May 2013 Archives

Chair's Message

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Hello Young Lawyers Section members! The 2012-2013 Term has come to an end! As of June 1, Lisa R. Schoenfeld, Esq., will be the new Chair of YLS. Therefore, this is my last Chair's Message for the Electronically-In-Touch publication. As I look back on the past year, we have accomplished a lot together. The Section is on solid footing in terms of programming, financials and membership. The YLS Civics Education Poster/Essay Contest winners have been chosen and announced - the names are included in an article below! The Fourth Annual Trial Academy at Cornell Law School, in Ithaca, New York, on March 20-24 was a great success! We were pleased to have 55 attendees, in addition to our distinguished Program faculty, take part in this valuable trial training experience. Our Fall Program in October was a wonderful event, full of social and educational opportunities. Going back to our first program of the term, the now-annual U.S. Supreme Court Admissions Program in Washington, D.C. last June was terrific, and provided attendees with the chance to enjoy time with colleagues in our Nation's capital, as well as an opportunity to hear personally from two New Yorkers on the High Court bench - Hon. Ruth Bader Ginsburg and Hon. Sonia Sotomayor. The YLS was, for a time, the largest State Bar Section, with membership numbering more than 5,000 back in March and surpassing the membership goal set at the beginning of the term. Even now, the Section remains one of the largest Sections, despite the recent membership renewals and "drops" period. Finally, our by-laws have been amended and are up-to-date, with additional amendments being considered as this Message is being written. Through the hard work of many, we have together accomplished all of the goals set for the 2012-2013 Term! Now, looking ahead, the first program of the new 2013-2014 Term is, again, the annual U.S. Supreme Court Admissions Program in Washington, D.C., June 9-10, 2013! After that, 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! As always, our District Representatives, Committee Chairs and Section Liaisons continue to plan activities and events, as well. If you would like to become more involved with YLS committees, activities, or event planning please contact any of the YLS Officers or our Staff Liaison Tiffany Bardwell. It is now time for me to say farewell as Chair. It has been an honor and pleasure to serve this past year. My thanks to Tiffany Bardwell, our terrific staff liaison, and all of the NYSBA staff who work so hard to make the Bar programs a success. Many thanks also to my fellow officers, Lisa Schoenfeld, Sarah Gold, Jason Clark and James Barnes, and all of our Executive Committee members and Section members. I wish the Section much continued success, and I look forward to your continued involvement in YLS programs and initiatives in the months and years ahead.

Regards,
Michael

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

Civics Contest Winners

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This year the Young Lawyers Section and the Law Youth & Citizenship Committee held a civics poster and essay contest for 11th and 12th graders. Both the essays and posters had to reference in either visual form or discussion the American Flag, our three braches of government and the Constitution of the United States, its Articles or Amendments. We congratulate all of the participants and honor the following prizewinners.

ESSAYS

1st - Ashley LaMere 4th JD - Burnt Hills, Ballston Lake School
2nd - Margaret Loughran 9th JD - The Ursuline School

POSTERS

1st - Mikayla Thompson 4th JD - Heuvelton Central School
2nd - Alize Santana, Michelle Massa & Amanda Bloshuk 9th JD - Academy of Our Lady of Good Counsel High School
3rd - Sierra A. Pizzola 3rd JD - Maple Hill High School

Starting Your Own Practice

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Starting Your Own Practice in New York
Going Solo in the Real World

On May 16th, 2013, the Young Lawyers Section co-sponsored with 12 other sections, 4 committees, and 15 local and minority bar associations held an all-day CLE program entitled Starting Your Own Practice in New York.

The program kicked off with Peter Giuliani of Smock Law Firm Consultants and Cliff R. Ennico, Esq. discussing what factors should be considered in your business plan and what type of legal entity you should choose. The consensus was that it will take six months before you will start breaking even and another six months before you will be able to start paying off your initial investment. So you will need to determine if this is financially feasible for you and your family.

The program continued with Roberto Cuan, Esq. of Cuan & Singh joining Peter Giuliani and Cliff R. Ennico, Esq. to discuss choosing the right practice area. Some lawyers have succeeded by taking anything and everything that comes in the door. However, the panelists recommended identifying a practice area with growth potential. That growth potential could be in one geographic area or it could be with one specific type of client.

Next, Jessica Thaler, Esq., of the Law Office of Jessica Thaler, spoke about the work-life issues that develop with a solo practice. She discussed the importance of identifying how you work before you decide if you can successfully have a home office or if you will work best in a shared office space where you can communicate with other attorneys on a daily basis. Gary Reing, Esq. from the NYC Bar Association's Lawyer Assistance Program finished the morning section covering the options for help at the bar associations if you find yourself having difficulties dealing with the challenges of starting your own practice.

The afternoon session started with John Balestriere, Esq. of Balestriere Fariello, Marc Natale, Chief of Staff of Balestriere Fariello, and Roberto Cuan, Esq. of Cuan & Singh, discussing how to manage and organize your practice. They discussed establishing office policies and procedures, hiring and firing staff, coordinating with co-counsel, and effective time management.

I had the honor of presenting the next section on how to market you practice ethically and effectively. This discussion focused on online marketing using Linkedin, Facebook, listservs and websites. Two rules to remember: use disclaimers for attorney advertising and prior results and always remember client confidentiality.

Cliff R. Ennico, Esq. finished the program with additional ethical considerations including conflicts of interests and combining a law practice with other sources of income.

This program was sold out in person and attended by 150 online participants. Click here to catch the video replay.

Erin K. Flynn, Esq.
Law Office of Erin Flynn

Upcoming Events

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YLS Executive Committee Meeting

Sunday, June 9, 2013
3:00 p.m.

Liaison Capitol Hill Hotel (during Supreme Court Admissions Program)
Washington, DC

All YLS members are encouraged and welcome to attend. For those of you who are unable to attend in person, please mark your calendars and use the following dial-in information: (866) 640-4044, 4875743#.


YLS Supreme Court Admissions Program
Sunday, June 9, 2013 through Monday, June 10, 2013

The 2013 Supreme Court Admissions Program will be held in Washington, D.C. from Sunday, June 9- Monday, June 10. The program will host many networking events and receptions. This highly acclaimed program will take place at The Liaison Capitol Hill Hotel and the United States Supreme Court.
This program is once again sold out. If you are interested in attending, mark you calendars for next year.


Lawyers in Transition Program | How To Avoid a "Funk" While in Transition Free Webcast
Wednesday, June 5, 2013
- Location -
Fordham Law School
140 West 62nd Street
Between Amsterdam and Columbus Avenues
New York, NY
9:00 a.m. - 11:00 a.m.
Free Webcast and Live Program sponsored by the Committee on Lawyers in Transition
Transition is a tricky time. The soul searching, job hunting, financial uncertainty and other stresses can take a toll on you. Panelists at this program will provide advice on various methods to manage those stresses, making the transition period a little less daunting.

Panelists:
Elena Rand Kaspi, Esq., President, LawScope Coaching. LLC
Amy Gewirtz, Esq., Director, New Directions for Attorneys, Pace Law School
Laura Powers, President, Powers Career Coaching, LLC
Meredith Heller, Lawyers Assistance Program, New York City Bar Association
The last day to pre-register online is June 5, 2013. Register online now


Lawyers in Transition Breakfast Series | Networking Best Practices | Rochester
Tuesday, June 18, 2013

Nixon Peabody LLP
1300 Clinton Square 13th Floor
Rochester, NY
8:30 a.m. - 10:30 a.m.
Start your day off right with breakfast and a discussion regarding the ins and outs of networking with June Castellano, Esq. In addition to her solo practice in Suburban Rochester, June Castellano currently serves as the Vice-President for the 7th Judicial District for NYSBA and is Past President of both the Monroe County Bar Association (MCBA) and the Greater Rochester Association for Women Attorneys (GRAWA). She is a member of the Collaborative Law Association of the Rochester Area (CLARA).
Light Breakfast will be provided.
Pre-registration required. The last day to pre-register online is June 17, 2013. Register online now

Lawyers in Transition Free Networking Breakfast | Syracuse
Wednesday, June 26, 2013

Bottar Leone, PLLC
AXA Tower II Suite 1600
120 Madison Street
Syracuse, NY 13202
8:30 a.m. - 10:30 a.m.
Join your colleagues in Syracuse for a free networking breakfast sponsored by the Committee on Lawyers in Transition.
Michael A. Bottar, Esq., Partner at Bottar Leone, PLLC, will continue our discussion on "networking best practices" in Syracuse.
Pre-registration required. The last day to pre-register online is June 25, 2013. Register online now


Summer in the City Networking Event | Lawyers In Transition
Thursday, June 27, 2013

Arctica
384 3rd Ave. (on 3rd Between 27th and 28th Street)
New York, NY
6:30 p.m. to 9:00 p.m.
The last day to pre-register online is June 26, 2013. Register online now.

Liaison Updates

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Commercial and Federal Litigation Section Liaison Update

The Commercial and Federal Litigation Section encourages young attorneys to join its ranks and become involved with its committees and events. Here are some of the ways in which young lawyers can benefit from involvement with the "ComFed" Section:

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

• Smooth Moves Event: Every year, the Section hosts its complimentary "Smooth Moves Event" - a career development CLE and networking program for attorneys of color, including young attorneys. This year, the Section hosted its 2013 "Smooth Moves Event" on March 18th at the Lincoln Center for the Performing Arts, which also included a CLE aspect to the program. The event was attended by over 250 lawyers and, as usual, it proved to be a terrific networking evening;

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

• Upcoming CLE: On June 6th, the Social Media Committee will be holding a CLE with panels on "Social Media and Criminal and Civil Investigations" and "The Growing Litigation Challenges of Social Media." The panels will be made up of the top judges and attorneys in the country in these fields, including the New York State judge that presided over the "Occupy Wall Street" Twitter case.

• E-Discovery Best Practices: The Section's E-Discovery Committee just issued a "2.0" update to its cutting edge "Best Practices in E-Discovery," which offers concise advice in managing electronic discovery issues in both state and federal courts in New York and is a great reference for the best practices in e-discovery. As young lawyers, E-Discovery plays a big role in many of our lives, and this is a worthwhile read. The full report is available on the ComFed homepage at nysba.org.

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

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

Law and Technology

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PRACTICING LAW WITHOUT A HAIR DRYER: DISASTER RECOVERY AND THE CLOUD
By: Brian J. Meli, Esq.

It often takes a tragedy to upset the status quo. In this way, tragedy can plant the seeds of progress. So not surprisingly, in the aftermath of the destruction wrought by Hurricane Sandy and the subsequent dawning of the "era of the superstorm," there's been a lot of rethinking assumptions and reevaluating priorities.

As lawyers, expecting the unexpected is what we do for a living. We take a lot of pride in preparing our clients for the worst-case-scenario: insisting on the force majeure clause, advising adequate levels of insurance etc. But while we're forever impressing upon clients to expect the unexpected, how good are we at taking our own advice? When Mother Nature sets her sights on us, are we ready? If you're a lawyer practicing in the greater New York area, this isn't a hypothetical question.

While I was spared much of Sandy's wrath, the stories from colleagues who weren't so lucky continue to rattle me; like the one about an attorney who lost a career's worth of client records when the "secure" storage facility housing them was submerged waist-deep in seawater. The lengths some desperate attorney's went to recover files damaged by the storm are hard to comprehend. I'm thinking of one firm in particular, whose employees, armed with an arsenal of industrial-strength hair dryers, went through their water-logged files box-by-box; air drying each potentially salvageable document by hand. The mere thought of the time and resources involved gives me chills.

In the weeks and months since the storm of the century, I have, like many attorneys in my area, learned a lot about document preservation services. For a substantial fee these companies can wring the moisture out of your soggy documents by vacuum freeze drying them, but the key to the process is getting the job done before the mold can gain a foothold, which leaves you with roughly a 48-hour window to act.

Of course Sandy was an extreme event, and these are extreme examples. But it does at least raise the question of whether, in the truly innovative times we practice in, desperate times must call for such desperate measures.

The debate between hard document storage and the virtual variety isn't a new one. Most of us back up our files on hard drives, and even the most paper-dependent among us rely heavily on document scanners, but hard drives and physical servers located on premises don't reduce the risk posed by weather-related events. Despite its many advantages, silicon doesn't repel water or fire any better than paper does.
Enter the cloud.

Cloud-based services have been widely available for years now, but some practitioners have been hesitant to fully embrace them, whether because of security concerns, ethical questions regarding the handling of confidential data, or simply an ingrained reluctance to part with paper.

The question of whether or not your practice should migrate to the cloud isn't cut and dry. To answer it intelligently requires an honest assessment of what you mean by 'the cloud' as well as how you define your practice. Firms use the cloud to varying degrees, and for vastly different reasons. For example SaaS (software as a service) are cloud-based services that have been used for some time by smaller firms looking for basic client and case management services like timekeeping, billing, and conflict checks. These services reduce the need to purchase and download software, and give lawyers multiple access points across devices. However, while SaaS can help streamline a law practice, it provides only limited protection in the area of disaster recovery.

A big benefit of the cloud, not just for lawyers, but any professional looking for a safe, effective way to secure critical files, are cloud-based data storage and back-up solutions, which offer high-volume data storage packaged in affordable monthly plans. These services, which can provide either primary or redundant storage, typically back up data incrementally, so only files that are new or altered are saved. And for the security conscious lawyer, which is all of us, these services are offered with 128-bit encryption, and Secure Socket Layer (SSL) data transmission technology. They can also be scaled to meet the needs of practices large or small.

One of the best benefits of cloud-based storage is geographical redundancy, which is exactly what it sounds like. If your bits are lost in one location due to a catastrophic failure (whether it be a fire, leaky pipes or the occasional superstorm), those bits are backed up and retrievable from another location, allowing you to save on hair dryers. And compared to hosting servers on your own premises, or maintaining a physical storage unit somewhere offsite, these services are relatively inexpensive.

As with most types of technology, using the cloud as a primary means of storage and data backup isn't for everyone. For some types of practitioners, whose documents must be kept in hard form, a full cloud storage solution may not be the best option. And there are still lingering ethical issues that should be kept in mind. The ABA, along with most state bars have promulgated ethics opinions on the use of cloud-based solutions, for the most part requiring that reasonable care be taken when selecting a cloud solution to use in the practice of law. A few jurisdictions meanwhile have issued the equivalent of opt-in and opt-out requirements for practices with clients with particularly sensitive information. Here is a full list of ethics opinions, by state.

Still, for many lawyers the rewards of going to fully virtual storage are starting to outweigh the risks. But while we lawyers are experts at weighing risk, embracing change is something we could still probably use some work on. Who knows, the increasingly erratic fluctuations in our climate could provide the final incentive we need to fully embrace the notion of the law firm in the cloud.

Brian Meli, Esq. is a business and commercial attorney with a particular focus on the acquisition, protection and transfer of intellectual property rights. His practice specializes in advising advertising agencies, digital content and new media providers. He holds a J.D. and LL.M. in Intellectual Property from the University of New Hampshire School of Law (formerly Franklin Pierce Law Center), and is admitted to practice in the State of New York and the Commonwealth of Massachusetts.

He is the author of LegalMatter, a commercial law blog for startup and growth-stage businesses, and can be reached at 518-366-9022.

Trust and Estate Law

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Probating an Estate in Brooklyn Surrogate's Court
By Roman Aminov, Esq.

With the loss of a loved one, there are many important decisions that need to be made. Arranging the funeral, dealing with the burial, and eventually administering the estate are three of the major issues that the client may have to deal with. This article attempts to give a brief overview of the process of administering the estate.

If a New York resident passed away with an estate of over $30,000 (exclusive of exempt assets under EPTL 5-3.1) for the benefit of the surviving spouse or children under 21, and has a will, there are specific steps that must be taken before their estate can be distributed to their beneficiaries.

To begin the probate process, an estate attorney should be consulted to prepare a probate petition that asks the Surrogate's court to accept the last will and testament and to appoint a fiduciary of the estate. The fiduciary, also known as the executor, is named in the will and is responsible for marshalling and protecting the assets, paying the debts of the estate, and ultimately distributing the assets to the beneficiaries. The petition will need to include the original will along with a copy of the will, which is kept with the court. The estate attorney will also retain a copy for his records. In no event should the staples of the original will be removed, as that may be construed as tampering. If, for whatever reason, the staples were removed, an affidavit or affirmation explaining the situation should be produced.

The petition must also include a certified copy of the death certificate, which should have been obtained from the funeral home. It is generally advisable to tell the client to obtain 10-15 death certificates because each institution may require one, and it is much easier to get them in the beginning rather than ordering them afterwards.

The probate petition must list the names and addresses of all the distributees (See EPTL 4-1.1), i.e. the people who would be entitled to receive a share of the estate if there had been no will, even if they were not beneficiaries under the will. Generally, that means the decedent's spouse and children, if he had any. If he was not married and had no children, then his parents would need to be listed in the petition, followed by his siblings if the parents predeceased. The distributees need to be listed because they have to be given the right to contest the will. If they consent to the will being admitted to probate, and to the appointment of the fiduciary, they can sign a waiver and consent, which expedites the probate process. If they want to challenge the admittance of the will to probate, the probate lawyer will serve them with a citation that will give them the right to come in to Surrogate's Court on a certain day and request a SCPA 1404 examination, which is outside the scope of this article. They also have the right to have their own probate attorney appear in court instead of them. If your client receives either a waiver and consent or a citation, ask them to bring it to your office for review before they sign anything.

Assuming there are no challenges to the will, the court will admit the will to probate and appoint the executor of the will as the fiduciary of the estate. The executor may have to purchase a bond in order to protect the beneficiaries, but since virtually every will dispenses with the necessity of bond, the judge is likely to waive that requirement. The executor receives official papers from the court, known as letters testamentary, which gives them the right to act as the fiduciary. Keep in mind that certain courts, such as Kings County, have a backlog of files to review and submissions take up to two weeks just to be entered into the system.

After obtaining letters testamentary, the first order of business would be to obtain a federal tax identification number for the estate and open an estate account in which to deposit the proceeds of the estate. It is important to remember that both the federal and New York State estate tax returns are due 9 months after the date of death (Form 706 and ET-706, respectively). If the estate assets generated income for the estate, there may be an estate income tax return due (Form 1040). In addition, the executor is responsible for filing the decedent's final income tax return (Form 1040). As the attorney for the executor, you may work closely with a CPA to prepare the returns.

Six months after the appointment of a fiduciary, the court will require a report of the assets and inventory of the estate (Form 207.20), which will require the appraisal of the assets in the estate. Within nine months, any beneficiary has the right to disclaim any assets, which will then pass to the other beneficiaries as per the terms of the will. Finally, after all the debts and expenses are accounted for, including the executors' commissions, and all releases are signed, the assets can be distributed to the beneficiaries, and the estate can be closed upon the petition of the executor.

While administering an estate may be tedious and time consuming, it is also a sign of respect for the decedent to carry out his/her wishes.

Roman Aminov is a trusts and estates attorney concentrating in estate planning, elder law, and probate. He is experienced in the drafting of wills, powers of attorney, health care proxies, and trusts of all types. He can be reached at (347)766-2685 or http://www.aminovlaw.com.

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This page is an archive of entries from May 2013 listed from newest to oldest.

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