March 19, 2014

Electronically-In-Touch


March 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 a message from our section chair, review of the half day program at Annual meeting, and upcoming events. We then continue with liaison updates from the Commercial and Federal Litigation Section and the Family Law Section, an article on career development by Tina Goel and an article on client competency by Justin Meyer.

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 Erin Flynn at Erin.K.Flynn@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

Chair's Message


Welcome to the latest edition of Electronically in Touch. We are more
than halfway through our 75th anniversary year! We had a busy,
educational and fun-filled Annual Meeting. We had numerous CLE
programs on a variety of substantive legal topics. The reviews were
excellent and we thank all of our speakers for their support and
participation. We also held our Executive Committee meeting during the
Annual Meeting where we presented the Outstanding Young Lawyer Award
to Muhammad Faridi. Congratulations again on this well deserved honor.
Our next Executive Committee meeting will be held on March 30th during
our Fifth Annual Trial Academy. Words cannot explain what an
absolutely fabulous experience our Trial Academy has been and will
continue to be. Details about the program are included below. Please
consider registering for the program. Space is limited! The Trial
Academy will be our last formal program of this term, but we still
have exciting district events being held near you. As always, we
continue to look for attorneys interested in becoming involved in our
section. If you have any questions or are interested in how you can
become more involved, please contact me at lschoenfeld@soklaw.com.

Lisa R. Schoenfeld

Upcoming YLS Events


Young Lawyers Section Trial Academy Saturday March 29 - Wednesday, April 2, 2014 Cornell Law School, Ithaca, NY The Young Lawyers Section is again sponsoring and coordinating the Trial Academy, the New York State Bar Association's only comprehensive trial training program. 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, in order to benefit their careers and their client's interests. Participating in the Trial Academy is the perfect opportunity to gain critically important trial experience outside of the courtroom. Participants will attend a morning lecture 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. The Trial Academy is open to any attorney wishing to learn or improve upon their trial skills and provides a unique opportunity for participants to have a meaningful experience which extends beyond a typical classroom setting.

Under New York's MCLE rule, this program has been approved for a total of 37.5 MCLE credit hours consisting of 2.0 credit hours in ETHICS and 35.5 credit hours in PRACTICAL SKILLS. This program is transitional and therefore suitable for newly admitted attorneys.

View the program brochure and registration form or visit www.nysba.org/YLS
Hotel accommodations are not included in the registration fee. To make a hotel reservation at the Statler, call Hotel Reservations Department at 1-800-541-2501 and indicate you are with the New York State Bar Association.

City Harvest Volunteer Opportunity
Pro Bono and Community Service
April 26, 2014
8:45 a.m. - 12:00 p.m.

On April 26, we will be volunteering with City Harvest at their Mobile Market in Washington Heights. Volunteers will be stationed at market tables, each supplied with thousands of pounds of fresh produce that they will help distribute to market-goers. As the market-goers stop by each table, volunteers greet them-and then weigh and bag the produce, which is distributed free of charge.

City Harvest is the nation's oldest food rescue organization, dedicated to feeding hungry people in New York City. City Harvest picks up excess food from places such as restaurants, grocers, manufacturers and wholesalers, and greenmarkets, and delivers the food to soup kitchens, food pantries, day care and senior citizen centers, homeless shelters and other places that serve those in need. This year, City Harvest will rescue 46 million pounds of excess food from food establishments throughout the city and across the country. City Harvest helps feed the nearly two million New Yorkers facing hunger.

Please respond by Friday, April 11, 2014 to Tina Rothaupt at trothaupt@nysba.org.
Please note that all volunteers must sign a release and waiver form from City Harvest in advance of your participation.


The LIincs Organization, Urban League of Long Island Young Professionals, Destination Long Island, the Emerging Professionals of the USGBC-LI and the NYSBA YLS 10th Judicial District cordially invites you to a Winter Mixer networking event.

Winter Mixer
Thursday, March 20, 2014
Race Palace
1600 Round Swamp Road
Plainview, NY 11803
6:30 - 9 pm


Program Flyer

The cost of attendance is $25 for those who pre-pay or $35 at the door.

Please RSVP by clicking on the link http://bit.ly/1fYL1x0


Alternative Careers with a JD
Albany Law School
80 New Scotland Avenue, 2nd Floor Room 200
Albany
April 2, 2014
6:00 - 7:30 PM

Reception immediately following in the West Foyer
The program will discuss alternative careers such as technology, writing and business for attorneys with a JD.

Moderator:
Robert Miller, ESQ. - He has been the CEO of Windsor Development since 1983. Prior to this position, he was President of a regional law firm that focused on commercial transactions and taxation.

Speakers:
Koethi Zan, ESQ. - Graduate of Yale Law School. She began her career in corporate law and then shifted to entertainment law where she worked in private practice and as Senior Vice President & Deputy General Counsel at MTV. On her last endeavor, she began writing crime novels, with "The Never List" becoming a best seller last year
Jeong Oh, J.D., M.B.A. - Senior Attorney at the New York State Department of Health and also heads Albany Medical College's Technology Transfer Department.
Additional Speakers to be confirmed.

Please respond by March 30, 2014 to Nicole Romano at nicole@girvinlaw.com.


Upcoming Events


Alternative Legal Careers for Lawyers | Free Webcast
Wednesday, March 26, 2014 | 12:00 p.m. - 2:00 p.m.
Wilson Elser Moskowitz & Dicker LLP | 150 East 42nd Street | New York, NY

A panel of lawyers who have all transitioned into nontraditional careers will talk about what careers are available to lawyers, how they made their own career transition, and what they would recommend for other lawyers hoping to follow in their career path.

Speakers:
Jonathan Bing, Governmental Affairs, Wilson Elser, and former Assemblyman
Crystal Barrow, Assistant Dean for Career and Professional Development, Pace Law School
Tina Fisher, Senior Counsel at Appeal Tech
Stephanie Melowsky, VP and Business Banker, CMSBank

Moderator:
Hillary Mantis, Director, Pre-Law Program, Fordham University, and author of Alternative Careers for Lawyers

Register Online | www.nysba.org/March26thWebcast

All Lawyers in Transition informational programs are recorded and available online. View archives of past events at www.nysba.org/LITArchivedWebcasts.


New York State Bar Association
President David M. Schraver
invites you to join your colleagues for the
"NYSBA Section Cup"
Foosball/Pinball Tournament & Cocktail Reception
Wednesday, April 2, 2014 | 5:30 - 7:30 PM
Winning team and/or individual winners will receive the coveted
NYSBA Section Cup and a $50 Amazon gift card.

Nixon Peabody LLP
1300 Clinton Square, 14th Floor | Rochester, NY
Parking is free in the basement garage of the building after 5:30 PM.
Enter from Clinton Ave.

Join us for some foosball and pinball fun, as well as an enjoyable two-hour complimentary cocktail reception. All attendees are welcome to participate in the NYSBA Section Cup Tournament. No special skills are required! Pinball will be individually ranked and based on highest score. Foosball team pairings (two players per team) will be random (unless you have a team partner in mind). Teams will be based on your area of practice and/or Section. Here are the basic foosball rules of play:

1. Coin toss to see which team serves first.
2. Tables have nine (9) balls, so two-person teams play best out of nine, or first team to reach five (5) goals.
3. If a ball goes into the goal legally, it is a point no matter who hit it or what it bounced off of.
4. NO SPINNING THE RODS!!!
5. Winning team advances to next bracket, depending on number of teams entered.

This will be a great night and an opportunity to meet NYSBA members, develop lifelong contacts, learn about ways you can become more involved with NYSBA Sections, and develop your foosball/pinball or cheering skills!

Please RSVP by emailing Megan O'Toole at motoole@nysba.org, no later than Thursday, March 27, 2014. If you would like to participate in the tournament, please indicate the area of practice or Section you'd like to represent, your game preference (pinball or foosball), and your foosball teammate's name if you have someone in mind, otherwise your team partner will be randomly selected.

Annual Meeting Half Day Program



On January 29, 2014, the Young Lawyers Section held its Annual Meeting at the New York Hilton Midtown, part of NYSBA's week-long annual meeting held in New York City. The topic this year was Bankruptcy Basics for Young Lawyers, and the program was chaired by YLS members Nathan Z. Kaufman and Erica S. Weisgerber. The program began with Section Chair Lisa R. Schoenfeld giving a warm welcome to those in attendance, sharing an overview of the Young Lawyers Section, and encouraging the young attorneys present to join the section.

The first panel was on "Bankruptcy 101," and the panelists were the Honorable Elizabeth S. Stong, U.S. Bankruptcy Judge for the Eastern District of New York, Michael L. Moskowitz of Weltman & Moskowitz LLP, and Derek P. Alexander, from Debevoise & Plimpton LLP. Judge Stong kicked off a lively session, giving an overview of the "who, what, where, when, and how" of bankruptcy. Bankruptcy is 24/7, and it's everywhere, Judge Stong explained. Judge Stong also pointed out that bankruptcy is one of the unique areas of legal practice that was explicitly provided for in the U.S. Constitution, which directs Congress to establish "uniform Laws on the subject of Bankruptcies throughout the United States." Mr. Moskowitz next provided an overview of consumer bankruptcy, explaining major elements of a chapter 7 bankruptcy and the relative complexity of Chapter 13 payment plans. Mr. Alexander followed, providing the attendees with an overview of corporate Chapter 11 reorganization basics, and an introduction to the in-court restructuring process for companies.

The second panel focused on Consumer Debtor Intake and the Meeting of the Creditors. The panelists were William E. Curtin, Jr. from the U.S. Department of Justice Office of the U.S. Trustee, Lori L. Jones of Lori Lapin Jones PLLC, who serves as a panel trustee, and John T. McManus of the New York City Bar Justice Center. Among other items, Mr. Curtin focused on the means test, an eligibility test to determine whether a debtor may be allowed to file for, and obtain, a Chapter 7 discharge. Ms. Jones discussed the initial meeting of the creditors and what to expect at a Chapter 7 Section 341 meeting, from the perspective of a trustee.
Mr. McManus, who runs the City Bar Justice Center's Pro Bono Consumer Bankruptcy Project, discussed consumer debtor intake and gave an overview of the Consumer Bankruptcy Project's work.

The final panel covered Bankruptcy Litigation, and the panelists were James W. Day of BakerHostetler, Jessica R. Simonoff of Freshfields Bruckhaus Deringer US LLP, and Douglas T. Tabachnik of the Law Offices of Douglas Tabachnik. Mr. Day first gave an overview of bankruptcy litigation, its role in the bankruptcy process, and explained how it differs from traditional civil federal court litigation. Ms. Simonoff next discussed avoidance actions--actions relating to fraudulent transfers and preferences that seek to retrieve money previously paid out by the debtor and that seek to return that value to the estate. Finally, Mr. Tabachnik anchored the session, discussing fraud-related litigation and other types of non-bankruptcy-specific litigation that arise in the context of a bankruptcy.

The panelists all received excellent feedback, and the general sentiment was that the program could have lasted at least a full day because each of the panelists was so knowledgeable on his or her topic of discussion. Many thanks to all who attended! If you did not attend, but are interested in the materials distributed as part of the program, please contact Adriana Favreau, AFavreau@nysba.org.

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Commercial & Federal Litigation Section Update




Recent Events:

The Commercial & Federal Litigation Section's Annual Meeting was held on January 29, 2014 at the New York Hilton. The event was well attended, with over 350 in attendance for the annual luncheon. The Hon. Jack B. Weinstein proudly presented to the Hon. Shira A. Scheindlin the Stanley H. Fuld Award for Outstanding Contributions to Commercial Law and Litigation.

The meeting included two CLEs, the first of which was an audience interactive discussion of the legal ethics implicated by social media. Led by Mark Berman, the social media panel answered a series of questions that were posed earlier to the audience. The audience members responded to the questions using tablets or smartphones, with the results tabulated immediately. Magistrate Judge Lisa Smith (SDNY), along with practitioners in the area, then explored the issues raised.

The second panel focused on the interplay between Delaware and New York law in resolving corporate governance disputes. Vice Chancellor Travis Laster, Delaware Court of Chancery, joined by Appellate Division Justice David Friedman (1st Dep't), as well as several New York and Delaware practitioners identified some of the key differences in the two states' approaches to fiduciary duty, indemnification and other corporate governance issues.

Upcoming Events:
1. Smooth Moves Program
Every year, the Section hosts its complimentary "Smooth Moves Event" - a career development CLE and networking program for attorneys of color, including young attorneys. The ComFed Section will hold its next Smooth Moves program on Tuesday, April 1, 2014. The topic will be "Social Media Strategies for Attorneys: Marketing Techniques, Practice Tips, and Ethical Quandaries." The event will be held at The Stanley H. Kaplan Penthouse / Samuel B & David, at 70 Lincoln Center Plaza in New York City.

The program will begin at 4:00 p.m. with a CLE Program.
Our distinguished panel includes:
Moderator: Darrell S. Gay, Esq., Partner, Arent Fox LLP
Panelists: Jazmin Chavez, Esq., Social Media Strategist, Latino Justice
Jorge Dopico, Esq., Chief Counsel, First Department Disciplinary Committee
David D. Lin Esq., Founding Partner, Lewis & Lin LLC
Rhonda Joy McLean, Esq., Time, Inc.

Social Media Strategies for Attorneys: Marketing Techniques, Practice Tips and Ethical Quandaries will feature an outstanding panel of leading practitioners and ethicists, highlighting the advantages for lawyers of marshalling social media as part of a marketing strategy, along with the legal issues and ethical challenges associated with the widespread use of such technologies.

The CLE will be followed at 5:30 p.m. with a Networking reception and award presentations, including presentation of the Section's Hon. George Bundy Smith Pioneer Award to Kay Crawford Murray, Esq. and presentation of the Section's Minority Law Student Summer Fellowship.

For more information, please contact NYSBA's Beth Gould at bgould@nysba.org or 518.487.5674

2. Commercial & Federal Litigation Section Spring Meeting
Join your colleagues for the Commercial & Federal Litigation Section Spring Meeting weekend at The Cranwell Resort in Lenox, MA on May 2-4, 2014. The Cranwell Resort, Spa & Golf Club is an all-season resort in the heart of the scenic Berkshires in Western Massachusetts, known for its abundant cultural venues including the famed Tanglewood Music Center and the Norman Rockwell Museum. In addition to the opportunity to mingle with state and federal judges and litigators, the weekend offers a variety of CLE opportunities. Please check the ComFed page on the NYSBA website for additional details in the coming month!

3. Ethics CLE: Lessons on Ethics and Civility - What's New for 2014 on Ethics, Civility on Everyday Lawyering, and Colloquium on Ethics and Civility
Friday April 4 - Syracuse and Long Island
April 11 - Albany and Buffalo
April 25 - New York City

4. Commercial Litigation Academy. The Commercial and Federal Litigation Section of the New York State Bar Association is pleased to present its annual Commercial Litigation Academy for young lawyers, bringing together an extraordinary panel of distinguished and well-known commercial litigators and judges who take you through federal and state commercial litigation practice.

You will receive training necessary for handling all aspects of a commercial litigation in New York state and federal courts, from the commencement of the case, through discovery and motion practice, to the trial and appeal process. The topics include venue decisions, pleadings, injunctive relief, discovery and disclosure, including e-discovery, expert discovery, arguing your first motion, trials and appeals. Ethical and evidentiary problems encountered by the civil trial attorney are also addressed.

June 5 and 6 - New York City

Other Benefits of Section Membership

• Mentoring Program: The Section has an active mentoring program which provides young attorneys (0-9 years in practice) the opportunity to build one-on-one relationships with seasoned practitioners (10 years and more) for the purpose of opening new avenues for professional development. During the past few years, the mentors/mentees have been involved in a variety of Section events, have met individually with members of the judiciary, have attended baseball games, and had a private tour of the Manhattan Supreme Court.

• Social Media Committee: The Section has recently created a Social Media Committee, one of the first of its kind in the country, and encourages young lawyers to join it. The Committee is interdisciplinary and currently has four subcommittees: corporate policy, privacy, legislation and ethics and professional responsibility. The Committee, among other areas, is looking at proposed New York State legislation governing the ability of employers to ask for the social media passwords of prospective and current employees and will be actively addressing the growing influence of social media on all aspects of the practice of law.

• Twitter!: The Section has a Twitter handle: @NYSBAComFed. All attorneys and especially young lawyers should use this handle to discuss issues and to stay up to date on the latest ComFed news and current issues in New York State commercial litigation, including the effects of the sequestration on our federal court system.

For more information on joining the Commercial and Federal Litigation Section, please contact Erica Weisgerber at eweisgerber@debevoise.com.

Family Law Section Update


We take this opportunity in Electronically In Touch to report that matrimonial actions in New York State are gradually joining the ranks of the majority of civil actions in e-filing. Voluntary e-filing of matrimonial actions in Westchester County began through the participation of several firms in 2013 and is gaining traction. In this pilot program, only available in newly commenced divorce actions, participating attorneys/firms may commence via e-filing, providing the defendant with a notice of electronic filing. As the program is consensual, the defendant will have the opportunity to either agree or decline to e-filing. If the defendant consents to e-filing, all documents subsequently filed with the Court will be through the New York State Courts Electronic Filing ("NYSCEF"); service upon the opposing party will be accomplished simultaneously via e-mail generated by the NYSCEF system. If the defendant declines e-filing, all documents will still be filed with the Court through NYSCEF (non-consenting defendants will bring their documents to the court where court personnel are tasked with the upload process on their behalf), but all documents must also be separately served through existing methods. Important note: regardless of e-filing status, documents which are to be served with a notice of entry must be directly served upon the opposing party, or his or her attorney.

An exciting year lays ahead in the arena of family law as both the bench and the bar continue to grapple with the implications of Windsor v. United States, 133 S. Ct. 2675 (2013), which held as unconstitutional the limiting definition of marriage as being between a man and a woman set forth in Section 3 of the Defense of Marriage Act ("DOMA"). Although New York has recognized same sex marriage since July 2011, changes at the federal level, most recently with the recognition of same-sex marriages in federal legal matters including, among other things, bankruptcies, prison visits and survivor benefits, have and will bear heavily upon the rights and remedies of New York families.

As exciting as the striking of Section 3 of DOMA has been, several recent decisions from the Second Department invalidating marital agreements, Petracca v. Petracca, 101 A.D.3d 695 (2d Dept. 2012), Cioffi-Petrakis v. Petrakis, 103 A.D.3d 766 (2d Dept. 2013) and C.S. v. L.S., 41 Misc. 3d 1209(A) (Sup. Ct. Nassau Cty. 2013), have family law practitioners scratching their heads on how to deal with the implications of those decisions in their drafting of marital agreements. The take away is that clients must be advised that marital agreements are not invincible--particularly those that are one-sided--and may be invalided based on the future circumstances and equities facing the parties.

A review of the Temporary Maintenance Guidelines enacted in 2010 is ongoing and there will likely be revisions presented to the state legislature in the coming year, as too will there be legislation providing for uniform rules regarding the dissemination of reports prepared by forensic custody experts and discovery of the information relied upon by those professionals in preparing such reports.

Elizabeth Erickson, EErickson@bodnarmilone.com
Adam Turbowitz, turbowitz@amsllp.com

Career Development


New Practitioners: Eight Tips to Making Yourself Invaluable in the Workplace
Tina R. Goel

Many new graduates search for gainful employment only to find that would-be employers either do not have work to warrant a new hire, or do not want to train a young associate. For the graduate fortunate enough to land her first job, fear of inadequacy or being responsible for a huge mistake can be all-consuming. However, based on my experiences--as a paralegal at large law firms, an intern at federal agencies, and an associate at a small firm--I have developed some strategies to help manage those concerns, and to make yourself invaluable in the workplace.

WITHIN THE OFFICE

1. Say Yes. When asked to take on a task that seems daunting or overwhelming, it can be easy to recoil and say "No, I can't because I don't know enough." Don't sell yourself short. As a new attorney, you are not expected to (and you do not) know everything; part of your task is learning how to do your job. Instead, start off with "I am interested in this project, and it would be helpful if you could give me a little guidance with respect to _____." This approach is less off-putting than saying "no" and it still gives you the opportunity to make it clear to your supervisor that you need guidance, and how your supervisor can best guide you.

2. Be Realistic About Deadlines. It is much better to under-promise and over-deliver than the alternative. If you feel like you are going to miss a deadline, however, do not avoid making that uncomfortable call to your client or supervisor. Be proactive and tell the client or supervisor beforehand that you anticipate being late (and be prepared to give a good explanation as to why). This way the client or supervisor will not be surprised by the delay and can (hopefully) plan for it.

3. Offer to Coordinate Office Policy Towards Technology. In many offices, you, as the newest hire are best versed in the art of professional social media interactions. In addition to having a user-friendly website, it is important to place your office on social media--such as Facebook, LinkedIn, and Twitter--to strengthen your employer's web presence. Offer to participate in or manage your firm's social media, or consider maintaining an office blog. Doing so allows you to develop the firm's visibility. Your role here can shape office policy (with regard to the use of these sites); your follow-through on your commitments will prove your value.

4. Ask for and Appreciate Feedback. If your office does not have an annual review policy (or even if it does), ask for feedback regularly. Ask for it at the completion of a project - make it clear that you want to know what and how to improve your work product for the next time. Aim to have a quarterly feedback meeting so that you know where you stand.

5. Express Your Gratitude. Regularly be thankful to those in your office who provide you guidance and support. Mentoring a young attorney requires both time and effort and we should express our gratitude towards good colleagues and mentors. A co-worker who expresses appreciation for others is more rewarding to work with.

OUTSIDE THE OFFICE

1. Get Involved in Professional Organizations. Join the local bar association and any relevant subject-matter specific organizations. Volunteer to work on committees and projects that help the organization. This participation reaps benefits in numerous ways: a) you learn a new skill and/or new legal content, b) you distinguish yourself from other new practitioners, and c) you increase the good will of your employer (as well as establish yourself) within the legal community.

2. Give Back to the Community. Whether you reach out to current students (law, undergraduate, or high school) about your current work, or volunteer with a community-based organization, give your time freely and you will learn a lot about yourself and the practice of law.

3. Get a Mentor (Actually, Two). Ideally connect with one person within your primary practice area and one outside for well-rounded professional development. Your supervisor will not always be there to answer your questions and there are things you may not want to ask him/her. Your professional development is your responsibility: make time to develop yourself professionally and you will become a greater asset in the workplace.

You can begin to make yourself invaluable as early as today by taking one small step: figure out what your office is lacking, come up with a solution, and bring it to the attention of your supervisor. Identifying and then improving the shortcomings of your office will help you develop life-long skills, and in the meantime your effort illustrates your investment in and dedication to your current employer. There is little better than an employee who is eager, dedicated, and involved!

Tina Goel can be reached at tina@markshmueli.com.

March 18, 2014

Client Competency


Mental Status Exams
Justin A. Meyer

Competence is an often-tested and often-examined issue. From contracts to wills, it is important that as attorneys, we are able to determine whether our clients are mentally able to understand what they are signing and what is going on. When you have long-time clients, and are familiar with them enough, then it is not necessary to specifically evaluate their mental states. What do you do, however, when you are dealing with a new client, or a client whose mental status may be challenged in the future?

It is important to understand Mental Status Exams (MSEs) and their use. It is also important that attorneys recognize the different levels of competency that different situations call for.This article will start by discussing competence as determined by caselaw, and then how to determine whether your client is truly competent, using an MSE. While competence in contract will be discussed, I will focus primarily on estate planning and elder law, as those are two areas in which competence is most often tested.

Competence

In contract matters, competence is presumed. In order to overcome that presumption, the challenging party must prove that the alleged incompetent person suffered not only from a mental illness, but that the mental illness or defect prevented him from understanding what he was doing. Horrell v Horrell, 73 AD 3d 979, 980 (NY 2d App. Div., 2010) (citations omitted). In order to determine competence to sign a Last Will and Testament, there are three things that must be established. First, does the testator understand the consequences of executing a will. Second, does the testator understand the property that she possesses and is giving away. Finally, does the testator know "those who would be considered the natural objects of her bounty." Matter of Kumstar, 66 N.Y.2d 691, 692 (1987). Courts have also considered whether the testator is "oriented to time and place. Matter of Collins, 124 A.D.2d 48, 53 (4th App. Div., 1987).

Article 81 proceedings (guardianship proceedings so named because they are governed by article 81 of the Mental Hygiene Law) have a similar standard of competence. These proceedings, which require the petitioner to prove that the Alleged Incapacitated Person (usually referred to as the "AIP") is a) unable to care for his personal needs or property, and b) unable to "understand ... the nature and consequences of such inability." MHL 81.02(b). Unlike other types of matters, competence in Article 81 hearings will be determined by the judge based in part upon a hearing at which the AIP will speak with the judge, although a Court Evaluator will first meet with the AIP.

MSEs

Most issues of competence will come down to whether the person in question was "oriented to time, place, and person." This term is used both in legal and medical contexts and means the same basic thing. Is the person alert? Is she aware of who she is and where she is? Does she understand the significance of why she is there? In a recent Article 81 proceeding where I represented the AIP, the judge asked my client, not under oath, to identify herself and me, including what my role was, and if she could state why we were in court.

A full MSE administered by a doctor involves assessing a patient's mood, orientation, thought process, memory, and intellectual functioning. See The Mental Status Exam, http://psychclerk.bsd.uchicago.edu/mse.pdf (Last accessed Feb. 22, 2014). For the purposes of evaluating a client, it is not necessary to do a full MSE. In fact, very few attorneys would be qualified to do so. Instead, it is enough for most to focus on ensuring that the client is able to answer several basic questions. While the questions themselves may vary, they all ensure that the client is aware of where they are, why they are there, and what the consequences of their actions are.

Doing so is relatively easy. If you are in doubt about a client's mental ability, start with three basic questions:
● What is your name?
● Where are you, and why?
● What year is it?
Some people will encourage asking for the full date, day of week, and even asking for the season. It has been my experience, however, that knowing the full date is not indicative of orientation to time. Many people who are otherwise perfectly fine cannot tell you the date without first checking a calendar or, more likely, their cell phones or computer clocks. Month, season, or day of the week might be appropriate to ask, however. The reality is that there is no right way to phrase the question - the end result that you are looking for is some sense of awareness of the present. Another popular question that establishes orientation to time is "who is the president?"

After asking those questions, you may want to ask a couple of others, to establish further mental acuity. Some possible questions revolve around past meetings - asking if the client remembers something that you did or talked about at your last meeting, or some other event is a good test question. Asking about the client's family history (when and where did you get married, when and where were your children born) is also very effective. If client will be executing documents other than a will, ask the client to explain the documents to you, and what the result of executing the documents would be. If you are executing a will, then you should also ask about the assets of the client, and the who the client's closest living relatives are. If those relatives are not immediate family (wife, children, parents, and siblings) then you may want to consider a family tree to help identify who are the actual closest living relatives.

After the examination, it would be best for the you, as the attorney, to document the results of the MSE. Attorneys can draft affirmations which have the same evidentiary weight as an affidavit, but need not be notarized. This privilege is established under CPLR section 2106. Doctors and dentists are also accorded the same privilege, so long as they are not a party to the action. Writing everything in a signed affirmation immediately after the execution ceremony will enable to you to have documentation of the event, including the questions asked. If you are truly worried that there will be a challenge, setting up a video camera in a corner that can capture everything may be the best strategy.

In order to establish that a client is competent, an MSE is often the best way. While the practical burden is always on the person challenging the document, the best way to protect your client from a challenge is to be prepared. When one is anticipated, three or four simple questions can go far in defusing the threat. That five minutes may be what saves your client a significant sum of money in legal fees later on.

Justin A. Meyer, Esq. is an attorney with Meyer and Associates, Counselors at Law, PLLC on Long Island, New York, admitted in New York, New Jersey, and Florida. He handles estate planning and administration, Article 81 guardianship matters, real estate, and business law. He can be reached at jmeyer@meyeresq.com. Thank you to Veronica Reed of Mental Health Legal Services for her assistance. Any errors herein are strictly mine.


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 Erin K. Flynn, Esq., at erin.k.flynn@gmail.com, no later than the 20th of the month.

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