum for the wild prickly gooseberry plant, as “What a waste it is to lose one’s Thanks to alert reader Kathryn McCary must have kept the Elizabethan audi- mind.” Watchful critics have collected who correctly wrote that the quota- ences laughing as he mangled the George W. Bush’s malapropisms. Here tion “I love verbing; verbing weirds English language. Among his com- are some: “We cannot let terrorists and words” appeared in the comic strip ments, “Our watch, sir, have indeed rogue nations hold this nation hostile” “Calvin and Hobbes,” not Through the comprehended (apprehended) two (hostage); “It will take time to restore Looking Glass, as I erred in saying in auspicious (suspicious) characters.” chaos and order”; and “We are making the November/December column. ■ Morton S. Freeman, in The Story steadfast (steady) progress.” Behind the Word (1985), dubbed Archie Senator Christopher Dodd goofed GERTRUDE BLOCK ([email protected]) is lecturer Bunker “today’s Mrs. Malaprop.” when, speaking on behalf of a emerita at the University of Florida College of Archie called the Pope “inflamma- Democratic Senate candidate in South Law. She is the author of Effective Legal Writing ble” (infallible) and commented that Carolina, he praised the gentleman (Foundation Press) and co-author of Judicial patience “is a virgin” (virtue). Jane by saying, “We’ve got a strong candi- Opinion Writing (American Bar Association). Ace (of the radio comic show “Easy date,” and then spoiled it by adding, Her most recent book is Legal Writing Advice: Aces”) contributed “You could have “I’m trying to think of his name.” Questions and Answers (W. S. Hein & Co., 2004). knocked me over with a fender” and There was also the hapless president many others. And Suzanne Sugarbaker of a small college who announced at of Designing Women contributed “Let’s graduation: “It gives me pleasure to sing it with no music. You know, present the matchelor and bastard can- Acapulco (‘a cappella’).” didates.” Finally, a friend told me that MOVING? let us know. Sports figures do well, too. Jim a colleague had referred to his own Notify OCA and NYSBA of any changes to Wohford, outfielder for the Milwaukee “self-defecating (deprecating) humor.” your address or other record information as soon as possible! Brewers, commented, “Ninety percent Laura E. Richards (1850–1943) paid of this game is half mental.” Umpire tribute to malaprops in a poem: OCA Attorney Registration Nestor Chylak explained why he did PO BOX 2806, Church Street Station “Eletelephony.” New York, New York 10008 not eject New York Yankees Manager Once there was an elephant, TEL 212.428.2800 / FAX 212.428.2804 Billy Martin from the game during Who tried to use the telephant – Email [email protected] an argument: “After all,” he said, No! No! I mean an elephone New York State Bar Association “I’ve got only two pairs of eyes.” Curt Who tried to use the telephone – MIS Department Gowdy truthfully described Dodger One Elk Street, Albany, NY 12207 Wes Parker as having been “originally (Dear me! I am not certain quite That even now I’ve got it right.) TEL 518.463.3200 / FAX 518.487.5579 born in Chicago.” Yogi Berra’s mala- Email [email protected] propisms are famous. For example:
NYSBA Journal | February 2009 | 61 HEADQUARTERS STAFF EMAIL ADDRESSES THE NEW YORK BAR FOUNDATION
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62 | February 2009 | NYSBA Journal 2008-2009 OFFICERS MEMBERS OF THE HOUSE OF DELEGATES
ERNICE EBER FIRST DISTRICT Cohn, Steven D. Convissar, Robert N. B K. L Aaron, Stewart D. Golinski, Paul A. Doyle, Vincent E., III President Abernethy, Samuel F. Hernandez, David J. Edmunds, David L., Jr. New York Abramowitz, Alton L. Kamins, Hon. Barry Fisher, Cheryl Smith † * Alcott, Mark H. Romero, Manuel A. * Freedman, Maryann Saccomando MICHAEL E. GETNICK Alden, Steven M. Sunshine, Hon. Jeffrey S. * Hassett, Paul Michael Anello, Robert J. Sunshine, Hon. Nancy T. Lamantia, Stephen R. President-Elect Armas, Oliver J. Szochet, Diana J. Manias, Giles P. Utica Badner, Lisa Ray THIRD DISTRICT McCarthy, Joseph V. Badway, Ernest Edward Breen, Michael L. Meyer, Harry G. C. BRUCE LAWRENCE Baum, Simeon H. Casserly, Timothy E. O’Donnell, Thomas M. Secretary Berke-Weiss, Laurie Costello, Bartley J., III O’Reilly, Patrick C. Blanchard, Kimberly S. DeFio Kean, Elena Porcellio, Sharon M. Rochester Borsody, Robert P. Doherty, Glen P. Rankin, Richard Thomas Brown Spitzmueller, Janiece Farley, Susan E. Sconiers, Hon. Rose H. SEYMOUR W. JAMES, JR. Brown, Peter Fernandez, Hermes Subjack, James P. Treasurer Burns, Howard W., Jr. Gold, Majer H. Young, Oliver C. Chang, Vincent Ted Greenthal, John L. NINTH DISTRICT New York Chin, Sylvia Fung Higgins, John Eric Amoruso, Michael J. Christian, Catherine A. Higgins, Patrick J. Burke, Patrick T. KATHRYN GRANT MADIGAN Cohen, Carrie H. Kretser, Hon. Rachel Burns, Stephanie L. Immediate Past President Collazo, Ernest J. Lally, Sean P. Byrne, Robert Lantry * Cometa, Angelo T. Liebman, Bennett M. Campanaro, Patricia L. Binghamton Crespo, Louis Meislahn, Harry P. Cusano, Gary A. Davis, Tracee E. Miranda, David P. Dohn, Robert P. Draper, Thomas G., Jr. Moy, Lillian M. Fontana, Lucille A. VICE-PRESIDENTS Drayton, Joseph Michael Nachimson, Steven G. Goldenberg, Ira S. Eppler, Klaus Netter, Miriam M. Gordon Oliver, Arlene Antoinette Finerty, Hon. Margaret J. FIRST DISTRICT Powers, John K. Gouz, Ronnie P. * Forger, Alexander D. Privitera, John J. Kranis, Michael D. Claire P. Gutekunst, New York † Fox, Michael L. Roberts-Ryba, Christina L. Lagonia, Salvatore A. Freidman, Gary B. Salkin, Prof. Patricia E. Markhoff, Michael Susan B. Lindenauer, New York Gallagher, Patrick C. Schofield, Robert T., IV Marwell, John S. Gesinsky, Loren * Yanas, John J. Miklitsch, Catherine M. SECOND DISTRICT * Gillespie, S. Hazard FOURTH DISTRICT * Miller, Henry G. Goldberg, Evan M. * Ostertag, Robert L. Barry Kamins, Brooklyn Gredd, Helen A. Breedlove, Brian H. Burke, J. David Selinger, John Gutekunst, Claire P. † * Standard, Kenneth G. THIRD DISTRICT Haig, Robert L. Coffey, Peter V. Cullum, James E. Strauss, Barbara J. Hariton, David P. Thornhill, Herbert L., Jr. Hon. Rachel Kretser, Albany Hawkins, Dennis R. Ferradino, Stephanie W. Haelen, Joanne B. Van Scoyoc, Carol L. Hayden, Hon. Douglas J. Wallach, Sherry Levin FOURTH DISTRICT Hollyer, A. Rene Lais, Kara I. Rider, Mark M. Welby, Thomas H. Patricia L. R. Rodriguez, Schenectady Hynes, Patricia M. Wilson, Leroy, Jr. James, Hon. Debra A. Rodriguez, Patricia L. R. Kennedy, Henry J. Stanclift, Tucker C. TENTH DISTRICT FIFTH DISTRICT Kera, Martin S. Sterrett, Grace Asarch, Hon. Joel K. David M. Hayes, Syracuse * King, Henry L. FIFTH DISTRICT Austin, Hon. Leonard B. Kobak, James B., Jr. Fennell, Timothy J. Block, Justin M. Gall, Erin P. * Bracken, John P. SIXTH DISTRICT Kougasian, Peter M. † * Krane, Steven C. † Getnick, Michael E. Buonora, John L. David A. Tyler, Ithaca Larson, Wallace L., Jr. Gigliotti, Louis P. Cartright, Valerie M. Lau-Kee, Glenn Gingold, Neil M. Chase, Dennis R. Clarke, Lance D. SEVENTH DISTRICT † Leber, Bernice K. Greeley, Kristin B. Leo, Robert J. Hartnett, Elizabeth A. Cooper, Ilene S. David M. Schraver, Rochester Lesk, Ann B. Hayes, David M. Fishberg, Gerard Lindenauer, Susan B. Howe, David S. Franchina, Emily F. Gann, Marc EIGHTH DISTRICT * MacCrate, Robert Larose, Stuart J. Martin, Edwina Frances Longstreet, Ami S. Good, Douglas J. David L. Edmunds, Jr., Buffalo Masley, Hon. Andrea Mitchell, Richard C. Gross, John H. McEnroe, Diane Crosson Pellow, David M. † * Levin, A. Thomas NINTH DISTRICT Miller, Michael Peterson, Margaret Murphy Levy, Peter H. Millett, Eileen D. † * Richardson, M. Catherine Luskin, Andrew J. John S. Marwell, Mount Kisco Morgan, Hadaryah Tebach Stanislaus-Fung, Karen Mihalick, Andrew J. Morril, Mark C. Virkler, Timothy L. * Pruzansky, Joshua M. ENTH ISTRICT Purcell, A. Craig T D Morton, Margaret S. SIXTH DISTRICT Myers, Thomas * Rice, Thomas O. John H. Gross, Hauppauge Cummings, Patricia A. Robinson, Derrick J. Nathanson, Malvina Denton, Christopher O’Neill, Paul J., Jr. Steinberg, Harriette M. ELEVENTH DISTRICT Egan, Shirley K. Stempel, Vincent F., Jr. * Patterson, Hon. Robert P., Jr. Fortino, Philip G. Plevan, Bettina B. Walsh, Owen B. David Louis Cohen, Kew Gardens Gorgos, Mark S. Winkler, James R. Prowda, Judith B. Lewis, Richard C. ELEVENTH DISTRICT TWELFTH DISTRICT Reed, Thomas A. † * Madigan, Kathryn Grant Reimer, Norman L. May, Michael R. Cohen, David Louis Lawrence R. Bailey, Jr., Bronx Robertson, Edwin David Sheehan, Dennis P. Dietz, John R. Rosenthal, Lesley Friedman Tyler, David A. Gutierrez, Richard M. Rosner, Seth James, Seymour W., Jr. SEVENTH DISTRICT Lomuscio, Catherine Rothstein, Alan Brown, T. Andrew MEMBERS-AT-LARGE OF THE Russell, William T., Jr. Lonuzzi, John A. Buholtz, Eileen E. Nizin, Leslie S. EXECUTIVE COMMITTEE Safer, Jay G. Burke, Philip L. Sen, Diana Sagorika Terranova, Arthur N. † * Buzard, A. Vincent Vitacco, Guy R., Jr. Vincent E. Doyle, III * Seymour, Whitney North, Jr. Castellano, June M. Sherwin, Peter J.W. Wimpfheimer, Steven Timothy J. Fennell Gould, Wendy L. Sigmond, Carol Ann Harren, Michael T. TWELFTH DISTRICT Hermes Fernandez Silkenat, James R. Kukuvka, Cynthia M. Bailey, Lawrence R., Jr. Smith, Hon. George Bundy Kurland, Harold A. * Pfeifer, Maxwell S. Eileen D. Millett Spelfogel, Evan J. Lawrence, C. Bruce Quaranta, Hon. Kevin J. David P. Miranda Spiro, Edward M. Lightsey, Mary W. Sands, Jonathan D. Tesser, Lewis * Moore, James C. Schwartz, Roy J. Peter J.W. Sherwin Wachtler, Lauren J. * Palermo, Anthony R. Summer, Robert S. Williams, Bryan R. Weinberger, Richard Lauren J. Wachtler Schraver, David M. Yates, Hon. James A. Smith, Thomas G. OUT-OF-STATE Stephen P. Younger Yavinsky, Michael J. Tilton, Samuel O. Bartlett, Linda G. Younger, Stephen P. * Vigdor, Justin L. Brown, Geraldine Reed Zulack, John F. * Witmer, G. Robert, Jr. Cahn, Jeffrey Barton SECOND DISTRICT Elder-Howell, Andrea M. Adler, Roger B. EIGHTH DISTRICT * Fales, Haliburton, II Bonina, Andrea E. Brady, Thomas C. * Walsh, Lawrence E. Branda, RoseAnn C. Chapman, Richard N.
† Delegate to American Bar Association House of Delegates * Past President
NYSBA Journal | February 2009 | 63 THE LEGAL WRITER BY GERALD LEBOVITS
Persuading the Judge Through Writing: How to Win
n advocate’s goal in address- Written advocacy is crucial to per- before writing, weaves law and policy ing a trial or appellate judge suade. A brief consists of numerous into the facts of the argument, stresses Ais to win. To win honestly, parts that give the court the necessary only important issues, addresses the but to win nonetheless. The advo- procedural background, the facts of the most important issues first, revises cate wins by persuading the judge particular case, and the relevant law. repeatedly, and submits the work on that the client’s arguments are more The tone of an advocate’s brief is to time. compelling than the adversary’s cli- convince, but the advocate’s goal is to Here are 15 pointers to guide advo- ent’s arguments. Persuasion in the state the pivotal issues of the case and cates in persuading the judge that their law requires ethos (showing exper- to articulate a position in a straight- clients should prevail. tise and knowledge with integrity), forward, concise, and definite way. A Know the Judge. Advocates must pathos (appealing to emotion and the judge is persuaded when an advocate familiarize themselves with the judge’s judge’s sense of justice), and logos presents an articulate position. judicial philosophy and background (offering logical reasoning and com- To persuade, an advocate must before they submit written argument. mon sense). The advocate seeks to inform. Judges are unfamiliar with the Knowing how the judge has ruled in persuade through written and oral details of their cases until they hear previous cases and how the judge con- advocacy. Persuasion in oral advo- argument. They rely on the advocate ducts the courtroom enables the advo- cacy comes from oral argument in to provide the background. An advo- cate to structure advocacy to appeal which an advocate, during a conver- cate’s brief can shape a judge’s opinion to the judge. One way to do this is to sation with the court, presents the even before oral argument. To shape review the judge’s judicial opinions client’s position by addressing the opinion, the advocate has two objec- before drafting a brief. Some judges judge’s concerns. Persuasion in writ- tives: To make the judge want to rule emphasize policy; others favor prec- ten advocacy comes from a written for the client and to make it easy for the edent. Persuasive advocates are flex- brief or memorandum to the court judge to rule for the client. ible. They know not only the judge’s in which the advocate writes for the The more knowledge an advocate preferences but also present the client’s judge without writing like a judge. has about the case, the easier it is position to reflect those preferences. Successful persuasion in written to persuade. Judges expect the advo- Familiarity with the court rules and advocacy requires the advocate to cate to know the facts and legal prin- adherence to them is required. Many articulate clearly and concisely what ciples of the case better than anyone judges have procedural rules about the client wants. Once the court is able else might. Judges expect advocates page limits, deadlines, font sizes, and to decide the advocate’s request — that to present arguments completely and footnotes. Persuasive advocates never is, that the court has jurisdiction — the honestly. Completely means knowing violate those rules. Persuasive advo- advocate must convince the court that the record as well the adversary’s con- cates always treat their readers like the client’s position is the strongest in tentions. Honestly means presenting busy, skeptical professionals. the current situation and as guiding all information accurately, even if that Articulate Positions. Advocates precedent for the future. An advocate requires the advocate to concede some must be clear and straightforward in accomplishes this by arguing law, fact, points. asking the court for the relief the client and policy under the appropriate bur- Each advocate writes in a unique seeks. They may not be cowardly. They den of proof and standard of review. and personal way. Briefs vary in style, must be direct and upfront. Judges A persuasive advocate has the same tone, and length. Although most advo- seek to resolve cases quickly. Blunt and goals regardless whether the advo- cates follow a similar organizational repetitive language emphasizes the cli- cate speaks or writes, although oral format, no one approach is uniquely ent’s position. Well-articulated intro- and written advocacy techniques and correct. The persuasive advocate brain- ductions, transitions, signposts, and styles vary. storms all possible arguments, outlines Continued on Page 56
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