September 9, 2014

September 2014



Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes messages from our section and recaps of our summer events. We then have Section Liaison updates from Business Law and Criminal Justice and finish up with articles on Employment Law by Randi Melnick and Family Law by Justine Borer.

Electronically-In-Touch is a member driven publication and as such 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 keep your articles coming by submitting them by the 20th of each month to Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@gmail.com.

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Kara Buonanno, Esq.
Editor in Chief, Electronically-In-Touch
kara.buonanno@gmail.com

Tyear Middleton
Managing Editior, Electronically-In-Touch
tymiddleton@gmail.com

Chair's Message



Welcome to the September edition of Electronically-in-Touch. As always, the summer flew by with excessive speed and now we're back to our books. Our summer was not without events however, as we had our first successful spin class fundraiser for the Bar Foundation and another outstanding networking program in the 10th District. You'll read more about both programs below. Things are ratching up here quickly, as we have our Fall Meeting in Albany on September 15. The title of our program speaks to an issue each of us face in our career, "You're A Laywer, Right?" And you are, but you don't do real estate, or trademarks, or traffic tickets. While a little bit of knowledge can be a dangerous thing, it's always good to be able to speak intelligently on the topics we are providing on the 15th. We hope that you can join us. And even though it seems heretical to talk about winter, stay tuned for updates on our holiday parties that will be going on throughout our districts. Plan to come out to share some cheer and meet your fellow practitioners.

Sarah Gold
Gold Law Firm

Recap of Summer Events



Soul Cycle Charity Spin

Young Lawyers Section Community Service and Pro Bono Committee Cycled for the New York Bar Foundation

Over twenty young lawyers from New York gathered at SoulCycle in Manhattan for a charity indoor cycling ride for The New York Bar Foundation in July.

www.tnybf.org/inthenews
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10th DISTRICT - 3rd ANNUAL SUPERSIZED NETWORKING EVENT

By Terrence Tarver and John Christopher, YLS 10th District Co-Representatives

On August 7, 2014, young professionals from the greater metropolitan area descended upon Jewel Restaurant in Melville, New York for the 10th District's Third Annual Super-Sized Networking Event! This year, the 10th District worked with the New York State Society of CPA's Young CPAs Committees, Risk Management Associates, and the Association of Certified Fraud Examiners in the planning and promotion of this event. The cost of the event was $50.00 per person.

Approximately 130 young professionals participated in the event, 26 of whom were young attorneys. By all counts, the event was an overwhelming success, providing attendees with a fantastic opportunity to network with their peers in other professions. As this event continues to grow each year, the 10th District fully intends to participate again next year. If you were unable to attend this year, please try to join us next year.

Upcoming Events



Young Lawyers Section Fall Program
September 15, 2014
Bar Center, One Elk Street, Albany, NY

The following program is designed to provide attorneys at all stages of their careers with a basic familiarity and understanding of (or refresher in), the respective topics. While attorneys may focus their practices on various areas of law, reality often necessitates a basic working knowledge of practice areas outside of one's focus. Today's program is designed to provide that practical, basic working knowledge in a 101-type fashion.

8:30 - 9:00 a.m. Registration and Continental Breakfast

9:00 - 9:50 a.m. Traffic Tickets
Matthew J. Werblin, Esq.
Attorney at Law, Niskayuna, NY
9:50 - 10:00 a.m. Coffee Break
10:00 - 11:40 a.m. Real Estate Closings & Wills
Michelle H. Wildgrube, Esq.
Cioffi Slezak Wildgrube P.C., Niskayuna, NY
11:40 - 11:50 a.m. Coffee Break
11:50 - 12:40 p.m. Filing Trademark Applications
Teige P. Sheehan, Esq.
Heslin Rothenberg Farley & Mesiti P.C., Albany, NY

A YLS Executive Committee meeting will immediately follow the CLE meeting. If you are interested in attending and getting more involved in the Young Lawyers Section, please contact Tiffany Bardwell at tbardwell@nysba.org.


Free Networking Breakfast

Co-sponsored by the Westchester Chapter of the Women's Bar Association of the State of New York
Monday, September 29, 2014 | 8:00 a.m. - 9:30 a.m. | Keane & Beane P.C. | White Plains, NY
Free to NYSBA members & non members

Finding a Job You Love with the JD You Have

Monday, October 6, 2014 | 3:00 p.m. - 5:00 p.m. | Patterson Belknap Webb & Tyler LLP, NYC
Free webcast and live program to NYSBA members

Trial Academy


Save the date
The Young Lawyers Section Sixth Annual Trial Academy
Sunday, March 29 - Thursday, April 2, 2015
Cornell Law School, Ithaca, NY


Mark your calendars now to attend the Sixth Annual Trial Academy, the NYSBA's only comprehensive trial training program. Sponsored by the Young Lawyers Section, this intensive 5-day trial techniques and advocacy program is geared toward young and new lawyers - teaching, advancing and improving the quality of their experience in the courtroom to benefit their careers and their client's interests.

It is the perfect opportunity to gain critically important trial experience outside of the courtroom. Participants will attend morning lectures on an aspect of a trial and spend the afternoons in small groups with their designated team leader demonstrating the day's trial skill from a previously provided fact pattern. One-on-one critiques will be provided by a rotating faculty made up of NYSBA leadership and leading litigators, advocates and judges from every region of New York.

Save the date and look for early bird registration materials in the coming months.

www.nysba.org/YLSTrialAcademy

Section Liaison Reports



Business Law Section

The Business Law Section, one of the largest in NYSBA is also one of the most diverse based on our fields of practice. With a number of committees ranging from banking to bankruptcy, corporations to non-profits, we have a place for any attorney looking to interact with practitioners in the business law sphere.

While it can seem overwhelming to be among so many experienced lawyers, the programming we provide is educational to all attendees. Those just starting out get as much information as those who are looking for an update after years of practice.

For those with a more legislative bent, our committees have been active on legislative initiatives and often comment on statutory and regulatory proposals. The recent changes to the Non-for-Profit law in New York were shepherded by members of the section, and we are currently working toward conforming New York franchise laws to federal disclosure rules.

As the current Secretary of the Section, I have seen first-hand the opportunities available to those people wishing to be involved in our Section. We welcome all of you to join us, and if you so choose, get involved in the leadership of the committees or with our Section.

Sarah Gold


Criminal Justice Section

The Criminal Justice Section encourages all young lawyers involved in criminal justice and those who want to be involved in criminal justice to become a member of the section. We have an exceptional fall program that once again addresses the need for attorneys to comprehend the science behind the forensic evidence in order to effectively utilize it in court. Once again, CJS is offering a discount to attorneys with 0-2 years of practice and 2-5 years of practice. There will also be a complimentary reception on the first night of the program that will provide an excellent networking opportunity.

CJS Fall Meeting Forensics and the Law IV

The Criminal Justice Section's Fourth Annual Forensics and the Law program brings together distinguished faculty, including leading practitioners and forensics specialists to address recent issues in discovery procedures, digital evidence, firearms identification, evidence handling and preservation, Frye Hearings, DNA, lab accreditation, and facial recognition.

Friday, October 17 and Saturday, October 18, 2014
India House, I Hanover Square, New York, NY 10004
Complimentary Reception on Friday Evening
Discounted rates for attorneys with 0-2 years of practice and 2-5 years of practice.
Click Here to Register

Upcoming Executive Committee Meetings
September 22 and December 10, 2014
All section members are welcome to attend. RSVP to Patricia Johnson at pjohnson@nysba.org.
Both meetings will be held from 5:30-7:30pm at New York County Lawyers Association, 14 Vesey Street, New York, NY.

People v. Golb, 2014 NY Slip Op. 03426 (Ct App 2014)

On May 13, 2014, the Court of Appeals gave every New Yorker back the right to annoy each other when it found the statute defining aggravated harassment in the second degree was unconstitutionally vague and overbroad. Aggravated harassment in the second degree had been criminalized since 1965. It was codified in Penal Law § 240.30(1)(a) which provided that "[a] person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she ... communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm."

The Court found the statute criminalized "any communication that has the intent to annoy" and that no fair reading could support the necessary limitation on its scope to make it comply with both the State and Federal Constitutions. People v. Golb, 2014 NY Slip Op. 03426 (Ct App 2014).

Criminal defense practitioner frequently have clients who claim the law is unfair. This case presented a rare opportunity to tell clients that their charges where being dismissed because the law was indeed unfair, so unfair that it was unconstitutional. The case also served as a reminder for all attorneys that no stone should be left unturned and sometimes a law that had been on the books since 1965 can be found unconstitutional.

Erin Flynn
Erin.K.Flynn@gmail.com

Employment Law


Understanding Workplace Bullying Legislation
By Randi Melnick

As an employment attorney, I have heard countless tales of abuse suffered by employees in the workplace. Employees being subjected to mean spirited or degrading treatment often feel helpless, or, even if they are proactive and make a complaint to Human Resources, they are most often told to toughen up, or find a new job. With the realities of today's increasingly stressful and competitive workplace, it is worth a moment of reflection to consider: what level of civility do we expect from those with whom we work, and what the consequences should be for those who break these basic codes of conduct?

It is understood that workplaces can have tricky cultural norms, and some people will be more skilled than others at communicating. However, there is a difference between a manager or coworker who lacks tact and one who goes out of his way to purposefully target an individual. When one is verbally abused or intimidated, when work is sabotaged, or when humiliation is used as a tactic, that is bullying. And it is not always illegal in the United States.

For years, the law has protected categories of people who have been mistreated on the basis of their status in a protected group - whether it be their race, national origin, religion, age, disability, or gender. In recent years, we've seen an expansion of the groups we protect to prohibit mistreatment on the basis of sexual preference. However, despite all of that legislation to protect minorities, the law in the United States - at both the federal and state level - still fails to protect ALL workers from being mistreated in the workplace, where the mistreatment is not based on a protected status.

Fortunately, 26 states have introduced Anti-Bullying bills that seek to prohibit mistreatment in the workplace. For everyone. Period. Unfortunately, these bills have not been passed. Critics of the concept posit that it is unreasonable to legislate manners. But, this concern is erroneous as the bills address conduct so severe that it creates attendant health issues.

While each state has its own unique bill, the themes among them are consistent. Below is an examination of the "Healthy Workplace Bill" in New York State to consider as an example. ______________________________________________________________________________

Introduced but not passed by both the Assembly and the Senate, the Healthy Workplace Bill would amend the NYS Labor Law because the "State is dependent upon healthy and productive employees." See, S3863; AB4965. The bill recognizes that abusive behavior in the workplace is a problem for employees and employers alike. While employees enduring bullying may suffer from a host of physical and emotional ailments, employers are burdened by reduced productivity and morale, increased absenteeism and high turnover rates. Thus, the aim of the bill is to protect both parties.

The bill would prohibit employers from subjecting employees to an "abusive work environment". That critical term is defined as an employment condition where an "employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects an employee to abusive conduct that causes physical harm, psychological harm, or both". It is key to note that a plaintiff will have to demonstrate that the actor had an intent to cause pain or distress, as well as prove the actual physical and/or psychological harm he or she suffered.

To establish that an abusive work environment has been created, a plaintiff will have to prove that he or she was subjected to "abusive conduct". The bill contains a litany of examples of the form that the mistreatment may take; however, the list is not exhaustive. Some of these examples include: repeated verbal abuse; verbal, non-verbal, or physical conduct of a threatening, intimidating, or humiliating nature; or the sabotage or undermining of an employee's work performance.

Lawmakers were careful to specify 3 points within the definition of abusive conduct:
1. The acts and/or omissions must be such that a reasonable person would find abusive based on the severity, nature and frequency of the conduct;
2. A single act will not normally be sufficient to establish the threshold for abusive conduct except for instances of an "especially severe and egregious act"; and
3. Conduct that exploited a known psychological or physical illness or disability would be an aggravating factor.

Practitioners would look to these components in determining the viability of a potential claim as well as assessing its value. It may be instructive to examine the precedent under hostile work environment cases where a plaintiff must prove that the harassment was "severe or pervasive" to guide courts in deciding what scenarios will constitute "abusive conduct".

Much like our existing anti-discrimination laws, the bill contains an anti-retaliation provision, protecting employees who have in good faith opposed what they reasonably consider to be an unlawful employment practice. The protection would not be limited solely to the employee who believes himself bullied, but also extends to one who has "testified, assisted, or participated in any manner" in any kind of investigation proceeding under this article. This broad protection is in parity with our existing workplace laws as well as in keeping with the overall spirit of what the bill seeks to accomplish.

Furthermore, the bill would impose liability on the offending individual(s), as well as vicarious liability on the employer. While an offending individual may assert for an affirmative defense that he or she acted in violation of this law at the "direction of the employer, under actual or implied threat of an adverse employment action1," the bill is silent as to the standard of proof required to make out this affirmative defense.

Where the allegation does not include an adverse employment action, employers may plead as an affirmative defense that they exercised reasonable care to prevent and promptly correct any actionable behavior, and, that the complaining employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer. Additionally, where the complaint is based on an adverse employment action, the employer may plead as an affirmative defense that such adverse employment action was reasonably taken for poor performance, misconduct, or economic necessity; that the action was based on a reasonable performance evaluation; or that the action was based on an employer's reasonable investigation about potential illegal or unethical activity.

The affirmative defense available to employers in conjunction with the requirement that the conduct must be considered in light of a "reasonable person" rather than from the subjective view of the plaintiff, is a clear attempt to balance the needs of both parties. These aspects of the bill contemplate the scenarios in which it would be inappropriate to impose liability, and plaintiff's attorneys would be wise to do due diligence into the strength of an employer's position on these issues early in the process of vetting a case.

The bill's proposed remedies are expansive. In addition to enjoining the defendant from engaging in the unlawful employment practice, the court may order reinstatement, removal of the offending party from the plaintiff's work environment, back and front pay, medical expenses, compensation for pain and suffering and emotional distress, as well as punitive damages and attorney fees. However, where there was no adverse employment action, punitive damages and compensation for emotional suffering are only to be awarded where the conduct was "extreme and outrageous". Notably, individually named employee defendants are not shielded by this limitation.

As with all new developments in the law, it will take some time to see how courts will interpret it and apply it to the facts presented. However, one thing we know for certain: There will always be conflict between employers and employees, and advocates for either side should support the enactment of the Healthy Workplace Bill in New York, and across the country.

1 Adverse employment action is defined as an "outcome which negatively impacts an employee, including but not limited to, a termination, demotion, unfavorable reassignment, failure to promote, disciplinary action or reduction in compensation".


This Article, Understanding Workplace-Bully Legislation, first appeared in Employment & Labor Relations Law, Summer 2014, Vol. 12 No. 4 on August 13, 2014.
This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Family Law



Prenuptial Agreements: The Ultimate Symbol of Love?
By: Justine Borer, Esq.

Marriage is a profound and public proclamation of love and it is also a government-sanctioned economic partnership with attendant rights and responsibilities.

Geoff Williams' November 27, 2013 article What to Consider Before Asking for a Prenuptial Agreement (Reuters) depicts prenups as "more popular than ever" citing a "recent survey from the...American Academy of Matrimonial Lawyers. Sixty-three percent of divorce attorneys in the survey cited an increase in prenuptial agreements in the past three years, and the top reason...[given] is to "[protect] separate property."

What is separate property?

Separate property is property owned by one spouse before the marriage or inherited by or gifted to that spouse (and specifically that spouse, not the couple) after the marriage. Separate property is contrasted with "marital property" owned by both spouses. Prime examples of marital property include money earned by either spouse during the marriage or (in many cases) real property purchased during the marriage. Marital property is subject to equitable distribution (division between the spouses) at divorce. On the other hand, separate property is not divided, and instead remains the property of the spouse who owned it.

What percentage of married couples in New York State have prenups?

This is impossible to determine. Many couples who have them may not be eager to divulge because prenups carry stigma. And there is no reporting requirement.

Which special concerns face couples in their 20s and 30s who are considering prenups?

Anecdotally, prenup-related stigma in this age group can be heightened. Older spouses who have been married before (sometimes several times) and have significant assets and children from prior marriages can put forth practical reasons for needing prenups. For couples in their 20s/30s, about to begin their lives together, prenups can appear anti-romantic.

Yet prenups are crucial for members of this age group, if only because prenups compel fiances who are "flying high on the wings of love" to engage in concrete (and possibly uncomfortable) conversations about future plans, particularly about money. For example, will the spouses maintain separate checking accounts? Will salaries automatically be deposited into the same checking account? Will the spouses need to consult one another before withdrawing money and/or writing checks? What will happen to the money in the checking account if the couple divorces?

The timing couldn't be worse. No one wants to talk about asking permission to write checks, and even less about what would happen if a marriage doesn't work out, at a time when the focus is on a wedding, happiness, family, and love for a future spouse.

It is a lawyer's (sometimes unpleasant) job to motivate her client to have these conversations. It is also a lawyer's good fortune to work with clients during this joyful and optimistic time in their lives.
Is it easier to represent men or women in prenups?

New York lawyers may only represent one party (one fiancé) for conflict of interest reasons. The other fiancé is well-advised to find his own lawyer and can also proceed pro se (represent himself or herself).

Most lawyers represent either gender and have no preference. Each gender has tendencies and the exceptions swallow the rules. The dynamic is based more fundamentally on who requested the prenup (and thus tends to have more assets and/or expectancies) than on gender.

Female fiancees in their 30s sometimes contend with "baby fever" that can lead them to treat prenups as a hurdle. If the pressure of "baby fever" rises to the level of duress, meaning a female client appears to experience undue pressure to sign a heavily weighed prenup simply to ensure the wedding happens, a lawyer would need to follow certain procedures to safeguard against it, for ethical reasons, to protect the client, and to conform to New York law.

When duress is not an issue, the lawyer should remind her client that a prenup is a formal document and is not to be treated casually.

What about kids and maintenance?

Couples love to make plans for children who are not yet born or conceived. Romantic inclinations trigger this tendency. However, as a general policy some lawyers (including me) do not address unborn children in prenups because, as John Lennon said, "life is what happens when you're busy making other plans." There are a few exceptions (most notably, what would happen if minor children live during high school or earlier in the home they've grown up in, their parents split up, and one of the parents moves out and/or wants to sell the home).

So too for maintenance. At divorce, prenup or no, the "non-moneyed spouse" will often receive monthly payments intended to help her (occasionally him) get back on her feet financially. This can be particularly important in cases when a wife/mother (or husband/father) has taken herself out of the workforce for many years and must re-establish herself professionally. Maintenance can also allow the lower-earning spouse to enjoy a standard of living closer to the one that characterized the marriage.

Couples often have creative ideas about maintenance that they want to memorialize in prenups. Some couples want prenups to reflect a preference that a spouse (usually the one coming into the marriage with fewer assets) receive maintenance only if the marriage lasts for a certain number of years, and possibly incrementally more maintenance based on the number of years the couple is married above that initial threshold. Maintenance language in prenups can be included, but complex and convoluted maintenance plans should be discouraged, especially ones that weave together unborn children and maintenance. And it is worth noting the New York judges often disregard prenup terms about maintenance.

The role of the prenup is not to give spouses a blueprint for micromanaging their lives. The prenup is a means of ordering expectations.

What are the big ticket items in prenups for couples in their 20s and 30s?

In many cases one fiancé will request a prenup at the behest of his (or her) family, because she expects to inherit money and/or property and his/her family wishes that he/she retain his/her assets in the event of divorce. In those cases the lawyer of the "moneyed spouse," who will likely be the drafter of the prenup, will devote many clauses to ensuring safeguards; when the lawyer for the "non-moneyed spouse" reviews the prenup, it is her job to ensure that her client receives appropriate safeguards as well.

The marital home is a standard prenup topic. Sometimes one spouse will enter a marriage with a separate property house or apartment. The couple must then decide whether the property will become "marital property" upon marriage. If not, and if the property increases in value, either due to market forces or due to improvements (possibly including the active efforts of the other spouse to participate in renovations), will it remain separate property at divorce? What if the couple sells the property during the marriage and upgrades to a new property? These are issues couples typically consider in prenups.

What is your personal philosophy about prenups?

The wishes of my client guide me. If my client has significant assets and expectancies and wants an ironclad prenup, so be it. If my client simply wants to memorialize expectations related, for example, to a piece of real property she owns before the marriage, that is her choice.

I hold a view not usually attributed to family and divorce lawyers: marriage is a romantic and stabilizing institution. Close to 50% of New York State marriages last until the death of one of the spouses. This is a high - and reasonable - percentage for an intense lifetime commitment. Thank goodness we're no longer operating in the context of a 1950s ethos, when divorce-related stigma made it nearly impossible for unhappy spouses to escape unhappy marriages. The decision to divorce is difficult and painful and personal, and it is important to make the process easier for spouses who go this route. Prenups facilitate this. They motivate important conversations before marriage, order expectations during marriage, and define an escape valve if one is needed.

Prenups promote happy marriages. Prenups are romantic.

(Please note that a modified and abbreviated version of the article appeared in the Huffington Post, and that the same version will appear in the November NYCLA newsletter)

September 8, 2014


Electronically-In-Touch is the monthly electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would 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 Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@gmail.com, no later than the 20th of the month.

June 18, 2014

Electronically-In-Touch


June 2014

Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes messages from our incoming and outgoing section chairs and recaps of the 2014 Trial Academy and City Harvest Event. We then have Section Liaison updates from Elder Law and Intellectual Property Law and finish up with an article on Non-Profit Law by Rebecca Koval.

I am pleased to announce that Kara Buonanno will be taking over as Editor in Chief of Electronically-In-Touch. Tyear Middleton will also be editing and contributing to the publication. I wish them both the best as they keep Electronically-In-Touch moving forward.

Electronically-In-Touch is a member driven publication and as such 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 keep your articles coming by submitting them by the 20th of each month to Kara Buonanno at kara.buonanno@gmail.com.

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Erin K. Flynn, Esq.
Editor in Chief, Electronically-In-Touch
Erin.K.Flynn@gmail.com

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