NEW YORK STATE BAR ASSOCIATION tate Bar News S NOVEMBER/DECEMBER 2017 | VOLUME 59, NO. 6 | WWW.NYSBA.ORG Women’s courtroom equality report headed to the ABA

By Christian Nolan at its Nov. 4 meeting in women and diverse voices Albany. It was compiled are heard and are taking State Bar President by the Commercial & an active part in the judi- Sharon Stern Gerstman Federal Litigation Sec- cial and dispute resolution plans to present a report tion’s Task Force on process,” Past President of that determined women Women’s Initiatives. the State Bar Association attorneys remain consid- The report, which was Bernice K. Leber of New erably underrepresented featured in the Septem- York City (Arent Fox), a in courtrooms across the ber/October 2017 State co-chair of the Task Force, state as well as in Alter- Bar News following its told delegates. native Dispute Resolu- August 3 release and “All lawyers and tion (ADR) to the American which drew national especially women law- Bar Association’s House attention, is based on the yers should have the of Delegates at its next first-ever observational same chance to speak in meeting in February. She study of women attor- court, conduct arbitra- will urge adoption as neys in the courtroom. It tions, mediations, and the ABA’s official policy. reveals that female attor- serve as neutrals, as oth- The State Bar’s House neys comprise about 25 ers have enjoyed,” con- of Delegates approved percent of attorneys in tinued Leber. “These are Lady in red—Center, New York Bar Foundation President John H. Gross and State Bar the report, entitled “If lead counsel roles in issues of fundamental President Sharon Stern Gerstman unveil a portrait of the late Chief Judge Judith S. Not Now, When? courtrooms statewide fairness in our profes- Kaye following the Executive Committee meeting on Nov. 3 in Albany. Lesley Achieving Equality for “We recognize that sion.” Rosenthal, vice president of The New York Bar Foundation, is at left, and Immediate Women Attorneys in the more can and should be Past President Claire P. Gutekunst is at right. [Photo by Christina Couto] Courtroom and in ADR,” done to ensure that Continued on page 4 Making sense of NY cannabis laws

By Christian Nolan The federal Con- State Bar President of New York City (Rob- More than 30 states trolled Substances Act Sharon Stern Gerstman ert L. Greenberg P.C.), a including New York currently lists marijuana appointed Brian J. Mal- member of the commit- allow for some use of in the same category as kin of Washington, D.C. tee. cannabis, whether medi- heroin and LSD—which (Arent Fox) and Aleece “And the committee cally or recreationally, could be interpreted to Burgio of Buffalo would provide a great and the laws are continu- mean that attorneys who (McGuire Development) way for practitioners to ously evolving. work with clients in the to lead the committee. get together, talk, and For example, in medical marijuana busi- “This is a developing learn about best practic- November, Gov. Andrew ness are violating federal area of the law, a very es, helping the industry Cuomo signed legisla- law. intellectually stimulating develop under an evolv- tion that adds post-trau- Believing there was a area for lawyers to work Continued on page 6 matic stress disorder to void for lawyers to share in,” said Malkin, who is the list of qualifying con- developments in canna- also the chair of the ditions for New York’s bis law with their peers, Food, Drug and Cosmet- The State Bar’s Committee on Professional Ethics stated in its September 2014 medical marijuana pro- a proposal was made to ic Law Section and draft- “Ethics Opinion 1024” that “[i]n light of current federal enforcement policy, gram under the Compas- the State Bar’s Executive ed the proposal for the the New York Rules permit a lawyer to assist a client in conduct designed to sionate Care Act. Committee to establish a new committee along comply with state medical marijuana law, notwithstanding that federal narcot- But under federal law, Committee on Cannabis with support from a ics law prohibits the delivery, sale, possession and use of marijuana and makes marijuana is still very Law, and was approved group of individuals led no exception for medical marijuana.” much illegal. at the June meeting. by Robert L. Greenberg

Advanced Trial #nysba18 Also in this issue Academy Connect, inspire Nominated Officers 2 Delegates in Action 13 and learn at the 2018 You asked, NYSBA NYSBA’s Groundbreaking Reports 4 Pro Bono Honorees 16 Annual Meeting delivered No ConCon. Now What? 5 CLE Seminar Schedule 21 Page 10 Pages 14–15 Anti-trust Section Profile 8 Lawyers Resource Directory 22 Letter to President Trump 12 Lawyer to Lawyer Referral 23 2 November/December 2017 State Bar News Henry M. Greenberg nominated State Bar’s president-elect

Secretary: Executive Committee Ninth District: Sherry Levin Wallach, Mount Kisco Members-at-Large Jonah I. Triebwasser, Red Hook Andrew Schriver, White Plains Treasurer: Earamichia Brown, New York City Steven M. Stieglitz, White Plains Scott M. Karson, Melville Mark Berman, New York City Erica Hines, Albany Tenth District: Vice Presidents Tucker Stanclift, Queensbury Peter J. Mancuso, North Bellmore First District: Evan Goldberg, New York City Rosemarie Tully, Huntington Taa Grays, New York City William T. Ferris III, Islandia Carol Sigmond, New York City Elected Delegates to the Eleventh District: Second District: House of Delegates Lourdes M. Ventura, Albertson Aimee L. Richter, Brooklyn First District: Steven Wimpfheimer, Whitestone Third District: Peter Harvey, New York City Guy R. Vitacco, Jr., Elmhurst Robert T. Schofield, IV, Albany James B. Kobak, Jr., New York City Twelfth District: Fourth District: Stewart D. Aaron, New York City Samuel M. Braverman, New York City Matthew R. Coseo, Ballston Spa Second District: Carlos M. Calderón, Scarsdale Michael A. Marinaccio, White Plains Fifth District: Andrea E. Bonina, Brooklyn Andrew M. Fallek, Brooklyn Jean Marie Westlake, East Syracuse Thirteenth District: Barton Slavin, Brooklyn Orin Cohen, Staten Island Sixth District: Third District: Edwina Frances Martin, Staten Island Richard C. Lewis, Binghamton Claire C. Miller, Staten Island Seventh District: Glinnesa D. Gailliard, Albany Elena DeFio Kean, Albany David H. Tennant, Rochester Hermes Fernandez, Albany Delegates to ABA House of Greenberg Eighth District: Delegates (2018–2020 term) Fourth District: Norman P. Effman, Warsaw Sharon Stern Gerstman, Buffalo Marne L. Onderdonk, Saratoga Springs At the House of Delegates meeting Kenneth G. Standard, New York City Ninth District: Patricia L.R. Rodriguez, Schenectady on November 4 in Albany, the Nomi- Kathryn Grant Madigan, Binghamton Michael L. Fox, Newburgh Peter V. Coffey, Schenectady nating Committee announced the fol- David P. Miranda, Albany Tenth District: Fifth District: lowing nominations of officers with Peter H. Levy, Jericho Alena Shautsova, Brooklyn (Young terms commencing on June 1, 2018. Courtney Radick, Oswego Lawyer Delegate) Eleventh District: The nominees will be voted on at the Donald Doerr, Syracuse Henry M. Greenberg, Albany Karina E. Alomar, Ridgewood Jan. 26, 2018 House of Delegates meet- L. Graeme Spicer, Syracuse (President-elect designee) ing in New York City. Twelfth District: Sixth District: Steven E. Millon, Bronx Patrick J. Flanagan, Norwich Section Delegate to the Executive Committee Thirteenth District: Robert M. Shafer, Tully Executive Committee: President-Elect: Jonathan B. Behrins, Staten Island Michael R. May, Ithaca Rona Shamoon, Scarsdale Albany Henry M. Greenberg, Seventh District: Nominating Committee Amy L. Christensen, Rochester Members-at-Large: NEW YORK STATE BAR ASSOCIATION June M. Castellano, Rochester LaMarr J. Jackson, Rochester Glenn Lau-Kee, New York City David P. Miranda, Albany Eighth District: State Bar News Claire P. Gutekunst, Yonkers Cheryl Smith Fisher, Buffalo NOVEMBER/DECEMBER 2017 | VOLUME 59, NO. 6 Kathleen M. Sweet, Buffalo Nominating Committee Chair: WWW.NYSBA.ORG Oliver Young, Buffalo David P. Miranda, Albany Editor: Christina Couto Designers Lori Herzing Senior Writer: Christian Nolan Erin Corcoran NEW YORK STATE BAR ASSOCIATION Christine Ekstrom Publisher Pamela McDevitt, Executive Director

The State Bar News (ISSN 0363-0331) is published six times annually by the New York State Bar Association, 1 Elk St., Albany, NY, 12207, to inform its members of Association activities and other mat- ters of interest to the legal profession. Address all communications to the editor at 1 Elk St., Albany, NY, 12207. Periodical postage paid at Albany, NY, and other mailing stations. Postmaster: Send form 3579 to: State Bar News, 1 Elk St., Albany, NY, 12207. Copyright 2017 by the New York State Bar Association. NEW YORK CITY ANNUAL The State Bar News welcomes articles from members of the legal profession on subjects of interest to New York New York Hilton Midtown 2018 state lawyers. Views expressed in published articles or letters are the authors’ alone and are not to be attributed MEETING JANUARY 22 – 26 to the State Bar News, its editors, or the Association, unless expressly so stated. Article/letter authors are respon- sible for the correctness of all information, citations and quotations. Advertising Representative Network Media Partners Attn: Holly Klarman, Account Executive 307 International Circle, Suite 190 Hunt Valley, Maryland 21030 PH: 410.584.1960 Email: [email protected] Get Social: #nysba18 State Bar News November/December 2017 3

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Leaders and innovators in ADR since 1992. 122 East 42nd Street, Suite 803, New York, NY 10168 Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 | namadr.com 4 November/December 2017 State Bar News House of Delegates approves groundbreaking reports regarding online legal providers, NY Trust Code

By Christina Couto per year and is often Code for trusts. New Bloom of Albany (Alba- used by those who can- York trust law has not ny Law School), present- The State Bar’s House not afford—or do not been comprehensively ed the report to the of Delegates approved wish to seek—traditional reviewed since 1966, and House of Delegates. two groundbreaking legal access to justice in the past 50 years, trust “The proposal also reports with recommen- methods. practices have dramati- improves upon existing dations that, if adopted “We want to turn cally changed. statutory law, which by the Legislature, “will toward the problem, we The report recom- results in a more modern help protect consumers don’t want to back away mends adding new arti- law for New York, mak- who use online legal from it,” said Sarah Jo cle 7-A to the Estates, ing it more competitive documents and will sim- Hamilton of Scarsdale Powers and Trust Law in the trust business. By plify, modernize and (Scalise Hamilton & that would enable codifying the case law in update New York’s trust Sheridan LLP), who pre- changed practices and one comprehensive stat- law,” announced Associ- sented the report with case law to be codified, ute, we are also bringing ation President Sharon Ronald C. Minkoff of Protect consumers—Ronald C. Minkoff and Sarah Jo making it simpler for efficiencies to practitio- Stern Gerstman of Buffa- New York City (Frank- Hamilton present the report of the New York County lawyers practicing in the ners and the courts, lo (Magavern, Magavern furt Kurnit Klein + Selz Lawyers Association, which recommends regulating trusts and estates field, which will ultimately and Grimm LLP). PC). “It is an ongoing online legal documents, at the House of Delegates meet- which will benefit the better serve our clients.” ing in Albany on November 4. The House of Delegates entity and business and public. Link to Trusts and adopted the report. [Photo by Marty Kerins, Jr.] Regulation of we should get on board “Fundamentally, the Estates Law Section online legal forms to make sure the public proposed New York report and NYCLA The State Bar is protected.” absence of such stan- adequately conveyed to Trust Code law codifies report:https://www. approved a report at its NYCLA’s report is the dards, proposes the vol- consumers. current New York case nysba.org/Custom Nov. 4 meeting in Alba- first time that regulation untary practices as an law relating to gratu- Templates/Second- ny by the New York of online legal providers interim measure. New York itous trusts, and the case aryStandard.aspx?id= County Lawyers Associ- has been proposed in Because online pro- Trust Code law today is volumi- 77143 u ation (NYCLA) that New York, recommend- viders of forms are often Also approved was a nous,” said Sharon L. seeks to regulate online ing that a set of regulato- neither lawyers nor law report by its Trusts and Wick of Buffalo (Phillips Couto is NYSBA's State legal documents, an ry standards for protec- firms, the attorney-client Estates Law Section rec- Lytle LLP), chair of the Bar News editor. industry that generates tion of the public be privilege does not apply ommending enactment section, who, along with approximately $5 billion adopted and, in the and this is not always of a new New York Trust Professor Ira Mark

Women’s courtroom equality report headed to ABA Continued from page 1 Do You Have A The study took place of New York City (Zeich- the centennial, the Asso- portrait will hang promi- from Sept. 1, 2016 to Dec. ner Ellman & Krause); ciation’s Committee on nently in the State Bar 31, 2016. The New York Sharon M. Porcellio of Women in the Law Center’s Great Hall. Story To Share... Court of Appeals, the “We are so grateful to Second Circuit Court of “ All lawyers and especially so many for the tremen- Appeals, two of the four women lawyers should have the dous honor of making We invite you to submit articles federal district courts, all our mother’s the first showcasing excellence in pro four appellate divisions same chance to speak in court . . .” portrait of a woman to bono service for upcoming as well as commercial — Bernice Leber grace the walls of the divisions in supreme Great Hall in this presti- editions of the Pro Bono courts in counties from gious institution, an Suffolk to Onondaga and Buffalo (Bond, Schoeneck unveiled its exhibition at institution that was very Newsletter. Erie participated. Three & King); Lesley F. Rosen- the State Bar Center enti- dear to our mother,” said of the leading ADR pro- thal of New York City tled “A Centennial Com- Kaye’s daughter, Luisa For more information, go to viders in the state also (Lincoln Center for the memoration of Women’s M. Kaye, in a message participated. Approxi- Performing Arts); and Suffrage and the read by Lesley Rosen- www.nysba.org/probono. mately 2,800 question- Lauren J. Wachtler of Achievement of Legal thal, vice president of naires were completed New York City (Mitchell Rights.” The Foundation. “Our and returned by judges Silberberg & Knupp). All Additionally, the New heartfelt thanks go to in participating courts. are former chairs of the York Bar Foundation, the Claire Gutekunst . . . for In addition to Leber, Commercial & Federal charitable arm of the conceiving of the portrait other task force co-chairs Litigation Section. State Bar Association, and raising funds to are: retired U.S. District unveiled a portrait by make it possible.” Court Judge Shira A. Suffrage, Kaye Laurel Stern Boeck of the For a link to the Scheindlin of New York portrait unveiling late Chief Judge Judith S. report, suffrage exhibi- City (Stroock & Stroock & The adoption of the Kaye. In 1983, Kaye tion and Kaye portrait, Lavan and JAMS); former report came as New York became the first woman www.nysba.org/wom- Assistant U.S. Attorney celebrated its suffrage to serve on the state’s eninthelawny/. u Carrie H. Cohen of New centennial when women Court of Appeals. A York City (Morrison & won the right to vote decade later, she was Nolan is NYSBA's senior Foerster); Tracee E. Davis Nov. 6, 1917. In honor of named chief judge. The writer. State Bar News November/December 2017 5 Vote fails, but hope for improved court system continues

By Christina Couto

Although the vote to hold a Constitutional Convention in 2019 failed miserably—83 percent of New Yorkers who voted opposed it—the State Bar successfully raised aware- ness about key issues that could benefit New York- ers, including improving the court system, mod- ernizing the voting pro- cess and updating the Constitution. In New York, there are two ways to propose amendments to the state Constitution, either by the Legislature or by a Constitutional Conven- tion. In either case, the voters get the last word: all amendments must be approved by a statewide referendum. Campaign Vote!—Members of the State Bar’s Executive Committee gathered on the front steps of the State Bar Center in Albany on Nov. 3 to encourage a The State Bar launched “yes” vote on the Constitutional Convention referendum on Election Day. [Photo by Christina Couto] its Constitutional Con- vention campaign on Sept. 19 in Albany with a vote in favor of a conven- and continuing legal state court system—a announced a plan to work to identify poten- press conference encour- tion by the House of Del- education programs concern of the State Bar explore legislative avenues tial reforms the Legisla- aging a “yes” vote on egates in June, 2017. before recommending for nearly five decades— to fix the court system. ture might consider to Election Day. The event The State Bar’s Com- that the State Bar sup- could only be achieved A task force created in streamline the state’s was live-streamed on mittee on the New York port a Constitutional via a convention. July 2016 to study the court system. Facebook and had been State Constitution heard Convention. potential benefits to the The next vote whether viewed 5,000 times by presentations from 29 The decision to sup- Court system courts of a Constitution- to hold a constitutional Election Day. experts, issued five sub- port a convention was task force al Convention will convention in New York Its advocacy for a Con- stantive reports, and par- largely based on the Following the election, reconvene to examine state will be in 2037. u stitutional Convention in ticipated in educational belief that restructuring New York State Chief ways to make the courts Couto is NYSBA’s State 2019 followed a 111–28 symposiums, webinars and reorganizing the Judge Janet DiFiore more efficient. It will Bar News editor.

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New committee tasked with making sense of New York, federal cannabis laws Continued from page 1

ing federal and state reg- clients and their lawyers ulatory system, while at feeling uncomfortable. Group to study issues related to ride-sharing services app the same time ensuring The intersection of laws By Christian Nolan that we represent our cli- can get even more con- ents effectively and fusing for those looking responsibly,” he added. to open marijuana dis- A Committee on Cannabis Law was not the only proposal approved by the New York State Bar pensaries in states that Association’s Executive Committee in June. The Committee on Transportation Law has also been Conflicting laws have legalized the drug formed to address legal issues associated with the rise of cell phone app ride-sharing services like Malkin said attorneys for some medical uses. Uber or Lyft and the advent of driverless cars and trucks. need to be mindful of the However, because The proposal was submitted to the State Bar’s Executive Committee by Frank V. Carone, of Abrams intersecting state and some attorneys and their Fensterman in Brooklyn. He has since been named chair of the committee. federal laws pertaining firms may be unwilling Carone provided numerous examples of the kinds of legal issues that the Transportation Committee to cannabis use, as well to walk that fine line of would review. For instance, are the drivers for app companies considered employees, independent as the ethics rules law- potentially violating fed- contractors or something else? Are algorithms that set prices and determine response times being used yers must follow. eral law or the Rules of in a discriminatory manner and if so, which entity has the authority to investigate? In an effort to curb Professional Conduct, Are newly set insurance standards for these ride-hailing services adequate? What should a state potential conflicts cannabis entrepreneurs department of motor vehicles’ role be in regulating new forms of transportation? between federal and state may have trouble obtain- How should insurance cover driverless cars and who is liable when the inevitable accident occurs? laws, the U.S. Depart- ing legal counsel to assist What is the ideal balance between regulation and promoting innovation? ment of Justice (DOJ) has them. “While sections of the New York State Bar Association separately touch on these subjects, no group issued memoranda, most Malkin explained that provides a cohesive approach to how these legal challenges affect the daily movement of New Yorkers, recently in 2013, direct- cannabis law touches on a their industries, and the laws and lawyers serving them,” wrote Carone in the proposal. “The combi- ing U.S. attorneys to use number of areas of law, so nation of rapid growth and large public and private investments requires well thought out resolutions their resources wisely there was no individual that a committee dedicated to transportation could provide.” and show discretion section that would have State Bar President Sharon Stern Gerstman reached out to all of the section chairs asking them to when prosecuting mari- been a natural home to a notify their members of the new cannabis and transportation committees and made appointments to juana cases when a cannabis law subcommit- the committee based upon their responses. Additional members may be added during the regular defendant is in compli- tee. He said the Health committee appointment process commencing in February. u ance with state laws. Law, Criminal Justice, Further, President Real Property, Environ- Donald Trump renewed mental, Intellectual Prop- is not legal as a selling ‘A headache’ for Not only does that pose label the product and its the Rohrabacher-Farr erty, and Labor and entity, you cannot get a businesses problems and security ingredients when there Amendment, which Employment law sections trademark on a canna- The medical marijua- and reporting concerns are few or no legal stan- states that the DOJ may were just some of the sec- bis-containing product. na growing and dispen- for the businesses them- dards that apply, and not use any federal funds tions that included canna- The illegal status of can- sary application process selves, it also triggers what kinds of pesticides to prevent the implemen- bis law topics. nabis also impacts a is also a headache for issues for their lawyers or other growth products tation of medical marijua- For instance, Malkin cannabis company’s potential businesses, to collect legal fees. may be safely used? na laws by various states said the conflicts of fed- ability to buy land, which often causes them That’s because when Other issues can also and territories. eral versus state mari- obtain the necessary to hire a lawyer for help legal entities such as a arise. For example, dis- While federal authori- juana laws pose many growing permits, open a with it. Malkin said each law firm receives more crimination and other ties appear to be looking potential problems for bank account or obtain state limits the number than $10,000 in cash, you employment issues the other way, these con- the developing cannabis loans. of dispensaries and that have to report it to feder- could arise for employ- flicts of laws still leave industry. Since cannabis each state has its own al authorities. ees who face drug test- application process to Environmental issues ing at their jobs and have obtain such a license. also come into play, Mal- legal permission from a The illegality of mari- kin said. Under what doctor for medical mari- The ABCs of cannabis law juana prevents a dispen- conditions is cannabis juana use. u The State Bar is not the only entity recognizing the growing and com- sary business to open a grown and does it meet plex area of cannabis law. bank account, so most the standard for “organ- Nolan is NYSBA’s senior Law schools in New York and around the country have started offering cannabis-selling compa- ic” or not a genetically- writer. cannabis law courses and a formal textbook by Vanderbilt University nies must operate only modified organism (“no School of Law Professor Robert A. Mikos was published this year. Mikos with cash instruments. GMO’s”)? How do you plans to be a non-voting member of the State Bar’s new committee to aid in the development of academic rigor with the committee’s efforts. Cannabis law also figures to be a ripe topic for future State Bar-spon- sored Continuing Legal Education programs. Previously, the Food, Drug and Cosmetic Law Section held a panel discussion at the State Bar’s 2015 Annual Meeting in New York City entitled, “Through the Smoke: Attorney Ethics in Representing Clients in the Medical Marijuana Industry.” That same year at Annual Meeting, the Labor & Employment Law Sec- tion also hosted a program called, “One Toke Over the Line: Medical Mari- juana and Other Drug-Related Issues in the Workplace.” Last year, the Health Law Section sponsored a program called “Medical Marijuana in New York in 2016.” And at the 2017 Annual Meeting, the Environmental Law Section held a panel discussion entitled “Legal Conundrums Presented by the Use of Pes- ticides in the Cultivation of Marijuana.” u

—Christian Nolan State Bar News November/December 2017 7

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Antitrust Law Section Profile

By Michael L. Weiner, Section Chair Collaborative Antitrust Law Section brings out the best in its members, programming

American radio and actions, and whether the use of computer pricing dents, we also sponsor an annual antitrust writing television pioneer David algorithms can be viewed as an antitrust violation. contest with a $5,000 cash prize, and an annual sum- Sarnoff once said: In addition to the regular committee programs, we mer associate program entitled “Why Antitrust?” “Competition brings out also offer a slate of annual programs put on with the Our mentorship program pairs young lawyers with the best in products and support of our active membership. seasoned veterans. the worst in people.” Our Annual Meeting each January draws private The Antitrust Law practitioners, government enforcers, and judges from All work and no play? Section agrees that com- around the world for a day of panels and discussion NO! Throughout the year our section hosts a num- petition brings out the on the most current issues in antitrust. ber of social events, including our annual Spring best in products, but We also offer an annual fall symposium where a Fling, to encourage networking and camaraderie Sarnoff’s second state- group of panelists respond to a fact pattern simulat- among our members. Weiner ment could not be fur- ing a hot topic in competition law. We welcome new members and strongly encour- ther from the truth. Our This past May, the section hosted its first annual age law students and new lawyers to take advantage section blends the talents of both the plaintiff and Antitrust Trial Training Academy, an intense three- of our broad range of offerings. defense bars, including young attorneys, law stu- day hands-on program geared toward younger anti- After all, our active programming and collabora- dents, and more senior members of the bar, to offer trust lawyers seeking to improve their litigation and tive atmosphere ensures that competition brings out diverse perspectives while collaborating to help trial advocacy skills. Participants applied what they the best in products and our people as well! u advance the practice of antitrust law, from merger learned from lectures by examining live fact witness- clearance to cartel and criminal practice, and class es and economic experts, and making opening and Michael L. Weiner is chair of the Antitrust Law Section. actions and other civil litigation. closing arguments. Co-leader of Dechert LLP’s Antitrust/Competition Practice Group, he provides strategic advice, resolves gov- Programming Law students, diversity, and outreach ernment investigations into mergers and challenged con- Continuing education is a central tenet of this sec- To promote both diversity and continued antitrust duct, and effectively litigates private and government tion, and our committees actively pursue program- scholarship, the section offers diversity fellowships antitrust cases for clients across a broad range of indus- ming on major current topics in antitrust law. Some that allow several law students to spend the summer tries. recent panels have addressed antitrust issues sur- working on antitrust matters at state and federal rounding big data, the use of social media in class antitrust agency offices in New York. For law stu- #classaction: Social media being used as a litigation tool by Kerin E. Coughlin largely based on quotes in class action cases. One Supplement, not courts have been hesi- mined, because social of social media posts by court praised it as the replace tant to accept its authen- media tends to take a Social media has eye care professionals “lynchpin” of the sup- Counsel using social tication. In criminal con- casual, conversational become ubiquitous in indicating collusion. plemental notice plan, as media in litigation should texts, courts have been tone. To ensure maxi- our daily lives: a recent Social media also is a it resulted in a signifi- keep several issues in more willing to find mum integrity and reli- study shows that more uniquely candid source cantly higher claims rate mind. First, social media social media evidence ability, these processes than a third of the of the consumer percep- than the original plan should supplement, rath- properly authenticated, should be conducted world’s population tions that are necessary which consisted primari- er than replace, more tra- but such openness has under the guidance of an actively uses it to keep in trademark, deceptive ly of U.S. Mail and print ditional methods, at least not yet spread to the civil experienced social media in touch, learn about advertising and other ads. until courts gain more arena. expert. news and express opin- commercial claims. Such The Federal Rules will comfort with it. This is Social media is here to ions. Increasingly, social data has traditionally soon be amended to confirmed by the Com- Care and efficacy stay, including in litiga- media has played a role been sought through reflect this revelation. mittee’s Note to the Rule Which brings us to the tion. Its potential uses in antitrust and other consumer surveys, but The Committee on Rules 23 amendment, which third consideration, that are endless, and so are litigation. as at least one court has of Practice and Proce- cautions: “a significant social media evidence the legal issues it raises. For example, social noted, social media may dure of the Judicial Con- portion of class members must be collected and Courts and parties media has provided evi- be more reliable, because ference has approved in certain cases may have used with the utmost should ensure that all amending Rule 23(c)(2) limited or no access to . . . care and efficacy. available steps are taken (B) to clarify that the the Internet. [Thus,] the For example, posts to use social media as “. . . there is no reason to notice required for a amended rule relies on must be captured and responsibly and reliably believe that technological Rule 23(b)(3) class “may courts and counsel to stored in a manner that as possible. u change will cease . . .” be by . . . electronic focus on the means or provides a clear chain of means[.]” combination of means custody and other indi- Kerin E. Coughlin is an — Committee on Rules of In its note explaining most likely to be effec- cia of authenticity. In assistant professor at Practice and Procedure of the the amendment, the tive[.]” addition, the pool of evi- CUNY-NYC College of Committee acknowledg- dence must be “clean,” Technology, and a senior Judicial Conference es that “courts and coun- Authenticity excluding irrelevant and consultant with Voluble sel have begun to Second, counsel unauthentic posts such Insights, the social media dence of potentially ille- it captures consumers’ employ technology to should be especially vig- as bot and commercial analyst division of Global gal conduct. In a con- raw, contemporaneous make notice more effec- ilant in establishing posts. Business Experts Group. sumer class action thoughts as they natural- tive [and] there is no rea- authenticity of social alleging a conspiracy to ly occur. son to expect that tech- media evidence. Possibly Accuracy fix contact lens prices, In addition, social nological change will due to the relative novel- Finally, authors’ natu- the complaint survived media has proven effec- cease . . .” ty of social media in rally substantive intent the motion to dismiss tive for providing notice commercial litigation, must be accurately deter- State Bar News November/December 2017 9

A LEAGUE OF THEIR OWN. Congratulations to our winning Mediators & Arbitrators

Hon. Elizabeth Bonina Richard P. Byrne, Esq. Hon. John P. DiBlasi Former Justice of the Supreme Court, Kings Commercial Specialist Former Justice of the Commercial Division of County Specialties Include: the Supreme Court, Westchester County Specialties Include: Commercial, Construction, Disability, Employment, Specialties Include: Personal Injury, Labor Law, Medical Malpractice, Labor Law, Insurance and Reinsurance, Risk Transfer, Commercial, International, Finance, Defamation, Nursing Home, Product Liability, Property Damage, Product Liability, Property Damage, Personal Injury/ Employment, Entertainment, False Imprisonment, Real Estate, Administrative Law, Negligence Fraud, Insurance Coverage, Intentional Torts, Land Sports Law Use, Professional Malpractice 3 Best Individual Mediator 3 Best Individual Mediator 3 3 Best Individual Arbitrator Best Individual Mediator

Joseph L. Ehrlich, Esq. George Freitag, Esq. Kenneth Grundstein, Esq. Hearing Officer Hearing Officer Former NYC Chief Settlement Negotiator Specialties Include: Specialties Include: Specialties Include: Insurance, Labor Law, Negligence, Premises Insurance Law, Labor Law, Medical Malpractice, Medical Malpractice, Nursing Home, Labor Law, Liability, Product Liability Negligence, Personal Injury, Premises Liability, Catastrophic Injury, Product Liability, Property Torts and Product Liability, Wrongful Death Damage

3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator 3 Best Individual Mediator

Susan Hernandez, Esq. Howard J. Kaplan, Esq. Hon. E. Michael Kavanagh Former Chief of Staff to Presiding Justice Hearing Officer Former Assoc. Justice, Appellate Division, Appellate Division, 1st Dept., Mediator, Bronx 1st & 3rd Depts. Specialties Include: County Insurance, Legal Malpractice, Negligence, Personal Specialties Include: Commercial, Construction, Business Valuation, Specialties Include: Injury, Premises Liability, Product Liability Labor Law, Legal Malpractice, Medical Insurance Coverage, Employment, Professional Malpractice, Negligence, Personal Injury, Premises Malpractice, Medical Malpractice, Nursing Home, Liability, Torts & Product Liability Labor Law

3 #1 Mediator in New York State 3 Best Individual Arbitrator 3 Best Individual Arbitrator

Peter J. Merani, Esq. Michael R. Rossi, Esq. Hon. Peter B. Skelos Hearing Officer Hearing Officer Former Assoc. Justice, Appellate Division, Specialties Include: Specialties Include: 2nd Dept. Personal Injury, Property Damage, Labor Law, Insurance, Labor Law, Negligence, Premises Specialties Include: Product Liability, Insurance Coverage, Liability, Product Liability Commercial, Construction, Labor Law, Insurance Construction, International Coverage, Professional Malpractice, Catastrophic Injury

3 Best Individual Mediator 3 Best Individual Arbitrator 3 Best Individual Arbitrator

Leaders and innovators in ADR since 1992. 122 East 42nd Street, Suite 803, New York, NY 10168 Additional Locations: Garden City, Brooklyn, Staten Island, Westchester and Buffalo (800) 358-2550 | namadr.com 10 November/December 2017 State Bar News Young Lawyers sponsor first advanced trial academy

By Christian Nolan New Rochelle (McCabe, kind of event would reach & development at many young lawyers and were assigned to The Young Lawyers Weisberg, and Conway), come in at the conclusion the State Bar, reached an cannot afford that.” either the plaintiffs/ Section’s Trial Academy who is immediate past of the Trial Academy agreement with Syracuse The Friday-through- prosecution side or the is a popular New York chair of the Young Law- each year. The challenge, Law School to hold the Sunday event at Syra- defense. They were not State Bar Association yers Section and served however, was finding a event there. cuse cost the 17 attend- allowed to switch their event held each spring at as a program co-chair of place to hold it. ees $600 to participate. roles and were told to Cornell Law School in the Advanced Trial Cornell Law School Annual event? The three-day workshop prepare as if it were a Ithaca. Flynn is hopeful that, was geared toward those real trial. So popular, in fact, like the Trial Academy who have already com- The impressive group attendees have been ask- “The difference between a good each spring at Cornell, pleted the Young Law- of volunteer critique fac- ing for additional lawyer and a great lawyer— the Advanced Trial yers Section’s Trial ulty provided nearly a advanced trial prep. That preparation, preparation, Academy will become an Academy. The partici- one-to-one ratio for the feedback came to frui- preparation,” annual event in the fall pants were taken participants. The critique tion on the last weekend at Syracuse. through a full trial, from faculty, including the in October as the State — Stephen P. Younger “We tried to keep it as voir dire to closing argu- team leaders, aimed to Bar Association Young reasonably priced as ments; including fact bring out the lawyers’ Lawyers Section co-host- possible,” said Flynn. witness and expert wit- untapped potential, ed the first-ever Academy with Allan has donated the space “We’re not trying to ness testimony. which often times could Advanced Trial Acade- Ahearne Jr. of Warwick each year during their make a profit. There are The participants be critical. my at Syracuse Universi- (Ahearne Law Firm) and spring break. Finding expensive (trial acade- choose to take part in a ty College of Law. Rebecca Smithwick of another location for the mies) out there, but civil or a criminal trial Continued on page 11 “All of our evalua- New York City (Lupkin advanced program was a tions signaled to us that & Associates). challenge, Flynn said. this was a need,” Flynn said that sug- Megan O’Toole, associate Advanced trial academy: a 3L perspective explained Erin Flynn, of gestions of having this director of member out- By Chris Matcovich The State Bar’s inaugural Advanced Trial Academy geared itself toward the young lawyer looking to strengthen advocacy skills through lecture and practical exercises. Vishal C. Gupta, partner at Steptoe and Johnson LLP, emphasized the need to keep bringing back jurors to the theme of the case, explaining that it all starts during jury selection and continues through openings, examina- tions and culminates during closings. This is so important, he said, because it helps to reiterate key points that you want the jury to take with them when they decide the case. Past State Bar President Stephen P. Younger and Judge Kate Hogan spoke about how to decide whether there is a need for an expert in a case, suggesting, that in many cases, an attorney can call a “non-expert expert” to elicit the testimony they need to help prove their case. This strategy can be helpful in many ways, especially in limiting cost to the client. Both Younger and Hogan also provided ways for attorneys to vet prospective experts. They suggested investigating these experts by ask- ing other lawyers, finding prior testimony from the individual and per- Sharpening their skills—From left, Marco Emanuele Fava, George Hadid and Florian forming general internet searches. Bruno were among about 35 attorneys who attended the three-day Advanced Trial Michael A. Bottar of Bottar Leone, PLLC discussed elements of a hear- Academy at Syracuse University College of Law Oct. 27–29. [Photo by Megan O’Toole] say statement and the exceptions a lawyer can use to confront an objection. He incorporated New York State court decisions into his lecture, which helped to simplify the complicated aspects of hearsay by providing real- world examples of its application. Peter Gerstenzang of Gerstenzang, Sills, Cohn & Gerstenzang, spoke about the art of cross examination. His overriding message was that to be effective, one must control the witness. Using simple, unambiguous ques- tions can help condition the witness to agree with the statements that one makes during cross. Additionally, Gerstenzang highlighted the effective use of looping. The purpose for looping, he said, is to reinforce pertinent facts that you want members of the jury to remember. Following the lecture series, students were split into groups to work on their trial skills. Each was given the opportunity to pick a criminal or civil fact pattern to work with and then present different parts of the case in front of seasoned attorneys. Each student received extensive and detailed feedback about their perfor- mance and the intimate setting allowed students to present their cases thor- oughly and to receive the feedback they needed to apply it in practice. u Chris Matcovich is a 3L at Pace Law School with a concentration in criminal law. Expert litigators—Carrie H. Cohen, left, a member of the volunteer critique faculty, He is active with the State Bar as a campus fellow and volunteers during the discusses strategies with Program Co-Chair Allan Ahearne Jr. and faculty members Young Lawyers Section Trial Academy. Tucker Stanclift and Karen Gerstenzang. [Photo by Megan O’Toole] State Bar News November/December 2017 11

By popular demand: the first advanced trial academy deemed a success Continued from page 10

“Please don’t get with several expert lec- advised speaking to offended when you are turers. The first featured someone who has previ- critiqued,” Judge Debo- Vishal Gupta, a partner ously watched a witness rah Karalunas, a Supreme in Steptoe & Johnson’s to get a better sense of Court justice in Ononda- New York office. Gupta what to expect and ga County and active spoke about trial strate- whether they would be State Bar member, told gy. He urged the attor- right for your case. Also, the participants. “That is neys in attendance to tell given the high cost of why you are here.” a persuasive story effi- experts, to factor in how Other team leaders ciently. He said judges much “bang for the over the course of the and juries are best buck” you will get. weekend were Timothy engaged and persuaded “The difference Fennell of Oswego by facts presented in between a good lawyer (Amdursky, Pelky, Fen- story form. and a great lawyer— nell & Wallen), Tucker The next lecture about preparation, preparation, Stanclift of Queensbury expert witnesses was preparation,” said Expert witnesses—Judge Kathleen Hogan and Past President Stephen P. Younger (Stanclift Law) who presented by Stephen Younger. offer tips on choosing expert witnesses. [Photo by Megan O’Toole] serves as chair of the Younger of New York Other expert lecturers Criminal Justice Section, City (Patterson Belknap), were Michael Bottar, of Eric Sills of Albany (Ger- a past president of the Syracuse (Bottar Leone) stenzang, Sills, Davis, Association and Judge who spoke about hearsay Cohn & Gerstenzang), Kathleen Hogan, an act- evidence and the case and Lisa Peebles, of Syr- ing Supreme Court jus- law guiding it, as well as acuse (federal public tice in Schenectady. Peter Gerstenzang of defender for the North- The pair provided Albany (Gerstenzang, ern District of New advice about choosing Sills, Davis, Cohn & Ger- York). expert witnesses. They stenzang) who discussed said to consider how a cross examination tech- Strategy, expert potential witness can niques. u witnesses hurt your case before The inaugural event thinking about how they Nolan is NYSBA’s senior Program Co-Chair Rebecca Smithwick Young Lawyers Section Chair John P. kicked off Friday Oct. 27 can help it. They also writer. [Photo by Megan O’Toole] Christopher [Photo by Megan O’Toole]

Young Lawyers

By Alexandra Scoville Firsts in providing advice directly to clients: trust your instincts and follow up with them

For three years in law Trust your instincts Follow up school, we are largely First, remain calm, professional and trust your Second, follow up. The more information you tied to books and a class- instincts, even if you do not know something, or do have, the more efficiently you will be able to assess room setting. We may be not have an immediate answer. As an attorney start- what your next action items are. Do not limit your- lucky enough to garner ing out, you cannot know everything. If you have a self to being reactive on a call or during a meeting by direct experience coun- call or meeting with a client, you should be fully pre- only answering questions or taking notes. seling clients through pared regarding the client’s matter. But talking with Ask the client what outcome he/she wants. In clinics, field placements, a client is also an organic process. addition, when a client is explaining the issue at and internships, but A client will have follow-up questions, and may hand, either during an initial consultation or down there is nothing like the ask about additional matters you did not prepare to the road during an update call, ask follow-up ques- first time you directly discuss. In this situation, continue to be confident. If tions so that you can determine what the facts are, Scoville counsel a client and pro- you do not know an answer, confidently let the client but also assess the goals of the client. vide advice about a legal know that you do not know the answer off the top of The client could be presenting facts that paint an problem, as an attorney. In this moment, you are your mind but will provide them with an answer adversarial picture between the client and another truly practicing law. later that day. person, when in fact the client wants to reach an ami- Depending on your work environment, you may It is okay to tell a client you want to confer with cable resolution of an issue. The client’s only goal have these types of communications every day. On your supervising partner, the managing partner, or may be to maintain a business partnership in spite of the other hand, if you are at a firm with many large an attorney in another practice group on an issue, to facts that would support an adversarial reaction. corporate clients, it may be a few years before you ensure you are giving the best advice. Understanding what the client wants is key to are taking the reins on a matter yourself. A client would prefer a solid and sound piece of developing your action plan. If you are working with Either way, being the point person on a client mat- legal advice from you in an hour or two, rather than a partner or supervising attorney on a matter, you ter for the first time can be daunting. You want to an uncertain or unclear answer immediately. Telling will be more valuable if you are able to present a provide the best service, the best advice, and you the client you are taking steps like conducting addi- holistic understanding of and insight to the client’s want to make your firm or organization proud. It is tional research, or having a quick discussion with a ultimate goals while also providing the facts of the natural to feel anxious. partner or supervisor lets the client know that you client’s legal issue. u Do you really know the law? Are you qualified to know the boundaries of your knowledge, and that be advising someone? Will you have all the answers? you can make a quick and calculated assessment of Scoville is an associate intellectual property attorney at Having been a practicing attorney for a year now, I how to build off of those limits and give them the Schmeiser, Olsen & Watts, LLP. Her practice includes have found two pieces of advice invaluable when best advice. complex intellectual property litigation, intellectual prop- speaking directly with clients. erty licensing and patent and trademark prosecution. 12 November/December 2017 State Bar News State Bar objects to Paris Agreement withdrawal

Environmental & Energy mate change in the U.S. nations to ensure that Law Section practicing in in a few decades if effec- they meet the commit- the public and private tive measures are not ments they already have sector, who have devot- soon taken to reduce car- made in the Paris Agree- ed their careers to the bon emissions. Such pre- ment. field of environmental dictions led the 2016 With regard to activity law. We are acutely report of the World Eco- at the state level, here- aware that climate nomic Forum to identify with for your consider- change has evolved from the “failure of climate ation is a link to our an issue that initially change mitigation and Association’s report, Tak- merited further study to adaptation” to be the top ing Action on Climate an outright crisis risk facing society – Change in New York: 2017 demanding prompt and ahead of weapons of Update Report, approved Gerstman effective action. mass destruction, terror- by our House of Dele- We have examined ism and the increasing gates in June 2017. Citing climate change carefully the facts and scarcity of potable water. http://www.nysba.org/ as “an outright crisis,” circumstances set forth in The Paris Agreement ClimateChangeReport State Bar President Sha- the endangerment find- aims to mitigate such We respectfully urge ron Stern Gerstman ing on greenhouse gas risks by holding the you to reconsider the recently wrote to U.S. emissions issued by the increase in global aver- decision to withdraw the President Donald Trump Environmental Protec- age temperatures to a United States from this to express the Associa- tion Agency. It makes a level that “would signifi- landmark international tion’s objection to his clear and compelling cantly reduce the … accord, and that you tions, with bipartisan and Employment Report, decision to withdraw the case for national action impacts of climate reverse the course your support from Congress. January, 2017. United States from the on climate change. The change.” administration has fol- We also note that new We hope that upon Paris Agreement. symptoms of climate We still have the lowed thus far on cli- industries providing reflection you will real- The letter is in its change predicted by sci- chance to achieve the mate change. In doing hundreds of thousands ize that your legacy entirety, below: entists—in the form of goals of the Paris Agree- so, we note that until of well-paying jobs could would be far better prolonged droughts, ment, but doing so will recently bipartisan be fostered by a national served if history record- Dear President Trump: extraordinary heat waves require society-wide efforts have devised program aimed at reduc- ed you as the President I am writing on behalf and storm events, wild- mobilization on a scale common solutions to ing greenhouse gas emis- who finally broke the of the New York State fires, widespread retreat not seen since World War critical environmental sions. The explosive partisan logjam that has Bar Association to regis- of glaciers and arctic ice II. Such a massive under- problems. Indeed, many employment growth prevented meaningful ter the Association’s cover, range shifts of taking would require of our bedrock environ- experienced over the last action on climate change objection to your deci- plants, animals and that all levels of govern- mental laws—such as few years in the wind mitigation. sion to have the United insects, ocean acidifica- ment, and all sectors of the National Environ- and solar industries well States withdraw from tion, and readily measur- society do their part in mental Policy Act, the illustrates the employ- Respectfully, the Paris Agreement. The able sea level rise—are reducing our nation’s Clean Air Act (“CAA”) ment opportunities that Sharon Stern Gerstman Association’s member- now unmistakable. greenhouse gas emis- and the 1990 CAA result from clean energy President, New York ship of 72,000 attorneys Significantly, numer- sions. It also would amendments—were initiative, as pointed out State Bar Association u includes approximately ous studies warn of the require the U.S. to enacted into law during in the U.S. Department 1,000 attorneys in our devastating impact of cli- engage with other Republican administra- of Energy’s U.S. Energy

[Photo by Christina Couto] [Photo by Tom Sullivan Photography] Fair Trial/Free Press Participation in government Sandra Baron, chair of the Committee on Media Law, makes welcoming remarks at the Kathleen DeCataldo discusses tactics for keeping children in school and out of court continuing legal education Fair Trial/Free Press program, held Oct. 23 at New York at the Law, Youth and Citizenship’s 41st annual civics and law-related education con- University School of Law. ference, held Oct. 27 at the Sagamore Resort in Bolton Landing, NY. State Bar News November/December 2017 13 HOUSE OF DELEGATES IN ACTION

Dollars and sense—Oliver C. Young of Buffalo asks T. Andrew Brown, chair of the Finance Committee, a question following Brown’s budget presentation. [Photo by Marty Kerins, Jr.]

Down to business—Above and left, attendees listen as the Association’s busi- ness is conducted. Below, Constitutional Convention “YES” buttons adorn the registration table. [Photos by Marty Kerins, Jr.]

Equality in the courtroom—Judge Helen E. Freedman comments following approval of the Commercial and Federal Litigation Section’s report on women’s equality in the courtroom, while Judge Karla Moskowitz of New York City waits to speak. [Photo by Marty Kerins, Jr.] 14 November/December 2017 State Bar News State Bar News November/December 2017 14 NYSBA141st Annual Meeting Calendar MONDAY WEDNESDAY JANUARY 22, 2018 JANUARY 24, 2018 Career Development PRESIDENTIAL SUMMIT Conference Program 2:00 p.m. – 5:00 p.m. Program 2:00 p.m. – 5:00 p.m. Reception 5:00 p.m. – 6:00 p.m. President’s Reception Complimentary Reception for all SECTION MEETINGS Annual Meeting registrants. ANNUAL International Section 5:00 p.m. – 6:30 p.m. Awards Luncheon 12:00 p.m. – 2:00 p.m. 2018 Meeting 2:00 p.m. – 5:00 p.m. MEETING JANUARY 22 – 26 SECTION MEETINGS Business Law and Corporate CONNECT  INSPIRE  LEARN TUESDAY Counsel Sections Meeting 9:00 a.m. – 12:30 p.m. JANUARY 23, 2018 Reception/Luncheon 12:30 p.m. – 1:45 p.m. SECTION MEETINGS Commercial and Federal Elder Law and Special Litigation Section Needs Section Meeting 9:00 a.m. – 12:00 p.m. Meeting 1:30 p.m. – 5:45 p.m. Reception/Luncheon 12:00 p.m. – 2:00 p.m. Reception follows program off-site: Warwick New York, 65 West 54th Street Criminal Justice Section FREE PROGRAMS Meeting 8:45 a.m. – 12:00 p.m. Entertainment, Arts and Awards Luncheon 12:15 p.m. – 2:00 p.m. HELD AT ANNUAL MEETING Sports Law Section Meeting 1:00 p.m. – 5:30 p.m. Health Law Section Career Development Program | Monday, January 22nd EASL & IP Joint Reception follows off-site: Meeting 9:00 a.m. – 12:30 p.m. Program 2:00 p.m. – 5:00 p.m. | Reception 5:00 p.m. – Bill’s Bar & Burger Rockefeller Center Luncheon 12:45 p.m. – 2:00 p.m. Meeting resumes 2:00 p.m. – 5:00 p.m. 6:00 p.m. General Practice Section Torts, Insurance & Celebrate Diversity in the Bar | Monday, January 22nd and the Committee on Professional Discipline Compensation Law and 6:30 p.m. – 8:00 p.m. Meeting 9:00 a.m. – 1:00 p.m. Trial Lawyers Sections NEW LOCATION Intellectual Property Law Section Reception/Dinner 6:30 p.m. off-site: The SOCIALIZE Meeting 8:45 a.m. – 5:30 p.m. Edison Ballroom, 240 West 47th Street Luncheon 12:35 p.m. – 2:00 p.m. President’s Reception | Wednesday, January 24th IP & EASL Joint Reception follows off-site: Trusts and Estates Law Section 5:00 p.m. – 6:30 p.m. Bill’s Bar & Burger Rockefeller Center Meeting 9:00 a.m. – 12:00 p.m. Tax Section Reception/Luncheon 12:00 p.m. – 2:15 p.m. Young Lawyers Section Reception 6:00 p.m. – 8:00 p.m. off-site: The Meeting 8:45 a.m. – 4:00 p.m. Craft Beer & Conversation | Thursday, January 25th University Club, One West 54th Street at 5th Luncheon 12:30 p.m. – 2:00 p.m. 5:15 p.m. – 6:30 p.m. | Clio Cloud Cafe Avenue COMMITTEE PROGRAMS Young Lawyers Section Committee on Women in the Law Meeting 8:45 a.m. – 12:15 p.m. VISIT Program 9:00 a.m. – 4:15 p.m. Executive Committee Meeting & Awards Luncheon 12:30 p.m. – 3:00 p.m. Exhibitors | Monday – Friday Kay Crawford Murray Luncheon 8:00 a.m. – 5:00 p.m. (1:00 p.m. on Friday) 1:15 p.m. – 2:15 p.m. Networking Reception 4:15 p.m. – 5:30 p.m. COMMITTEE PROGRAMS Clio CSR Fastcase Committee on Animals and the Law LawPay LexisNexis USI Affinity Insurance Program 1:30 p.m. – 5:00 p.m. RELAX Register Early and Save Clio Cloud Café | Monday – Friday www.nysba.org/am2018 8:00 a.m. – 5:00 p.m. (1:00 p.m. on Friday) General Registration Fees Plan to take a break, enjoy some refreshments, access your email, take Early Bird* Regular* advantage of our free Wi-fi and recharge your mobile devices. By 1/12/2018 As of 1/13/2018 We’ve got you covered! New York State Bar Association Members $90 $190 Non-Members $290 $390 Newly Admitted Attorneys of 3 years or less $50 $150 (admitted after January 1, 2015) State Bar News November/December 2017 15

Committee on Law, Youth Family Law Section Real Property Law Section and Citizenship Reception/Awards Luncheon Program 8:00 a.m. – 12:15 p.m. FRIDAY Program 9:00 a.m. – 12:00 p.m. 12:00 p.m. – 2:00 p.m. Reception/Luncheon 12:30 p.m. – 2:00 p.m. JANUARY 26, 2018 Meeting 2:00 p.m. – 4:30 p.m. off-site: NEW LOCATION Chair’s Reception 5:30 p.m. – 7:30 p.m. 54 Below, 254 West 54th Street SECTION MEETINGS THURSDAY off-site: Warwick New York, 65 West 54th Street Senior Lawyers Section Environmental and Energy Law Meeting 9:00 a.m. – 1:00 p.m. JANUARY 25, 2018 Section NEW TIME & Environmental and Energy Torts, Insurance & LUNCH LOCATION Law Section SECTION MEETINGS Meeting 8:45 a.m. – 12:45 p.m. Reception 6:00 p.m. - 7:30 p.m. Compensation Law and Reception/Luncheon 1:15 - 3:00 p.m. Antitrust Law Section Trial Lawyers Sections off site: Mastro’s Restaurant, 1285 6th Meeting 8:30 a.m. – 5:00 p.m. Food, Drug & Cosmetic Meeting 8:45 a.m. – 4:00 p.m. Avenue Antitrust Associates & Young Lawyers Law Section NEW TIME Lunch on your own. Reception 5:00 p.m. – 6:00 p.m. 8:30 a.m. – 5:00 p.m. Young Lawyers Section Judicial Section/Council of Reception/Dinner off-site: University Club, Reception follows program off-site: Leadership Academy Judicial Associations One West 54th Street at 5th Avenue Arent Fox LLP, 1675 Broadway Meeting 9:00 a.m. – 5:00 p.m. Reception/Luncheon 12:30 p.m. – 3:00 p.m. Dispute Resolution Section Lunch on your own. Local and State Government Labor and Employment Networking Luncheon 12:30 – 1:30 p.m. Law Section COMMITTEE PROGRAMS Law Section off-site: Paul, Weiss, Rifkind, Wharton & Meeting 9:00 a.m. – 4:35 p.m. Garrison LLP, 1285 Avenue of the Americas Committee on Condominiums Meeting 8:30 a.m. – 12:30 p.m. Meeting 2:00 p.m.– 6:00 p.m. and Cooperatives of the Real Luncheon 12:30 p.m. – 2:00 p.m. Reception follows program off-site: Property Law Section Dorsey & Whitney LLP, 51 West 52nd Street Young Lawyers Section Program 2:30 p.m. – 5:30 p.m. Leadership Academy Committee on Disability Rights Meeting 9:00 a.m. – 5:00 p.m. Program 9:15 a.m. – 12:00 p.m. Lunch on your own. COMMITTEE PROGRAMS MCLE PLENARY SESSION: Justice for All Luncheon 12:30 p.m. - 2:00 p.m. Committee on Children PRESIDENTIAL SUMMIT “LPM Day”: Hot Topics in and the Law Law Practice Management Program 9:00 a.m. – 12:15 p.m. Wednesday, January 24, 2018 co-sponsored by Committee Committee on Not-For-Profit on Law Practice Management, Entities and Concerns of the 2:00 p.m. – 5:00 p.m. the Committees on Attorney Real Property Law Section Professionalism, CLE and Lawyer Program 9:00 a.m. – 12:00 p.m. Assistance Race, Slavery and Mass Incarceration Program 9:00 a.m. – 5:00 p.m. Lunch will be included. We all know that the 13th Amendment to the US Constitution abolished slavery, but few of us have really concentrated on the language employed. Section 1 reads: “Neither slavery nor invol- untary servitude, except in the punishment for a crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” The exception for punishment for a crime began a second institution of slavery, and is acknowledged as a basis for the mass incarcera- tion of people of color within our country. The award winning film, “13th” by Ava DuVernay, will be shown in its entirety. The film will be followed by a panel discussion, moderated by ABA President Hilarie Bass, exploring the issues of mass incarceration, implicit bias, wrongful conviction, fines and fees, and systemic THE NEW litigation to counteract all of the factors which have resulted in NYSBA the incarceration of so many men and women of color.

The showing of the movie is free to all. In order to attend the MEMBERS substantive CLE portion of the program, you must pay the MOBILE APP! General Registration Fee. Available for Viewing of the movie is complimentary, however pre-registration is still required. You may register online download soon! at www.nysba.org/am2018 16 November/December 2017 State Bar News Attorneys, organizations recognized for pro bono work

In recognition of nolly provides pro bono Law Office of Peter thousands of hours of National Pro Bono Cele- representation to home- Spino, Esq. professional time to pro bration Week, the State owners who come to Nas- Peter Spino heard bono matters every year. Bar joined the New York sau Supreme Court in about the opportunity to State court system’s Mineola to meet with assist Regeneron with Regeneron Office for Justice Initia- bank attorneys. Without pro se litigants in a fore- Pharmaceuticals tives and the New York the pro bono assistance of closure settlement con- Regeneron partners County Lawyers’ Associ- Connolly and other ference and was the first with Pepper Hamilton ation to host an awards NCBA attorneys who vol- private practitioner to LLP to offer the time and ceremony and reception unteer their services, volunteer for the West- talents of its legal honoring attorneys and these homeowners would chester County Pro Bono department and sup- organizations for their be at a disadvantage. Foreclosure program. porting staff. Volunteers volunteer efforts on Spino serves as the have assisted with intake October 26 in Manhattan. Jim Gormley – program’s resident and the preparation of Speakers included Neighborhood expert who draws from responsive pleadings Edwina G. Mendelson, Legal Services his expertise in foreclo- and motions. deputy chief administra- Jim Gormley works sure defense, loan modi- Regeneron, a biotech- tive judge for justice ini- eight hours a week with fications, short sales and nology company that tiatives; Edwina Martin, Neighborhood Legal Ser- debt settlement to invents life-transforming NYSBA’s co-chair of the vices, Inc. (NLS) on its address more complex medicines for people President’s Committee Disability Advocate consultations. He attends with serious diseases, Accomplishments—Po-Wang Yuen was one of several on Access to Justice; and Team in Buffalo, helping regularly, assists in the engages in active recruit- attorneys and organizations honored for pro bono work Michael J. McNamara, clients obtain Social preparation of respon- ment and training for during National Pro Bono Celebration Week at a cere- president of the New Security benefits. He reg- sive pleadings and has continued participation mony on October 26 at the New York County Lawyers York County Lawyers’ ularly assists attorneys shared research and in the Westchester Coun- Association. Edwina Martin, NYSBA’s co-chair of the Association. State Bar and advocates in analyz- motion templates with ty Pro Bono Foreclosure President’s Committee on Access to Justice, is at right. honorees included the ing and summarizing other volunteers. program, as well as in [Photo by Cathleen McDonald] following: mental health records other planned pro bono and has helped the team Pepper Hamilton initiatives for the county. from the beginning. Dur- David Zube Janet Connolly better understand clients LLP ing the year, Slattery Since retiring from Janet Connolly of who suffer from mental Since 1890, Pepper James Slattery completed 443 hours of private practice, David Locust Valley may have illness. lawyers have accepted James Slattery volun- pro bono service. Zube spends several retired from the active Gormley has also challenging and fre- teers at Brooklyn VLP hours each week at the practice of law nearly a helped draft memoran- quently unpopular cases, several times a week, Po-Wang Yuen Legal Aid office in Bing- decade ago, but her pas- dums of law that have participating in pro bono embracing an area of law Po-Wang Yuen, a hamton, assisting clients sion to help others led helped NLS win numer- activities ranging from that is the most helpful member of the board of with bankruptcy issues. her to get involved in ous Social Security hear- death penalty litigation to Brooklyn VLP—bank- directors of Renaissance He recently met on an Nassau County Bar ings. He recently helped to civil rights class ruptcy law. He has a full Economic Development emergency basis with a Association’s Mortgage a client win a Social actions to civil matters docket of bankruptcy Corporation (REDC) client whose income was Foreclosure Pro Bono Security case without the for low-income, disabled cases, connects well with and vice president of garnished by a former Project. need for a hearing, based and other disadvantaged clients and possesses the board of directors of landlord and had to Connolly has worked on his draft memoran- individuals. much patience. its affiliate Asian Amer- move before the end of with this project since dum of law. This particu- Attorneys from the The clients Slattery icans for Equality the lease term. its inception in 2008, lar client had already lost firm have represented assists are low-income (AAFE), was honored Each day was a strug- demonstrating her com- several hearings and hundreds of nonprofit residents of Brooklyn for his 10-plus years of gle as the client tried to mitment by providing appeals and he had been organizations, enabling with busy lives. He han- service to low-income provide for her family of pro bono help to home- waiting for more than the entities to fulfill their dles them with respect residents, immigrants seven on a modest pay- owners facing foreclo- eight years for benefits. own public service mis- and patience and and small businesses of check, with the garnish- sure. Every week, Con- sion. The firm devotes explains the process well New York City through ment making it impossi- REDC and AAFE. He is ble to cover her also a volunteer attor- expenses. The bankrupt- ney in the New York cy provided the relief State Attorney Emeritus she needed. CasePrepPlus Program and of counsel Zube also spends time to the law firm of Yuen training Legal Aid staff NEW YORK STATE BAR ASSOCIATION Roccanova & Seltzer. on filing bankruptcies Serving the legal profession and the community since 1876 Yuen provides clients and is a regular with legal advice on volunteer in Legal Aid’s housing matters, immi- consumer clinic and Save time while keeping up-to-date on the most September 23, 2015 gration issues, and cor- senior legal clinics. He An advance sheet service summarizing recent and significant New York appellate cases PrepPlus porate formation for has always been commit- signifi cant New York appellate decisions CasePrepPlusNEW YORK STATE BAR ASSOCIATION Serving the legal profession and the community since 1876 Editor: Bruce Freeman local entrepreneurs, who ted to civil legal services FIRST DEPARTMENT An exclusive member benefi t, the CasePrepPlus service summarizes recent INSURANCE LAW, EVIDENCE. would not be able to for the low-income, hav- INSURER MUST DEMONSTRATE COMPLIANCE WITH 30-DAY NOTICE REQUIREMENT RE: AN INDEPENDENT MEDICAL EXAMINATION (IME). The First Department, over a dissent, affirmed Supreme Court’s denial of plaintiff-insurer’s motion for summary judgment and signifi cant New York appellate cases and is available for free to all which argued the insurer was not obligated to provide no-fault insurance coverage because defendant did not appear for a scheduled independent medical examination (IME). In order to be entitled to summary judgment, the insurer was required afford to hire a private ing served as Legal Aid’s to show that it notified defendant of the IME within 30 days of the insurer’s receipt of the verification form from the defen- dant. Plaintiff’s papers did not state when the verification form was received by it. Therefore, the plaintiff could not show it complied with the 30-day-notice requirement. The court noted that the issue could be determined as a matter of law and NYSBA members. It includes weekly emails linked to featured cases, as well the defect could not be cured in reply papers: “Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law attorney on their own. director several years which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper ...”. as digital archives of each week’s summaries. American Tr. Ins. Co. v Longevity Med. Supply, Inc., 2015 NY Slip Op 06761, 1st Dept 9-15-15 He has helped numerous before entering private LABOR LAW, PERSONAL INJURY, EVIDENCE. TESTIMONY WHICH COULD HAVE ADDED RELEVANT EVIDENCE ABOUT THE NATURE OF PLAINTIFF’S WORK (PRE-INJURY) AND THE EFFECTS OF THE INJURIES SHOULD NOT HAVE BEEN EXCLUDED AS “CUMULATIVE.” Plaintiff in a Labor Law 240(1) action was entitled to a new trial because the trial judge should not have excluded the tes- u timony of a co-worker and plaintiff’s wife as “cumulative.” The court explained: “[A] new trial on damages is necessitat- low-income, minority, practice. ed, because we disagree with the court’s preclusion of testimony by plaintiff’s wife and coworker. Testimony is properly To access CasePrepPlus, visit www.nysba.org/caseprepplus. precluded as cumulative when it would neither contradict nor add to that of other witnesses ... . Here, the testimony of plaintiff’s wife and his coworker would have added to the testimony of other witnesses. First, the coworker saw plaintiff fall, and his testimony as to the impact to plaintiff’s foot could have been highly probative of plaintiff’s claim that the con- women and immigrant tinuing pain in his foot was caused by the accident and did not pre-exist it, as defendants argued. Further, the coworker could have testified as to the particular duties carried out by plaintiff as a heavy-construction carpenter, which would have supported plaintiff’s position that as a result of his injury he could no longer perform that kind of work. To be sure, plaintiff testified about his job duties, but the coworker’s status as a disinterested witness would have given his testimony added value to the jury ... . Nor was the proffered testimony of plaintiff’s wife likely to be cumulative, notwithstanding her not entrepreneurs grow suc- having asserted a derivative claim. The wife had a unique perspective on her husband’s condition before and after the ac- cident, and could have assisted the jury in further understanding the extent of his disability and of his pain and suffering.” Segota v Tishman Constr. Corp. of N.Y., 2015 NY Slip Op 06764, 1st Dept 9-15-15 SECOND DEPARTMENT cessful businesses. CIVIL PROCEDURE. REJECTION OF ANSWER BASED UPON A DEFECTIVE VERIFICATION WAS INEFFECTIVE BECAUSE THE REASON FOR REJECTION WAS NOT ADEQUATELY EXPLAINED, SUPREME COURT PROPERLY IGNORED THE DEFECT BE- CAUSE IT CAUSED NO PREJUDICE. The Second Department affirmed the denial of plaintiffs’ motion to enter a judgment on the ground defendant failed to appear in the action. The plaintiffs had rejected defendant’s answer because the verification was defective. The Second De- partment noted (1) the rejection of the answer was not effective because it was not accompanied by an adequate explanation of the nature of the alleged defect and (2), because plaintiffs suffered no prejudice, Supreme Court properly ignored the defect: “ ‘Pursuant to CPLR 3022, when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient with due diligence returns the [pleading] with noti- State Bar News November/December 2017 17

Pro Bono Services

By Kristen Wagner, Director Survey results provide valuable insight into pro bono service in New York state In July 2017, the expertise. Attorneys who practice primarily in pover- The New York State Bar Association continues to American Bar Associa- ty, public benefits, disability rights, civil rights, hous- provide continuing legal education programs geared tion’s Standing Commit- ing, nonprofit organization, consumer, education, towards attorneys seeking to do pro bono work and tee on Pro Bono and juvenile, elder, and immigration were more likely to continues to do more to make doing pro bono work Public Service published do pro bono work. more accessible to all kinds of attorneys. For “Supporting Justice in This is not surprising, given the fact that these instance, NYSBA recently held a free CLE program New York: A Report on particular areas of the law are those that directly on pro bono ethics for government attorneys. Gov- the Pro Bono Work of align with the types of legal services that are most ernment attorneys are under many restrictions that New York’s Lawyers,” often needed by low-income individuals. It makes make it particularly difficult for them to do pro bono based on a survey that sense that attorneys are more comfortable providing work. However, it is possible for government attor- was conducted as part of pro bono services within their fields of expertise; neys to do pro bono work as long as they work with- a nationwide project in however there are fewer attorneys with these partic- in the restrictions placed upon them. There are orga- Wagner the spring. ular skill-sets and knowledge base than the over- nizations across the state that can work with all While not every attor- whelming number of low-income individuals who kinds of attorneys in finding the right pro bono vol- ney in the state of New York completed the survey, require services in these practice areas. unteer opportunities. the results provide valuable insight into the pro bono work being done by attorneys around the state. Pro bono gaps Free Legal Answers The survey results indicated that 22.6 percent of These are examples of why there are gaps in the One pro bono program designed to enable attor- the responding attorneys have never provided pro levels of pro bono services rendered by attorneys neys to do pro bono who might not otherwise be able bono service. While this may very well be an statewide. The survey respondents indicated that to is New York Free Legal Answers (ny.freelegalan- improvement upon years past, we still have a long some of the top ways in which pro bono programs swers.org). Launched in 2016, New York Free Legal way to go in having all New York attorneys fulfill can more successfully engage them include offering Answers continues to be a valuable resource for low their aspirational goals of completing at least 50 CLE credit for doing pro bono work, offering limited income New Yorkers to receive brief legal advice hours of pro bono service every year. scope representation opportunities, offering malprac- from volunteer lawyers across the state. Unsurprisingly, private attorneys were significantly tice insurance coverage to pro bono attorneys, and The number of questions submitted continues to more likely to have engaged in pro bono service than offering free or reduced cost CLE programming, grow each month. These questions cover a variety of those in other settings, such as corporate, government among others. topics ranging from family law to housing and proper- and nonprofit settings. Many private attorneys, espe- There are many organizations with pro bono pro- ty law issues, as well as legal questions related to bene- cially those at larger law firms, often are actively grams across the state that are already offering these fits, employment law, and others. More volunteer encouraged by their firms to do pro bono work and things. They not only provide pro bono attorneys attorneys are always needed, and NYSBA is currently may even have staff within their firm to assist them in with the training they need to do the pro bono work offering free access to introductory programs and securing appropriate pro bono assignments. that is so greatly needed, but they will also provide materials within these subject matters for those who Attorneys from other sectors often have more bar- them with CLE credit for those trainings as well as sign up to volunteer for New York Free Legal Answers. riers to overcome in order to do pro bono service, malpractice insurance coverage for the pro bono I encourage you all to visit ny.freelegalanswers. like conflicts of interest and resource limitations, work they do. If you are ever in need of assistance in org and sign up to be a volunteer attorney today! If among others. getting connected with one of these organizations, you have any questions about the program, contact 71.6 percent of attorneys indicated that their contact NYSBA’s Pro Bono Services Department at NYSBA’s Pro Bono Services Department at 518-487- recent pro bono experience was within their areas of 518-487-5640 or [email protected]. 5640 or [email protected]. u Governmental Relations By Ronald F. Kennedy, Director NYSBA leaders continue work to reform statutory power of attorney document This column is intend- The State Bar created a task force to review and In short, the bill would ease the burden on fami- ed to provide an update make recommendations regarding the current statute lies, especially at a time when they need simple and on one of the State Bar covering power of attorney. The task force, chaired effective solutions. State Bar leaders President Sha- Association’s legislative by Ellen Makofsky, was comprised of members of the ron Stern Gerstman and President-elect Michael Mill- proposals that is of great Association’s sections on Elder Law and Special er argued to policymakers that good public policy interest to practitioners Needs; Trusts & Estates; Business Law; Real Property should ensure that individuals are able to create and across many substantive Law; and Health Law. Goldfarb and Makofsky, along use an effective power of attorney when they need it, areas of the law—a bill with Richard Weinblatt and Tara Ann Pleat have pro- and therefore the NYSBA proposal, which was one of to improve the statutory vided assistance throughout the advocacy process. the Association’s 2017 legislative priorities, should be power of attorney. The legislation developed by the task force, to enacted into law. As practitioners know, address the current problems with the power of Our bill, Assembly bill, A.8120-B (Weinstein, et al) power of attorney is an attorney form, would: passed the Assembly by a vote of 142 in favor, 0 Kennedy important document • Simplify the current power of attorney form; against. The Senate bill, S.6501-A (Hannon) was because it helps people, • Prevent third parties from improperly refusing to favorably reported out of the Senate Judiciary Com- often the elderly or disabled, manage their affairs, espe- accept a consumer’s valid power of attorney; mittee, but was not acted on by the full Senate. cially their finances and health care planning. It is also • Provide protection for third parties who follow the As we approach the 2018 regular session of the often used in connection with real estate and other busi- process for accepting a power of attorney; and New York State Legislature, this important legisla- ness dealings. Having a valid power of attorney often • Authorize language in the power of attorney form tion has been the subject of continued advocacy avoids costly and time-consuming court proceedings. that substantially conforms with the statutory lan- efforts by NYSBA leaders and staff. More work is Under current law, a power of attorney form is too guage, in order to prevent the harsh consequence required in order to reach our goal of reforming the complex, too costly, and unreasonably difficult for of the form being invalidated because of harmless law in this area, and that work will continue into the individuals to use. error in the form. New Year. u 18 November/December 2017 State Bar News

The New York Bar Foundation By John H. Gross, The New York Bar Foundation President Partnerships and passion push New York Bar Foundation forward in 2017, into 2018

As I write this col- partners and to everyone involved in this wonderful umn, The Foundation’s campaign to assist Veterans in need of legal services. 24-hour online cam- Developing new partnerships and spearheading paign for veterans legal fundraising events such as this have contributed to services projects is wind- The Foundation’s success in 2017. ing down. Attorneys, As president, it is gratifying to observe the legal their families, and community joining in so many passionate ways to friends participated to assist with the growth of the Foundation’s grant pro- make this 24-hour effort gram. Your support provides opportunities for non- a success. profit organizations throughout New York State that More than $8,000 has help those in desperate need of legal services. been raised for this Immigration, foster care, homelessness, veterans’ Gross effort. The goal of the benefits, re-entry, domestic violence and elder abuse campaign, spearheaded are some of the many quality-of-life issues those in Thank you—The Defense Association of New York by the Young Lawyers Section and the Young Law- need face, but who often can’t afford an attorney to (DANY) used its past presidents’ dinner as a fundraiser yer Friends of The Foundation giving group, was assist in obtaining a positive life-changing outcome. for The Foundation’s Disaster Relief Fund. From left, $7,500. These efforts highlight so much of what we are— Heather Wiltshire Clement of Sovereign Claims LLC, For two consecutive years, the commitment of we are a helping profession dedicated to the rule of DANY president; Tom Liptak of Kenney Shelton Liptak these two groups drove the success of the campaign law. Attorneys are caring and compassionate, striv- Nowak LLP, board member and officer/assistant treasur- in raising more than their stated goal. This year’s ing to make a difference in their communities every er; Tom Maroney of Maroney & O’Connor LLP, board member and DANY past president; Vincent P. Pozzuto of campaign introduced a new opportunity for firms to day; The Foundation is a bridge, connecting the gifts Cozen O’Connor, chairman of the board and DANY participate as Matching Firm Partners. of our donors to those in need of services. immediate past president; and The New York Bar Thank you to Criscione Ravala LLP and Sahn Thanks to each of you who has helped this year. Foundation Treasurer Martin Minkowitz of Stroock & Ward Coschignano, PLLC for being the inaugural We couldn’t do it without you. u Stroock & Lavan LLP.

The New York Bar Foundation ends 2017 on a financial high note While there were several notable New York Bar Foundation projects that were successfully implemented in 2017, some of the year’s highlights include: • Beginning the year by announcing that The Foundation was administer- ing the Catalyst Public Service Fellowship program. The program was created in 2016 by a donation of unused campaign funds from the Janet DiFiore for District Attorney Committee before she became the Chief Judge. The program was developed to encourage and enable first-year law stu- dents to gain practical legal experience in public service. For many of them, this would not be possible without the assistance of the program. Fellowships totaling $100,000 were earmarked for 13 New York law schools this year. The goal for 2018 is for each of the 15 law schools to have at least three students participate. • Recognizing the vital need to provide legal assistance for immigrants, The Foundation partnered with the NYSBA to financially support its new online portal that connects pro bono volunteer attorneys to organi- zations that provide assistance to immigrants in New York state. • Coordinating disaster relief fundraising efforts to assist those in need of legal services after the devastating impacts of Hurricanes Harvey, Irma and Maria. • Working with sections of the NYSBA to establish two new restricted funds that will be allocated to the grant program. The Business Law Section Small Business Support Fund will support organizations through the grant program to assist underserved New York residents seeking to establish their own small business enterprises within the state of New York. The Family Law Section Fund will support organiza- tions through the grant program to assist organizations with Family Law-related programs. u [Photos by Donna Cain]

—John Gross, president, The New York Bar Foundation Habitat for Humanity Members of the Real Property Section’s 9th District participated in a Habitat for Humanity Team Build Day on Sept. 16 in Rockland County. The section made a dona- tion to Habitat for Humanity of Rockland County for each volunteer. State Bar News November/December 2017 19

NEW YORK STATE BAR ASSOCIATION

Are you feeling Lawyer We understand the competition, Referral overwhelmed? constant stress, and high and expectations you face as a lawyer, Information The New York State Bar Association’s judge or law student. Sometimes Service Lawyer Assistance Program can help. the most difficult trials happen Interested in expanding your client base? outside the court. Unmanaged Join the Lawyer Referral stress can lead to problems such as & Information Service

substance abuse and depression. Why Join? > Expand your client base > Benefit from our marketing strategies NYSBA’s LAP offers free, > Increase your bottom line confidential help. All LAP services Overview of the Program The New York State Bar Association Lawyer Referral are confidential and protected and Information Service (LRIS) has been in existence since 1981. Our service provides referrals to attorneys under section 499 of the like you in 46 counties (check our website for a list of the eligible counties). Lawyers who are members of Judiciary Law. LRIS pay an annual fee of $75 ($125 for non-NYSBA members). Proof of malpractice insurance in the minimum amount of $100,000 is required of all participants. If you are retained by a referred client, you are required to pay LRIS a referral fee of 10% Call 1.800.255.0569 for any case fee of $500 or more. For additional information, visit www.nysba.org/joinlr.

Sign me up Download the LRIS application at www.nysba.org/ joinlr or call 1.800.342.3661 or e-mail [email protected] to have an application sent to you. NEW YORK STATE BAR ASSOCIATION LAWYER ASSISTANCE PROGRAM Give us a call! 800.342.3661

FROM THE NYSBA BOOKSTORE For pricing and further information visit our website at www.nysba.org/pubs November/December 2017 See our list of e-books at www.nysba.org/ebooks Bestsellers FEATURED Attorney Escrow Accounts – Rules, Evidentiary Privileges, 6th Ed. Contract Doctrine & Marital Agreements in Preparing For and Trying the Civil Lawsuit, Regulations and Related Topics, 4th Ed. The 6th edition covers the privileges that may New York, 3rd ed. Second Edition, 2016 Revision This is the go-to guide on escrow funds and be asserted at the grand jury and at trial. This unique work addresses virtually every poten- More than 30 of New York State’s leading agreements, IOLA accounts and the Lawyers’ Fund PN: 40996 / Member $55 / List $75 / 450 pages tial issue that might arise in a matrimonial con- trial practitioners and other experts reveal the for Client Protection. With CD of forms, ethics Foundation Evidence, Questions tract and analyzes both settled and unsettled law. techniques and tactics they have found most opinions, regulations and statutes. and Courtroom Protocols, 5th Ed. PN: 41596 / Member $185 / List $245 / 2,280 pages effective when trying a civil lawsuit. PN: 41955 / Member $185 / List $235 / 1,528 pages PN: 40264 / Member $60 / List $75 / 436 pages This edition of this classic text has been com- Municipal Ethics in New York State: A Primer for Criminal and Civil Contempt, 2nd Ed. pletely reorganized to better follow the process of Attorneys and Public Officials The Legal Writer: Drafting New York This second edition explores a number of aspects a trial; the sections on Direct, Re-direct and Cross A must-have for anyone looking for help navigat- Civil-Litigation Documents of criminal and civil contempt under New York’s Examination have been greatly expanded. ing the difficult intersection of ethics regulations A master class in drafting civil-litigation Judiciary and Penal Laws, focusing on contempt PN: 41074 / Member $65 / List $80 / 344 pages and local law, including conflicts of interest restric- documents to make your best case at trial. tions, misuse of public office, disclosure, and PN: 4073 / Member $95 / List $125 / 518 pages arising out of grand jury and trial proceedings. New York Contract Law: A Guide for more. PN: 40622 / Member $45 / List $60 / 294 pages Non-New York Attorneys The Legal Writer: Writing It Right PN: 4142 / Member $60 / List $75 / 463 pages Entertainment Law, 4th Ed. A practical, authoritative reference for questions Written by the Hon. Gerald Lebovits, this book Written by some of the most successful entertain- and answers about New York contract law. NYSBA Estate Planning System puts every facet of legal writing discussed in the ment law practitioners in the country, this edition PN: 4172 | Member $95 | List $130 | 622 pages This Estate Planning System is a fully-automated, NYSBA Journal’s Legal Writer columns into one covers the principal areas of entertainment law. document assembly software that enables the user place for easy reference and provides New York N.Y. Lawyers’ Practical Skills Series to draft customized, estate planning documents for attorneys with the legal writing tools they need PN: 40862 / Member $140 / List $175 / 986 pages (2017–2018) Available December 2017 a client. for success. Estate Planning & Will Drafting in New York, An essential reference, guiding the practitioner PN: 6270 / Member $1,104 / List $1,351 (CD) PN: 4134 / Member $95 / List $125 / 590 pages 2017 Revision Available December 2017 through a common case or transaction in 25 areas PN: 6270E / Member $1,104 / List $1,351 A valuable resource for novice as well as experi- of practice. Nineteen titles; 16 include download- (Downloadable) enced practitioners. Includes downloadable forms. able forms. PN: 4095C / Member $185 / List $220 / 934 pages PN: 40018PS | Member $695 | List $895

Order multiple titles to take advantage of our low flat rate shipping charge of $5.95 per order, regardless of the number of items shipped. $5.95 shipping and handling offer applies to orders Expand your professional knowledge shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added to your total. 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8797 20 November/December 2017 State Bar News RECENT DECISIONS & CASE LAW DEVELOPMENTS The New York State Bar Association provides members with case summaries as part of NYSBA’s CasePrepPlus service. CasePrepPlus is an online service highlighting and summarizing the most recent and significant New York appellate cases (with access to the full opinions). The case summaries, prepared by Bruce Freeman, Esq., of Rochester, New York, save the practitioner valuable time by including only the most relevant cases, sorted by court and topic. This service is part of the ongoing initiative to continually provide relevant benefits to NYSBA members.

COURT OF APPEALS companies that write workers’ com- supported a finding that the father have breached a duty of care by not CRIMINAL LAW pensation insurance policies. They neglected Isabella. The same evidence making sure that the rear exit door TOW TRUCK WAS “EQUIPPED” challenged the legislature’s 2013 also supports a finding that the father was unlocked and that her injuries WITH A POLICE SCANNER, EVEN amendment ... which closed the special neglected Jace. Even a single instance might have been avoided if he had THOUGH THE SCANNER WAS IN fund for reopened cases. The special of domestic violence may be a proper acquiesced to the assailant’s DEFENDANT’S POCKET, NOT fund was designed to relieve insurers basis for a finding of neglect, so long as demand that he be permitted to ATTACHED TO THE TRUCK. of unexpected reopened claims in cases it ‘occurred in the child’s presence and board the bus without paying the The Court of Appeals, in a full- that had been closed seven or more resulted in physical, mental or emo- fare ... . Dismissal of the false fledged opinion by Judge Stein, over years before: “We conclude that, tional impairment or imminent danger imprisonment claim is also warrant- an extensive dissenting opinion, assuming the amendment has a retro- thereof’ ... . Jace was in imminent dan- ed, since there is no evidence that determined defendant was properly active impact by imposing unfunded ger of physical impairment due to his Hamblin intended to confine plain- convicted of “equipping” his tow costs upon plaintiffs for policies final- close proximity to the violence ... . The tiff ...”. Savinon v. New York City Tr. truck with a police scanner without ized before the amendment’s effective father’s assertion that Jace was in Auth., 2017 N.Y. Slip Op. 07390, First a permit. The scanner was not date, that retroactive impact is consti- ‘another part of’ or ‘somewhere else in’ Dept 10-24-17 attached to the vehicle. It was in the tutionally permissible. * * * … the one-room residence at the time of defendant’s pocket: “Our analysis ‘[T]he constitutional impediments to the attack is unsupported by the SECOND DEPARTMENT begins with the language of the stat- retroactive civil legislation are now record.” Matter of Isabella S. (Robert T.), DEBTOR-CREDITOR ute. Neither the VTL[Vehicle and modest’ ... . ‘Absent a violation’ of a 2017 N.Y. Slip Op. 07533, First Dept DEBTOR CAN SIMPLY REFUSE Traffic Law] nor the Penal Law specific constitutional provision, ‘the 10-26-17 TO REPAY THE CRIMINALLY USU- defines ‘equips’ or any derivation of potential unfairness of retroactive civil PERSONAL INJURY RIOUS LOAN. that word. Absent a statutory defini- legislation is not a sufficient reason for BUS DRIVER ACTED REASON- The Second Department deter- tion ‘we must give the term its ‘ordi- a court to fail to give a statute its ABLY IN RESPONSE TO AN EMER- mined a loan with a 50% per year nary’ and ‘commonly understood’ intended scope’ ... . * * * ... [T]he legis- GENCY SITUATION (AN ASSAULT interest rate was criminally usurious meaning ... . To that end, ‘[i]n deter- lative amendment does not impair any ON THE DRIVER), PLAINTIFF PAS- and the debtor could simply refuse mining the meaning of statutory lan- term of plaintiffs’ contracts with their SENGER’S NEGLIGENCE AND to repay it: “A borrower bears the guage, we ‘have regarded dictionary insureds ... . * * * Plaintiffs cannot iden- FALSE IMPRISONMENT ACTION burden of proving each element of definitions as useful guideposts’ ... . tify any vested property interest SHOULD HAVE BEEN DISMISSED. usury by clear and convincing evi- A review of recent sources and those impaired by the legislative amendment The First Department, reversing dence, and usury ‘will not be pre- available at the time the statute was ... . * * * Supreme Court, determined the NYC sumed’ ... . Here, the plaintiff admits enacted in 1933 indicates that Assuming that the 2013 amendment Transit Authority’s motion for summa- that the interest on the loan was ‘equips’ does not necessitate physi- to section 25-a has some retroactive ry judgment should have been grant- excessive, criminally so, at 50% per cal attachment or a special adapta- impact, we conclude that the retroac- ed. Plaintiff was on a bus when a man annum, or 100% over the two-year tion. * * * Under these definitions tive impact is justified by a rational attempted to get on the bus without term of the loan. Further, where a ‘equip’ means to provide something legislative purpose ...... [T]he closure paying and assaulted the driver. Plain- loan agreement is usurious on its with a particular feature or ability. of the Fund was intended to ‘save New tiff and others moved to the back of face, usurious intent will be implied None states or implies any need for York businesses hundreds of millions the bus and demanded that the driver, and usury will be found as a matter the object’s physical attachment to of dollars in assessments per year’ ...”. Hamblin, open the rear door (the door of law ... . Thus, the defendants met the thing equipped. ... Giving American Economy Ins. Co. v. State of was not opened). Plaintiff allegedly their burden of establishing the ele- ‘equip’ its commonly understood New York, 2017 N.Y. Slip Op. 07385, suffered a panic attack which created a ments of criminal usury. Moreover, meaning, VTL 397 applies regardless CtApp 10-24-17 condition requiring that a defibrilla- there was no evidence of a ‘special of whether the prohibited device is tion device be implanted in her chest. relationship’ between the parties ... , physically attached to the motor FIRST DEPARTMENT The court held that Hamblin was and no evidence that the defendants vehicle, so long as the device is FAMILY LAW faced with an emergency situation to set a rate they knew to be usurious ready for efficient service.” People v. FAMILY COURT SHOULD HAVE which he reacted appropriately: for the purpose of avoiding repay- Andujar, 2017 N.Y. Slip Op. 07383, FOUND FOUR MONTH OLD CHILD “Defendant established entitlement to ment of the loan ... . Accordingly, CtApp 10-24-17 TO HAVE BEEN NEGLECTED, judgment as a matter of law as to there is no triable issue of fact as to WORKERS’ COMPENSATION FATHER CHOKED MOTHER WITH plaintiff’s negligence claim by submit- whether the defendants may be LAW, INSURANCE LAW CHILD IN THE ROOM. ting evidence showing that the inci- estopped from raising usury as a AMENDMENT TO WORKERS’ The First Department, reversing dent was the result of an emergency defense to the plaintiffs’ action. COMPENSATION LAW WHICH Family Court, determined that the situation that was not of Hamblin’s Because an action by a lender on a CLOSED THE SPECIAL FUND FOR four-month-old child’s (Jace’s) pres- own making and that afforded him lit- usurious loan is impermissible ... , REOPENED CASES IS CONSTITU- ence in the room when father choked tle or no time to consider an alternate the plaintiff’s motion was properly TIONAL. mother supported a finding Jace was course of action... . The record demon- denied and that branch of the defen- The Court of Appeals, in a full- neglected: “The mother testified that strates that Hamblin reasonably and dants’ cross motion which was for fledged opinion by Judge Fahey, the father choked her in the presence prudently responded to the emergen- summary judgment dismissing the reversing the appellate division, of six-year-old Isabella and only a cou- cy by making sure that the bus’s emer- action on the ground that the loan determined the amendment to ple of feet away from where then four- gency brake was activated and press- was usurious was properly granted Workers’ Compensation Law § 25-a, month-old Jace was sleeping in his ing the silent alarm to summon the ...”. Roopchand v. Mohammed, 2017 which closed the special fund for crib. The mother’s testimony was sup- police ... . In opposition, plaintiff failed N.Y. Slip Op. 07476, Second Dept reopened cases, is constitutional, ported by shelter records; the father to raise a triable issue of fact. She only 10-25-17 despite some retroactive effect on did not testify. Family Court found the presented unsubstantiated assertions insurers. Plaintiffs are insurance mother’s testimony was credible and and speculation that Hamblin may Continued on page 22 State Bar News November/December 2017 21

CLE Seminar Schedule

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Recent Decisions & Case Law Updates Continued from page 20

FAMILY LAW mately $5,000. Significantly, the dissent, reduced defendant’s sen- from an assault by a resident. The GARNISHMENT OF HUS- plaintiff’s expenses included the tence for robbery of a pharmacy to court held that there was no evi- BAND’S INCOME FOR CHILD sum of $575 per month for student procure oxycodone. The dissent dence demonstrating the facility was SUPPORT ARREARS AT 65% DID loan payments on behalf of one of argued the mitigating circumstanc- aware of the danger posed by the NOT STRIKE A FAIR BALANCE the parties’ adult children. Addition- es, including defendant’s status as a resident, i.e., no evidence the assault BETWEEN THE NEEDS OF THE ally, the defendant has not disputed wounded veteran, were not extraor- was foreseeable from the standpoint CREDITOR WIFE AND THE the plaintiff’s assertion that she has dinary: “In light of defendant’s of the employer: “Defendant, ‘like NEEDS OF THE DEBTOR HUS- other sources of income apart from admission from the outset that he any other property owner, has a duty BAND, REDUCED TO 40%. the monies that she receives from perpetrated the robbery, albeit with- to protect persons lawfully present The Second Department, revers- the income execution. Under all the out a knife, the correlation between on its premises, including patients ing Supreme Court, determined the circumstances present here, it cannot the illness that he contracted while and visitors, from the reasonably plaintiff husband was entitled to a be said that, at the time of the serving in Afghanistan and an opi- foreseeable criminal or tortious acts reduction in his wage garnishment instant motion, the 65% income exe- oid addiction that precipitated this of third persons’ ... . Accordingly, for child support arrears from 65% cution struck ‘a fair balance between event, his duly expressed remorse since ‘liability require[s] a showing to 40%: “Here, the Supreme Court the needs of a creditor holding a and his lack of any prior criminal that the wrongdoer’s conduct was determined that the 65% income valid money judgment and the record, we find that his sentence for foreseeable to the defendant’... , execution was appropriate in light needs of a debtor managing compet- the criminal possession of a con- defendant may ‘establish[] its entitle- of the plaintiff’s ‘history of substan- ing financial obligations’ ... . To the trolled substance conviction was ment to judgment as a matter of law tial arrears.’ However, notwith- contrary, the record reflects that the unduly severe and should be by showing that it had no notice of standing his history of arrears, the 65% income execution created a tre- reduced to three years, with five any prior similar incidents or similar plaintiff demonstrated that, at the mendous disparity between the years of postrelease supervision, to aggressive behavior by the patient time of his motion, a 65% income plaintiff’s expenses and his actual run concurrently with the sentences such that it should have anticipated execution was unduly prejudicial. income after garnishment and for his other convictions. Corre- the alleged incident and protected Since the 2013 order, the defendant deductions, and that the defendant spondingly, we vacate the $5,000 the plaintiff from it’ ... . Here, while has received the sum of at least did not have any particular need for fine.” People v. Wyrick, 2017 N.Y. Slip plaintiff and her coworkers may $511,000 toward the arrears, both of the maximum garnishment percent- Op. 07488, Third Dept 10-26-17 have been aware of the resident’s the parties’ children have become age.” Fishler v. Fishler, 2017 N.Y. Slip PERSONAL INJURY, EMPLOY- history of assaultive conduct, there is adults and attended college, and Op. 07429, Second Dept 10-25-17 MENT LAW nothing beyond the speculation of only one of the adult children lives RESIDENTIAL CARE FACILITY plaintiff and a coworker (her daugh- in the defendant’s home. The plain- THIRD DEPARTMENT NOT LIABLE FOR ASSAULT ON ter) to suggest that anyone employed tiff demonstrated that the 65% CRIMINAL LAW PLAINTIFF EMPLOYEE BY A RESI- by defendant had a similar aware- income execution provided the DEFENDANT’S SENTENCE FOR DENT, ASSAULT WAS NOT FORE- ness. * * * ... [D]efendant satisfied its defendant with a monthly payment ROBBING A PHARMACY OF OXY- SEEABLE. ... burden of showing that it could of approximately $7,500, that the CODONE REDUCED BASED IN The Third Department deter- not have reasonably anticipated the plaintiff received only about $3,000 PART ON HIS STATUS AS A mined the residential care facility’s attack on plaintiff ...”. Boudreaux v. per month after garnishment and WOUNDED VETERAN AND HIS motion for summary judgment was Columbia Mem. Hosp., 2017 N.Y. Slip other deductions, and that his OPIOID ADDICTION. properly granted in this action by an Op. 07513, Third Dept 10-26-17 u monthly expenses were approxi- The Third Department, over a employee of the facility stemming State Bar News November/December 2017 23 Lawyer-to-Lawyer Referral

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