March 2013 Archives

Electronically-In-Touch

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February 2013

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, upcoming events, and updates from the Trial Lawyers Section liaisons. We then have articles on Trademarks, International Law, Tax Law and Law Practice Management. 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

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Hello once more! Welcome to the February 2013 edition of the YLS Electronically-In-Touch publication! We are 2 months into the year 2013 already, and continuing a successful 2012-2013 Term. The Section remains on solid footing in terms of programming, financials and membership. Our members now number more than 4,950, and we are fast approaching the 5,000 mark that I set as one of the goals of my Chair year back on June 1! In fact YLS is continually running neck-and-neck with the Trusts & Estates Section for the top membership position, and at different times these past months YLS has been the State Bar's largest Section. Moving ahead, we have begun to receive submissions for the YLS Civics Education Poster/Essay Contest! Once we have reached the submissions deadline, we will be moving to the next phase of judging, and will have more announcements in the coming months. We are also looking forward to the Fourth Annual Trial Academy, being held a few weeks from now at Cornell Law School, in Ithaca, New York, on March 20-24, 2013. When you next hear from us in EIT, we will have held the Trial Academy. So, if you are interested in joining us at the Academy, please don't wait to sign up! More information is available on the YLS webpage that you can link to through www.nysba.org. In the afternoon/early evening of March 21, following conclusion of that day's events during the Academy, the YLS will be holding its spring Executive Committee meeting at the Statler Hotel. A number of items will be on the agenda, and all are welcome to attend or call-in. The Trial Academy program will be the last official program of the 2012-2013 Term. After that, YLS will hold the now-annual U.S. Supreme Court Admissions Program in Washington, D.C., on June 9-10, 2013 - the first program of the 2013-2014 Term. At the same time, plans are under way for what promises to be an exciting 75th Anniversary celebration for the Section, which will take place during the summer in New York City. More details will soon be available! Finally, in addition to District events, and co-sponsoring programs with other Sections, YLS also announces that the Section recently made a $1,000.00 donation to the New York Bar Foundation's Superstorm Sandy recovery fund. I look forward to your continued involvement with YLS in the months to come, and if you would like to become more involved with YLS committees, activities, or event planning please contact me, any of the YLS Officers, or our Staff Liaison Tiffany Bardwell.

Regards,
Michael

Michael L. Fox, Esq.
Section Chair
Jacobowitz & Gubits, LLP

Trial Academy

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Young Lawyers Section Trial Academy
Wednesday, March 20, 2013 through Sunday, March 24, 2013

Cornell Law School
Ithaca, NY

The New York State Bar Association Trial Academy is a five-day trial techniques program that will teach, advance and improve the courtroom skills of young and new lawyers with an emphasis on direct participation.

Under New York's MCLE rule, this program has been approved for a total of 37.5 credit hours; 2.0 credits in Ethics and 35.5 credits in Practical Skills. This program is transitional and therefore suitable for newly-admitted attorneys.

Click here for more information

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Events of Interest

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Alternative Careers for Lawyers | Free LIT Webcast and Live Program
Wednesday, March 20, 2013

- Location -
Herrick Feinstein LLP
2 Park Avenue
21st Floor
New York, NY
12:00 p.m. - 2:00 p.m.
(Eastern Time)

Live Program and Free Webcast
Sponsored by the Committee on Lawyers in Transition


State Bar News - Call for Submissions

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The State Bar News May/June edition will feature the Young Lawyers Section. We are looking for a member of the YLS to write a substantive law article on any topic that the section feels would be of interest to the general membership. Some sections provide an edited version of a section newsletter article, others write an original piece on a timely issue. The article is not meant to be an in-depth examination of a broad or complex topic, as the article length is only 650 words. Unlike the Bar Journal, the State Bar News has limited space available and the format does not allow for Footnotes or Cites. Please submit articles to Patricia Sears Doherty, Editor, State Bar News, at psearsdoherty@nysba.org by March 25, 2013.

Liaison Updates

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Trial Lawyers Section Liaison Update

The Trial Lawyers Section is involved in numerous activities of potential interest to the membership of the Young Lawyers Section. From February 7 to February 10, 2013, it held the annual National Mock Trial Competition it hosts annually. Pace Law School was the host school, with the Westchester Supreme Court as venue. Despite the snow, the program was successful, and the regional winners from Fordham Law and Hofstra Law will advance to the finals, to be held in San Antonio, TX, in April. Student members interested in participating in next year's competition can contact Patricia W. Johnson, the NYSBA staff liaison to the Trial Lawyer's Section.

On March 4, 2013, the Trial Lawyers Section Diversity Committee is holding a panel discussion and networking event at SUNY Buffalo Law School. The program is entitled "Pointers on Courtroom Conduct for Students and Newly Admitted Attorneys." The event is free and will provide the opportunity to interact with members of the section as well as other professionals and members of the judiciary. Again, contact Patricia W. Johnson for more information or to RSVP.

The Trial Lawyers Section is also offering seven full-tuition scholarships, plus a $250 stipend, to attend the Young Lawyers Section Trial Academy Program to be held from March 20 to March 24, 2013 at Cornell Law School. Scholarship applications can be downloaded here. Applicants need not be members of the Trial Lawyers Section.

Teige P. Sheehan, Esq.
Scott Turner, Esq.

Intellectual Property

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Trademarks: Understanding the process and what is required

By Shirazi Jaleel-Khan Esq.

Recent verdicts like the $8.1 million verdict given to Mixed Chicks LLC for trademark and trade dress infringement is an important reminder of the value of trademarks and the importance of protecting your trademark for small and big business alike. Intellectual Property protection is important and it is a valuable asset to a business. A trademark once registered does not expire provided it is renewed and continued to be used.

What is a trademark? What is a service mark? What can I trademark? How long will it take? How much will it cost? Do I need to be using the mark to file a trademark application? What is the process once a trademark application is filed with the United States Patent and Trademark Office? What does a Notice of Allowance or a Statement of Use mean? These are among questions any client may ask you even if you are not a trademark attorney. Please follow the link for a chart and a brief article on the basics and process of trademark registration.

http://www.nysba.org/AM/TemplateRedirect.cfm?Template=/CM/ContentDisplay.cfm&ContentID=151727

Shirazi Jaleel-Khan Esq., practices trademark, copyright and intellectual property law at the Law Office of Art Dula. For more information, contact her at shirazi@dula.com, (713) 861-1960 or www.dula.com/law.

International Law

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Still Sharing Something in Common
Reflections on Ghana's Legal history

By Andrew Otchie, Esq.

African Problems
In May 2012, the sudden and unforeseen passing away of my Father made it necessary for me to undertake a long overdue trip to Ghana, and experience its very different culture, traditions, and legal system. While many practising at the Bar of England & Wales may have had some experience in dealing with Ghanaians in this jurisdiction (and a Diaspora which has in many ways assimilated to British customs and routines) an experience of the way of life in West Africa can often come as something of a culture shock, even to those of African heritage. I found myself in the midst of the unfortunate, although all too common situation, of trying to administer the property of someone who had died without leaving a will, and the ensuing problems that can be further complicated by differing applications of common, and customary law.

Ghana boasts of itself as a beacon to other African countries, with a safe and stable democracy, growing economy, and reasonably progressive laws and institutions in place, such as its Commission on Human Rights and Administrative Justice (CHRAJ). The legal profession remains an attractive proposition for many graduates and with a sudden influx in the number of private institutions that offer University-level law courses, a greater number of Ghanaians than ever before are now able to take up law as a course of study. However, beneath the surface, there are apparent problems regarding access to justice for the poor and the tolerance of cultural practices that breach human rights. These problems are exacerbated by the acute silence of the legal profession. As the number of law graduates called to the Ghanaian Bar increases, very few dare to venture outside of the 3 main cities to practice, resulting in an imbalanced legal market.

The Ghanaian legal system is a direct product of its colonial past. Over a number of centuries, the British administrators of the country, then known as the Gold Coast, imported a constant flow of refined upper middle-class gentlemen, who would be the Judges to sit in the High Court, and even as the Chief Justices of the Supreme Court, to decide cases concerning land disputes between various tribes, complicated trade disputes between merchants, and what punishments ought to be imposed when heinous crimes had been committed. Consequently, equitable doctrines, as well as the main concepts in contract, tort, evidence, criminal law, and civil procedure, are the same as the law of England & Wales. However, in regard to property, family and constitutional law, there is an apparent deference to traditions and customs that have existed long before any Europeans had arrived.

The resulting interaction between the dual system of common and customary law led to differing methods by which a formal procedure can be achieved. For example, a willing couple may enter into a legal marriage, by declaring themselves bound to each other for richer, for poorer, for the rest of their lives (or until a legal divorce is granted by a Court), while on the other hand, a customary marriage may be founded upon an exchange of gifts, from the suitor to the Bride's family (dowry), although would not prevent the man from entering into other (polygamous) marriages if he so chooses. Many Ghanaian lawyers are keen to continue the links with their English legal heritage and hold in high regard the rational principles set in place by English law. Yet, traditional African beliefs and practices die hard, and often little can be achieved without the consent of tribal elders, chiefs, and heads of family.

The Golden Bar
Those admitted to the Ghana Bar are permitted to practise as both a Solicitor and Barrister, and because registration with the Ghana Bar Association is not obligatory, there is no accurate record of exactly how many lawyers there are in practice (the figure is thought to be around 2,500). Whilst some form of pupillage is required to be taken up by aspiring lawyers in Ghana, many of the same difficulties that are faced by law students in the United States arise for new Ghanaian lawyers. Specifically, there is a lack of paying jobs for new attorneys, and the cost of obtaining a legal education places a disproportionate burden on those who are not wealthy, and who cannot rely on family connections.

In recent times, a significant number of expatriate Ghanaian lawyers have returned in order to contribute expertise gained from time spent overseas. A "post-call" course at the Ghana School of Law enables qualified lawyers to do so after completing a 3-month course at a cost of £4,000. Increasingly, international law firms are forging alliances with small local firms in order to benefit from large-scale corporate transactions (in 2008, Vodafone acquired a 70% stake in state owned Ghana Telecom for $900,000,000). Lawyers who do not have any national, ethnic, or African heritage can also practice law in Ghana as long as they have 7 years post-qualification experience.

In 2010, Ghana benefitted from a tremendous inflow of capital as the country started to produce oil in commercial quantities. While this new dimension in its economy may have brought good prospects for lawyers (and especially those trained in the English law) novel legal and moral challenges now emerge, as the ever gloomy tales of corruption in public office surface and the apparent risks of burgeoning environmental damage transpire.

What we can learn
How then did these factors affect the quality of the legal advice and advocacy that I received in Ghana? The continuing similarities with our legal systems are apparent. Even after centuries go by, advising, drafting and advocacy will continue to be heavily influenced by the jurisdiction of England & Wales. While the relative unavailability of legal textbooks was depressing, I was lifted up by the fact that a number of eminent lawyers (educated in England) were the architect's of Ghana's struggle for independence from the British, which culminated in it achieving status as a Republic in 1960.This persistence and fiery spirit that aimed to establish a self-regulating and just society prevails in many lawyers unto this day.

Although separated by the vast Sahara desert and the deplorable history in which African slaves were once insurable cargo, so that their lives were capable of being disposed of without a crime having been committed under English law (Gregson v. Gilbert (1783) 3 Douglas 232, 99 E.R. 629), there is still much, through human experience, which the English and Ghanaians can say they hold in common. As we have celebrated the Diamond Jubilee of the Queen, and the 60th anniversary of Her role as Head of the Commonwealth (therewith the end of the British Empire), it is as useful as ever, to endeavor to preserve the links between our countries through an understanding of their legal systems.

Andrew Otchie is a practising barrister at 12 Old Square and is also qualified as a New York Attorney. He is the Membership Secretary of the Commonwealth-in-England Barristers' Association ("CEBA").

This article first appeared in Counsel Magazine -the Journal of the Bar of England & Wales

Tax Law

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Some Federal, State & Employment Tax Considerations When Deciding on A Business Entity (LLC, Corporation or Sole Proprietorship)
By Ian E. Scott, Esq.

The amount of taxes that you have to pay is one of the key reasons that individuals select one business entity type over another. The term "tax" though is a bit too general for a business as "tax" could refer to federal tax, state tax, city tax, social security tax, health care tax or sales tax. These taxes are confusing to even the very well informed but we will attempt to simplify them by examining why some people opt for an LLC when deciding on a business entity. Before you continue, you should refresh your memory of the different types of business entity options for an individual who wants to start his/her own business and you can see this article here. Now that your memory has been refreshed, we will use the LLC business entity to better explain some of the tax impacts of the different entities.

What Is A Limited Liability Company?

A LLC is a relatively new business entity that was established to offer the business owner limited liability protection while addressing the problems of corporate formalities. Instead of holding meetings and creating bylaws, an LLC owner or owners can create a flexible operating agreement. This agreement simply explains how the LLC will operate and describes the various roles and responsibilities of the members.

How Is A LLC Taxed?

Federal Taxes

If you are a LLC with one member, although the LLC is a separate legal entity you do not have to file a completely separate federal tax return for it. In this case, the business owner can complete Schedule C and attach it to his/her personal tax return Form 1040. When the LLC has more than one member, the LLC must be treated as either a corporation or, the more common option, a partnership.

If you set up a Corporation, you are required to file a separate corporate tax return that you will pay tax on and then deal with any dividend distributions and/or salary in your own personal tax return. In terms of complexity and cost, completing tax forms for a LLC is far simpler than completing a corporate tax return. Also, for a simple personal tax return that includes the LLC aspects, accountants will charge approximately $200 as compared to around $700 for a corporate tax return and a separate personal return. As the cost of tax preparation is an ongoing cost, it is something that you should consider when deciding on a legal entity.

Another reason some opt for a LLC is to avoid double taxation. A LLC addresses the problem of double federal taxation as a LLC is a "pass through entity." This means that all of the earnings in the LLC are taxed as if you earned them personally. This treatment is similar to a corporation that elects "S" Corporation status but electing S status restricts who can own stock and how profits are distributed. Moreover, S status is something that you must file a form with the government for and this again is something that you may seek the help of an accountant or lawyer to do.

State & City Taxes

The tax treatment and what you will have to file for the various business entities differs by State but generally the same advantages that exist for an LLC exist at the State level. One key thing to remember here is that if you file a Federal "S" election (either for the LLC or a Corporation) you often must file BOTH a federal election and a separate State election. For example, in New York, you must file separate forms for a S election (a federal form and a State form) and if you only file one form then your election will only apply to the government branch that accepted your election. If your election is not accepted or you forget to file it, your corporation will be taxed by the State and then you will be taxed again personally once money is distributed from the company.

Another key thing to note when thinking about a LLC v. a Corporation is that some local branches of government may not accept the S election and as a result you will be subject to double taxation. For example, in New York, while you may file a federal and State S election, you may NOT however file a S election for the city, as the City of New York does not recognize S status. This means that if you select a corporation over an LLC, your corporation will be required to pay over 9% New York City tax on your earnings before any money is distributed to you. As like anything, it is not quite that simple as New York imposes a "non incorporation" tax that unincorporated entities must pay that somewhat evens this out. You should speak to a qualified accountant or lawyer to see exactly how your State and City handle taxation as it relates to a business entity as the practices are vast and confusing.

You should also ensure that you are complying with annual and quarterly filings as interest and penalties can really start to add up if you miss deadlines.

Payroll Employment Taxes

There can be a downside related to payroll taxes if you set up a LLC. One disadvantage is that a LLC is subject to self-employment taxes on all of the income earned.

Payroll taxes (over 15% for social security and Medicare) make up a big part of taxes that both a Corporation and a LLC have to pay. (As an employee, you are only required to pay half of the 15% and the employer pays the other half). As a business owner though, you pay the full amount and the amount you pay will be different depending on whether you are a LLC or a Corporation. Here is a brief and simple example. An entity (LLC or Corporation that elects S status) makes $100,000 and the owner assigns themselves a salary of $60,000 (salary must be reasonable in order not to be subject to tax). When this occurs, let us say that the business owner picked a Corporation and S status was elected. In this case, the owner will only have to pay self-employment tax on the $60,000 rather than the full $100,000. Do not confuse self-employment tax with income tax as income tax is paid on the full $100,000 and this cannot be avoided. If the owner selected LLC as a business entity, the owner would have to pay the 15% tax on the full $100,000. Again though, this is not as clear cut as it appears because the LLC can also file and S election and receive the same benefit that the corporation receives. This will limit some of the benefits associated with the LLC as they will be subject to the stringent S status tax rules. Very confusing indeed.

Sole Proprietorship

For simplicity, some still opt to set up a sole proprietorship. This business entity does not provide the owner with limited liability protection but it does avoid double taxation issues. For the purposes of the federal, State and payroll tax matters discussed above, a sole proprietorship is taxed in a manner very similar to an LLC.

Ian E. Scott is a Lawyer and a Harvard Law School Graduate. Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and has recently opened his own law firm Scott Legal Services, P.C.. He is also the author of Law School Lowdown, a law school success guide that will be on bookshelves next spring, and owner of the blog Law School and Bar Exam Success Tips where you will find regular law school blog posts. You can contact Mr. Scott at iscott@legalservicesincorporated.com or 212-223-2964.

Law Practice Management

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Lawyer Marketing: Copyright Considerations
By Tudor F. Capusan, Esq. & Ilya Kushnirsky, Esq.

Law firm marketing often relies on authoritative educational materials for clients. Does it matter whether these materials are also aesthetically pleasing? Whether you are designing a website, writing a blog, sending out newsletters, or mailing holiday greetings, a beautiful presentation will make a lasting impression on your clients. This short guide is designed to give you succinct practical tips on how to use content in a way that minimizes your exposure to copyright liability. We classified content into three categories that indicate an increasing level of restrictions and precautionary measures you should take before deciding to use the content.

1. Content you can usually use without restriction
A. Original content you've created from scratch

If you created it from scratch, you own it and can do what you please with it. You can copy, distribute, display, sell, license, or destroy your work.

Practical Tip 1 - when you collaborate with others - If you are the kind of lawyer who has an artistic inclination and you want to get involved in the creative process, make sure to negotiate an agreement with your collaborators to make it clear whether the work will be jointly owned, or whether you will allocate ownership in a different way. These discussions can be uncomfortable, but it's a lot easier to have them before actual issues arise.

Practical Tip 2 - when you use pictures of actual people -Get written permission (model release forms) to use people's likenesses whenever possible. This may protect you from legal claims that relate to false statements, invasion of privacy, or commercial uses of the person's likeness and image. You generally don't need a release to use a person's name or image for editorial purposes, such as when informing, educating, or expressing opinions protected by free speech. If you purchase the rights to use an image of a person from a stock photography website, make sure that you receive a guarantee that release has been obtained.

B. Content your employees create for you

The content your employees create for you belongs to you (or your firm) if created within the scope of employment. For example, if you employ creative staff, then the law firm owns the content created by staff. This is an exception to the general rule that the creator of the work is the author.

C. Content you purchase outright

Let's say that you want professional pictures on your website and you pick out some pictures from your friend photographer's portfolio. Simply paying the photographer for pictures will not transfer the rights in the pictures to you. To gain rights in those pictures, you must sign a written assignment. If it's not in writing, the transfer of ownership has not occurred. As a practical matter attorneys don't purchase ownership outright because it is generally easier and cheaper to obtain licenses from stock photography websites.

D. Public domain content

Content that is in the public domain belongs to everyone, so you can use it however you please. Note that if you modify a public domain asset sufficiently, you can copyright the resulting work yourself. So what's in the public domain? The only bright line rule is that content published prior to 1923 is in the public domain. Also, anything that has been expressly dedicated to the public domain belongs there. Otherwise, the public domain area of law is very complex and technical. There are search engines that can help you find public domain assets, but be careful because, as a practical matter, it can be pretty difficult to tell reliably whether content is truly in the public domain.

2. Content you can use with restrictions

A. Content for which you've obtained a valid license

Your license agreement will spell out what you can and can't do with this content, so read the agreement carefully. Before you pay for the license, make sure that the licensing terms will allow you to use the content in all of the ways you need.

Practical Tip 3 - when the owner allows you to use the work for free -Permission to use content for free is still a license, so make sure you get it in writing and that you use the content in accordance with the agreement.

Practical Tip 4 - when you use "royalty-free" images or video- Despite the misleading label, you cannot use this content freely. "Royalty-free" does not mean free. The term simply means that you pay a flat fee upfront to use the content as specified in the license as opposed to paying royalty fees for each use. It is a marketing term designed to attract you, but it is still a license, and you still have to pay for it.

Practical Tip 5 - Creative Commons content - Again, you can't use this content freely. Although you do not have to pay for it, you are still bound by the Creative Commons license terms (of which there are different types). That means you can only use these assets in particular ways that the content creator has approved. Each asset subject to a Creative Commons license should have a license icon. You should click on it to read the restrictions.

3. Content you generally cannot use without paying or getting permission

Copyrighted content - Unfortunately for users, most content falls into this category. The owner of a copyrighted work has the exclusive right to use the work. You can contact the owner to request permission to use it. Barring that, you can usually license it for a fee or buy it outright.

Derivative works - These are works that are derived from an original work, hence the term "derivative." Only the owner of an original work can make derivatives of that work. As part of the creative process, you can certainly look to others' work for inspiration, but you can't modify someone else's work, even if you provide attribution.

4. And finally, a couple of words about fair use

Fair use is a great idea, but in practice its inherent subjectivity, as well as its status as an affirmative defense, make it dangerous to rely on. See the Resources section below for a couple good starting places to learn more about fair use. The Center for Social Media site contains best practices guides for various media industries, which is a great place to start. As a rule of thumb though, if you plan to lean on fair use, consult with a copyright lawyer first to help determine your level of exposure to a lawsuit.

Resources:

Fair use
American Library Association's fair use evaluator
Center for Social Media's fair use best practices guides

Creative Commons
Creative Commons
WikiMedia Commons

Terms of service
Electronic Frontier Foundation's terms of service tracker

Tudor F. Capusan is the president and founder of Tudor Law PC. His firm is committed to responsive and superior legal support in the areas of business and intellectual property. He received his Juris Doctor degree from Indiana University Law School where he focused his studies on intellectual property and health care law. Tudor is active in a number of professional organizations including the New York City Bar Association, the New York City Bar Chorus, and the New York County Lawyers' Association. In his spare time, he likes to play guitar and to do pro bono work for the Volunteer Lawyer for the Arts (VLA) program that supports artists with their legal needs.

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