February 2015 Archives

January/February 2015

| No Comments

Message from the Editors

Dear Young Lawyers Section Members:

Welcome to the January/February edition of Electronically In Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes messages from our section as well as a congratulatory acknowledgement of current YLS Secretary and incoming Treasurer, John P. Christopher, for receiving the "Leadership in Law" Award.

Also included is a detailed recap of our events held at the New York State Bar Association's Annual Meeting in New York City. Over the course of three days in January, YLS held its Executive Committee Meeting Luncheon and Award Ceremony for the 2015 Outstanding Young Lawyer. We also hosted the two-day Bridging the Gap MCLE program which I had the opportunity to Co-Chair with Erica Weisgerber. It's always a fun time to attend these programs and meet other attorneys. I encourage you to come to one of our upcoming events. Please check the YLS website for more information.

Additionally, we have section liaison updates from the Family Law Section and the International Law Section. Past YLS Chair, Michael L. Fox wrote an article covering Ethical and Legal Considerations in Litigation With Regard to Social Media. We conclude with Michael J. Greenberg's article, Why Families Should Consider Using IRA Beneficiary Trusts as Part of a Comprehensive Estate Plan.

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 submit articles by the 20th of each month to Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@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.

Kara Buonanno, Esq.
Editor-in-Chief, Electronically In Touch

Tyear Middleton, Esq.
Managing Editor, Electronically In Touch

Chair's Message

| No Comments

2015 is already fast and furious, with January gone in a flash. Coming off our Annual Meeting, we found ourselves catching up with old friends, meeting new ones, and tackling the issues that face each and every one of us in the practice of law. We also awarded Jessica Lee with our Outstanding Young Lawyer Award, a great honor for a great lawyer. It is always such a pleasure to reward someone who has done so much in their first few years of practice. Before we know it, we'll be back together in Ithaca at our Section's signature event, Trial Academy. Held at Cornell Law School, it's a 5-day intensive program designed to educate practitioners on the ins and outs of a civil and criminal trial, using both lecture and interactive presentations. Some of our preeminent jurists in the state are our faculty, and with seats filling quickly, isn't it about time you signed up? Scholarships are available but going quickly. For more information, check out http://www.nysba.org/ylstrialacademy/

Sarah Gold, Esq.

Annual Meeting Events Recap

| No Comments

by Terrence L. Tarver

On Wednesday, January 28, 2015, at the New York City Midtown Hilton, two, elite trial attorneys spoke to the many young lawyers in attendance at the YLS Annual Meeting despite the terrible weather. The Program Chair, Terrence L. Tarver, introduced David J. Dean, Esq., of Sullivan Papain Block McGrath & Cannavo P.C., and Glenn W. Dopf, Esq., of Dopf, P.C. Mr. Dean, who discussed the Plaintiff's perspective, and Mr. Dopf, who discussed the Defendant's perspective, each spoke on the topics of Jury Selection, Openings, and Summations. Each put on a show and dazzled the room with their drastically different styles offering inside tips on each topic that they have learned through their decades in the courtroom. The YLS was certainly honored to have each as a speaker, and we thank them both for their time, effort, and energy.

by Kara Buonanno

The above program was followed by the YLS's Executive Meeting and luncheon which was well attended by members practicing in many different locations throughout the State. At the the start of the meeting the 2015 Outstanding Young Lawyers Award was presented to Jessica B. Lee of Loeb and Loeb L.L.P. Congratulations Jessica!

by Kara Buonanno

The Young Lawyers Section Annual Meeting Bridging the Gap MCLE Program was held on Thursday and Friday, January 29th - 30th. Co-Chairs of the Program, Kara Buonanno and Erica Weisgerber organized the two-day event that covered different topics in various areas of practice, including Family Law; Criminal Law; Research Tips For Lawyers; Hot Topics in Intellectual Property; Electronic Discovery and Social Media; and Antitrust.

Please see below for photos from Bridging The Gap.


Upcoming Events

| No Comments

Family Law Section and Young Lawyers Section Membership Networking Event

Proper West, 54 W. 39th Street, New York, NY 10018

Thursday, March 12, 2015
6:00PM to 8:00PM

RSVP to Tina Rothaupt at trothaupt@nysba.org

NYSBA Antitrust Section Event for Young Lawyers
Antitrust Basics: An Introduction for New Attorneys

Thursday, February 19, 2015

Weil, Gotshal & Manges
767 5th Avenue, New York, NY

3:00 - 5:30 pm - CLE Program
5:30 - 7:00 pm - Cocktail reception

2.0 CLE credits in skills. This program qualifies as TRANSITIONAL, therefore is appropriate for newly admitted attorneys.

Free for NYSBA members
$25 fee for non-members
Non-members who do not receive CLE credits may attend for free.

Additional funding provided by the NYS Bar Foundation.

For more information about this program and the Antitrust Section, please contact Tiffany Bardwell at tbardwell@nysba.org.

Register Now!!

Visit www.nysba.org/antitrustbasics2015 for more information about this program.

Trial Academy 2015

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.

This year's program will be held at Cornell Law School in Ithaca, New York from March 29-April 2, 2015. For more information, please contact Amy Jasiewicz at ajasiewicz@nysba.org.

View the 2015 Trial Academy Preliminary Program.

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

NYSBA Member Registration Fee: $875.00
Non-NYSBA Member Registration Fee: $1,000.00

The registration fee includes all materials, breakfast each morning, NYSBA-sponsored luncheons each day, and the welcoming and closing cocktail receptions. Hotel accomodations and parkling fees are not included in the registration fee. A limited number of rooms may be available at The Statler Hotel on the Cornell University campus. To make reservations at The Statler, call 1(800) 541-2501 and indicate you are with the NYSBA Trial Academy.

Find out more about Trial Academy Corporate Sponsorship opportunities and NYSBA Section Sponsorship opportunities.

Register Now!

John Christopher, Secretary and incoming Treasurer of the Young Lawyers Section (YLS) and a Partner with the firm Sahn Ward Coschignano & Baker, PLLC, received the "Leadership in Law" Award from Long Island Business News. Mr. Christopher was recognized in the category of Associate. The awards ceremony took place on November 13th, 2014 at the Crest Hollow Country Club in Woodbury.

The "Leadership in Law" Award recognizes attorneys for their dedication, hard work, skill, tenacity, compassion and overall excellence. It is dedicated to those individuals whose leadership, both in the legal profession and in the community, has had a positive impact on Long Island. Recipients of this award demonstrate outstanding achievements, involvement in their profession, community support and mentoring.

Mr. Christopher was recognized for his hard work and his involvement in the New York State Bar Association and other community matters. As a Partner with Sahn Ward Coschignano & Baker PLLC, he concentrates his practice in the areas of municipal law, zoning and land use planning, commercial and residential real estate transactions and commercial and residential landlord/tenant disputes.

He is an active member of the New York State Bar Association, where he serves as Secretary and incoming Treasurer for the group's Young Lawyers Section Executive Committee. With the YLS he also holds the positions of Tenth District Co-Representative, Chair of the Nominating Committee, YLS Delegate to the NYSBA House of Delegates and Liaison to the Real Property Law Section. In addition, he is a member of the American and Nassau County Bar Associations.

Mr. Christopher has had several legal articles published, including "The Unsettled Law of Eminent Domain" which appeared in the Spring/Winter 2010 issue of Report from Counsel, and two articles for The Nassau Lawyer: "Current Issues in Land Use and Zoning: The Impact of an Increase of Business at a Property with an Established Pre-Existing Nonconforming Use" (April 2009) and "Temporary Zoning and Planning Moratoriums" (April 2007).

For the past three years, he has organized a holiday party for the 10th District of the YLS, in conjunction with the Nassau County Bar Association, Young Lawyers Committee, to raise donations for The U.S. Marine Corps Reserve Toys for Tots program. In addition, he formerly served as an Executive Board Member of the Greenvale Civic Association.

In 2013 and 2014, Mr. Christopher was selected to the list of Metro New York Super Lawyers' "Rising Stars." He was recognized in the practice area of Real Estate Law.

Family Law Section Liaison Update

| No Comments

Elizabeth Erickson and
Adam Turbowitz

Co-Liaisons to the Family Law Section

As anticipated in our last Section Update, revisions to the Temporary Maintenance Guidelines were presented to the state legislature in April, 2014. The Family Law Section voiced strong opposition to the indisputably problematic proposal, which also addressed post-divorce maintenance awards. Thankfully, the proposed legislation failed to pass, although by only a small margin.

In recent months, momentum has begun to build again with respect to overhauling the existing spousal maintenance scheme in New York, codified as DRL § 236(B)(5-a)-(6), as to both temporary and post-divorce awards, with the FLS leadership prophesying such changes as being an inevitability. It is expected that a substantially modified proposal, which has been endorsed with overwhelming support by the FLS Executive Committee, will be submitted in the coming weeks. Of further interest, the proposed legislation would also eliminate "enhanced earning capacity" - long the thorn in the side of the Matrimonial Bar and, though we do not presume to speak for them, likely the Bench as well - as a marital asset subject to equitable distribution.

International Section Liaison Update

| No Comments

by Max Shterngel, Associate, Arent Fox LLP (max.shterngel@arentfox.com)
Young Lawyers Section Co-Liaison to the International Section

Young lawyers in New York should know two things about the NYSBA International Section:

• The International Section is very active, both in NY State and around the world; and
• The International Section strongly encourages all NY lawyers (especially young lawyers and law students, and students of diverse backgrounds) whose practice touches on any international issues, or who have an interest in international law, to join the Section.

The International Section hosted a Networking Reception at Baker McKenzie on October 7, 2014. The event was attended by a wide range of young lawyers and law students from NYC-area law schools. The International Section is planning several more similar events in 2015.

The International Section hosts several events outside of the U.S. each year. On October 15-17, 2014, the Section hosted a Seasonal Meeting in beautiful Vienna, Austria. The event included a gala dinner at Belvedere Palace, a keynote addresses from some very high-profile dignitaries: the Chancellor of Austria, Werner Feymann; the U.S. Ambassador to Austria, Alexa L. Wesner; and Justice of the Austrian Supreme Court George Kodek.

Several exciting international trips by the Section are already scheduled for 2015:

• A trip to CUBA(!) through Miami during March 8-14. Although it may be too late to register, there may still be an opportunity to register given the relaxation of travel restrictions to Cuba that were recently announced. Read about the Cuba trip here: http://www.nysba.org/Sections/International/Events/2015/Cuba/March_Cuba_details.html

• If you can't make it to Cuba for a week, you can visit enchanting Zurich, Switzerland, where the Section is hosting a weekend series of exciting panels on U.S., EU and Swiss Partnership during March 13-14. More information about the Zurich trip is here:

• The 2015 Seasonal Meeting will be in Sao Paolo, Brazil during October 14-17! Details are forthcoming, but rest assured that visiting Brazil before the 2016 Olympics is a great idea! Some Section members are extending their time in Brazil to visit Rio de Janeiro and other great Brazilian hotspots.

• The Section is leveraging its international network to sponsor internships abroad for law student members of the NYSBA and the Section. The Section will be publicizing this exciting program soon.

Most recently, the International Section had its Annual Meeting on January 26, 2015 at the NY Hilton. The theme of the day was "From the Magna Carta to Dodd-Frank: the Rule of Law and International Financial Regulation." The program included a panel on the impact of financial regulation on the international legal community, and featured comparative perspectives from the U.S., Europe, Latin America, the Middle East and Asia. The Annual Meeting was well attended by International Section members from throughout New York and from representatives of our many foreign chapters as well. On the evening of January 26, 2015, the International Section was well represented at the NYSBA's 12th Annual Diversity Fair, also held at the NY Hilton.

We encourage you to Join the International Section and get to know its interesting and diverse members!

Michael L. Fox, Esq.
Past Chair, NYSBA Young Lawyers Section
Partner, Jacobowitz & Gubits, LLP

In the past, I have written articles and presented CLEs focusing on electronic discovery, and in particular social media's impact on the world of discovery. However, discovery is not the only area in which social media is having an effect in the legal profession. With the explosion of use of social media, so too has there been an expansion of ethical issues a practitioner should be both aware of and concerned about.

Before we begin, some questions to consider:

* Can an attorney view the MySpace, Facebook, Instagram, or other social media, pages of another party (not the lawyer's client) for information gathering?

* May an attorney either directly, or through another person, contact an unrepresented person through social networking?

* Is an attorney permitted to research prospective jurors before, during, and/or after voir dire?

* What should attorneys tell their clients about social media preservation? About any ESI preservation?

* What do we do about jurors who choose to engage in social media usage during trials?

There are several New York Rules of Professional Conduct that will come into play during our discussion here, in particular Rules 3.5, 4.1, 4.2, 4.3, 5.3 and 8.4, among others. These Rules address communication, truthfulness, misconduct, attorneys' responsibility for the conduct of non-lawyers, and communications with represented and unrepresented persons.

Attorney Viewing Web Pages of Adverse Parties or Witnesses

Many state and national bar associations have issued opinions on these matters, and there is significant agreement in the opinions - although not universal agreement on specific questions.

For instance, New York State Bar Association Opinion 843 (2010) held that yes an attorney may view the page of another party, so long as the attorney does not "friend" or otherwise "communicate" with the person, or have a third party do so. Remember - the ethical rules prohibit an attorney from requesting that another do something that the attorney is ethically prohibited from doing herself or himself. An attorney, or someone at the attorney's direction, though, may certainly access public pages of the network utilized by another party. In that circumstance, the authorities seem in agreement that the attorney does not run afoul of ethics Rules 4.1, 4.2, 4.3, 5.3(b)(1), or 8.4. An attorney can view websites of opponents, so long as the social media or webpage is public or passive - much like viewing a magazine.

However, an attorney should be very cautious even with unrepresented adverse witnesses. In the same NYSBA Opinion 843, the Committee cited to Philadelphia Bar Association opinion 2009-02 (March 2009), which held that pursuant to a Pennsylvania Rule (similar to New York Rule 8.4(c)) the lawyer's intention to have a third party "friend" the witness to obtain access to non-public Facebook and MySpace pages, and thereby locate impeachment material, would violate the rule concerning attorney dishonesty/fraud/deceit/misrepresentation.

On the same matter, the New York City Bar's Opinion 2010-2 evaluated whether an attorney is permitted to either directly or through another contact an unrepresented person through social networking. The City Bar answered the question both "yes" and "no". An attorney cannot use trickery. There are non-deceptive means to utilize, and those are the methods to be employed - i.e. an attorney may use Facebook and utilize "truthful" friending, or utilize subpoenas to non-parties holding information. Keep in mind, though, that the Stored Communications Act's prohibitions were not addressed in the opinions, so one should take care to observe lawful means of accessing social media.

Utilizing Social Media to Research Prospective Jurors During Voir Dire

Changing course slightly, let us consider whether an attorney may use social media to research jurors during voir dire. A more recent New York City Bar Opinion, 2012-2, provides guidance concerning the limits on an attorney using social media to research potential and sitting jurors. The guidance is similar to that for adverse parties or witnesses, EXCEPT an attorney may not have contact in any way with the juror or potential juror, or cause another person to contact or send a message that would be received by a juror or potential juror - this, of course, includes a "friend" request. See also NYCLA Opinion 743 (2011) (no contact, no friending, no tweets; juror must not become aware or be made aware of the monitoring; lawyer may not engage in deceit or misrepresentations, or cause others to do so; if attorney becomes aware of misconduct and deliberations in violation of Court's instructions, attorney must advise Court under Rule 3.5 before attorney engages in further activity).

Most recently, the American Bar Association issued Formal Opinion 466 (April 24, 2014). Specific excerpts are below:

Unless limited by law or court order, a lawyer may review a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.

A lawyer may not, either personally or through another, send an access request to a juror's electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror's or potential juror's Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.

ABA Formal Op. 466 (2014).

Per ABA Formal Opinion 466, a lawyer may not personally or through another send an access request to a juror or potential juror. The ABA held that: "This would be akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past." That is barred.

Perhaps you believe it would be easier, and safer, to avoid utilizing social media at all when conducting jury voir dire? However, the matter is complicated by the fact that some commentators believe that doing no background checking on social media is not proper, and perhaps borderline malpractice. Fortunately, that opinion is not uniform, and will largely depend on the attorney's time and available resources.

In general, though, potential jurors should just be aware that attorneys and parties may be looking into the juror's background, social activities, political views, and even prior articles or blogs. While it should not dissuade potential jurors from exercising their right of free speech, it is something that potential jurors may find to be of interest, and may wish to be aware of during the course of their jury service. And, at the same time, it is something attorneys should consider undertaking, since social media research during voir dire may be another arrow in the litigator's trial quiver.

In the interest of thoroughness, you should be aware that some commentators have already criticized ABA Opinion 466. The NYSBA Commercial & Federal Litigation Section Social Media Committee's Co-Chairs, together with Retired Federal Magistrate Judge Ronald Hedges, wrote in the September 2014 NYSBA Journal (originally printed in the NY Law Journal) that they disagreed with ABA Opinion 466. In their view, which this author shares, Opinion 466 is not sufficient to guide an attorney in searching the social media doings of a juror.
The article's authors instead cite NYCLA's Formal Opinion 743, and ABA Model Rule 1.1, in addition to NYSBA ComFed's Social Media Ethics Guidelines 5.B.

Again, generally, as a best practice in New York, an attorney should not search a juror's social media in any fashion that provides to the juror a response, automated or otherwise, that the attorney was looking. Some social media networks provide a "footprint" or advise users regarding who has viewed their social media pages. In such a situation, if an attorney utilizes that type of social media network, the attorney should first make sure that their settings are such that they appear as "anonymous" to those users whose pages they view.

The ABA's Opinion, in contrast, provides somewhat differently. An attorney is supposed to keep abreast of changes in the law and its practice, including technology. See ABA Model Rule 1.1. Interestingly, the ABA Opinion appears to permit communication that is "automated", although it might permit a juror to know that they were viewed because it does not bar "automated" or passive responses to a juror, not otherwise written or initiated by the attorney or someone on the attorney's behalf. This is something to be aware of when gathering all potential authorities for guidance.

At the end of the day, information posted on public sites, or sites that the public may access, is fairly used in litigation information-gathering. However, take care if you are an attorney gathering information, or directing another to do so on your behalf. There are important ethical limitations to comply with. Additional research is recommended, outside of the basic framework of information provided in this article.

Advice to Clients Concerning Social Media

Finally, knowing that opposing parties or attorneys may well be viewing the webpages and social media postings of your clients, what should you tell your clients? Well, remember your ethical obligations, first and foremost. Remind your clients to preserve all information in native format. That is key to preserving not only the information visible on its face but also the metadata. Advise your clients concerning litigation holds, and requirements that no potentially relevant evidence be lost, altered or destroyed - this holds true whether the client is an organization or an individual.

The message here? Do not tell your clients to delete or alter information on their social media pages that may be damaging to their litigation. What's done is done - better to face it and address it than face spoliation sanctions or worse. That is the first take-away point.

Next, look to New York County Lawyers Association Ethics Opinion 745 (2013): Attorneys may advise their clients in New York concerning what they should/should not post to social media; privacy settings; what existing postings they may or may not remove; and the implications of social media posts on a case. The same rules apply to legal advice in other contexts - i.e. Professional Rules 3.1, 3.3 and 3.4. (Keep in mind that the Opinion only addresses civil cases, and advises that attorneys in criminal cases may have different ethical considerations.) But, do not be confused - an attorney may advise a client as to the affect of social media postings on a litigation, but not so as to advise a client concerning what to delete or alter. Remember the first take-away point in this area. Rather, the attorney may advise the client to stop posting, the attorney can advise concerning privacy settings and public versus private pages, and the attorney may advise about the removal of materials that have no impact or relevance to the potential or existing litigation. According to the Opinion, an attorney may technically advise a client to take down material from social media so long as there is no violation of a duty to preserve, and no spoliation, especially if the substance of the post is preserved in cyberspace or on the client's computer should it be needed later. Again, remain mindful of litigation hold requirements. See QK Healthcare, Inc. v. Forest Labs., Inc., Index No. 117407/09, 2013 N.Y. Misc. LEXIS 2008 (Sup. Ct. N.Y. County May 8, 2013).

As a best practice, though, I would not recommend ever telling a client to take anything down from a private or public page once posted if litigation is commenced or anticipated, and if the post has even remote relevance to the subject matter of the litigation - since you are likely not going to be able to monitor a client's every action on the site to ensure they act in a way commensurate with your advice. If, however, you ever do advise a client concerning the removal of posts, make certain to memorialize the advice in writing, so that you have a clear record of what you advised - or what you advised against. I submit it is better to advise a client to place a hold, keep the account active (even if that means logging-in periodically so the account is not shut down by the provider for inactivity), and advise the client not to post anything new unless it is completely unrelated to anything involving the case (which requires a case-by-case assessment). Importantly, certainly DO NOT ever advise clients to "clean up" social media pages.

Juror Postings on Social Media During Trial

A final thought now, from a slightly different perspective - attorneys are not the only ones receiving instruction on social media usage in legal proceedings. Starting in August 2012, the federal courts had new model jury instructions for civil and criminal cases. The instructions tell jurors not to research matters before them on the Internet or social media. Jurors are also instructed not to communicate with others during trial or deliberations on BlackBerry, iPhone, other cell phones, e-mail, Twitter, Facebook, Instagram, LinkedIn, YouTube, or other technology. The instructions are to be given at the start of trial, during trial and before deliberations. The District Judges and Magistrate Judges of the courts are also free to adapt or modify the language of the guideline instructions as needed for trials they conduct. In May 2009, the State of New York had similarly modified its preliminary jury admonitions in criminal matters.

However, some jurors across the country have taken to the Internet and social media before and during deliberations. While there have been concomitant requests for mistrials, they are not often granted. Remember, just because a juror Tweets, does not necessarily translate into a mistrial. See the case of U.S. v. Liu, 12-CR-934(RA) (S.D.N.Y. Nov. 14, 2014). Liu was a federal criminal trial - the defendants were accused of conspiracy to commit immigration fraud.
Several jurors Tweeted during the trial. Some of the Tweets included: "Add in just one song & dance number and this federal case would rival anything I've seen on broadway #juryduty rocks"; "The bloody courtroom is freezing"; "one of the defense [attorneys] had the balls in his summation to say that his client was just trying to help poor refugees from rural communities who didn't have the education to get asylum on their own. At $11k a pop"; and "these people prey on the fear and ignorance of applicants. it's [sic] horrible."

Following discovery of the Tweets, the defense argued that the Tweets provided evidence of bias by the jurors, disregard for the Judge's instructions, and a violation of the defendants' Sixth Amendment right to a trial by an impartial jury. The Court, however, denied the defenses' request for relief and a new trial. Although Juror 10 was dismissed from service because of her Tweets, rising to the level of improper and inappropriate conduct, Juror 2 was not found to have violated rules, and was not dismissed. The Judge further did not grant a mistrial.

The Court held that regardless of the particular issue, the Court must assess the "likely prejudicial impact" of the potential juror misconduct. The Judge found that jurors who Tweet during a trial may, in certain circumstances, threaten the Sixth Amendment right of defendants. However, the Court found that Juror 2 did not fail to answer voir dire questions honestly in the way they were posed, did not violate the Court's instructions because Juror 2 did not Tweet about facts and circumstances in the case, and Juror 2 was not failing to pay attention because she was concerned about her novel-writing. In fact, she demonstrated command of the facts and rapt attention. While vigilance is warranted in this new social media age, Juror 2 in this case was not biased or inattentive.

Today, we live in a world of nearly non-stop technological communication, and social media is changing our legal system - presenting new and different challenges that we as attorneys and officers of the courts must adapt to and address.

Michael J. Greenberg, Esq.

A recent trend in the way that families have accumulated wealth is the dramatic increase in the amount of money that families have saved through qualified retirement assets. In addition to the equity in homes, many people have most of their retirement assets in these Individual Retirement Accounts (IRAs).

There are many benefits to putting money away into IRAs. One major benefit is that IRA's grow income tax free over an owner's lifetime. This money is not subject to income tax until it is distributed out of the IRA. How the income tax is treated to the beneficiary differs significantly on whether the beneficiary is a surviving spouse, a child, or a trust. Depending on the beneficiary choice, there may be no income tax, the income tax may be spread out over a lifetime, or the income tax may need to be paid within a short period of time (5-years).

A second major benefit of IRA is the protection they can provide. IRA's and other qualified retirement assets also enjoy creditor protection, meaning if the owner is sued or files bankruptcy. However, not every type of IRA provides for this protection. In a recent Supreme Court of the United States case, Clark v. Rameker, the Court held that an "inherited IRA" was not a protected retirement fund under federal law.

An inherited IRA differs from a personal IRA in ways that make an inherited IRA a non-retirement asset. When an IRA is inherited, distributions begin immediately, and cannot be delayed until the beneficiary reaches retirement age, like they can be for distributions for a personal IRA. The beneficiary of an inherited IRA is not allowed to make additional contributions and can take distributions at any time, including a distribution of the entire account. Because of these differences, an inherited IRA is not protected as a retirement account.

In order to protect these inherited IRAs, one might want to consider creating an IRA Beneficiary Trust and then naming this trust as the beneficiary of the IRA. A properly drafted trust can help shield the assets and still allow a lifetime payout based on the oldest beneficiary of the trust's life expectancy. There are many benefits do creating this type of trust:

1. Creditor Protection: A relative might have trouble handling money or might be is in an occupation at high-risk from creditors (such as a surgeon).

2. Protecting Assets from Son-in-laws and Daughter-in-laws: using trusts as beneficiaries of IRA's include protecting the inherited IRA from being split in case of a child's divorce and protecting it from a child's spouse's one-third (in New York) right of election.

3. Special Needs Beneficiaries: Provide extra protection and control of the IRA for the benefit of a disabled beneficiary without jeopardizing potential government benefits.

The rules for naming a trust as an IRA beneficiary are very restrictive and it is imperative that people consult an experienced Estate Planning attorney in order to create one. With an IRA protection trust in place, clients can have peace of mind that their assets will go to loved ones.

Michael J. Greenberg, Esq. is an Estate Planning, Elder Law, and Special Needs Planning attorney at Helwig, Henderson, Ryan, Lamagna & Spinola. He is a member of the Trusts & Estate, Elder Law and Special Needs, and Young Lawyers sections of the New York State Bar Association as well as the National Academy of Elder Law Attorneys (NAELA). Mr. Greenberg received his law degree from Emory University School of Law and his undergraduate degree from Williams College. He is admitted to practice law in New York, Connecticut and Florida. He can be reached by email at mgreenberg@hhrls.com.


| No Comments

Electronically In Touch is the 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 Kara Buonanno at kara.buonanno@gmail.com and Tyear Middleton at tymiddleton@gmail.com, no later than the 20th of the month.

About this Archive

This page is an archive of entries from February 2015 listed from newest to oldest.

November 2014 is the previous archive.

March 2015 is the next archive.

Find recent content on the main index or look in the archives to find all content.