NEW YORK STATE BAR ASSOCIATION JournalJournalNOVEMBER/DECEMBER 2001 | VOL. 73 | NO. 9 EMPLOYERS’EMPLOYERS’ OBLIGATIONSOBLIGATIONS TOTO WORKERSWORKERS ININ MILITARYMILITARY Inside Dilemmas for Fiduciaries Testimony by Physicians Your Writing Style Appealable Issues Three-Year Index BOARD OF EDITORS C ONTENTS Howard F. Angione When Duty Calls: What Obligations Do Employers Have Editor-in-Chief Queens To Employees Who Are Called to Military Service? e-mail: [email protected] Eve I. Klein and Maria Cilenti 10 Rose Mary Bailly Albany Estates with Multiple Fiduciaries Pose Ethical and Willard H. DaSilva Practical Issues for Attorneys and Clients Alike Garden City John R. Morken and Gary B. Freidman Louis P. DiLorenzo 22 Syracuse Philip H. Dixon Need for a Testifying Physician to Rely on Albany Reports by a Non-Testifying Physician Poses Judith S. Kaye Evidentiary Problems New York City Marcy S. Friedman 28 John B. Nesbitt Lyons Appeals Can Deal With the “Stain” of Unpreserved Kenneth P. Nolan New York City Constitutional Issues if Criteria for Exception Eugene E. Peckham Are Met Binghamton Paul Golden 34 Sanford J. Schlesinger New York City Writing Clinic—So Just What Is Your Style? Richard N. Winfield Susan McCloskey 39 New York City Eugene C. Gerhart Editor Emeritus Binghamton Daniel J. McMahon Managing Editor Albany e-mail: [email protected] Philip C. Weis Associate Editor Oceanside D EPARTMENTS EDITORIAL OFFICES One Elk Street President’s Message _______________ 5 New Members Welcomed __________ 60 Albany, NY 12207 Index ____________________________ 48 2000–2001 Officers ________________ 63 (518) 463-3200 Classified Notices _________________ 58 The Legal Writer __________________ 64 FAX (518) 463-8844 Index to Advertisers _______________ 58 by Gerald Lebovits ADVERTISING REPRESENTATIVE Language Tips ____________________ 59 Network Publications by Gertrude Block Sheri Fuller 10155 York Road, Suite 205 N HE OVER Crestridge Corporate Center O T C Hunt Valley, MD 21030 (410) 628-5760 The montage of photos on this month’s cover was assembled to reflect e-mail: [email protected] the transition from civilian to military service for members of reserve units who are being called to active duty in response to the actions of terrorists. ON THE WORLD WIDE WEB: Cover design by Lori Herzing. http://www.nysba.org The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all cita- tions and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2001 by the New York State Bar Association. The Journal (ISSN 1529-3769), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, Sep- tember, October, November/December. Single copies $12. Periodical postage paid at Albany, NY with additional entry Endicott, NY. POSTMASTER: Send address changes to: One Elk Street, Albany, NY 12207. Journal | November/December 2001 3 s I write this message, I have tan, where relief services were being just reached the half-way RESIDENT S coordinated. Over the next week and Apoint in my term as the 104th P ’ a half, working in direct coordination President of our Association. The and cooperation with federal, state time has passed so quickly it is truly MESSAGE and local agencies, and with the in- hard to believe that there are more valuable assistance of representatives days behind me at the helm than in of The Association of the Bar of the front of me. One short year hardly City of New York and the Legal Aid seems long enough, and yet two Society, we provided emergency years would probably be too long to legal assistance to scores of victims’ hold this particular office. Like they families and referred countless oth- say about prunes, you can’t be sure ers to appropriate attorneys and whether one is enough or two are too agencies. We were also successful in many. I considered calling our presi- thwarting the efforts of a handful of dent-elect, Lorraine Power Tharp of attorneys who engaged in illegal so- Albany, and suggesting that I might licitation of family members. just “hold over” in office for a few It would be impossible to list all of months. I thought better of that idea, those volunteers who distinguished and rapidly reached the conclusion themselves in these difficult times, that I had better accept the fact that but three come to mind: David H. my term will end, as quietly as it Tennant of Rochester and Robert J. began, at the stroke of midnight on Saltzman of Brooklyn, chair and vice- June 1 next. chair, respectively, of the Special It has not been a particularly quiet Committee on Mass Disaster Re- six months. Tragedies and challenges sponse, who personally coordinated notwithstanding, it continues to be a STEVEN C. KRANE an immediate response to both disas- joy and a privilege to lead the New ters. We must also recognize Wallace York State Bar Association through “Mid-Term Letter” Leinheardt of Garden City, whose ac- these times. We have accomplished tivities as an officer of the Trusts and much during the first half of my term, and we are by no Estates Law Section led the way in establishing an ex- means done. And so, I thought I would take this oppor- pedited legal framework for dealing with the unprece- tunity to bring all of you up to date on where we have dented number of victims. He will be featured in an up- been and where we are going. Here are the highlights: coming ABA Journal article on the “lawyer heroes” Tragedy and Triumph In the interests of brevity, I responding to the September 11 attacks. will only update last month’s President’s Message, We have acquitted ourselves well in these efforts, and which described the Association’s response to the hor- acted in a manner consistent with the highest traditions ror of the September 11 attacks. Although the intensity of the legal profession. Our Association is now estab- of the pro bono and administrative work being done for lished as a key member of the state’s disaster response those affected by the terrorist acts has diminished, we network, and we can expect to be called upon in the fu- continue to help coordinate the relief effort and to be a ture to provide needed aid to victims of similar cata- facilitator of direct services to direct and indirect vic- strophic events in New York. We know that it is futile to tims. The magnitude of the task required the conjunc- hope that the current disaster will be the last one, for tive effort of a coalition of more than 50 state, local and there will always be another, natural or otherwise. All special-interest bar associations (as well as the ABA), we can do is be ready when it comes. and several thousand attorney-volunteers. The entire Policy and Direction Our governing body has been disaster relief effort reflects the professionalism, dedica- dealing with significant issues of importance to our pro- tion and selflessness of our members, as well as attor- fession, government and society. In June, the House of neys from all across the region. The September 11 disas- Delegates approved reports dealing with issues as var- ter showed the bar at its best and we should be proud of ied as artificial insemination and parental rights and the all that we have been able to accomplish together. procedures for appointment of acting supreme court Just as it seemed as if we could begin to return to at justices and judicial hearing officers. The House also ap- least a modest degree of normalcy, American Airlines proved a resolution backing the McCain-Feingold- Flight 587 crashed on November 12, for a brief time stir- Cochran bill that would have banned the use of “soft ring fears of yet another terrorist attack. Within 24 hours money” and “issue ads” that really advocate the elec- of the crash, members of our Mass Disaster Response Steven C. Krane can be reached at 1585 Broadway, New team and I were on site at the Javits Center in Manhat- York, N.Y. 10036 Journal | November/December 2001 5 PRESIDENT’S MESSAGE tice for all, those that deny their citizens access to their tion or defeat of particular candidates in federal elec- justice system—or fail to lift barriers to that system— tions. Unfortunately, procedural wrangling stalled ef- run the risk of losing their legitimacy. Without access, forts to pass meaningful campaign finance reform legis- the justice system becomes illusory, and an illusory sys- lation, and it is difficult to predict when congressional tem is no better than no system at all. A convocation on attention will again shift to this subject in the future. In Access to Justice, led by Deputy Chief Administrative November, the House approved a set of reforms to the Judge for Justice Initiatives Juanita Bing Newton, was procedures associated with the appointment of held in Albany on September 11 and 12. Our own Presi- guardians under Article 81 of the Mental Hygiene Law, dent’s Committee on Access to Justice, co-chaired by C. while voicing its strong opposition to the Office of Court Bruce Lawrence of Rochester and President-Elect Lor- Administration’s proposed rule that would require raine Power Tharp, held a retreat in Albany on October lawyers to send engagement letters to clients.