April 2013 Archives

Electronically-In-Touch

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March 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, a recap of the Trial Academy, upcoming events, and updates from the Family Law and International Section liaisons. We then have an article on Immigration and Criminal law. 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 Young Lawyers Section members! As we continue a thriving 2012-2013 Term, welcome to the March 2013 edition of the YLS Electronically-In-Touch publication! The Section remains on solid footing in terms of programming, financials and membership. We have received a number of submissions for the YLS Civics Education Poster/Essay Contest - including from schools in the 3rd, 4th and 9th Judicial Districts! The Civics Prize Special Committee members are in the next phase of judging, and we will have more announcements in the coming months. YLS also just finished holding a very successful Fourth Annual Trial Academy at Cornell Law School, in Ithaca, New York, on March 20-24. We were pleased to have 55 attendees, in addition to our distinguished Program faculty, take part in this valuable trial training experience. Our thanks go to Cornell University and Cornell Law School, and the Cornell staff for graciously hosting us and assisting with the Trial Academy. We also thank our NYSBA Staff - Megan O'Toole and Adriana Favreau - for their tireless efforts. You will see more about the Trial Academy, including photographs, in this issue of EIT. The Trial Academy program was the last official program of the 2012-2013 Term. The next official YLS program will be the now-annual U.S. Supreme Court Admissions Program in Washington, D.C., on June 9-10, 2013 - that is the first program of the 2013-2014 Term. Please remember that plans are still 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! 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. Finally, I am pleased and excited to announce that as of March 18, 2013, our Section membership numbered more than 5,000! YLS was the first Section to surpass the 5,000 member threshold this year, and as of mid-March we were again the largest Section of the State Bar! Thank you to all of our new members. We hope that you are enjoying being a part of YLS, and we look forward to your involvement in YLS programs and initiatives in the months and years ahead.

Regards,
Michael

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


Trial Academy

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The Young Lawyers Section recently held its Fourth Annual Trial Academy in March at Cornell University Law School. The program is a 5-day, intensive trial training program, which is designed to provide opportunities for attorneys to learn about trial practice as well as for attorneys with some trial experience to hone their skills. Each morning, a lecture was presented to the attendees on a relevant area of trial practice (i.e., jury voir dire, trial motions, evidence, opening statements, direct examination, cross examination, and closing arguments). In the afternoon, each attendee had the opportunity to present a portion of their case, after which they were critiqued by the faculty, both in a group setting and then in an individual setting where they watched a videotape of themselves and discussed their performance with one faculty member. Attendees were presented with both a civil and criminal fact pattern, so that they could learn the nuances of trying cases in both areas.

The program was extremely successful, with 55 attendees having come from a variety of locations, both nationally and internationally. The faculty and lecturers were distinguished and experienced trial practitioners from across the State, including judges from the federal and state courts.

Many Thanks to All of the Sponsors of the 2013 Young Lawyers Section Trial Academy

Platinum Plus
Trial Lawyers Section

Gold
Business Law Section
Torts, Insurance and Compensation Law Section
Young Lawyers Section

Silver
Criminal Justice Section
General Practice Section

Bronze
Corporate Counsel Section

Corporate Sponsors
Patron Level
USI Affinity
(Sponsor of our TRIAL ACADEMY Sweatshirts)

Program Level
ABA Retirement Funds Program
Sentence Calculator
Wolters Kluwer Law & Business

Additional Financial Contributions Provided By:
Commercial and Federal Litigation Section
International Section

Planning for the fifth Trial Academy will soon be underway. Keep your eyes and ears open for more information. This is a program you won't want to miss!

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Thank you to ABA Retirement Funds for being a corporate sponsor of the 2013 Young Lawyers Section Trial Academy.

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Thank you to Sentence Calculator for being a corporate sponsor of the 2013 Young Lawyers Section Trial Academy.
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Events of Interest

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Starting a Practice in New York | LPM CLE Program Co-Sponsored by the Young Lawyers Section Thursday, May 16, 2013

Concierge Conference Center
780 Third Avenue (at 48th Street)
New York, NY 10017

9:00 a.m. - 5:00 p.m.

8.0 MCLE Credits
(6.0 areas of professional practice. 2.0 ethics)
Program Fee Includes Lunch
http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6128


ABA Seventh E-Discovery National Institute
April 5, 2013
The University Club | New York
http://ambar.org/2013edv

Brochure link: http://www.americanbar.org/content/dam/aba/events/cle/2013/04/2013_national_instituteone-discovery/ediscovery_cen3edv_2013_brochure.authcheckdam.pdf

As a co-sponsor of this event, YLS members will receive a $200 discount off the ABA rate. To take advantage of this offer, you must call the ABA Customer Service Center at (800) 285-2221 or Contact Althea Billins Althea.Billins@americanbar.org and mention that you are a NYBSA YLS member to receive your discount.

Understanding Your Insurance Options
April 3 | 8:30-10am
LIT Breakfast Series
USI Affinity, 261 Madison Ave, New York, NY
Speaker:
Mike Mooney, Vice President, Bar Association Programs
NYSBA offers many malpractice and health insurance options. We will discuss what options are available and answer questions to help NYSBA members to determine the types and amounts of insurance needed or desired.
http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6219

Understanding Your Insurance Options
April 8 | 8:30-10am
LIT Breakfast Series
NYSBA, One Elk Street, Albany, NY
Speaker:
Mike Mooney, Vice President, Bar Association Programs
NYSBA offers many malpractice and health insurance options. We will discuss what options are available and answer questions to help NYSBA members to determine the types and amounts of insurance needed or desired.
http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6220

Life as an In-House Lawyer
April 18 | 12-2pm
Panel/Webcast
Anchin Block & Anchin, 1375 Broadway (enter on 37th Street between Broadway and 7th Avenue), New York, NY
Speakers:
Robyn Frank, General Counsel, Great Eastern Energy
Evan Lerner, Founder, Lerner, Cumbo & Associates
Susan Vercheak is an Associate General Counsel in the Law Department of Consolidated Edison Company of New York, Inc.
Dina Romani, Executive Director, Legal & Compliance Division, Morgan Stanley
Christos Badavas, Deputy General Counsel, The Harry Fox Agency, Inc.
Are you considering seeking a position as in-house counsel? Have you wondered what it was like to work in a company's internal law department? Our panelists will discuss what like is like as an in-house attorney, how it differs from private practice, the considerations and challenges they faced when making the transition and other things.
http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6221

How to be a Thought Leader
April 30 | 8:30-10am
LIT Breakfast Series
Anchin Block & Anchin, 1375 Broadway (enter on 37th Street between Broadway and 7th Avenue), New York, NY
Speaker:
Marcia Nelson, Practice Growth Manager
Becoming a recognized thought leader in your practice area can help you significantly increase your name recognition and "brand you" as the go-to person in your industry. In this presentation, seasoned business developer, Marcia Nelson, will share ideas on how you can leverage your interests and skills to become an industry expert - leading to increased exposure and revenue growth.
http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=6222

Liaison Updates

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International Law

"NYSBA International Section's European Regional Meeting was held in Milan, Italy during March 7-8, 2013. The meeting addressed diverse issues in international commercial transactions, such as hot topics in international distribution, competition and human resources, selling worldwide, and tax optimization.

The upcoming Seasonal (Fall 2013) Meeting of the NYSBA International Section will take place at the InterContinental Hotel in Hanoi, Vietnam during October 23-26, 2013. The activities of Fall 2013 Seasonal Meeting include two full-day CLE programs, plenary session with ethics credit, gala dinner at the Hanoi Opera House, and excursion to the Ha Long Bay (a UNESCO World Heritage Site). The overall theme of the seasonal meeting is "Building Global Partnerships and Opportunities in the New Asia-Vietnam and the USA as a Model for Growth and Success".

Also, the Spring Conference of the American Bar Association (ABA) Section of International Law will be held in Washington, D.C., during April 23-27, 2013. There will be over 60 substantive concurrent CLE sessions and showcases with world-class speakers, cutting edge programming on the latest international legal and ethics issues, and plenty of networking opportunities with counterparts, decision makers and potential clients from around the world. Special programming for young lawyers includes a full day of International Practice Boot Camp programming, a Young Lawyers Program Track, Speed Networking, Pathways to Employment in International Law, the WIN/SIN/GIN/YIN Networking Reception, and the After Hours Reception. The ABA Section of International Law's Fall 2013 Seasonal Conference is scheduled to take place in London, United Kingdom in October 2013. The early-bird registration for the London Conference ends on August 26, 2013."

Hong TANG, Esq., S.J.D.
NYSBA YLS Co-Liaison for International Law and Practice


Family Law

On Thursday, January 24, 2013, the Family Law Section hosted a Cocktail Party at the Red Eye Grill in NYC for the Executive Committee of the Family Law Section and for the Young Lawyers Section. The event was quite a success and provided young lawyers with the opportunity to network with Family Law Practitioners.
The Family Law Section's Summer Meeting will be held from July 11th through July 14th in Cooperstown. The Summer Meeting is a great opportunity to not only receive CLE credit, but to network with family law practitioners in an informal setting. The Family Law Section will be offering fellowship opportunities for the upcoming year, which will include the ability to attend the summer program virtually free of charge. Further details about the foregoing will be coming out shortly, so make sure to keep a look out for the information and for more specific details as to the requirements and the benefits of this new opportunity.
Within the family law field, Courts continue with their efforts to interpret the new maintenance guidelines, which were enacted in October 2010. Though it appears that many Courts are deviating away from the strict application of the maintenance guidelines, practitioners are awaiting input from the Law Review Commission. According to DRL §236B(6-a), the Commission was supposed to "(1) review and assess the economic consequences of divorce on the parties; (2) review the maintenance laws of the state, including the way in which they are administered to determine the impact of these laws on post marital economic disparities, and the effectiveness of such laws and their administration in achieving the state's policy goals and objectives of ensuring that the economic consequences of a divorce are fairly and equitably shared by the divorcing couple; and (3) make recommendations to the legislature, including such proposed revisions of such laws as it determines necessary to achieve these goals and objectives". The Commission was to have presented a final report no later than December 31, 2011. The final report is now more than a year overdue. We will await the report in the hopes of it providing more guidance to both the Legislature and the Judiciary for how to handle the issue of maintenance in a more uniform manner across the State.

Lisa Schoenfeld
Peter Stambleck


Commercial and Federal Litigation

YLS Twitter users! NYSBA's Commercial & Federal Litigation Section has a new Twitter handle: @NYSBAComFed. We encourage all NY litigators to use the handle to discuss issues that affect them and to stay up to date on the latest ComFed news.

Erica Weisgerber

Immigration

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Padilla v. Kentucky after Chaidez v. U.S.: Questions Left Unanswered
Mikhail Izrailev, Esq.

Since the Supreme Court's holding in Padilla v. Kentucky, 559 U.S. 356 (2010), criminal and immigration attorneys alike have been scratching their heads while waging battles in the courtroom. At the heart of the battle was the question of whether or not Padilla applied retroactively. In a 7 to 2 opinion, the Supreme Court recently answered that question with a resounding no. In Chaidez v. U.S, 568 U.S. _ (2013) the Supreme Court, in a majority opinion written by Justice Kagan, reasoned that Padilla established a "new rule" under the analysis in Teague v. Lane, 489 U.S. 288 (1989). Accordingly, the Court held that criminal defendants who pled guilty before Padilla are not eligible to retroactively claim ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) on the basis that their criminal attorney did not warn them of the collateral immigration consequences of their plea.

Nevertheless, a criminal defendant can still pursue post-conviction relief on the basis that their counsel ineffectively represented them under the Strickland standard due to a variety of procedural and substantive issues.1 Specifically, an argument can still be made that Padilla applies to criminal defendants whose convictions were not final on March 31, 2010, as well as to defendants who were affirmatively misadvised about the collateral immigration consequences of their criminal pleas. Criminal attorneys can continue to make arguments tailored to the specific facts of each case based on prior counsel's failure to follow constitutionally mandated duties such as the failure to mitigate harm. See Seeking Post-Conviction Relief Under Padilla v. Kentucky After Chaidez v. U.S., IMMIGRANT DEFENSE PROJECT (Feb. 28, 2013).

The question for New York criminal defense attorneys remains whether or not Chaidez controls in the State Courts despite a number of recent opinions by the Appellate Divisions holding that Padilla based claims of ineffective assistance of counsel can be made retroactively to vacate pre-Padilla criminal convictions. See People v. Baret, 952 N.Y.S.2d 108 (2012) (decided October 2012); People v. Rajpaul, 954 N.Y.S.2d 249 (2012) (decided November 2012); People v. Picca, 97 A.D.3d 170 (2012); People v. Nunez, 917 N.Y.S.2d 806 (2010); see also People v. DeJesus, 935 N.Y.S.2d 464 (Sup Ct, NY County 2011) and People v. Burgos, 950 N.Y.S.2d 428 (Sup Ct, NY County 2012).

In Danforth v. Minnesota, 552 U.S. 264 (2008), the United States Supreme Court clarified that Teague does not limit the ability of state courts to give broader retroactive effect to "new constitutional rules." However, New York law is unsettled on this point. See People v. Eastman, 85 N.Y.S.2d 265 (1995). In Eastman the court seemed to rely on Teague without explicitly identifying it as the basis for its decision. Eastman was decided before Danforth and the question still remains if Padilla can serve as basis for a retroactive application for post-conviction relief in New York. This uncertainty does not preclude criminal defense attorneys from arguing that a failure to warn of collateral immigration consequences of a criminal matter is a violation of State constitutional principles.

As litigation clarifies the scope of the Chaidez holding in New York, perhaps the most important take away remains the Court's recognition of the fact that professional norms mandate criminal defense counsel to diligently advise their clients about the collateral immigration consequences of any plea.

1 The Chaidez court explicitly distinguished a "separate rule for material misrepresentations." In fact, a criminal defense attorney violates the Sixth Amendment of the United States Constitution if he or she makes an affirmative misrepresentation about his or her expertise or "actively mislead[s] his client on any important matter, however related to a criminal prosecution." An advisory published by the Immigrant Defense Project notes that:

In cases with clear affirmative misstatement, practitioner's can attempt to construct and argument that the attorney's conduct, communications (or lack thereof), and/or emphasis on penal consequences as the sole consideration relative to the plea agreement constituted a "material misrepresentation" of the plea's consequences or operated to "mislead" the defendant into believing that there were no immigration consequences to the plea.

Seeking Post-Conviction Relief Under Padilla v. Kentucky After Chaidez v. U.S., IMMIGRANT DEFENSE PROJECT at 4(Feb. 28, 2013).

Mikhail Izrailev, Esq. is an associate at Wildes & Weinberg P.C., a boutique firm exclusively specializing in the practice of immigration law. He is a graduate of the Benjamin N. Cardozo School of Law, where he served as the Executive Editor of the Cardozo Journal of International and Comparative Law.

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