May 15, 2016

Welcome to the May 2016 Issue of Electronically In Touch


We are pleased to submit the May 2016 edition of Electronically In Touch. This issue consists of informative articles useful to attorneys of all skill levels, including an article on alternative career paths for attorneys and new regulations on the use of drones, as well as updates from some of the section liaisons.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 25th of each month.

The Officers of YLS and the Editor of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not represent the thoughts and opinions of the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

A Message from the Chair of the Young Lawyers Section


Welcome to the May edition of Electronically In Touch. The Section has been busy wrapping up the end of the 2015-2016 year. The year has flown by - I can't believe this is my last Chair's Message. The YLS just held a fantastic program on April 28th, Finding Your Passion with Rick Collins. Rick spoke of his journey in turning two apparently diverse interests, weight lifting and criminal defense, into one successful career, and helped to inspire attendees to find the same passion and success in their careers. The Section has some wonderful upcoming summer events, including fantastic district events, and our Supreme Court Admissions Program, which will take place next month. The Section will be honored to have Claire Gutekunst - who, effective June 1st, will be the NYSBA President -- join us in D.C., to move the admission of our 50 Supreme Court admittees.

Also effective June 1st, the YLS will commence its 2016-2017 term, to be led by an amazing set of officers - Erin Flynn as Chair, John Christopher as Chair-Elect, Terrence Tarver as Treasurer, and Lauren Sharkey as Secretary. My involvement with the YLS has been so incredibly rewarding, and I am so grateful to have had the opportunity to work with these, and many other wonderful people. Indeed, the YLS is in great hands moving forward. If you are not currently actively involved in the YLS, I highly encourage you to become more involved. To find out how, contact Erin Flynn (erin.k.flynn@gmail.com) - she is presently making appointments for the 2016-2017 Term. The YLS is a truly amazing Section. I hope that you will get involved and come join us for some amazing programs and events.

From the bottom of my heart, thank you all for having given me the opportunity to serve you as Chair this year.

Erica M. Hines, Esq.

Antitrust Law Section Liaison Report

By: Kamilah Mitchell, Esq. and Erica Weisgerber, Esq.

On April 27, 2016, NYSBA's Antitrust Section and Young Lawyers Section co-hosted a networking reception at Bookmarks in New York City. The reception was well attended and presented an excellent opportunity for antitrust lawyers and other young lawyers to network and enjoy the beautiful spring weather!

The Antitrust Section has several upcoming programs that may be of interest to young lawyers:

The Dollar Store Merger Saga
Tuesday, May 24, 2016
8:30 - 9:45 am

Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019

The Antitrust Section Mergers Committee will host an exciting retrospective analysis of the year-long Dollar Tree/Family Dollar/Dollar General merger saga, featuring David Schwartz of Wachtell Lipton (lead antitrust attorney for Dollar Tree) and Dr. Tim Watts of NERA (lead economist for Family Dollar).

There is no charge for this event. Complimentary breakfast will be provided. Please RSVP to Kim Piro at KPiro@milbank.com by May 20, 2016 if you plan to attend the program in person.

Regression-based Tests of Common Impact
Monday, June 6, 2016
8:30 - 9:45 am

Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022

The Antitrust Section Class Action Committee will host a program on Regression-based Tests of Common Impact in antitrust class actions, presented by Mike Moore from The Brattle Group.

There is no charge for this event. Complimentary breakfast will be provided. Please RSVP to Sydney Joy at sjoy@nysba.org by June 2, 2016 if you plan to attend the program.

Please save the date and stay tuned for more details on these two additional upcoming programs:

• On June 15, 2016, from 9:00-10:00 am, the NYSBA Executive Committee Meeting will be held at Manatt, Phelps & Phillips LLP, 7 Times Square, NY, NY 10036.
• On June 22, 2016, the Antitrust Section will host its annual Summer Merger Committee program. This year's speakers will include Maureen Ohlhausen (FTC), David Gelfand (DOJ), and Sumanth Addanki (NERA), discussing high-technology mergers. The program will be held at Bloomberg LP, 120 Park Avenue, NY, NY 10017.

The Attorney Adjuster: Alternative Career Paths for Attorneys

By: Consuela Wilkes, Esq.

For many years, the typical career path for a young attorney right out of law school has been to join a successful law firm as an associate. However, the long and arduous billing hours spent serving the firm and its clients carried no guarantees that these efforts would lead to the coveted "partnership." Many of today's ambitious and talented young attorneys seeking new challenges have taken a different career direction.

One such path is the insurance claims industry, which is currently facing a talent crisis. Boomers have reached retirement age, causing a serious deficit in the number of qualified and experienced individuals who can fill the ranks left by retiring claims professionals. Many insurance companies are now employing attorneys as claims adjusters, litigation specialists, claims managers, and even the highest-ranking executive positions of Claims Director and Chief Claims Officer. According to the U.S. Bureau of Labor Statistics, the insurance claims industry will need up to 400,000 new employees by the year 2020 to fill openings left by retirees. This void will likely be filled, in part, by individuals from non-insurance fields - an ideal scenario for anyone with a law degree and the desire to try a new profession.

Many readers will be graduating from law school in the next few months; others, in the next one to two years. Despite lower law school enrollment numbers in recent years, the demand for lawyers is still down nationwide. However, I believe this is an opportunity, rather than a barrier to success. During the few spare minutes you have this spring between studying for exams and/or the Bar, don't be afraid to expand your job search to include alternative avenues of employment beyond the traditional routes of law firms, government and judicial clerkships. The insurance industry is a prime example of just one of many alternative career paths for attorneys!

Making the change from attorney to adjuster or litigation specialist sounds simple enough, but these roles have their own set of requisite credentials. For example, obtaining a North Carolina insurance adjuster license requires a candidate to successfully pass state examinations. Furthermore, adjusters and litigation specialists must complete continuing education in order to maintain their certification and license. In addition, there is a unique set of insurance and medical jargon one has to quickly learn when reviewing claim notes, medical reports, and legal pleadings.

Although a juris doctor is not a requirement of the adjuster position, it is an invaluable asset. Many of the skills learned in law school and in practice are put to good use as an insurance claims adjuster or litigation specialist. For example, the ability to identify applicable laws and then apply the laws to the facts of a case is a vital skill that will serve an attorney well as a claims adjuster or litigation specialist. An attorney's court room and mediation experience is also valuable in the insurance claims world as it aids in negotiating and bringing cases to cost-effective conclusions. Furthermore, working in the insurance industry provides countless opportunities for spotting issues and cultivating creative solutions. Because of this country's ever-changing economic and regulatory environment, the insurance claims world involves constant analysis of facts and situations.

One of the unique benefits of being an insurance claims adjuster or litigation specialist is the vast exposure to different types of claims and jurisdictions that a young attorney may not experience in private practice. For example, defense attorneys practicing in New York are limited to suits arising within the state. However, insurance claims adjusters can be involved in claims in many states. Multi-jurisdictional experience will provide exposure to different laws, rules and regulations. Further, the adjuster or litigation specialist can develop working relationships with defense counsel in various states, which is key to navigating and learning the local rules and regulations in each jurisdiction. Another benefit of working in the insurance industry is the opportunity for leadership. Because there is no partnership track similar to what you find in a traditional law firm, the potential for advancement isn't regimented and limited by one's own circumstances.

Many attorneys in search of a change in environment and opportunities for advancement have already made the successful leap from traditional law firm work to insurance employment. Two attorneys that I work with are serving in the capacity of claims executive and adjuster. Both are great examples of attorneys who have changed their traditional career path to seek an alternative experience.

Ron Mazariegos is a former New York attorney who made the leap from private practice to insurance claims. After graduation from law school, he worked as an assistant corporation counsel for the New York City Law Department, and subsequently, a large Manhattan law firm. He first came to the insurance company on a secondment from his law firm in 2007. Essentially "on loan" from the law firm for a predetermined period, he started out adjusting professional liability claims. While this was a new arena in which he had not practiced, his prior legal experience and trial background helped him to acclimate to his new claims assignments. He quickly learned to become a claims adjuster and understand the business of insurance.

Although Ron's secondment experience isn't the typical introduction to working in an insurance company, he was eventually offered a permanent position by the company after having returned to his legal practice for one year. Ron realized that his skill set was better suited for the insurance industry and he felt he could really make a difference in insurance claims. Upon his return to the insurance company, he was assigned to a line of business that he had never handled - workers' compensation. Again, his prior litigation experience helped him to quickly become adept to this line of business, develop new ideas to resolve claims and become a valued member of a team. Today, he manages a very diverse group of adjusters and litigation specialists, and supervises claims handling in many different lines and jurisdictions. In addition, he serves as claims vendor manager negotiating contracts and evaluating performance metrics for the company's claims vendor partners. As he explains, "Coming to work for an insurance carrier has expanded my legal knowledge and broadened my career path. It has been the best career decision I have made."

Eric Rowell is a former insurance defense attorney with experience practicing in both North and South Carolina. He began his career as a prosecutor after graduation from law school and has also handled criminal defense matters as a court-appointed attorney for indigent clients. Eric decided after practicing insurance defense for two years to pursue a career outside of the traditional law firm setting due to many factors. In his words, "I left the traditional practice of law for a career as an adjuster because I saw more opportunity for career advancement by being able to better utilize my specific skill set." Since becoming an adjuster, he has been able to successfully employ his investigative instincts and prior litigation experience to resolve a number of long-standing workers' compensation claims. He explains, "I have found my work as an adjuster to be challenging on many levels and would definitely encourage any young attorneys to consider the insurance industry as an alternative."

Earning a law degree is one of the best ways to expand your career opportunities in this modern economy. These stories are just some of the many examples of attorneys who have successfully transitioned from the practice of law into the world of insurance. If you want to be the next attorney to make the successful transition into the insurance industry, keep this article in mind whether you're searching for that first job out of law school or looking for a new path in your existing legal career.

Consuela Wilkes is an attorney/adjuster licensed in North Carolina. She earned her B.A. and J.D. at the University of North Carolina at Chapel Hill. Prior to joining Arrowpoint Capital as a Claim Specialist, she was an associate at a defense firm in Charlotte, North Carolina where she focused her practice on Workers' Compensation.

Torts, Insurance and Compensation Law Section Liaison Report

By: Terrance L. Tarver, Esq.

Recent Events

The Torts, Insurance and Compensation Law Section Annual Meeting was held on January 27, 2016 and January 28, 2016. Topics of discussion included, but was not limited to, an approval to spend $5,000 for sponsorship of the Trial Academy, getting law students engaged in the section, and pathways to the profession.

Upcoming Events

Our next meeting is May 19, 2016 at the State Bar Center in Albany, New York from 11:30 a.m. to 2:30 p.m. Our fall meeting will be held in conjunction with the Trial Lawyers Section in New Orleans from October 7, 2016 through October 10, 2016.


New Regulations on the Horizon for Commercial Drones

By: Danny Vogel, Esq.

Currently, the use of drones or unmanned aircraft systems (UAS) for commercial purposes in general is not permitted in the United States, although there is one exception. The Federal Aviation Administration (FAA) allows preauthorized companies to use drones to collect aerial data. The conditions for this type of use are limited; however, that is about to change. The FAA is currently working on a framework for regulations governing the commercial use of drones that are expected to be implemented in 2017. Once these rules are put into place and the ban on the commercial use of drones is lifted, we expect the growth of this industry to explode.

Naturally, safety is a priority for the rule makers, and as such, it is expected that the new regulations will likely impose minimum design safety standards for UAS used commercially. While these safety standards are geared toward reducing the possibility for accidents and injuries, they inevitably raise the stakes for manufacturers and operators of these devices in terms of product liability risk exposure.

Once the FAA permits the general use of drones for commercial purposes, it is anticipated that commercial drone operators will offer a diverse package of services, beyond just aerial data collection and photography. Drones have already been developed to replace the postman. Specialized drones have been tested and developed to deliver packages to customers' doorsteps. The ability for an online retailer to provide a package with the use of a drone as opposed to traditional postal channels will inevitably increase profit margins and drive market share to online retailers. Also, in rural areas of the country where it has not been economically feasible to have Internet service, Internet Service Providers can use solar-powered drones to provide wireless Internet service. There is no question in our minds that the emergence of this new technology in the marketplace will change dramatically the legal landscape in the area of product liability. Thus, the manufacturers, service providers and insurers that enter this space must be prepared for the product liability risk exposure that coincides with this efficient but young technology.

Besides the FAA's rules regulating the commercial use of UAS, most states are debating various bills intended to regulate drone usage. The current legal framework on the federal and state levels is very much in flux and drone manufacturers, drone operators and their respective insurers should be aware of the current trends in drone regulations across the country to ensure they operate within the law.

The FAA distinguishes between three classes of drone users: public operators, civil operators and model aircraft operators. The first class is currently the most straightforward: public or governmental operators are granted authority for drone use on a case-by-case basis by the FAA. The operators must also be licensed pilots. The requirements become significantly more complicated when discussing the other two classes. Section 333 of the FAA Modernization and Reform Act (FMRA) is an exception to the rule banning commercial drone use. This exception allows companies to use drones for commercial purposes after obtaining specific government approval and those operators are required to work within a predefined set of conditions determined by the government. In contrast, under the current framework of the law, model aircraft operators do not need FAA authority to fly a small drone, but are still required to keep their drones within sight of the operator and must stay below 400 feet.

In early April, a report was submitted to the FAA by the Micro Unmanned Aircraft Systems Aviation Rulemaking Committee (ARC) to provide recommendations on a regulatory framework for the classification and operation of micro UAS. The committee comprises 27 members consisting of companies from a variety of sectors: aviation associations, drone manufacturers, agricultural associations, news/media associations and others. The committee was tasked by the FAA to "develop recommendations for a performance-based standard for the classification of micro UAS, identify means-of-compliance for manufacturers to show that unmanned aircraft meet the performance-based safety requirement, and recommend operational requirements for micro UAS appropriate to the recommended performance-based safety requirement." Considering the fact that these products will be air-bound once they are unleashed on the marketplace, we anticipate there will be strict regulations implemented by the government that will set forth the minimum safety and quality standards to which manufacturers must adhere in the construction of these devices.

In the report, ARC states that it was most focused on the issue of drone flight over people and, in attempting to solve the issue, ultimately identified four small UAS categories defined by level of risk or injury posed. Each category is created by identifying a risk threshold related to the weight of the drone, its impact energy, various performance standards and operational restrictions. The following briefly summarizes the categories as proposed by ARC:

• Category 1: drones that weigh 250 grams or less. Due to the minimal level of risk, these drones should be allowed to fly over people without restriction. Drone manufacturers should clearly state the weight of the drone on their product and certify the weight in a manner acceptable to the FAA. Drones in this category would require a manufacturer's certification that there is no more than a 1 percent chance that the maximum force of impact would cause a serious injury.

For categories 2, 3 and 4, a small UAS may operate over people if it does not exceed the impact energy threshold specified for each category. These thresholds would be certified by the manufacturer using industry-consensus test methods.

• Category 2: the micro UAS may operate over people if the manufacturer of the UAS certifies to the FAA that the UAS does not exceed the typical impact energy threshold and that it complies with industry consensus performance standards. Other requirements would include observing the operator's manual, maintaining lift-off distances of 20 feet above people's heads or 10 feet laterally away from people, and not operating so close to people as to create an undue hazard. The manufacturer would again need to certify that there is no more than a one percent chance that the maximum force of impact would cause a serious injury.

• Category 3: drones in this category would not be allowed to operate over crowds or dense concentrations of people. Their use would be limited to closed or restricted work-site use or where the flying over people is limited to those involved in the operation. The category 2 limitations also apply to this category. The manufacturer's certification in this category would need to certify a 30 percent or less chance that the maximum force of impact would cause a serious injury.

• Category 4: drones in this category would be allowed flight over people, including crowds or dense concentrations of people, if, in addition to the restrictions set forth in category 2, the operation is conducted in compliance with a documented risk mitigation plan developed and adopted in accordance with industry consensus standards. The manufacturer's certification in this category would also need to certify a 30 percent or less chance that the maximum force of impact would cause a serious injury.

The ARC recommendations add that to demonstrate qualification for one of the above categories, the manufacturer of the UAS would need to submit a declaration to the FAA, label the product accordingly and in line with industry standards, and provide a suitable operator's manual. For an in-depth analysis, please see the ARC report.

The recommendations set forth by ARC show a clear effort by manufacturers to lessen the restrictions set forth by the FAA in the proposed rules released in February 2015, thereby potentially opening the door for commercial use of drones in populated areas. Implementation of these recommendations would allow companies to implement drones for a myriad of commercial applications.

Furthermore, should the FAA ultimately implement some of the ARC's recommendations, future product liability claims involving drones would boil down to the exact industry consensus standards for drones, what methods manufacturers used to determine in which category their drones fall and whether the models used to determine potential kinetic-based injuries were scientifically accurate. In future posts, we will address the need for manufacturers to ensure that their drones comply with any existing rules on a state level and that their operator's manuals warn against the various ways drones can be misused.

Drone use continues to rise throughout the world and as is the case with any new rapidly evolving technology, the legal landscape is still uncertain.

Danny Vogel, Esq. is an Associate Attorney at Wilson, Elser, Moskowitz, Edelman & Dicker LLP. This article was previously published on April 19, 2016 in the Product Liability Advocate. www.productliabilityadvocate.com/2016/04/new-regulations-on-the-horizon-for-commercial-drones/

Corporate Counsel Section Liaison Report

By: Naomi K. Hills, Esq.

On November 12, 2015, the Corporate Counsel Section sponsored a panel discussion for YLS members at the law offices of Kelley Drye & Warren, LLP. This was the first panel and networking event focused on connecting young lawyers who have an interest working as corporate counsel. The title of the program was "Managing Your Legal Career- How to Get Started as Corporate Counsel and Stay Connected." This event was complimentary to all YLS members and all attending YSL members received complimentary membership to the Corporate Counsel Section.

The program was moderated by Naomi K. Hills, Esq. and included panelists George Lence, Esq., President, Nicholas & Lence Communications, LLC; Natalie Sulimani, Esq., Partner, Sulimani & Nahoum, PC & General Counsel Prov International; and Elizabeth Shampnoi, Esq., Attorney/Director, Stout Risius Ross.

The panelists discussed the challenges and complexities within the legal market. In addition, panelists provided tips to young lawyers seeking a career as corporate counsel. Attendees had the opportunity to listen to the panelist share their individual stories about their career path. After the panel discussion, attendees had the opportunity to network with panelists and Corporate Counsel Section members. Due to the success of the event, the Section is considering having a similar panel presentation later this year.

Tenth District Report

By: Terrence L. Tarver and Michael DiFalco District Co-Representatives

Please note that although John Christopher, YLS Treasurer, is no longer a 10th District Co-Representative, he is instrumental in helping plan and promote the events below. As such, we would like to specially thank him.

Currently, we are in the preliminary stages of helping plan and promote a Wine Tour for June 11, 2016. The wineries will be located in Suffolk County on Long Island. This event is sponsored in conjunction with the Nassau County Bar Association's New Lawyers' Committee and the New York State Suffolk CPAs. More details will follow.


Join the Young Lawyers Section


Become the voice of newly-admitted and young attorneys in the New York State Bar Association. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!
Are you interested in volunteering for a Section Committee? Please email Megan O'Toole at motoole@nysba.org and Tina Rothaupt at trothaupt@nysba.org and indicate the committees you wish to join.

Disclaimer


Electronically In Touch is the electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member-driven publication that encourages YLS members to write articles. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Sasha R. Grandison, Esq. at srgrandison@gmail.com by the 25th of each month.

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