January 10, 2013

Getting Credit for Originating a Matter

Who Should Serve as Billing Partner for a New Matter from an Existing Client?

By Joel Rose

This article responds to an inquiry from a partner in a law firm who felt she was treated unfairly because she deserved to be designated Billing Partner for a new client matter she originated from a firm client that was originated by another partner. This was an especially important issue for this partner because the designation "Billing Attorney" is an important criterion in her firm's compensation system.

The partner who receives the call from a new client and who will perform or supervise the performance of the work on that file may be the most appropriate person to serve as the Billing Partner. However, the decision may not be as clear-cut when a firm has a team-oriented approach to business development and client service efforts.

Existing Client

Typically, an attorney who "gets the call" on a new matter from an existing client should, as a courtesy, confer with the partner who has served as Billing Partner before opening the matter. If the partner who has primarily served as Billing Partner is continuing to fulfill the Billing Partner's responsibilities, he or she should usually be the Billing Partner for the new matter, absent any circumstances which might dictate otherwise.

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October 22, 2012

More strategic ways to land employment in a tough economy

By Hillary Mantis

There is good news -- the legal industry now employs 3,200 more people than it did a year ago. And there is bad news -- the legal sector lost 1,400 jobs in August alone. If you buy into the negative chat, it's not going to help you get a job. It can only bring you down. Here are five ways you can strategically act to get a job in a challenging economy.

1. Stay positive: A student I met recently told me that all her friends told her "there's nothing out there, no one's hiring." The same student wisely decided to ignore them, did her job search by herself, and ultimately found a great job. Not that you have to isolate yourself, but it's important to surround yourself with positive people.

2. Focus on areas that are hiring: Certain areas, such as healthcare and energy law, are expected to show growth this year. See the National Association for Placement (www.nalp.org), and the Robert Denney marketing report (www.robertdenney.com) as well as recent articles in the National Jurist Employment Insider, for more growth areas and predictions.

3. Attend events at your school: While you are still a student, it's much easier to do this -- law schools are generally chock filled with opportunities to meet alumni and practitioners at seminars, alumni events, luncheons and CLE programs. I have talked to many former students who have successfully utilized this job search method. If you are already a graduate you can still attend some. For example, get a business card from a panelist who practices entertainment law. Then contact them at a later date for networking purposes.

Along the same lines, take opportunities to get to know your Professors. They are often very tapped in to the legal community and may have friends or colleagues who are hiring. If you have graduated, email them once in a while to let them know what you are doing.

4. Target your résumés and cover letters: One size fits all just doesn't work anymore for résumés and cover letters. These days, most students and graduates have different versions of their résumé and cover letter so they can target different practice areas, and legal settings.

5. Take advantage of opportunities through bar associations: Many local bar associations offer free or very low cost memberships to students and recent graduates. Some have their own job boards; most also offer membership on their different practice area committees, which can be a fabulous way to network. The American Bar Association also offers limited free membership to recent grads -- see www.ambar.org/graduation for more information.

And remember, it is always better to think long term. After you have been admitted to the bar and have a year under your belt, it will be much easier to make a job transition. If you don't find exactly what you what right now, you have a lot of years ahead to get to your goal.

Hillary Mantis works with law students, pre-law students and lawyers. She is the author of Alternative Careers for Lawyers. You can write to Hillary at altcareer@aol.com

Originally published in the National Jurist

Governor Cuomo Signs Nine-Month Extension of Tax Credits Under Brownfield Cleanup Program

On October 3, 2012, New York Governor Andrew Cuomo signed into law a nine-month extension of the availability of tax credits under New York State's Brownfield Cleanup Program BCP.

Previously, the BCP required sites in the program to receive their certificate of completion from DEC by March 31, 2015 to qualify for tax credits. With the extension, sites may qualify if they receive their certificate of completion by December 31, 2015.

According to the most recent annual report of DEC's Division of Environmental Remediation, it takes approximately three years for a brownfield site to complete the BCP process.

Message from the EASL Chair

Message from the Chair

By Rosemarie Tully

I am pleased to report that two bills that EASL reviewed and helped shape were recently signed into law by the Governor. Below are brief summaries of the two pieces of legislation excerpted from my Remarks in the upcoming EASL Journal.

Arts Consignment Law

On legislative issues, EASL's voice was front and center. Under the leadership of EASL's Immediate Past Chair, Judith Prowda, EASL helped shape an amendment to the Arts and Cultural Affairs Law (NYSCAL) relative to consignments of works of art to art merchants by artists, their heirs and personal representatives (the Arts Consignment Law). The revised statutes, Articles 11 and 12 of the NYSCAL, serve to strengthen pre-existing trust property and trust fund provisions, fortifying the rights of consignors (and their heirs) which rights otherwise may have been lost. This legislation was passed, signed into law by the Governor, and will be effective as of November 7, 2012.

Talent Agency Law

EASL also reviewed and supported amendments to the General Business Law and the Arts and Cultural Affairs Law in relation to theatrical employment agencies (the Talent Agency Law Revisions). Founding Chair Marc Jacobson spearheaded EASL's working group on this issue. Among the changes, the amendments add a definition for "artist," adjust the writing requirement for agency contracts, and deal with agency fees relative to negotiation or renegotiation on original or pre-existing contracts. In sum, the revisions clarify and create consistency in the regulation of theatrical employment agencies. This legislation was passed and signed into law by the Governor on October 3, 2012.

Is a Public Service Career Worth It?

The ABA Journal poses the question, "Are Public Interest, Public Sector Careers Worth Law School Cost?"
What do you think? The article itself references a National Association for Law Placement ("NALP") salary study finding that public interest and public sector salaries have shown little growth since 2004. With such slow growth on the salary side weighing against the continuing escalation of law school tuition and resulting long term loan debt, students interested in public interest careers should think carefully about going to law school. NALP calls these findings evidence of a "significant economic disincentive" for law students to pursue careers in the public sector.

What do you think? Email your opinion to us at caps@nysba.org and we may update this blog with some of the comments received at a later date. In the meantime, take a look at the comments being posting on the ABA Journal's blog for some very good food for thought.

October 11, 2012

Looking for Award-Worthy People

NYSBA's Committee on Attorneys in Public Service ("CAPS") is seeking nominees for its 2013 Award for Excellence in Public Service, which is presented annually to members of the legal profession who demonstrate an extraordinary commitment to serving the public.

All lawyers active in government service or related public service are eligible for nomination. Recommendations should be based on the nominee's outstanding commitment to and performance of public service and may recognize individual attorneys or the collective work of attorneys in an office during the past year or over the course of a career. The award will be presented on Tuesday, January 22, 2013, at the New York State Bar Association's Annual Meeting in New York City.

Nominations must be submitted by using the nomination form located at www.nysba.org/capsaward

Nomination forms and any supporting documentation must be sent no later than Friday, October 19, 2012, to:

Megan O'Toole
Membership Services
One Elk Street, Albany, NY 12207
Phone: 518-487-5743
Fax: 518-487-5579

More information on the Excellence in Public Service Award and a listing of past recipients may be found at www.nysba.org/capsaward.

January 12, 2012

Preparation and Use of Personal Attorney Business Plans

By Joel A. Rose

Personal goal setting has become a popular and effective management tool that has been implemented by partners and associates in many of the more financially and professionally successful law firms.

Properly conceived and implemented, the personal goal setting process allows attorneys - individually and in concert - to tailor their personal and professional activities to enhance their performance and to progress the firm in the future. The planning process will foster communications between attorneys and lawyer management and create a sense of "ownership" and common direction. Further, properly implemented, the individual planning process will build "emotional and financial equity" between the attorneys and the firm, as opposed to only financial equity.

Although personal goal setting should by definition be individualized, it must of course align with the needs and culture of the organization. Every firm should therefore reflect on the qualities that its lawyers must embody to achieve success. These qualities will differ from firm to firm.

Preparation and Use of Personal Plans

Personal business plans can be introduced most easily and effectively in firms whose compensation systems have sufficient flexibility to recognize each individual's total contribution to the firm. By contrast, it is difficult to achieve maximum benefit from personal work plans in firms that have lockstep or other seniority-based compensation systems.

Procedurally, the first step in creating a personal business plan is performed by the partner, who completes a goal-setting form using approved guidelines (see below, Tips for Creating a Partner's Customized Model and Plan). This requires the partner to develop personal goals, and also promotes a sense of proprietorship. The completed form is sent to the managing partner or to the partner's practice group chair for review. The managing partner or the practice group chair meets with the partner to discuss the model, consider alternatives, and eventually approve the model.
The planning exercise itself requires partners to think about both their targeted individual production and the nonbillable activities they wish to pursue. In effect, the completed personal plan defines a partner's commitment to the firm for the coming year and establishes guidelines for accountability.

The plans for all attorneys in each practice group are reviewed and approved by the practice area chair, the department head (if applicable), and finally by the managing partner. Members of the firm's Management Committees are given copies of all models. Department heads have copies of all the models of partners in their respective departments. Practice group chairs have copies of all the models of partners in their respective practice groups.

When discussing plan-performance discrepancies with individual partners, managers should consider amending their plans as well as their behavior. Plan amendments should not be a common practice, but there may be situations where an adjustment is warranted; this helps eliminate surprises at year-end.

In addition to these quarterly reviews, firm managers should meet with each partner annually to discuss and approve the partner's performance model for the next year.

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January 5, 2012

Plaintiffs Claimed "Snowed" By Ski Resort Operator Get a Lift From The 3rd Department

By Heath J. Szymczak, Esq.

Kosowsky, et al. v. Willard Mountain, Inc., et al.¸--- N.Y.S.2d ----, 2011 WL 5984277, 2011 N.Y. Slip Op. 08709 (3d Dept. December 1, 2011) presents some interesting issues involving the interplay between fraud and contract claims, as well as the potential slippery slope created when seeking to hold a corporate officer personally liable for an alleged breach of contract by a corporation.

Defendant Willard Mountain, Inc. is a corporation which operated a ski resort upon land owned by the plaintiffs. Plaintiffs leased the property to Defendant under a lease which provided for: (i) computation of rental payments as a percentage of Defendant's sales and income, (ii) required Defendant to provide plaintiffs with an annual accounting, and (iii) prohibited assignment or subletting without plaintiffs' consent. Defendant's owner also operated a separate company offering concessions services at the ski area.

Plaintiffs claimed that Defendant had been paying less than the full amount of rent due under the lease because its president (and owner) had packed down its annual income through "slick" bookkeeping, thereby resulting in lower rental payments. Defendant claimed that the rental amount paid was proper because its own income was a function of the income received by the concessions company pursuant to a separate agreement (which had never been disclosed to the plaintiffs). Plaintiffs claimed that this agreement with the concession company violated the lease's prohibition against assignment. Plaintiffs asserted seven causes of action, including breach of contract and fraud, as well as claims against defendant's owner (individually) and against the concessions company.

Defendants moved to dismiss all the claims (except the breach of contract claim) for failure to state a cause of action under CPLR § 3211(a)(7), and to dismiss all the claims as time-barred under CPLR § 3211(a)(5) (or at least cap the recoverable period). Plaintiffs cross-moved for leave to file an amended complaint.

The Supreme Court granted defendants' motion pursuant to CPLR § 3211(a)(7), in part, by dismissing the causes of action (i) seeking an accounting, (ii) alleging unjust enrichment, and (iii) alleging breach of the implied covenant of good faith and fair dealing. The Supreme Court also held that the claims were not time-barred, and granted plaintiffs' motion for leave to amend their complaint. Defendants appealed and plaintiffs cross-appealed.

Fraud Claim Not Duplicative Of The Cause Of Action For Breach Of Contract
Defendants argued on appeal that the Supreme Court erred in failing to dismiss plaintiffs' fraud claim because: (i) it was duplicative of the cause of action for breach of contract and (ii) it failed to contain allegations of justifiable reliance and special damages.

Generally, a misrepresentation premised directly on the same actions giving rise to a breach of contract does not give rise to a separate cause of action for fraud. Id. at *1 (citing Salvador v. Uncle Sam's Auctions & Realty, 307 A.D.2d 609, 611 (2003)). The Third Department, however, held that because of distinctions among the named parties (neither defendant's owner or the concessions company were parties to the lease) the breach of contract claim was not directed against the owner and could not be considered duplicative as to him. Further, as it was disputed that the concessions company was bound by the lease, the fraud claim against the concessions company could also proceed.

Moreover, the claim against Defendant Willard Mountain, Inc. could also proceed as plaintiffs claimed "that, after the contract was entered into, defendant [through the acts of its agent] repeatedly misrepresented or concealed existing facts" by failing to disclose the existence of the separate agreement with the concessions company and falsifying the annual income reports in order to (i) deceive them as to the true amount of rent owed, (ii) induce them to accept improperly low payments. Further, despite the absence of a fiduciary relationship, defendants allegedly breached a "duty of candor" (independent from their duty to perform under the contract) in that they had superior knowledge unavailable to plaintiffs and knew plaintiffs were relying on the information they supplied (citing Intl. Elecs., Inc. v. Media Syndication Global, Inc., 2002 WL 1897661, *2, 2002 U.S. Dist LEXIS 15200, *5-*6 (SD N.Y.2002)). The Third Department concluded that the conduct alleged in the fraud cause of action was sufficiently discrete from that underlying the breach of contract claim to state a viable separate cause of action.

Fraud Claim Not Lacking Allegations Of Justifiable Reliance And Special Damages
The Third Department also rejected defendants' contention that the fraud claim should have been dismissed for failure to plead the required elements of justifiable reliance and special damages (citing Dube-Forman v. D'Agostino, 61 AD3d 1255, 1257 (2009)). Plaintiffs alleged that they had relied upon the income figures provided by defendants in accepting the rent payments. They also claimed special damages (in addition to lost rent under the contract) as the alleged fraud prevented them from exercising their right to terminate the lease upon a breach of its terms, and thereby deprived them of other business opportunities and of the use and enjoyment of their property.

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First Annual Written Pay Notice under the New York Wage Theft Prevention Act Due by February 1, 2012

This post was authored by Matt Lampe, Joseph Bernasky, and Jenny Ma of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

2012 is the first year that private-sector New York employers must provide the annual written pay notice required by the Wage Theft Prevention Act. Although the initial passage of the Wage Theft Prevention Act over a year ago garnered significant attention, it is worth reiterating now that the February 1 deadline for provision of the annual notice is rapidly approaching and employers should use the remaining time to ensure compliance with the new notice obligations.

On December 14, 2010, then-Governor David Paterson signed the Wage Theft Prevention Act, S. 8380/ A. 11726 (the "Act"), into law in New York State, which amended Section 195 of the New York Labor Law. Joining a growing number of states with similar wage theft legislation, the Act sought to address classification of employees and payment of statutorily-mandated minimum wages and overtime, and included enhanced civil and criminal penalties for non-compliance. In effect since April 9, 2011, the requirements applies to all private-sector employers in New York.

Under the Act, every employee, whether full or part-time, whether covered by a union contract or not, and regardless of exempt status, must receive a written pay notice between January 1 and February 1 of each year, including the following information:

•the employee's rate of pay, including overtime rate of pay, if non-exempt; •the basis of the wage payment (e.g., by the hour, shift, day, week, salary, piece, commission, or other); •the regular payday; •the allowances taken as part of the minimum wage (e.g., tip, meal and lodging deductions); •the employer's official name and any other "doing business as" names; and •the address and phone number of the employer's main office or principal location, and mailing address if different.
2012 is the first year that employers must provide the annual written pay notice, which applies even if none of the information has changed from the prior year.

Under the Act, the notice must be provided in English and in the employee's primary language if the New York Department of Labor ("NY DOL") offers a translation. Currently, the NY DOL offers dual language translations in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish, all of which are available here. Employers with seasonal employees on layoff between January 1 and February 1 must furnish the notice as soon as the employees return from layoff. The notice may be distributed electronically, but only if employees' receipt of the notice and acknowledgment is verifiable and if the employee is able to print a copy for their records.

In addition, the Act requires employers to obtain a signed and dated acknowledgment of the notice from each employee. Employers must retain copies of the notice and accompanying acknowledgment for six years, and provide them to the NY DOL upon request. If an employee refuses to acknowledge the notice, an employer should still give the notice and note the refusal on its retained copy. Moreover, an employee cannot waive the written notice requirement. The NY DOL can assess penalties of $50 per week per employee if a proper written notice is not provided, and employees can sue for not receiving a proper written notice with damages capped at $2,500 per employee.

With the February 1, 2012 deadline rapidly approaching, employers should take any remaining steps necessary for to meet the annual notice requirements. The NY DOL provides web-based, printable model templates for employers seeking guidance, which are available here. The Act does not require the use of these particular forms, and employers may develop their own forms so long as all the information legally required is included. The NY DOL has also published a Fact Sheet on the Act, available here, and a set of FAQs, available here.

This post originally appeared on the LENY blog from NYSBA's Labor and Employment Law Section.

New York City Mayor Signs Several Laws Concerning Building Codes, PCBs and Bike Racks

By J. Cullen Howe

On December 27, 2011, New York City Mayor Michael Bloomberg signed into law three bills that enacted recommendations of the New York City Green Codes Task Force. The bills are aimed at carrying out long-term municipal plans to reduce carbon emissions, improve air and water quality, and limit waste.

The first bill (Intro. No. 576-A) seeks to improve protection of water and sewer systems by requiring construction sites to collect concrete washout water for proper disposal. The second bill (Intro. No. 578-A) requires that new asphalt used in the city have a minimum of 30 percent recycled content. According to the city, this requirement will save about $2.3 million per year by reducing dumping fees and avoiding costs of new asphalt and will keep more than 66,000 tons of asphalt out of landfills. The third bill (Intro. No. 592-A), requires all new heating, ventilation, and air conditioning units installed within the city to have filters that can keep out particles of 2.5 microns or more. According to the city, the bill is aimed at keeping soot from trucks and buses from entering indoor home and work environments, where people spend an estimated 90 percent of their time.

In addition, the Mayor signed two bills that address a long-running controversy over levels of polychlorinated biphenyls (PCBs) from fluorescent light ballasts, caulk, and other common construction materials in the city's school system. In January 2010, the City entered into an agreement with EPA to undertake a pilot study to develop a citywide approach to PCBs in schools. In February 2011, it announced a $708 million comprehensive energy efficiency plan to remove and replace lighting ballasts, reducing possible PCB exposure in schools and cutting annual greenhouse gas emissions by more than 200,000 metric tons. The two bills codify many New York City Department of Education practices and protocols for notifying parents and communities about PCBs and lighting fixture replacements. The first bill (Intro. No. 563-A) requires the Department to notify school community members of PCB testing results and the status of the city's comprehensive replacement plan. The second bill(Intro. No. 566-A) requires progress updates to the New York City Council and the public.

Finally, the Mayor also signed a bill (Intro. No. 720-A) to add flexibility to regulations for bicycle storage in parking garages. The bill amends a 2009 law (Local Law 51) setting aside bicycle parking spaces based on a garage's vehicle capacity.

This post originally appeared on Envirosphere, the award-winning blog of the Environmental Law Section.