October 2012 Archives

Electronically-In-Touch

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October 2012

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, Michael L. Fox, Esq., a recap of our Fall Meeting from Program Chair, Lisa R. Schoenfeld, Esq., and events of interest. We then have updates from our section liaisons to Business Law, Torts Insurance and Compensation Law, Entertainment Arts and Sports, and Antitrust Law. After that we have an article on lessons learned in her first year of practice by Justine Borer, Esq., an article on immigration by Alena Shautsova, Esq., and an article on alternative dispute resolution by Mar Kane, Esq. We are always looking for submissions so please keep your articles coming to Electronically-In-Touch.

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

Brian M. Doyle, Esq.
Managing Editor, Electronically-In-Touch
doylebm@gmail.com


Chair's Message

Greetings! We are now well into the busy fall and winter season for the Young Lawyers Section! YLS just held its Fall Program in Albany, New York, on October 18-19. The program included a wonderfully interesting tour of the N.Y.S. Capitol, including time on the floor of the N.Y.S. Assembly Chamber and in the gallery of the N.Y.S. Senate Chamber. We also had our YLS Executive Committee meeting, where our Officers, District Representatives, Section Liaisons and Committee Chairs advised of past and future events. We enjoyed a festive and social dinner at the famous Jack's Oyster House. On Friday, October 19, YLS offered a full-day CLE program. It was a terrific 2-day event, and we thank our Chair-Elect Lisa Schoenfeld, Esq. and our NYSBA YLS staff Ms. Tiffany Bardwell and Ms. Deb Harrington for all of their hard work that went into making the Fall Program a success.

I would be remiss if I did not update you on our Section's growing membership. We are about to cross the 4,000-member threshold, as we still strive to reach 5,000 members during this term as one of my Chair's initiatives. If you have friends or relatives who are not YLS members but who qualify to join our Section, please encourage them to join! There is tremendous mutual benefit for them and the Section.

Finally, thank you once again for being a member of the Young Lawyers Section. We remind you that over the next three months we will hold our Annual Meeting programs, elect the Section's Officers and Executive Committee members for the June 2013-June 2014 term, send out materials for nominations for the annual Outstanding Young Lawyer Award that is awarded at Annual Meeting, we await posters and essays from participating high school students in the inaugural YLS Civics Prize, and we will send out materials to begin planning and registration for the June 2013 U.S. Supreme Court Admissions Program and the March 2013 YLS Trial Academy at Cornell Law School. There is much to do, and much to be involved with! If you have an interest in running for a position (or in running for re-election to a position) on the Executive Committee of YLS, please keep an eye out for the nomination forms and announcement that are forthcoming!

Now, with all that said, we hope that you enjoy this next issue of Electronically-In-Touch. The following articles are both informative and interesting. If you should have ideas for an article or announcement, please e-mail them to our EIT Editor-in-Chief Erin Flynn, Esq. (erin.k.flynn@gmail.com) and EIT Managing Editor Brian Doyle, Esq. (doylebm@gmail.com).

Best,
Michael

Michael L. Fox, Esq.
YLS Section Chair

Fall Meeting

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Fall program was a huge success! We took a very interesting tour of the Capitol where we saw the "million dollar staircase" and were able to stand on the floor of the Assembly, including in the Speaker's chair. We then had our Executive Committee meeting followed by dinner at Jack's Oyster House where we presented our immediate past Chair, James Barnes, Esq., with a gift and plaque for his outstanding service to our section. The program continued on Friday with our all day CLE program, much of which was interactive and presented the attendees with opportunities to engage in a mock mediation as well as to watch a mock deposition. It was a great time! We hope you'll be able to join us for future events and programs.

Lisa R. Schoenfeld, Esq.


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The Million Dollar Staircase

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The Assembly Floor

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Chair-Elect, Lisa R. Schoenfeld, Esq., hanging out in Assembly Speaker Sheldon Silver's seat.
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Current Chair, Michael L. Fox, Esq. with Immediate Past Chair, James Barnes, Esq. at Jack's Oyster House.

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Friday's CLE

Upcoming Events

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The Young Lawyers Section is proud to Co-Sponsor: Building a Successful Law Practice - What You Need to Succeed
Friday, November 2, 2012 Affinia Manhattan 371 Seventh Avenue At 31st Street New York, NY 10001-3984 (212) 563-1800 9:00 a.m. - 5:00 p.m.
Sponsored by the Law Practice Management Committee of the New York State Bar Association

Also Co-Sponsored by: the Antitrust Section, the Labor and Employment Section, the Dispute Resolution Section, the Family Law Section, the Municipal Law Section, and the Young Lawyers Section of the New York State Bar Association.


2012 Young Lawyers Section 3rd/4th District Toys for Tots Holiday Event

3rd and 4th District Event

On December 4, 2012, the 3rd & 4th Judicial Districts of the NYSBA Young Lawyers Section, Real Property Law Section, and Torts, Insurance and Compensation Law Section will co-sponsor an annual Toys for Tots Holiday Event. This year, the event will be held at C.H. Evans Brewing Company at the ALBANY PUMP STATION. The cost of attendance is an unwrapped toy, to be donated to the Toys for Tots Foundation. Come join us for free hors d'oeuvres, and a fun night of networking, all for a great cause. Cash bar will be available.
Erica M. Hines, Esq.

Business Law Section Liaison Update

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The most recent meeting of the Business Law Section was held at the Statler Hotel at Cornell University in Ithaca, NY on September 13-15, 2012.

As in previous years, the Section offered scholarships to lawyers who had been admitted less than five years. These scholarships were not taken advantage of, which is a real shame. A robust selection of CLEs were offered, ranging from a controversial session on the stakeholder value myth to a more sedate but as interesting session on managing your client's reputation in a crisis. And as always, we had a congenial formal dinner, this year held on the top level of the Johnson Art Museum on the campus. It was a convivial group of people from throughout the state and beyond, and it is always a delight to meet and interact with everyone even if it poured. The view of the storm coming in over Cayuga Lake was something to behold.

The Section has recently done a membership phone survey among current members who are not involved in any of our numerous committees. It is a large portion of the value of joining our section, with the committees encompassing: Banking, Bankruptcy, Corporations, Derivatives and Structured Products, Franchise, Distribution and Licensing, Insurance, Public Utilities, Securities Regulation, and Technology and Ventures. A prime issue that the survey uncovered is how to provide additional value to our members. To that the section is working on webinars and additional programming.

Next September, we have three possibilities of locales for our meeting. We are currently considering Montreal, Mohonk Mountain House in New Paltz, or Equinox in Manchester, VT.

If anyone has any questions about the section or its committees and programs, please contact Sarah Gold, the chair of Membership for the section, at sg@goldlawny.com or 518-213-2345.

Torts, Insurance & Compensation Law Section Liaison Update

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When pursuing a third party action, good practice dictates that the attorney should act early. Very often, particularly in a situation where liability may be tenuous, a worker's compensation lien may be a plaintiff's greatest hurdle to resolving a case. The carrier or employer should be kept in the loop and are sometimes willing to work with the attorney. In some circumstances, the carrier or employer may be willing to negotiate the amount of the lien - realizing that they will recover nothing if the third party action is dismissed. One thing no attorney wants to do is make that call right after they pick a jury. Sometimes third party administrators, or simply time constraints, do not make these discussions possible. Keep apprised of the lien amounts, and keep the lines of communication open - those are the keys to success when handling these liens on third party actions.

It is important to note that the goals and design of a third-party action and a workers' compensation claim do not entirely overlap. While a third-party action may be seeking to recover a loss that has been sustained, the Workers' Compensation system is designed to favor an employee and to ensure the medical and indemnity benefits that they should receive. The Workers' Compensation Law, however, is not designed to be an additional award for those 'fortunate' enough to be hurt at work. Instead, Section 29 of the Workers' Compensation Law prevents such a double recovery.

This section provides that a carrier or employer is entitled to a lien against the third party action recovery. The lien covers both the indemnity and medical benefits paid up to the date of the recovery and that would have been payable into the future. The carrier and employer are entitled to take credit for those future benefits against the balance of the net of the third party recovery. The claimant is only entitled to further compensation benefits when that credit is exhausted.

Briefly, if you have a client who was hurt at work, it does not hurt to put together a check list of basic information.
1) Who is the employer? The Workers' Compensation carrier?
2) What is the carrier case number?
3) Who is the adjuster?
4) What is the prospective net award to the client?

The Torts, Insurance and Compensation Law Section will be hosting Construction Site Accidents: The Law & the Trial 2012, Friday, November 30, 2012. To learn more about these liens, and the ins-and-outs of trying a construction site accident case, you may wish to attend. The discussion will be at the Melville Marriott, Long Island, 1350 Old Walt Whitman Road, Melville, NY 11747 from 9 a.m. to 4:30 p.m. 7.0 MCLE Credits (4.0 Skills; 2.5 Areas of Professional Practice; 0.5 Ethics)

Allen J. Rosner, Esq.
Todd Jones, Esq.

Entertainment, Arts & Sports Law Section Update

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Recent and Upcoming Events
The Entertainment, Arts & Sports Law Section (EASL) sponsored several events this past summer and fall. Among these programs was Music Licensing for Film & Television in the Digital Age, held on June 14th and co-sponsored by the Television & Radio, Music & Recording Industry, and Motion Pictures Committees. Attendees learned about emerging digital business models and related issues from the creative, business and legal perspectives.

Damages in Publicity Rights Cases, organized by the Publicity, Privacy & Media Committee, reviewed and assessed current trends in damage awards and related strategies and valuations in right of publicity cases. This program was offered on June 26th and included a networking reception.

In late June EASL held a wine tasting dinner at Villa Berulia in midtown Manhattan. Participants enjoyed a five-course dinner, various wines, and good conversation.

Fall 2012 has included programs such as Matters of Art Finance and Kickstarting the Next Generation of Video Games.

Most recently, EASL and the Recording Industry Committee co-sponsored the Entertainment Business Law Seminar at the CMJ Music Marathon on October 19th. This all-day conference was held at NYU's Kimmel Center and offered ten panels on a variety of issues central to current entertainment law practice.

Our next event is the EASL Fall Meeting with Reception to Follow. Join us on Thursday, November 15th at 3:30 PM at The Cornell Club, 6 East 44th Street, NYC. Panel topics include: Best Practices to Protect Your Entertainment Assets from Counterparty Bankruptcy and E-Books: The Sequel--Rights, Wrongs and Realities. New members are encouraged to attend!

EASL turns 25 in 2013. Come join the celebration in Manhattan.
EASL will celebrate its 25th Anniversary with a two-day event held in Manhattan May 5 - 6, 2013. The first day will include a group attendance at a Broadway or comedy show. The second day will offer CLE programs held at the historic Bohemian National Hall located in the Upper East Side. Afterwards, enjoy dinner and a cabaret concert at 54 Below, located below what was once the iconic nightclub Studio 54 on West 54th Street.

EASL Executive Committee reviews and helps shape two bills recently signed into law by the Governor.
EASL helped shape an amendment to the Arts and Cultural Affairs Law ("NYSCAL") relative to consignments of works of art to art merchants by artists, their heirs and personal representatives (the "Arts Consignment Law"). The revised statutes, Articles 11 and 12 of the NYSCAL, strengthen pre-existing trust property and trust fund provisions, fortifying the rights of consignors (and their heirs) which rights otherwise may have been lost. This legislation was passed, signed into law by the Governor, and will be effective as of November 7, 2012.

Additionally, EASL reviewed and supported amendments to the General Business Law and the Arts and Cultural Affairs Law in relation to theatrical employment agencies. Among the changes, the amendments add a definition for "artist," adjust the writing requirement for agency contracts, and deal with agency fees relative to negotiation or renegotiation on original or pre-existing contracts. Generally, the revisions clarify and create consistency in the regulation of theatrical employment agencies. This legislation was passed and signed into law by the Governor on October 3, 2012.

Kara J. Buonanno, Esq.
Jennifer N. Graham, Esq.

Antitrust Law Section Liaison Update

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Hot Topics in Antitrust: An Overview of "Most Favored Nation" Clauses in Antitrust By. Daniel Reeder, Esq.

"Most Favored Nation" clauses ("MFN" clauses) are a topic of increasing importance in antitrust litigation. The term, a loan from federal trade law, refers to a special form of agreement between buyers and sellers common to oligopolistic markets. See Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice § 4.6d (3d ed. 2005). MFN clauses, also referred to as "price protection clauses," are a unique form of agreement where a "seller retroactively promises the buyer that it will match a competitor's lower price." Id. There is concern among regulators that these MFN clauses tend to facilitate collusion amongst competitors because an anticompetitive effect can occur, whether the agreements are horizontal between competitors or vertical with customers. Id.; see also Press Release, U.S. Dep't of Justice, Department of Justice, Federal Trade Commission to Hold Workshop on "Most-Favored-Nation" Clauses (Aug. 17, 2012), http://www.justice.gov/atr/public/press_releases/2012/286144.htm. This article explores some of the most recent cases about the use of MFN clauses and the effects of MFN on competition in their respective markets, including specialized forms of MFN clauses.

MFN clauses can be anti-competitive in two ways. First, in a horizontal sense, two competitors may simply agree to match each others' prices. In doing so, this agreement is simple collusion between competitors in direct violation of the antitrust laws. Hovenkamp at § 4.6d. The second, more complex situation occurs when two competitors make separate agreements with buyers to match the other's prices. At face value, these would seem to be pro-competitive, but, at heart, the issue is more intricate. Problematic is the fact that an MFN may simply allow the large sellers to be "price leaders" (ones who set prices, rather than letting the market determine prices). Id. Ultimately, economic data must be examined to determine whether the practical effects of the MFN are pro- or anti-competitive.

MFN clauses are not per se illegal, and courts have accepted MFNs as "competitively neutral or pro-competitive in the general case." See Richard Wolfram, 'Most Favored Nations' (MFN) Clauses under the Spotlight: U.S. v. Blue Cross Blue Shield of Michigan -- When Might Otherwise Competitively Neutral or Procompetitive MFN Clauses Violate the Antitrust Laws?, ANTITRUSTCONNECT BLOG (Jan. 6, 2011), http://antitrustconnect.com/2011/01/06/%E2%80%98most-favored-nations%E2%80%99-mfn-clauses-under-the-spotlight-u-s-v-blue-cross-blue-shield-of-michigan-%E2%80%94-when-might-otherwise-competitively-neutral-or-procompetitive-mfn-clauses/; see also ABA SECTION OF ANTITRUST LAW, ANTITRUST LAW DEVELOPMENTS 223 (7th ed. 2012). For example, in Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, the Seventh Circuit found that MFN clauses "are standard devices" that may have pro-competitive effects. Blue Cross & Blue Shield United of Wis. v. Marshfield Clinic, 65 F.3d 1406, 1415 (7th Cir. 1995), cert. denied, 116 S.Ct. 1288 (1996). There, Blue Cross & Blue Shield United and its HMO subsidiary sued a medical clinic and its HMO subsidiary, alleging the clinic and its HMO had engaged in monopolization, price-fixing, and division-of-markets in violation of Sherman Act Sections 1 and 2, 15 U.S.C. §§ 1, 2. Id. at 1408. The court determined that neither the clinic nor its HMO subsidiary had illegal monopoly power in the relevant market of north central Wisconsin. Id. at 1412. The court then turned to Blue Cross's allegation that the clinic had charged excessively high prices. Blue Cross, which was responsible for part of the fees the clinic charged patients insured by Blue Cross, "claim[ed] that it was overcharged by the [c]linic" and that the clinic had "colluded with competitors to raise prices above competitive levels." Id. at 1414-15. The only evidence supporting this collusion argument was that the clinic used MFN clauses to avoid paying affiliated physicians "more than what these physicians charge their other patients," regardless of whether the clinic purchased these physicians' services directly or through its subsidiary HMO. Id. at 1415. The MFN clauses arguably "put a floor underneath the physicians' prices, since if they cut prices to their other patients their reimbursement from the [c]linic will decline automatically." The court rejected this argument as "ingenious but perverse" because MFN clauses "are standard devices by which buyers try to bargain for low prices, by getting the seller to agree to treat them as favorably as any of their other customers." Id. The court acknowledged that the U.S. Department of Justice believes that MFN clauses "are misused to anticompetitive ends in some cases; but there is no evidence of that in this case." Rather, the clinic used MFN clauses "to minimize the cost of these physicians to it, and that is the sort of conduct that the antitrust laws seek to encourage." Id. The court therefore rejected Blue Cross's MFN-based collusion theory.

But as the court in Marshfield Clinic indicated, government agencies are scrutinizing MFN clauses more closely for anti-competitive effects. For instance, in the federal government's ongoing litigation against Apple in the e-books industry, the U.S. Department of Justice (DOJ) and certain publishers recently entered into a consent decree that forbade the use of MFNs between settling publishers and e-book retailers for five years in an effort "to restore retail price competition" and "to return prices to their competitive level" for the benefit of consumers. United States v. Apple, Inc., No. 12 Civ. 2826 (DLC), 2012 WL 3865135, at *3, *6 (S.D.N.Y. Sept. 5, 2012). DOJ has also warned that MFN clauses can "present competitive concerns," particularly when the MFN clauses are "used by a dominant buyer of intermediate goods, raise other buyers' costs[,] or foreclose would-be competitors from accessing the market." See Press Release, U.S. Dep't of Justice, Department of Justice, Federal Trade Commission to Hold Workshop on "Most-Favored-Nation" Clauses (Aug. 17, 2012), http://www.justice.gov/atr/public/press_releases/2012/286144.htm. And last month, DOJ and the Federal Trade Commission (FTC) even held a workshop focusing specifically on MFN clauses. See U.S. Dep't of Justice, Antitrust Division, Public Workshops: Most-Favored-Nation Clauses and Antitrust Enforcement and Policy, http://www.justice.gov/atr/public/workshops/mfn/ (last accessed Oct. 15, 2012).

An ongoing lawsuit against Blue Cross Blue Shield of Michigan illustrates DOJ's concerns about anticompetitive uses of MFN clauses. United States v. Blue Cross Blue Shield of Mich., No. 2:10-cv-15155 (E.D. Mich., filed Oct. 18, 2010). In United States v. Blue Cross Blue Shield of Michigan, the United States and the State of Michigan allege that Blue Cross's use of two specialized types of MFN clauses in contracts with Michigan hospitals violate federal antitrust law. United States v. Blue Cross Blue Shield of Mich., 809 F.Supp.2d 665, 668 (E.D. Mich. 2011). One type of MFN clause, called "MFN-plus," requires a hospital "to charge some or all other commercial insurers more than the hospital charges Blue Cross, typically by a specified percentage differential." Id. at 669. In some situations, the MFN-plus clauses require hospitals to charge competitors "as much as 40% more than they charge Blue Cross." Id. The second type of MFN clause, referred to as "Equal-to MFNs," require "hospitals to charge other commercial health insurers at least as much as they charge Blue Cross." Id. In exchange for having the hospitals accept these MFN clauses, Blue Cross increased its prices for the hospitals' services, essentially allowing Blue Cross to "purchase[] protection from competition by causing hospitals to raise the minimum prices they can charge to Blue Cross'[s] competitors." Id. Blue Cross's increased costs and the higher rates charged across the board due to the MFN clauses allegedly harmed "competition in the health insurance markets throughout Michigan, by raising competitors' costs, likely increasing premiums, and directly increasing costs to self-insured employers." Id. at 674. In light of the plausibly alleged harm to competition through the use of MFN clauses and the fact that Blue Cross "is the dominant health insurer in Michigan," the court denied Blue Cross's motion to dismiss the complaint and allowed the case to proceed. Id. at 674, 679.

In summation, the status of MFN clauses is still largely unsettled. In some cases, the courts find MFN clauses to be pro-competitive, Hovenkamp, supra, at § 4.6d., while in other situations, such as the "MFN-plus" or "Equal-to MFN" clauses, the use of MFN clauses appears to be anti-competitive. These clauses have the potential to provide savings for buyers in many markets, just as price-matching policies by retailers may save a customer money; but, whether MFN clauses are damaging to competition or not is typically decided on a case-by-case basis due to the fact-specific nature of MFN clauses' effects. Doubtless, many MFN clauses will be found to be anti-competitive due to the increased collusive behaviors in oligopolistic markets. But many MFN clauses do allow buyers to be economically better off than before the MFN clause without requiring collusive behaviors amongst competitors in violation of the antitrust laws.

Practice Tips

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The Most Zealous Advocate is Not Always the Best Advocate

By Justine Borer, Esq.

I was admitted to the New York State Bar in October 2011. In the past year, I have learned that the most zealous advocate is not always the best advocate.

It is a truism that more experienced lawyers can provide wisdom to newer lawyers. I have many lawyers to thank for imparting wisdom about the contours of my responsibilities as an advocate. The lion's share of my thanks goes to my mother, Brondi Borer, a lawyer focusing on family/matrimonial law, and to the partners at Burger Yagerman & Green, LLP, a boutique Manhattan firm focusing on family/matrimonial law. As a new lawyer, I am fortunate be supervised by Barbara Burger, Howard Yagerman, and Nancy Green, all talented, experienced, and dedicated lawyers.

It is also a truism that law schools do not teach some crucial practical lessons about the practice of law. Yet in my case, the opposite was true. Law school first exposed me to the philosophical tension between my dueling duties as a lawyer.

On Day 1 of Professional Responsibility at UCLA School of Law, Professor Derian defined the fundamental tension that lawyers must negotiate: the duty to be a zealous advocate versus the duty to be an officer of the court. During my first year as a lawyer, I have observed other newly admitted lawyers allow their roles as zealous advocates to overshadow their roles as officers of the court. Being an overly zealous advocate is detrimental to the reputation of a lawyer, and - most importantly and ironically - detrimental to the client.

A recent experience illustrates this lesson. My firm represented Dad; a newly admitted lawyer represented Mom. Custody was at issue. Dad's argument for maintaining sole custody was strong, both factually and legally; Mom was insisting on a custody arrangement that did not reflect the reality of her relationship with the child. It was clear to me, and to the partners at my firm, that the court would not grant Mom's requests. Rather than advising Mom as such, Mom's newly admitted lawyer filed motion paper after motion paper, making assertions about why each and every one of Mom's unreasonable and legally unsupportable demands should be granted.

Likely because of her inexperience, Mom's lawyer may not have realized that Mom's demands were doomed to fail. Yet Mom's lawyer's job was to assess her client's position, and to advise her client as to the court's likely response. By bending to each of her client's demands, Mom's lawyer did a number of things that did not serve her client (or her own reputation) well. Presumably, she ran up unnecessarily high bills for her client. She generated ill-will with opposing counsel, and with the court. And, most importantly, her unreasonable demands angered Dad, resulting in a custody arrangement that was less favorable to Mom, and perhaps in contravention to the best interests of the child.

In other words: Mom's lawyer did her client a disservice.

To be sure, experienced lawyers are also capable of misguiding clients, churning out senseless and voluminous motion papers, making strategic mistakes, and alienating judges and opposing counsel with arrogant behavior. But I have noticed that newly admitted lawyers often make these kinds of mistakes. Fortunately, newly admitted lawyers are not yet set in their ways. They can benefit most from the lesson that the most zealous advocate is not always the best advocate.

There is a reason we are called counselors. Our job as lawyers is not to bend to every fleeting whim a client may have. To do so would be detrimental to our client's interests, especially when we know the law is not on our client's side. As lawyers, we learn to be risk-averse and to anticipate the potentially negative consequences - both practical and legal - of any course of action. When our clients are unrealistic about consequences, or fail to consider them, it is our job as lawyers to remind them.

Justine Borer is an attorney at the New York City law firm Burger Yagerman & Green, LLP, focusing on family and matrimonial law. She is also a member of the New York City Bar Association Professional Responsibility Committee. Justine is a family and divorce mediator, and a sponsoring member of the Association for Conflict Resolution of Greater New York. She maintains the website www.justineborer.com. She received her J.D. from UCLA School of Law, and her A.B. from Harvard College. Justine can be reached at justineborer@post.harvard.edu.

Immigration

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Child Protection Status Act and Priority Date: 9th Circuit Rejects BIA Decision in Matter of Wang

By Alena Shautsova, Esq.

The Child Protection Status Act, Pub. L. No. 107-208 (Aug. 6, 2002), (the "CPSA") allows certain applicants and their derivatives to qualify as a "child" for immigration purposes and retain the original priority date of the immigration petition filed on their behalf even after these persons reach the age of 21.

For example, if a United States citizen files an immigrant petition for their child who is under the age of 21, but the petition gets adjudicated after the child reaches 21, the child may still immigrate to the United States in the preference category for children. The CSPA allows for the child's age to "freeze" at the time of the receipt of the immigrant petition.

The CSPA is more complicated when it comes to petitions filed by permanent residents. Frequently, a parent obtains permanent resident status through a marriage that takes place after their child's 18th birthday. Consequently, the stepparent cannot petition for the spouse's child. In this situation, the non-citizen spouse has to file an immigrant petition for their unmarried child. If this child is still under 21, the petition is filed in the category for "Children of Permanent Residents" or F2A. If the child is 21 or over, the petition is filed for "Unmarried sons or daughters of Permanent Residents" or F2B.

But what if the child in the first case scenario reaches 21 and the petition is still not adjudicated because the visa number is unavailable? Then, the law says, the child can qualify for protection under the CPSA act, or his petition will be automatically converted to a new appropriate category with the preservation of the original priority date. Note that a "child" may benefit from the CSPA only if the child "sought to acquire" the status of a Legal Permanent Resident (LPR) within one year of visa number availability.

The implementation of CPSA becomes complicated when it comes to derivatives of family sponsored petitions. What if a child of the principal beneficiary reaches 21 before the underlying petition is adjudicated? Will such a child or derivative lose their ability to come to the US with their parents?

For years, immigration practitioners worked to persuade the U.S. Citizenship and Immigration Services (USCIS) and the Board of Immigration Appeals (BIA) that such a derivative should be able to retain the original priority date that was obtained when the first petition was filed for child's parent.

In the infamous Matter of Wang, 25 I. & N.Dec. 28 (BIA 2009), the BIA denied the notion that the derivatives of the family sponsors petitions may retain the original priority date if they reached 21 years of age when the immigrant visa number became available.

On September 26, 2012 the 9th Circuit Court of Appeals reversed the BIA decision:

"We conclude that the plain language of the CSPA unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA's interpretation of the statute conflicts with the plain language of the CSPA, and it is not entitled to deference."

You can read the full text of the decision here (https://docs.google.com/file/d/0B9srKkDJWr8aTVd0VnhOWjBTc28/edit).

The government is likely to file an appeal in this case. Please note, that the 2nd Circuit Court of Appeals, reached an opposite conclusion as to the interpretation of the Statute in Li v. Renaud, 654 F.3d 376 (2d Cir. 2011).

At the same time, New York Immigration Judge Gabriel Videla, in his decision Matter of Azam https://docs.google.com/file/d/0B9srKkDJWr8aS0d5WGlzenFKT1k/edit ruled that when the adjustment of status is based on employment rather than family petition, the " aged out" negative consequences will not apply.

Immigration practitioners are encouraged to further Judge Videla's and similar arguments to overcome the unjust treatment of derivatives of third and fourth family sponsored preferences.

Alena Shautsova is a principal at the Law Office of Alena Shautsova, a full service Immigration Law Firm helping non US citizens to overcome Immigration challenges. The author can be reached at a.shautsova@gmail.com and encourages her colleagues to contact her with questions.

Alternative Dispute Resolution

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Alternative Dispute Resolution (ADR)
By Mark Kane, Esq.

Alternative Dispute Resolution (ADR) is an umbrella term for party focused effective alternatives to litigation. The New York courts ADR website (www.nycourts.gov/ip/adr/) explains:

"Alternative dispute resolution (ADR) refers to a variety of processes that help parties resolve disputes without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law. These processes are generally confidential, less formal, and less stressful than traditional court proceedings."

The Author, although a Counselor-at-Law, is an advocate for the use of ADR where the dispute is suitable for resolution through ADR and the parties are in agreement as to the use of ADR.

Although ADR's traditional use was industry specific and niche, such as in multi-contract complex technical disputes in the engineering and construction industry its use today has gained favour in the wider general community and is supported by the judiciary in resolving all manner of disputes (including Attorney-Client fee disputes NYCRR §137). In some instances ADR's reach extends to pre-dispute differences between parties. This push toward ADR is driven, at least partly by, its many benefits over litigation. The New York courts website explains:

"ADR often saves money and speeds settlement. In ADR processes such as mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting outcomes, greater satisfaction, and improved relationships."

The Author notes that the two principal and well established ADR procedures in New York are Arbitration (a determinative process) and Mediation (a facilitated settlement negotiation), although there are various other processes used and recognised by the courts, including various hybrids like Med-Arb and Arb-Med. The below paragraphs offer summary description and observations on some of the many ADR procedures.

Arbitration
The NY Courts website summarises the arbitral process as being "[a] neutral person called an "arbitrator" hears arguments and evidence from each side and then decides the outcome." The Chartered Institute of Arbitrators (www.ciarb.org) concurs and goes to state:

"Arbitration is a formal process similar to litigation but where the hearing is in private in front of a nominated third party, the arbitrator, who makes a binding decision. The arbitrator is not a court judge but rather an industry-specific expert or otherwise a well-qualified individual who both parties agree is suitable for resolving their dispute."

Arbitration's use in resolving disputes in New York has long been supported by the NY judicatory and legislature. (State Farm Mut. Auto. Ins. Co. v Alfarone, 62 AD2d 1034, 1035 [1978]; also see NY CPLR §7501). In New York arbitration may be binding (i.e. final) or non-binding (i.e. the award can be rejected and the dispute pursued though litigation) at the election of the parties. If binding arbitration is elected for the parties have agreed that there is generally no right to appeal under NY Law (See NY CPLR §7511; also see Matter of Silverman [Benmor Coats], 61 NY2d 299, 308-309 [1984]).

Some of the many considerations for an attorney when advising a client on the use of arbitration include:


  • Does the US Federal Arbitration Act apply and if so will my client benefit procedurally from its use. (See Circuit City Stores v Adams, 532 US 105 [2001]; Matter of Pricewaterhouse Coopers L.L.P. v Rutlen, 284 AD2d 200, 200 [2001])

  • Would my client benefit from the confidentially of arbitration

  • Would my client benefit from the issues being heard by an industry expert in lieu of a judge.

  • Would my client benefit from the procedural flexibility of arbitration i.e. location, time and formality of meetings and hearings.

  • Is there an international dimension to the dispute or the parties such that use of the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also known as the New York Convention and/or the 1975 Inter-American Convention on international commercial arbitration, (also known as the Panama Convention) may be of use and advantage to your client when attempting to realise the arbitral award.

  • Does my client have the financial resources to engage in arbitration as a means of resolving the dispute as my client may need to pay all or some of the arbitrator's fees and expenses (NY CPLR §7513).

  • Am I, as an attorney, competent to represent in arbitration, do I need association of another lawyer/co-counsel as the rules, procedures and processes used can be as complex as a court while not mirroring court.

Mediation
Mediation is a settlement negotiation that is facilitated by a mediator who may focus attention onto interests and not solely focus on rights and remedies available to the parties. The NY courts website explains:

"A neutral person called a "mediator" helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves. Mediation may be particularly useful when family members, neighbors, or business partners have a dispute. Mediation may be inappropriate if a party has a significant advantage in power or control over the other."

The Chartered Institute of Arbitrators describes mediation as:

" a private and structured form of negotiation assisted by a third-party that is non-binding. It is a voluntary, flexible process consisting of a framework of joint and private meetings where the mediator helps the parties clarify the key issues and differences between them and construct their own settlement."

Again like an attorney advising on arbitration, what should be generally considered prior to advising on the use of mediation:


  • Whether there is an emotional interest based at the core of the dispute that prevents the dispute from being settled.

  • Whether communication between the parties is ineffective, and whether effective communication would settle the matter.

  • Whether both parties have an interest in negotiating and settling the matter. If the parties were in negotiation on settlement but have reached an impasse would a without-prejudice problem solving discussion facilitate settlement?

  • Whether one's client benefits from explaining their dispute to a third party who wants to help resolve the dispute.

  • Whether there is a possibility of an ongoing or re-established relationship when the dispute is settled or subject to judgment.

  • Whether there a physical or psychological danger to one's client in exposing him/her to the other party.

  • Whether a protracted attempted settlement through mediation provides the other party with time to implement plans to put money/children/documents beyond the reach of my client and the courts.

Mediation has become very popular in recent years among informed clients who wish to take advantage of its various benefits. While courts have been supportive of mediation, it is without the same volume of law that supports arbitration in New York State. Judge Doris Ling-Cohan, in Perez-Wilson v McPhee 2009 NY Slip Op 29094 [23 Misc 3d 1053] at 1055, Supreme Court, New York County, on February 20, 2009 supported the use of mediation by stating:

"Thus, such mediation procedures were established to resolve cases expeditiously and conserve judicial resources and defendant's failure to produce an insurance claims adjuster as twice directed by the mediator, evidences willful and contumacious conduct which cannot be tolerated by this court."

This decision was subsequently relied on in Carnegie Assoc. Ltd. v Miller 2010 NY Slip Op 51942(U) [29 Misc 3d 1222(A)]. In this case, the plaintiff paid a heavy price for non-cooperation with a mediator and the mediation process as the complaint was dismissed with costs and disbursements to defendant. The plaintiffs' reply to the counterclaims was stricken and the plaintiffs were directed to pay for the entirety of defendant's fees and costs incurred in connection with the aborted mediation process.

One of the distinct advantages of mediation in lieu of litigation is the privacy and confidentiality. The NY courts have supported both mediation confidentiality and affirmed the parties ownership of that confidentiality such that "[t]he mediator's claim that a qualified privilege exists, pursuant to NY CPLR 3101 (b), in maintaining mediation confidentiality is without merit where the privilege has been waived [by the mediating parties]." per Hauzinger v Hauzinger, 2008 NY Slip Op 05781 [10 NY3d 923] at 2

Neutral Evaluation
The NY courts website describes this process as "a neutral person with subject-matter expertise hears abbreviated arguments, reviews the strengths and weaknesses of each side's case, and offers an evaluation of likely court outcomes in an effort to promote settlement. The neutral evaluator may also provide case planning guidance and settlement assistance with the parties' consent." The Chartered Institute of Arbitrators goes further by prefixing the word "early" such that the process be engaged with at the first opportunity and before the party costs have begun to accumulate in preparation for trial.

Parenting Coordination (PC)
The NY courts offer and advise of an innovative "child-focused process in which a trained and experienced mental health or legal professional called a 'parenting coordinator' assists high-conflict parents to carry out their parenting plan. With prior approval of the parties and the court, the parenting coordinator may make decisions within the scope of the court order or appointment contract. The purpose of Parent Coordination is to help parents resolve conflicts regarding their children in a timely manner and try to promote safe, healthy, and meaningful parent-child relationships." Although this process is outside the Author's normal practice area, the concept appears to have great opportunities for families in reducing their dependence on the courts service and attorneys in caring for their children.

NY courts offer a number of other forms of ADR such as the interesting Summary Jury Trial (SJT). The SJT is a short form trial without a judge; it being an advisory or binding process at the election of the parties. At the end of this process, the parties would have the view of a jury. Unless this view is clearly and grossly erroneous, the jury's verdict would be accepted by the parties as the inevitable outcome of the dispute and settlement would follow.

Access to ADR processes
NY Courts claims to offer "parties access to free or reduced-fee mediation and other ADR services in family law, general civil and commercial law disputes." These services are provided at many locations throughout the State's 62 counties. In addition to these state provided ADR services, a number of professional institutions and organisations exist which retain panels of professional dispute resolvers. The Author knows of two well-known and trusted organisations: the US based JAMS (www.jamsadr.com) and the London based Chartered Institute of Arbitrators (www.ciarb.org) which has US operations. Parties and their representatives are free to seek nomination of a dispute resolver from the panels maintained by such bodies. The body will then select a suitable dispute resolver with a grounding and experience in the dispute type who will then lead the parties in the selected process.

If the parties are unable to agree among themselves on an arbitrator or an institution for the nomination of an arbitrator, a party is free to apply to the court for a court appointed arbitrator pursuant to NY CPLR §7504.

Lawyers in ADR
There are various benefits for lawyers practicing in the area of ADR. For example, ADR gives lawyers the opportunity to use legal, personal and business problem-solving abilities to propose win-win solutions to client problems, outside of the normal adversarial rights and remedies sphere. This can be very rewarding particularly, the Author understands, in collaborative family law. In addition, ADR, in the case of arbitration, presents opportunities for lawyers to practice as a decision maker. This can be an eye opening experience to those who have previously acted only as party advocate. Such experience may improve an attorney's performance as a traditional adversarial attorney, particularly when it comes to admitting and weighing evidence.

Finally, attorneys practicing in ADR should fully understand the unique ethical concerns of a lawyer-neutral. Rule 1.12 of the Model Rules of Professional Conduct states that there is an expectation of an attorney-client relationship post-ADR relationships, which is in addition to the conduct of the lawyer-neutral when dealing with unrepresented parties. Rule 2.4(b) states:

"A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client."

About the Author: Mark Kane is an International Construction Lawyer practicing primarily in Europe, in addition to serving as an Arbitrator and Mediator in construction disputes. The views expressed in this article are his own and are in no way representative of any of his clients. www.constructionandlegal.com

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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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