Ethics and the Construction Lawyer November 30, 2010 6:00PM to 9:00PM

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i Et h i c s a n d t h e onstruction a w y e r

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n Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for November 30, 2010.

P r o g r a m Co -Sp o n s o r s : NYCLA Construction Law and Professional Ethics Committees

P r o g r a m Co -Ch ai r s : Joel Sciascia, Pavarini McGovern LLC Barry Temkin, Mound Cotton Wollan & Greengras

F ac u lt y : Todd Bakal, Mound Cotton Wollan & Greengrass Bruce Green, Louis Stein Professor, Fordham University Christopher Murray, Chartis Insurance Barry Temkin, Mound Cotton Wollan & Greengrass NYCLA-CLE I

2 TRANSITIONAL and Non-transitional MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 2 Ethics.

Information Regarding CLE Credits and Certification

Ethics and the Construction Lawyer November 30, 2010 6:00PM to 9:00PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of each day. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iv. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

v. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. If it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

vi. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Ethics and the Construction Lawyer Tuesday, November 30, 2010 6:00 PM – 9:00 PM

AGENDA

Program Chair: Joel Sciascia, Pavarini McGovern LLC

Faculty: Todd Bakal, Mound, Cotton, Wollan & Greengrass Bruce Green, Louis Stein Professor, Fordham University Christopher Murray, Chartis Insurance Barry Temkin, Mound Cotton Wollan & Greengrass

5:30 PM – 6:00 PM Registration

6:00 PM – 6:10 PM Introductions and Announcements

6:10 PM – 9:00PM** Discussion of Rules, Ethics and Cases

*** There will be two ten minute breaks during the evening.

Ethics and The Construction Lawyer New York County Lawyers’ Association Nov. 30, 2010

354203 NYCLA Construction Law Committee • Joel Sciascia, Chair, Pavarini McGovern LLC • Barry Temkin, Mound Cotton Wollan & Greengrass • Bruce Green, Fordham U. School of Law • Christopher Murray, Chartis Insurance • Todd Bakal, Mound Cotton Wollan & Greengrass

354203 Hypothetical 1

• You represent a crane operator in a civil case arising from a crane collapse that resulted in multiple deaths and catastrophic personal injures.

• Your client, the crane operator, testifies that he was not intoxicated on the job and the jury finds for your client.

• Later on, your client exclaims “I can’t believe they believed that story I told them.” When you ask him what he meant, he gestures to the champagne bottle in his hand and says “Let’s just say today is not the only time I was hitting the Dom!”

354203 Ethical Considerations

• NY Rule 3.3(a)(1): An attorney shall not knowingly offer or use evidence that the attorney knows to be false. If the attorney’s client has offered material evidence and the attorney comes to know of its falsity, the attorney shall take remedial measures, including if necessary, disclosure to the tribunal.

354203 Ethical Considerations Cont’d

• Do you know that your client lied on the stand? - NY Rule 1.0(k) defines “knowingly,” “known,” “know,” or “knows” as actual knowledge, and provides that a person’s actual knowledge may be inferred from circumstances. - An attorney must have actual knowledge before a reporting requirement is triggered. Mere suspicions of fraud are insufficient to mandate disclosure. Doe v. Federal Grievance Committee, 847 F.2d 57 (2d Cir. 1988). - Furthermore, NY Rule 3.3, Comment [8] states that an attorney cannot ignore an obvious falsehood.

354203 Ethical Consideration Cont’d

• Does an attorney’s ethical obligation survive beyond the conclusion of a case?

354203 Ethical Considerations Cont’d

- ABA Rule 3.3(c): The duties stated in paragraphs (a) and (b) [regarding reasonable remedial measures] continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. - This provision was not incorporated into the New York rule.

- The New York State Bar Association states: “the obligation to disclose extends for as long as the effect of the fraudulent conduct on the proceeding can be remedied, which may extend beyond the end of the proceeding – but not forever. If disclosure could not remedy the effect of the conduct on the proceeding, but could merely result in punishment of the client, we do not believe NY Rule 3.3 disclosure duty applies. - N.Y.S. Bar. Op. 831 (2009)

354203 Ethical Obligations Cont’d

• What is a reasonable remedial measure under NY RPC 3.3?

354203 Ethical Considerations Cont’d

– Talking to client and convincing him to correct or withdraw the falsity. - Mistakes or misstatements as to non-material matters do not need to be corrected. - If the client refuses to correct the material falsity, despite the attorney’s best and persistent efforts, the attorney must take the final step of disclosing the misrepresentation to the tribunal, as is reasonably necessary to remedy the situation, even if doing so requires the attorney to reveal confidential information that would otherwise be protected by NY Rule 1.6.

354203 Ethical Considerations Cont’d

• Is the answer different under the current NY RPC than under the former code?

354203 Ethical Considerations Cont’d

– Yes. Under former DR-7-102(B)(1), an attorney who received false information “clearly establishing” that a client perpetrated a fraud on a “person or tribunal” had a duty to call upon the client to rectify the fraud, and if the client refused, the attorney should have revealed the fraud to the affected person or tribunal, except when the information was protected as a confidence or secret.

354203 Hypothetical 2

• You represent a subcontractor, Metallica, on a project to build a project at the former World’s Fair site in Queens.

• The contract calls for pricing at cost plus 20% (10% labor and 10% materials). Metallica puts in a claim order for payment for 1,000 H-11 rebars from Wunderbar Rebar Co. at $10 a rebar.

• You prepare the change order at Metallica's request while simultaneously preparing a claim order for another client, in an unrelated job.

• In that other job, you learn that Wunderbar charges $3.50 on its H-11 rebars.

354203 Ethical Considerations

• Do you know that Metallica committed a fraud?

• Is it different if it is a public company?

354203 Ethical Considerations Cont’d

• NY Rule 1.0(k) denotes “know” as actual knowledge, which may be inferred from circumstances.

• If a public company? • Under both the Federal and New York State False Claims Act (31 U.S.C. § 3729 and NY State. Fin. Law, ch. 13 §§ 187-194), liability for “knowing” submissions of false claims to the federal, state or local governments can occur by (1) actual knowledge; (2) deliberate ignorance; or (3) reckless disregard of whether they are true or false.

354203 Ethical Considerations Cont’d

• Does the attorney have any obligation to inform any party?

354203 Ethical Considerations Cont’d

• NY Rule 1.6(a): A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless – (1) the client gives informed consent, as defined in Rule 1.0(j); – (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or – (3) the disclosure is permitted by paragraph (b).

• Confidential information consists of information gained during or relating to the representation of a client that is (a) protected by attorney-client privilege; (b) likely to be embarrassing or detrimental to the client if disclosed; or (c) information that the client has requested to be kept confidential.

354203 Ethical Obligations Cont’d

• NY Rule 1.6(b): A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary: – (2) to prevent the client from committing a crime; – (3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud; – (6) when permitted or required under these Rules or to comply with other law or court order.

354203 Ethical Considerations Cont’d

• NYSBA Ethics Opinion 781 (2004) – A matrimonial attorney signed and filed financial disclosure statement which she later learned, from her client, to be false. – “Although a lawyer is generally prohibited from disclosing a client’s confidence or secret, DR 4-101 (C)(5) permits disclosure to the extent implicit in withdrawing the financial statement because the statement is still being relied upon by the court and because the lawyer certified the accuracy of the statement in submitting it to the court.”

354203 Hypothetical 3

• Your client wants to make a claim that you suspect is not a legitimate claim for payment.

354203 Ethical Considerations • False Claims Act, 31 U.S.C. § 3729(a)(1)(A), (B), (C) and (G) – § 3729(a) Liability for Certain Acts: • (1) Any person who: (A) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (B) Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; (C) Conspires to commit a violation of subparagraphs (a) through (g) (G) Knowingly makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money to the Government

– §3729(b)(2)(A): A “claim” means any request or demand, whether under contract or otherwise, that (i) is presented to an officer, employee or agent of the United States; or (ii) is made to a contractor, grantee or other recipient if the money or property is to be spent or used on the Government’s behalf or to advance a Government program or interest

– §3729(b)(1)(A) defines “knowing” or “knowingly” to mean that a person (i) has actual knowledge; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.

354203 Ethical Considerations Cont’d

• NY False Claims Act, State Finance Law, §§187-194 – § 189(a) Liability for Certain Acts: • (1) Any person who: (A) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (B) Knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim allowed or paid; (C) Conspires to defraud the state or local government by getting a false or fraudulent claim allowed or paid; (G) Knowingly makes, uses or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the state or local government.

– § 188(1): a “claim” means any request or demand, whether under contract or otherwise, that (i) is presented to an officer, employee or agent of the state or a local government; or to any contractor or grantee or other recipient, if the state or a local government provides any portion of the money or will reimburse such contractor, grantee or other recipient for any portion.

– § 188(3) defines “knowing” or “knowingly” to mean that a person (i) has actual knowledge; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information.

354203 Hypothetical 4

• Your client, the contractor, did not have a license to do the work it performed. Should you advise the contractor to submit a claim?

354203 Ethical Considerations

– In Information Systems & Networks Corp. v. Berg & Parker, after the attorney advised a contractor it could pursue such an unlicensed claim, the supplier asserted the contractor’s lack of a license as a defense and sued the contractor for submitting false claims, i.e., requesting payment for work it performed without the required license. 2003 Cal. App. Unpub. LEXIS 6182

– The contractor and supplier ultimately settled, but the contractor then sued its attorneys for malpractice.

354203 Ethical Considerations Cont’d

• An attorney who counsels his client to submit a claim to the government, with knowledge that the claim is false or with reckless disregard as to its truth or falsity, may be subjecting himself to liability under the Federal and NYS False Claims Act.

354203 Ethical Considerations Cont’d

– Attorneys can be sued and found liable under the Federal Claims Act in rare cases. • See United States v. Entin,750 F. Supp. 512 (S.D. Fla. 1990); see also Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir. 2001); Matusavage v. Office of the Dist. Attorney of Philadelphia, 1994 U.S. Dist. LEXIS 16009 (E.D. Pa. 11/7/94)

354203 Hypothetical 5

• You represent Bluto’s Construction, a general contractor being sued for personal injury suffered by Popeye Doyle. You are retained as defense counsel hired by the insurer.

• The insurer sends your client a reservation of rights letter stating that the damages sought exceed the policy limits and advising your client that (1) it could engage counsel independently regarding potential excess judgments, and (2) to notify the excess insurer of the suit.

• Only after a judgment in excess of the policy limits is awarded do you, as defense counsel, tender the suit to the excess carrier, who subsequently denies coverage due to late notice.

354203 Ethical Considerations

• Does defense counsel have an obligation to investigate coverage and give notice to an excess carrier, even though the client was advised to retain independent counsel?

354203 Ethical Considerations Cont’d

• Shaya B. v. WEMED, 38 AD 3d 34 (2006) – $52 million injury suit, $1 million primary with Lloyds – Lloyds sent this letter to insured in 2001: • “the demand in the suit papers of $52 m is in excess of your policy limits of $1m per occurrence. As such you may wish to engage counsel of your own choice at your own expense to act on your behalf in regards to any potential excess judgments. Furthermore you may wish to check with your insurance agent to determine if any excess insurance coverage is in force. If so we would urge you to quickly notify any excess insurance carrier of this suit situation."

354203 Ethical Considerations Cont’d

• Shaya B. facts, cont’d – Lloyds letter seems to put onus on insured to investigate and give notice to excess carrier. – WEMED appointed in 2001 – 2003: SJ granted vs. Shaya B. – 2003: law firm tenders to NUFI, excess policy (for a non-party developer) – NUFI disclaimed: late notice, and Shaya B. is not named insured. – Verdict: $5.6 m. Policy: $1 m

354203 Ethical Considerations Cont’d

• The legal malpractice claim – Shaya B. said law firm was negligent in not giving notice and investigating coverage – Law firm: 3211 motion to dismiss: scope of responsibility was limited by Lloyds’ letter to insured – Abstract decision on Motion to Dismiss

354203 Ethical Considerations Cont’d

• Shaya B. court rejected argument based on limitation in letter: – “The defendant failed to show that the January 25, 2001, letter from Lloyd's to the plaintiff conclusively established that the scope of the firm's representation was limited. The letter stated only that the plaintiff "may wish to engage" separate counsel to act on its behalf with respect to any "potential excess judgments" beyond the $1,000,000 primary policy limits, and invited the plaintiff to investigate any possible excess coverage.” – I.e., letter insufficient to limit scope of law firm’s representation.

354203 Ethical Considerations Cont’d

• Does lawyer have a duty to investigate excess coverage? – Shaya B: Yes. – App. Div: “the question whether, in the ordinary case, an attorney could be found negligent for failing to investigate insurance coverage would turn primarily on the scope of the agreed representation--a question of fact--and on whether, in light of all relevant circumstances, the attorney "failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession“”

354203 Ethical Considerations Cont’d

• But isn’t there a conflict in advising insured about coverage? WEMED represented carrier and Shaya B. – Generally: client is insured. – No conflict here because Shaya wanted maximum coverage, and Lloyds didn’t care once it exceeded $1 million – Conflict may have existed re: scope of Lloyds coverage – I.e., lawyer hired by carrier may have conflict giving advice to client about coverage by employing carrier

354203 Hypothetical 6 • An owner, Wynona's Mall, brings claims for negligence and breach of contract against a contractor, Slippery Floors, LLC. There is insurance but only the negligence claims are covered.

• The owner moves for summary judgment and the contractor would like to default for tactical reasons in order to avoid increasing contract damages.

354203 Ethical Considerations

• Is defense counsel prohibited from making decisions that advance the insured’s position to the detriment of the insurer? Would this constitute a failure to cooperate?

354203 Ethical Considerations Cont’d

• Nelson Electrical Contracting Corp. v. Transcontinental Ins. Co., 231 A.D.2d 207 (3d Dep’t 1997) – Construction accident; contractor was insured, and owed contractual indemnity to owner. – Negligence was covered; contract claims not covered.

354203 Ethical Considerations Cont’d

Nelson Electrical Contracting Corp. – Pyramid (owner) brought claims for indemnity (covered) and breach of K (not covered) against Nelson – Carrier wants to minimize indemnity damages; that would increase K damages – Owner (Pyramid) moved for SJ – Nelson decided to default for tactical reasons, to avoid increasing K damages

354203 Ethical Considerations Cont’d

Nelson Electrical Contracting Corp., cont’d • Carrier disclaimed due to non-cooperation • Court granted SJ for Nelson: – “Where, as here, the interests of the insured are at odds with those of its insurer, the former is entitled to select independent counsel to conduct the defense so that, inter alia, tactical decisions will "be in the hands of an attorney whose loyalty to [the insured] is unquestioned."

354203 Ethical Considerations Cont’d

• Court’s reasoning in Nelson: – Cannot be failure to cooperate, since part of a reasonable tactical decision – Duty to cooperate “cannot be construed so broadly as to prohibit the insured's counsel from making tactical decisions, such as those at issue here, which are part of a reasonable litigation strategy intended to decrease the likelihood of liability on the part of the insured.”

354203 Ethical Considerations Cont’d

Does Nelson make sense? • Reasonable tactical move to default? • Lawyer didn’t want to point finger at owner (Pyramid), since it could blow back onto Nelson. • Could be same result under any state law: I.e., even without choice of counsel provision (substantive law), law must resolve conflicts in favor of client (ethics) • E.g., SC, Hawaii, MI, no automatic choice of counsel, but counsel must still act ethically

354203 Ethical Considerations Cont’d

• To whom does defense counsel owe an obligation?

354203 Ethical Considerations Cont’d

– Defense counsel’s duty of loyalty rests with the insured. Counsel for the insured must "exercise professional judgment solely on behalf of the client ... disregarding the desires of others that might impair the lawyer's free judgment.” Nelson, 231 A.D.2d at 209. See also ABA Model Rule 1.7.

354203 Hypothetical 7

• You represent two owners being sued for personal injury damages by a subcontractor based on the general contractor’s negligence. Additionally, the general contractor and the owners’ partnership are being sued. The general contractor and the partnership are not however, covered by the owners’ insurance policy.

• You believe that you can have all the claims dismissed against the two owners, but the partnership and the general contractor would remain liable.

• What are your ethical obligations?

354203 Ethical Considerations

• Elacqua v. Physicians’ Reciprocal Insurers, 52 A.D.3d 888-889 (3d Dep’t 2008) – Medical malpractice claim against two physicians, their partnership and a nurse practitioner employed by them. – Lawyers moved to dismiss as to doctors – Left partnership and nurse in case – No Goldfarb Miranda

354203 Ethical Considerations Cont’d

• Elacqua decision: – “Here, [the attorneys] successfully moved to dismiss the complaint in the [underlying injury] action against the physicians, thereby disposing of all covered claims and leaving viable only the uncovered claim against the partnership for vicarious liability based upon the negligence of [the nurse].”

354203 Ethical Considerations Cont’d

• Elacqua decision cont’d: – “where such potential conflict exists between the insurer and the insured, the insurer has an affirmative obligation to inform the insured of his or her right to select independent counsel at the insurer's expense."

354203 Ethical Considerations Cont’d

• Elacqua reasoning: – The carrier engaged in a deceptive practice because its disclaimer letters to policyholders “failed to inform them that they had the right to select independent counsel at defendant’s expense, instead misadvising that [the insureds] could retain counsel to protect their uninsured interests ‘at their own expense.”

354203 Ethical Considerations Cont’d

• Elacqua cont’d: – Failure to notify insureds of Goldberg right to unconflicted counsel, and affirmative misdirection about payment, constituted statutory fraud under GBL 349.

354203

Faculty Biographies

Todd A. Bakal

Todd A. Bakal practices in the areas of construction, environmental and general commercial litigation as well as insurance and reinsurance coverage disputes. He has represented owners, general contractors, subcontractors and design professionals in public and private projects, and his work has included subcontract disputes, owner claims, design professional liability, design/build issues, regulatory work, surety defense and mechanic’s lien foreclosure actions, in addition to construction site accident, products liability, employment discrimination, labor and ERISA matters. Prior to practicing law, Mr. Bakal founded RBI Software, Inc., which specialized in the development of commercial vertical market applications. He has been involved in computer and internet legal issues for more than fifteen years as a business person and attorney. Mr. Bakal is a member of the New York State Bar Association and the Association of the Bar of the City of New York (where he has served on the Construction Law and Computer Law Committees), and is admitted to the New York Bar. Mr. Bakal is a graduate of the University of Michigan and George Washington University School of Law. MEMBERSHIPS/HONORS • New York State Bar Association • Association of the Bar of the City of New York SPEAKING ENGAGEMENTS • Moderator of the Legal Issues and Business Decision panel at the 2008 Associated General Contractors/Department of Transportation Tech Conference. ADMISSIONS New York, 1993 EDUCATION B.S., University of Michigan, 1989 J.D., George Washington University School of Law, 1992

Bruce Green Louis Stein Professor, Director (Stein Center) SSRN page Fordham University School of Law Email: [email protected] 140 West 62nd Street Telephone: 212.636.6851 New York, NY 10023 Fax: 212.636.6899 Office: Room 221 Experience • Office of the United States Attorney for the Southern District of New York: October 1983 to August 1987 • Assistant United States Attorney Deputy Chief Appellate Attorney, 1986-87; Chief Appellate Attorney, 1987 • U.S. Supreme Court: Law clerk to Justice Thurgood Marshall, 1982-83 • U.S. Court of Appeals for the Second Circuit: Law clerk to Judge James L. Oakes, 1981-82 Professional Affiliations • American Bar Association Section of Criminal Justice: Chair-Elect • American Bar Association Section of Litigation: Co-chair, Task Force on the Litigation Research Fund • American Bar Association Task Force on the Attorney-Client Privilege: Reporter • National Conference of Bar Examiners: Member of MPRE Drafting Committee • New York County Lawyers’ Association: Director and Member of Justice Center Advisory Board • New York State Bar Association Committee on Professional Ethics: Member Education • Columbia University School of Law: J.D. 1981 Honors: James Kent Scholar; Harlan Fiske Stone Scholar Associate Editor, Columbia Law Review • Princeton University: A.B. 1978, summa cum laude

Joel M. Sciascia, Esq. I General Counsel

INTRODUCTION MEMBERSHIPS As General Counsel for Board/Greater NY Construction User Council Pavarini McGovern, Mr. Sciascia advises the CEO, Board/Arizona State University Alumni Chairman and Vice Association/Greater New York Chapter Presidents on various matters, which include new DEVELOPMENT EXPERIENCE business opportunities, deal Savoy Senior Housing Corporation, New York, NY structuring and contractual General Counsel & VP of Real Estate Development risks, as well as working with Developed proforma models to analyze various real Project Executives and estate transactions including development budgets, Project Managers to resolve construction costs, operational income and expenses, trade contractor investor IRR, lease-up, draws, and refinancing. negotiations and disputes. Designed, coordinated and carried out due diligence Mr. Sciascia reviews, work plans to ascertain physical, legal and market negotiates and drafts risks. Responsible for preparing business plans and construction management market analysis for presentation to equity and debt agreements with owners and capital sources. Acted as owner's representative and subcontract agreements with managed architects, engineers, and subcontractors on trade contractors. 1800 PARK AVENUE a variety of old and new projects.

EDUCATION Took over $15 million in construction to complete Juris Doctor/Law/Fordham Law School construction of two assisted living facilities (150,000- SF) after construction manager failed to timely MS/Construction - RE Development Core/ complete and was terminated. Terminated deficient Arizona State University/Tempe, AZ trades. Bid and negotiated completion contracts. Directed all work including Owner's separate trades. BS/Architecture/Arizona State University/Tempe, AZ Coordinated as-built drawings, expeditors and Dept. of Building inspections. Obtained Certificates of BAR ASSOCIATIONS Occupancy. Worked with architects and engineers to New York State Bar/April 1998 design and specify a ground up 70,000-SF assisted living facility, then worked with architects and US Supreme Court Bar/May 2005 engineers to redesign the site as an apartment building. Oversaw outside counsel on over $17 NY County Lawyers Association - Construction million in civil litigation. Handled various legal Law Committee matters, drafted and negotiated leases, obtained Dept. of Health licenses, as well as assisted in all AWARDS aspects of development, zoning, financing, leasing, The Archibald R. Murray Public Service Award due diligence, and market analysis.

Student Leadership Award - Habitat for REAL ESTATE EXPERIENCE Humanity/Fordham University School of Law Ernst & Young Kenneth Leventhal, New York, NY Senior Consultant/Attorney Golden Key National Honor Society Advised clients on various real estate issues. Structured and modeled real estate transactions and standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 1 IN CONSTRUCTION Sciascia I Page 2

Real Estate Investment Trust (REIT) initial public offerings using Excel 47 East 91st Street, New York, NY software. Developed tax liability and OP unit allocation models for REIT Pavarini McGovern was the CM, At-Risk for this new 10-story, 45,000-SF roll-ups. Performed REIT acquisition and lending due diligence including high-rise, high-end luxury residential condominium located in lease and mortgage review; asset, income and distribution testing; and Manhattan’s Carnegie Hill Historic District. Located a block from Central organizational requirement analysis. Developed REIT due diligence work Park, this project consists of a main building containing seven full-floor plans, document requests and property service questionnaires. Researched apartments and one penthouse duplex unit, constructed on a new steel and wrote briefs on various real estate tax issues. structure platform atop an existing one-story branch bank that remained fully operational through construction. This project received New York Goldberg Weprin & Ustin, New York, NY Construction's “2003 Merit Award/High-Rise Residential Project”. Acquired extensive limited liability company law experience; drafting operating agreements, partnership conversions, and conveyancing. 57 Reade Street, New York, NY Drafted commercial mortgages, notes, and assignments. Performed due This project is currently in the early stages of construction. Upon diligence for commercial acquisitions. Represented commercial lenders completion, the cast-in-place reinforced concrete structure will stand at 20 and residential and commercial purchasers at closings. Handled stories and consist of approximately 145,000-GSF. The new building will foreclosure and construction litigation, DHCR, and tax remission issues. house 84 luxury residential units, 2 below-grade levels, a lobby at-grade and a two-story retail space. Max E. Greenberg Trager Toplitz & Herbst, New York, NY Closed condominium and cooperative loans for institutional lenders. 70 Bedford Street, New York, NY Researched and wrote briefs on construction issues. Corrected deficient This existing historical Federal Townhouse (circa 1790's) underwent a loan packages and prepared closing binders. complete, gut-rehabilitation/demolition down to two of the building's original, Landmark walls. The two walls serve as part of a new 5,000-SF, 4- CONSTRUCTION EXPERIENCE: RESIDENTIAL story private townhouse residence. The scope included high-end finishes 40 East 66th Street, New York, NY and a walkout landscaped/hardscaped garden with a spiral staircase, a Currently under construction, this project consists of converting an library, living room, dining room, spacious kitchen, master bedroom with existing 12-story, 105,000-SF, 36-unit rental building into luxury bathroom, and a study and gymnasium on the top floor. condominiums. The new construction will entail the renovation of the existing lobby, new amenity space in the cellar, and the conversion of 25 110+Broadway, New York, NY existing, vacant apartments in condominiums. Our construction work, This new 96,000-SF, 11-story condominium apartment building is located including the installation of new elevators and a window replacement at the northeast corner of Broadway and West 110th Street in upper program will take place around the remaining rent-stabilized apartments. Manhattan, and contain apartments varying from 420-SF to 1500-SF. The Our team will phase the construction activities in order to keep all required building has ground floor retail space, two restaurants, a food market and a means of egress for the current residents. The exterior scope will consist of bakery. The cellar level accommodates retail storage and building services, cleaning and repointing the existing brick face, including the façade, which with a new sub-cellar level for automobile parking. is a New York City landmark. Cetra/Ruddy Architects is leading the design team. The developer, Vornado Realty Trust, is a repeat client. 124 Hudson Street, New York, NY This project entailed the construction of new 80,546-SF, 9-story (plus SJP Residential Properties, 45 Park Avenue, New York, NY basement) residential building with 23 luxury apartments ranging in size This project involved the construction of a new 21-story, 157,380-SF cast- from 1,800 - 2,900-SF two and three bedroom apartments. The in-place reinforced concrete structure with 106 residential units, a lobby, superstructure is masonry and concrete plank with a poured-in-place professional space, a garage and mechanical space. The new building offers concrete foundation. The street façade of the building features a brick luxury condominium residences in a structure that is faithful to the facing in keeping with the light-industrial character of the TriBeCa exquisite character of Park Avenue. The project received the “Best of neighborhood. The ground level has 12,000-SF of retail space and an Residential 2007” from New York Construction magazine. interior landscaped courtyard with a central fountain.

standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 2 IN CONSTRUCTION Sciascia I Page 3

2forty, 240 Park Avenue South, New York, NY condominiums with a lobby, amenity space, and retail and mechanical This project entailed constructing a new, high-end condominium space. The new design calls for vertical expansion; clean up of the exterior apartment building. The structure is an 112,851-SF poured-in-place façade, including the removal of a number of metal straps applied over the reinforced concrete structure standing at 17-stories, with 51 residential face brick, and includes the replacement of the steel windows. The new units, mechanical space, and a lobby and retail space at-grade. The exterior exterior enclosure is a combination of punched windows & brick masonry, façade enclosure includes pre-cast concrete, curtainwall, with window and with double hung windows replacing all existing windows. metal panels, and embedded tile. Barbizon/63, 140 East 63rd Street, New York, NY 400 Fifth Avenue, New York, NY This project entailed the conversion of the hotel into a luxury This project, currently under construction, involves erecting a new, condominium apartment building with approximately 66 units. Logistical 567,000-SF, 57-story mixed-use building with 372,000-SF of residential challenges included the relocation of 20 existing SRO residents to space, 195,000-SF of hotel space, with parking and retail completing the apartments on one floor while maintaining the required means of egress scope. The proposed project site is on Fifth Avenue between 36th and and utilities as our team performed the renovation work all around them. 37th Streets. Gwathmey Siegel & Associates is leading the leading team. The Hubert, 3-9 Hubert Street, New York, NY The Anthem, 220 East 34th Street, New York, NY This project involved the construction of a new 135,000-SF, 16-story, 34- This new 511,000-SF, 21-story residential complex provides 502 unit, luxury high-rise residential condominium building located in TriBeCa. apartments, a health club, below-grade parking for 100 cars, and at-grade The structure includes private garages, 29 loft-style apartments, and a 2- retail and office space. The building is constructed of reinforced concrete story penthouse, 3 maisonettes in the base, and 2 and 3-story townhouses. and masonry brick façade with concrete masonry block backup walls. The façade is clad in brick with oversized windows and designed to blend Foundation work included providing an MTA easement for the future with the surrounding early 20th Century, light industrial buildings. There is 2nd Avenue subway. The superstructure work required approvals from also a garden courtyard, and a small commercial building. NYCDOT, and a traffic/pedestrian study was performed for our phasing and logistics plan. K. Hovnanian Homes, Port Imperial North, West New York, NJ Pavarini McGovern served as the overall site manager for the $800 million, Arcadia, 408 East 79th Street, New York, NY eight building residential development on the banks of the Hudson River, This project involved the construction of a new 111,718-SF, 20-story (2 and as the CM for two of the new luxury condominium buildings totaling basement levels) luxury condominium apartment building with 53 high- 1,100,000-GSF and 340+ residences. end units on Manhattan’s Upper East Side. The design for the superstructure is a cast-in-place concrete frame with a cantilever over an Mercer 40 Residences, 40 Mercer Street, New York, NY existing building to the east. The façade of the building consists of a This project entailed the construction of a new, high-end 156,000-SF, 13- combination of pre-cast concrete panels and window wall, including story, 50-unit glass curtainwall condominium building, with 10,500-SF of French balconies. retail and residential amenity spaces on the ground and basement levels. The curtain wall system is one of the first of its kind in New York City. The Arris Lofts, Queens, NY windows open down or slide across by the use of a motorized mechanical This project entailed the conversion of an existing 456,000-SF warehouse system. Each assembly unit weighs 1,100 pounds, which required an building into residential condominium apartments. The building is augmented structure to carry the additional load. The project received the located on a triangular shaped lot bordered by Thomson Avenue, Court “Best of Residential 2008” from New York Construction magazine. Square and the Sunnyside Rail Yards in Long Island City. The work involved installing new windows, the build-out of new apartments with The Pier Apartments, Jersey City, NJ finishes at a low to mid-Manhattan level, as well as some vertical expansion. The Pier Apartments project was an 8-story, 480,000-SF luxury rental apartment complex of 300 units with two levels of above-grade parking, Artisan Lofts, 143 Reade Street, New York, NY built on an existing, former railroad loading pier that projects 900-feet into The program calls for the conversion of a 17-story 132,000-SF cast-in- the Hudson River, and has an unobstructed view of Lower Manhattan. place reinforced concrete former manufacturing building into 45 high-end The project required that a new 12” thick, reinforced concrete slab be standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 3 IN CONSTRUCTION Sciascia I Page 4

constructed approximately 5 feet above the existing pier to provide a Courtyard by Marriott, 410 East 92nd Street, New York, NY platform for the new building and access road, also allowing a utility service A new 15-story, 140,000-SF mixed-use building that includes a 226-room, plenum underneath. 86,000-SF branded hotel. Approximately 17,000-SF on floors one and two were built out for the Gillen Brewer School - a private, not-for-profit The Urban Glass House, 330 Spring Street, New York, NY educational institution offering smaller, more specialized education The new Urban Glass House luxury condominium building at 330 Spring programs for students with special needs. The remaining 18,000-SF on Street is a tribute to Philip Johnson's New Canaan, CT Glass House floors three and four were built out for office space, and are operated reinterpreted for an urban high-rise New York City setting. The 40 high- independently of the hotel, with a separate entrance and mechanical systems. end units are located on floors two through twelve, with retail/commercial space on the ground floor. Structurally, the building consists of cast-in- The Smyth Hotel, 85 West Broadway, New York, NY place concrete with an exterior curtain wall system. Our team closely This project involves the construction of a new 93,000-SF, 100-key five-star coordinated their work with the Port Authority during the foundation hotel with 15 condominium apartments. The structure includes 13 above- stage since the project site is directly adjacent to the Holland Tunnel. In grade floors with two cellar levels. Amenities include a restaurant, bar and addition, during excavation and foundations, our team took great care with fitness area. The site is at the corner of West Broadway and Chambers two adjacent timber-framed, NYC-Landmark structures when Street in TriBeCa. performing the required underpinning. The project received the “Best of Residential 2006” from New York Construction magazine. The Standard, 844 Washington Street, New York, NY Pavarini McGovern is currently in the construction phase for a new CONSTRUCTION EXPERIENCE: HOSPITALITY curtainwall-clad luxury hotel in Greenwich Village. The Standard hotel 330 Hudson Street, New York, NY stands at 20 stories and consists of 200,000-SF with 350 units. The new This project, currently in the construction phase, consists of the structure includes three levels of back-of-house, meeting rooms and public conversion/vertical expansion of an existing eight-story 253,000-SF light access space, as well as one basement level. industrial building into a new 21-story hotel structure totaling 402,000-SF. The first floor will consist of the main lobby, restaurant and bar, “white box” CONSTRUCTION EXPERIENCE: COMMERCIAL/OFFICE retail, amenities and back-of-the-house operations. The existing building 360 Madison Avenue, New York, NY conversion on floors two through eight will contain elevator lobbies, core This complex project in the heart of the Grand Central Terminal area bathrooms, “white box” for future office space and designated MERs on combined two buildings to create a new 360,000-SF, 26-story office each floor. Floors 9 and 10 of the addition will contain “white box” for building located on the corner of Madison Avenue and 45th Street. The future office space, with the remaining new floors containing 189 guest new building included the rehabilitation of the original 18-story building at rooms and a club with rooftop pool. The renovation scope of work will 360 Madison, whose façade was stripped down to the structural steel with also include new storefronts, windows, cleaning and re-pointing of exterior the columns, beams and slabs to remain. The new, Italian-manufactured masonry, as well as the construction of a new building core. The developer Permasteelisa curtainwall successfully tied both buildings together. for this project is seeking a silver LEED® certification. 505 Fifth Avenue, New York, NY 45th Street Hotel, 60-77 West 45th Street, New York, NY This project entailed the construction of a new 270,000-SF mixed-use This project involves the construction of a new mixed-use building on office building located on a high-profile corner, and situated diagonally West 45th Street between Fifth and Sixth Avenues in midtown across from the NYC Library and Bryant Park. The program calls for retail Manhattan. This proposed hotel/condominium development consists of a space at and below-grade with a 29-story multi-tenant office tower above. new 45-story, 170,000-SF poured-in-place concrete structure. The new The design is for a reinforced concrete structural system and curtainwall, building will include 166 hotel suites and 57 residential units. A metal pre- with floor to ceiling vision panels at the base and a curtainwall tower above formed, open-air pool with full enclosure and health center will be located the streetwall setback, and point glazed system for the storefront. on the seventh floor set back. The tower will have a façade of aluminum composite panels, insulated glass units and operable awnings. The wider 580 Fifth Avenue, New York, NY seven-story “podium” will be enclosed with a metal mesh screen with The scope of the work was to install three new elevators in a new 36-story window wall behind it. The developer anticipates projecting images on the core attached to the existing tower. The goal of the project was to connect “podium’s” north elevation to passers-by. standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 4 IN CONSTRUCTION Sciascia I Page 5

the disjointed nature of the tower and its low-rise annex at the north end of Legal Aid Society, New York, NY the building with a central elevator service, as well as to provide faster The construction of this 5-story, 30,000-SF building provided a home for service to the office tenants on the upper floors. The complexity of our the Harlem office of this public service organization. The new building has task involved doing all work while all of the existing building tenants and a structural steel frame and a lightweight concrete slab on metal deck, with their customers maintained their very active work pace and ensured that a brick façade, a stone base and double-hung sash windows, featuring their operations functioned normally and safely. architectural pre-cast concrete window frames and sills. The program included staff offices, interview rooms, conference rooms, children’s 598 Madison Avenue, New York, NY playroom, lunchroom and library. This project consisted of renovating the brick, limestone and granite façade of this 75-year-old, 90,000-SF, 15-story building for Moët Hennessy 610 Lexington Avenue, New York, NY Louis Vuitton. The scope included the complete upgrade of the MEP Acting as a consultant to the client, Pavarini McGovern generated a Phase systems, a new roof, windows, elevators, skylights, storefronts, and steel 1 Construction Feasibility Analysis consisting of a thorough review of all column configuration. The first two stories house the flagship store for project documents generated to date, as well as a cost estimate and Christian Dior and the top 13 consist of Class “A” office space. The project constructability review. The proposed development involves the also included a lobby renovation with marble floors, glass doors and a gold construction of a new, 66-story, 330,000-SF commercial/office building in leaf ceiling. midtown Manhattan for an international financial firm. Sir Norman Foster is leading the design team. 640 Fifth Avenue, New York, NY This “wedding cake” project involved new construction and renovations to Waterfront Corporate Center Phase II, Hoboken, NJ an existing building in a logistically challenging location. The existing The project consisted of constructing a new 14-story, 549,000-SF office building stayed fully occupied and operational during construction. The building - that was identical to its neighbor - on pile foundations and resulting structure totaled 122,056-SF and 18 stories. Large equipment structural steel frames with poured concrete decks, with the exterior a delivery, major steel and curtainwall construction were completed through panelized stone and brick cavity wall system, and below-grade parking. All the use of a stiff-leg guy derrick and loading platforms. The mechanical construction was coordinated on a daily and weekly basis with the and electrical equipment were replaced in their entirety. PANYNJ, who owns the land.

Bank of America, 9 West 57th Street, New York, NY CONSTRUCTION EXPERIENCE: RETAIL This project entailed interior renovations in two phases: 90,000-SF/3½- 1 East 57th Street, New York, NY Floors (Ph. I); and 120,000-SF/10-Floors (Ph. II). Phase I provided three Construction on an existing 18-story building located on the corner of trading floors with 450 seats and a ½ floor mezzanine of office space, and 57th Street and 5th Avenue. The program consisted of 4 floors of retail for new mechanical, electrical and IT work. Phase 2 entailed renovating Moët Hennessy Louis Vuitton; a 5th floor mechanical level serving the executive offices, a mail and storage facility on the basement level and eight retail space and 10 floors of first class office space. Construction consisted bank-standard corporate floors. Construction went 24/7 on a fast-track of two phases, both of which ran concurrently. schedule on floors that were mostly occupied and operational. The Belnord, 225 West 86th Street, New York, NY Harlem Park, 1800 Park Avenue, New York, NY This project involved building a new, 24,000-SF retail space in the cellar The construction of 1800 Park Avenue and its class “A” office space will be space below the courtyard of a 10-story, Landmark, Renaissance Revival a significant, positive step in the legacy of upper Manhattan. The current building. The existing plaza was removed, and then rebuilt with a new schematic design calls for the construction of a new mixed-use building of structural steel frame, MEP systems, landscaping and walkways. The approximately 21 stories with two levels below for a total area of 590,000- courtyard was renovated with Belgium Block and granite drives; a new GSF. The project may ultimately become an environmentally friendly cooling tower and elevators. A suspended walkway system was “green” building and subject to LEED® certification guidelines. The project constructed to ensure residents had 24-hour access to their apartments will also include a minority business enterprise (M/W/LBE) and during the project. workforce participation plan.

standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 5 IN CONSTRUCTION Sciascia I Page 6

CONSTRUCTION EXPERIENCE: HEALTHCARE Kings County Hospital Center, DASNY, 451 Clarkson Avenue, Brooklyn, NY This project is the first phase of a 4-year exterior $20M redevelopment, modernization and expansion program on multiple buildings. All work was performed on occupied, functioning hospital buildings, and included window, roof and exterior door replacement; and masonry façade restoration and stabilization. Distinctive architectural detailing, including embossed lead spandrel panels and clay roofing tiles on pitched roofs, was renovated, restored and cleaned.

CONSTRUCTION EXPERIENCE: ACADEMIA NY Law School Academic Building, 185 West Broadway, New York, NY Pavarini McGovern is currently in the construction stage for a new, approximately 209,000-SF academic building for NY Law School. The facility consists of five stories above- and four levels below-grade, in an “L” shaped, and a multi-story connector to join existing NY Law School buildings with the new building. The enclosure is primarily glass curtainwall from the second through the fifth floors. Stone and painted metal cladding and stainless steel details will provide aesthetic accents at the base of the building. The basement levels required phased excavation and foundation work that incorporates the installation of a slurry wall system, creating a waterproof concrete bathtub foundation. After site mobilization and the demolition of an existing narrow building, work on the foundation wall included pre-trenching, slurry wall installation, and “top down” construction of the basement levels one through four.

CONSTRUCTION EXPERIENCE: GOV’T/CIVIC Queens Family Courthouse, DASNY, Jamaica, NY This 300,000-SF project involved building a 5-story (plus cellar and penthouse), courthouse building and a 4-story (plus cellar and penthouse) agency support office building, connected by a common lobby space. The structures included 24 courtrooms, attorney conference rooms, waiting areas, hearing rooms, judge's chambers and detention facilities for juveniles and adults, and a parking garage, support spaces and a state-of-the-art lobby, which includes dual stainless steel clad entrances.

standardsHIGHER When it comes to quality construction, everyone has standards. Ours’ are just a little higher. Page 6 IN CONSTRUCTION Barry Temkin [email protected] (212) 804-4221

Barry Temkin is counsel to Mound Cotton Wollan & Greengrass. His practice includes securities arbitration and litigation, directors and officers defense, commodities and securities regulation, legal malpractice, legal ethics, construction and commercial litigation. Mr. Temkin has represented broker dealers, futures commission merchants and registered representatives in a variety of arbitrations and regulatory investigations. Mr. Temkin is an adjunct professor at Fordham University School of Law, where he teaches Professional Responsibility. He was an Assistant District Attorney in Brooklyn, where he served as a Senior Trial Attorney in the Homicide Bureau. Mr. Temkin has published articles on securities arbitration and attorney professionalism in the Georgetown Journal of Legal Ethics, Seattle University Law Review, Securities Arbitration Commentator, Touro Law Review and the New York Law Journal. Mr. Temkin has been a member of the FINRA (Financial Industry Regulatory Authority) Board of Arbitrators since 1999, and is chair of the New York Country Lawyers’ Association Professional Ethics Committee. Mr. Temkin has participated in panels on securities, commodities and legal ethics at the New York State Bar Association, the New York County Lawyers’ Association, the Association of the Bar of the City of New York, the Practicing Law Institute, New York Law School, Benjamin N. Cardozo School of Law, New York State Trial Lawyers Association and The Defense Association of New York. Mr. Temkin is a graduate of the University of Rochester and the University of Pennsylvania Law School.

MEMBERSHIPS/HONORS Chair, New York County Lawyers’ Association Committee on Professional Ethics, 2006 – present; Member, 2001– present Member, Editorial Board of Oxford University Press New York Rules of Professional Conduct, 2010 Member, NASD Regulation, Inc./Financial Industry Regulatory Authority (FINRA) Board of Arbitrators, 1999-present New York County Lawyers’ Association, Committee on Futures and Derivatives

Continues

MOUND COTTON WOLLAN & GREENGRASS www.moundcotton.com New York Long Island Newark San Francisco Fort Lauderdale One Battery Park Plaza New York, NY 10004 (212) 804-4200 Barry Temkin

Continued – pg. 2 of 4 Volunteer Attorney, Trial Lawyers Care, 2001-2004 Otto L. Walter Distinguished Writing Award, New York Law School, 2008 Member, Editorial Board of The Legal Malpractice Law Review

PUBLICATIONS New York Rules of Professional Conduct, Oxford University Press, Rule Editor and Contributor of Four Chapters (2010). Is Law Firm Discrimination Unethical?, New York Law Journal (August 26, 2010). State Regulation of Unauthorized Practice of Law in Arbitration and Mediation: The Trend Toward Permitting Multijurisdictional Practice in ADR, BNA Securities Regulation & Law Report, 42 SRLR 1561 (August 16, 2010). Supervision Duties Under the Commodity Exchange Act, New York Law Journal (May 27, 2010). Settling Away: Unreported Private Settlement of Customer Complaints in the Securities Industry, Securities Arbitration Commentator, Vol. 2009, No. 4 (May 2010). Open Questions on the Duty to Advise of the Right to Select Independent Counsel, The Defendant (Spring 2010).

Intrafamily Conflicts of Interest Under the Rules of Professional Conduct, New York Law Journal (December 31, 2009). Lying by Proxy: Permissible Trickery and Deception by Undercover Investigators, New York Law Journal (October 13, 2009). Coverage Conflicts for Retained Insurance Defense Counsel, New York Law Journal (July 8, 2009). Client Perjury Under the New Rules of Professional Conduct, New York Law Journal (February 24, 2009). Deception in Undercover Investigations: Conduct Based vs. Status Based Ethical Analysis, 32 Seattle University Law Review 123 (Fall 2008). (Winner of 2008 Otto L. Walter Distinguished Writing Award from New York Law School) Arbitration of Customer Claims Before the New Financial Industry Regulatory Authority, (with James Yellen), New York Law Journal (June 2008). Are Insurance Brokers Professionals? New York Law Journal (August 8, 2006). Statutes of Limitation in Securities Arbitrations, New York Law Journal (June 16, 2005).

Continues Barry Temkin

Continued – pg. 3 of 4 Ethical Issues in Settlement Negotiations, New York Law Journal (March 14, 2005). Misrepresentation By Omission in Settlement Negotiations: Should There Be A Silent Safe Harbor?, 18 Georgetown J. L. Ethics 179 (Fall/Winter 2004). Pleading Standards in Securities Arbitrations, New York Law Journal (Sept. 20, 2004). Errant E-Mail: Inadvertent Disclosure of Confidential Material Poses Dilemma, New York Law Journal, (October 14, 2003). Ethical, Legal and Practical Implications of Attorney Referral Fees, New York Law Journal (August 7, 2002). Reviewing Legal Implications of Variable Annuities, New York Law Journal (February 26, 2002). Can Negligent Referral to Another Attorney Constitute Legal Malpractice? 17 Touro L. Rev. 639 (Spring 2001). Guidance Given on Discovery in NASD Arbitrations, New York Law Journal (Nov. 13, 2001). New York's Labor Law Section 240: Has it Been Narrowed or Expanded By The Courts Beyond The Legislative Intent?, 44 New York Law School Law Review 45 (2000), 44 NYLSLR 45 (cited with approval in Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, 727 N.Y.S.2d 37 (2001), and Almanzar v. Goval Realty Corp., 286 A.D.2d 278, 729 N.Y.S.2d 133 (1st Dep’t 2001).

SPEAKING ENGAGEMENTS New York City Bar, Starting and Maintaining Your Own Firm In a Recession (February 9, 2010) American Conference Institute, 2nd Annual Forum on LPL/Legal Malpratice: Departing Attorneys, Lateral Hires, and Their Impact on LPL: Risk Management and Policy Considerations for Carriers and Law Firms (January 27, 2010) Futures and Derivatives Committee, New York County Lawyers' Association, Supervisory Liability Under the Commodiy Exchange Act (January 19, 2010) New York City Bar, Everyday Ethical Challenges in the Practice of Law New York State Trial Lawyers Insitute: Ethical Issues for Solo and Small Firm Practitioners New York State Bar Association: Code of Professional Responsibility Defense Association of New York: Conflicts For Retained Defense Lawyers

Continues Barry Temkin

Continued – pg. 4 of 4 New York State Bar Association: Ethical Conflicts for Directors of Not-for-Profit- Corporations New York City Bar, Judicial Elections: The Ethical and Practical Dilemmas They Pose for Practicing Lawyers New York State Bar Association, Ethics for Litigators and Trial Lawyers New York County Lawyers’ Association, Ethical Issues in Internal Investigations New York County Lawyers’ Association, Civil Trial Practice Institute

ADMISSIONS New York New Jersey United States District Court Eastern District of New York United States District Court Southern District of New York

EDUCATION B.A., magna cum laude, University of Rochester, 1979 J.D., University of Pennsylvania Law School, 1982