September 2013 Archives

Electronically-In-Touch

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September 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 and upcoming events. We then have a constitutional law article by Daniel Morton-Bentley and a healthcare article by Roman Aminov.

Electronically-In-Touch is a member driven publication and as such we welcome submissions from members on any relevant topic including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please keep your articles coming by submitting them by the 20th of each month to Erin Flynn at Erin.K.Flynn@gmail.com or Brian Doyle at doylebm@gmail.com.

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Erin K. Flynn, Esq.
Editor, Electronically-In-Touch
Erin.K.Flynn@gmail.com

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

Chair's Message

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Welcome to the September edition of Electronically In-Touch. Although our 75th year as the Young Lawyers Section has only just begun, we had our formal celebration last month. We were able to enjoy an extremely interesting, informative and interactive CLE program with Professor Paul Finkelman, Professor of Law, Albany Law School, and Michael L. Fox, Esq., our Section's Immediate Past Chair and Litigation Managing Attorney at Jacobowitz & Gubits, LLP. The CLE was titled: Baseball and the Rule of Law: How Our Two National Sports Intersect, and was held in the Caesars Club of CitiField. We then enjoyed a private lunch, a tour of CitiField and a baseball game! Pictures are below. Our 75th Anniversary Celebration is only one example of the exciting and fun events that are held by the Young Lawyers Section. Our District Representatives from around the State are eagerly planning events to be held near you. For example, the Fifth and Sixth Districts are getting together to attend a Syracuse football game while other districts are working on wine tasting events and CLE programs. As soon as plans are finalized, information will be sent out to our members. If you are not a member of our Section, now is the time to join! You won't want to miss out on the exciting events that our Section has to offer.

We have also begun planning the Fifth Annual Trial Academy, which is being held at Cornell Law School from March 29th through April 2nd. This is an amazing opportunity to improve your trial skills while also networking with seasoned attorneys and judges from throughout New York State. Further details to follow in the upcoming months.

Finally, please consider nominating someone you know for the Outstanding Young Lawyer Award, which is granted annually by our Section. Details can be found here.

As always, if you are interested in getting more involved with our Section, feel free to contact me.

Lisa R. Schoenfeld, Esq.
Section Chair
Schlissel Ostrow Karabatos, PLLC
lschoenfeld@soklaw.com

75th Anniversary

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YLS Fall Meeting

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YLS Executive Committee Meeting
Monday, September 30, 2013
3:00 p.m. - 5:00 p.m.
Alston & Bird LLP, 90 Park Avenue, 15th floor, New York, NY 10016

All YLS members are encouraged and welcome to attend. After the meeting, you are invited to attend a dinner for the committee at Virgil's 152 West 44th Street
(Between Broadway and 6th Avenue), New York, NY 10036. The cost for the dinner is $50 per person. Please register on the NYSBA website at www.nysba.org/fallECdinner.


District Events

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Syracuse University Homecoming Football Game
Saturday, October 5, 2013

Join the Young Lawyers Section to celebrate Syracuse's Homecoming and the ACC home opener for the team.

Attendees will be seated in Section 211 (end zone), rows J & K as a group. Tickets are $28 each and are limited in number, so register now!

There will be lots of excitement as this is the Homecoming game of the school. Join us for what will certainly be a beautiful autumn day!

To reserve tickets, please register at www.nysba.org/syracusegameOct5

For questions, contact section liaison Tiffany Bardwell at tbardwell@nysba.org

10th District Fall Winery Tour

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10th District Fall Winery Tour
Saturday, October 26, 2013

The New York State Bar Association, Young Lawyers Section, in conjunction with the Nassau County Bar Association, Young Lawyers Committee, cordially invite all "young lawyers" and their guests to join us for a spectacular day of wine tasting on the North Fork of Long Island.

The Fall Harvest has begun and now is the perfect time to enjoy the best of Long Island's Vineyards. If you have never gone wine tasting on the North Fork before, this is a great opportunity to find out what you have been missing!


8:45am Bus pickup at Nassau County Bar Association
9:30am Bus Pickup at Ronkonkoma Train Station
10:30am Pugliese Vineyards
12:00pm Pindar Vineyards (live music scheduled)
2:00pm Osprey's Dominion (live music scheduled)
4:20pm Bus drop off at Ronkonkoma Train Station
5:00pm Bus drop off at Nassau County Bar Association

Tickets are $75 per person and the price includes transportation and tastings at all three wineries. Lunch is not provided, so please bring your own.

Due to the nature of this event, it is open to Adults only.

Please contact Tiffany Bardwell at tbardwell@nysba.org for more information.

Events of Interest

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Building Your Personal Brand | Lawyers in Transition
Wednesday, October 9, 2013

- Location -
Anchin Block & Anchin LLP
1375 Broadway
New York, NY

Lawyers in Transition - Building Your Personal Brand
Program Faculty:
Marcia Nelson, Practice Growth Manager, Anchin, Block & Anchin, LLP
Ann Collier, MPP, JD, Founder, Arudia
Julia Bonem, Career Change for Good
9:00 a.m. - 11:00 a.m.

The last day to pre-register online is October 8, 2013. Register online now

LIT Breakfast Networking Best Practices
Thursday, October 10, 2013

- Location -
Bar Association of Erie County
438 Main Street
Sixth Floor
Buffalo, NY

Lawyers in Transition - Breakfast Series
Featuring: Vincent E. Doyle, III, Esq., Connors & Vilardo, LLP

The last day to pre-register online is October 10, 2013. Register online now

LIT Breakfast - Step One: Developing a Business Plan

Wednesday, October 23, 2013

Free Breakfast program sponsored by the Committee on Lawyers in Transition
Featuring Peter A. Giuliani and Adam Jachimowski, Esq.

Pre-registration required, click here to register.

Constitutional Law

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Warrantless GPS Monitoring of Public Employee's Private Car held Constitutional
By: Daniel Morton-Bentley

The Court of Appeals recently addressed the issue of whether the State must obtain a warrant before attaching a GPS device to a public employee's personal car in Cunningham v. New York State Dept. of Labor, Case No. 123 (N.Y. Ct. App. Jun. 27, 2013). The Court held that a warrant is not required, but that the search in this particular case was unreasonable.

The Department of Labor ("Department") investigated employee Michael Cunningham for falsifying time sheets. An initial investigation resulted in a two-month suspension. The Department suspected further impropriety and launched a second investigation. When Cunningham gave a Department investigator the slip, the Department referred the investigation to the Inspector General. Unbeknownst to Cunningham, the Inspector General affixed a GPS device to Cunningham's personal car while he was at work. The device recorded the car's movements for a month.

Information gathered from the device suggested that Cunningham was still falsifying time sheets. Eleven charges were brought against Cunningham, four reliant on the GPS evidence and another four supported by it. The allegations against Cunningham were sustained at the administrative level. Cunningham then filed a state court proceeding that eventually reached the Court of Appeals.

The novel legal issue decided in Cunningham is that attaching a GPS device to a public employee's private car does not require a warrant. The "workplace exception" established in O'Connor v. Ortega, 480 U.S. 709 (1987) authorized a warrantless search of a public employee's office. The Court of Appeals extended this holding to include Cunningham's personal car. Although Cunningham's car was not owned by or connected with the Department, the Court stressed that only the car's location, and not the car itself, was at issue. Thus, Cunningham had no reasonable expectation of privacy regarding the location of his car when he claimed to be at work.

However, the Court held that Cunningham retained a privacy interest in the location of his car during non-work hours. Therefore, the State's failure to limit the data collected by the GPS device barred its use against Cunningham. Although the State only introduced evidence of the whereabouts of Cunningham's car during work hours, the Court found that none of the GPS evidence could be used given the "extraordinary capacity of a GPS device to permit constant, relentless tracking of anything." Justice Abdus-Salaam, concurring, argued that a warrant should have been required under the circumstances.

Cunningham upheld the privacy of an individual outside of work, but it arguably gives public employers greater authority to investigate employees' personal property during work hours.

Daniel Morton-Bentley (dmortonbentley@gmail.com) is an attorney with the New York State Education Department. He holds law degrees from Suffolk University (LL.M) and Roger Williams University (J.D.). The views expressed are the author's own.

Health Care Law

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New York Health Care Proxy
By: Roman Aminov

As a New York estate attorney, I regularly prepare documents which protect my clients in case of their disability. One of the most important documents in an estate lawyer's arsenal is the Health Care Proxy. The New York Health Care Proxy Law allows you to appoint someone you trust, such as a spouse, to make health care decisions for you in the event that you are not able to make decisions for yourself. The agent's job is to convey your wishes to your health care providers, as if you were making them. The law allows the agent to monitor your progress and adjust their instructions as your condition changes. When preparing the document, you decide which decisions the agent will be able to make. The agent can be given as much or as little authority as you feel comfortable. A health care proxy can also allow your agent to carry out your wishes with regard to organ and tissue donation, but only if you specifically provide for that. By law, your medical providers, hospitals, and other medical institutions must follow your agent's instructions if they are presented with a validly executed health care proxy. If your agent is unable or unwilling to act, you can designate successor agents.

What Kinds of Decisions Can Your Agent Make?

You can allow your agent to make any and all health care decisions that you could have made yourself, including whether to receive or withhold treatments, which treatments to receive, how the treatments should be administered, and when treatments should cease. You also have the right to allow your agent to make decisions for you regarding artificial nutrition and hydration (nourishment provided by a feeding tube). To accomplish that, attorneys often state that the agent "knows my wishes with regards to artificial nutrition and hydration" in the health care proxy document. An agent under a health care proxy does not have the power to make non-health related decisions, such as financial decisions. For that, a statutory New York Power of Attorney should be drafted by an experienced attorney.

What is the Difference Between a Health Care Proxy and a Living Will?

A living will (commonly confused with a last will and testament) is a document that a person can have prepared to provide for specific instructions about particular health care decisions. A living will informs your agent of your wishes and advises him of the decisions you would want him to make. In my practice, if a client requests a living will, I commonly incorporate it into the health care proxy in order to give the agent quick access to the client's wishes. A health care proxy, unlike a living will, does not necessarily require that you think about the different situations which may come up; rather it allows your agent to make a determination of what your wishes would be at the time they need to be made.

What Should Be Done With a Health Care Proxy After it is Signed?

You should make multiple copies of this important advance directive and give a copy to your doctor, your health care providers, your lawyer, your agent(s), and close family members. It is prudent to keep a copy in an easily accessible location alongside your other important estate documents. If you are admitted to the hospital, even for minor surgery, bring a copy with you as well.

How Can a Health Care Proxy Be Revoked?

A health care proxy can be revoked at any time by the principal by advising the agent verbally or in writing of the revocation. Additionally, preparing a subsequent health care proxy revokes the former document. If a spouse is listed as the agent, their authority is automatically revoked following a divorce or legal separation (unless the document provides otherwise).

In summary, the New York health care proxy is an important document used to effectuate the most important directives of an individual; those involving their health care decisions. As such, it is recommended that an attorney knowledgeable in this field be consulted to advise, prepare, and properly execute this important document.


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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