http://nysbar.com/blogs/barjournal/ New York State Bar Association Journal Editorial Blog NYSBA Blogging Policy en Copyright 2010 Wed, 25 Aug 2010 18:37:47 -0500 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss Read the rest of the story from The Economist.]]> http://nysbar.com/blogs/barjournal/2010/08/democracy_in_america_glorious.html http://nysbar.com/blogs/barjournal/2010/08/democracy_in_america_glorious.html Articles of interest Wed, 25 Aug 2010 18:37:47 -0500 The September issue is devoted to law practice management and suggests many ways in which law practices should – must – undergo radical changes. Sometimes it’s easy to spot changes but the hard part is implementing the fundamental ones. What is the most difficult but significant change you made in the way you run your office? What is the most difficult change you would like to make but have yet to take on? http://nysbar.com/blogs/barjournal/2010/08/september_poll_question.html http://nysbar.com/blogs/barjournal/2010/08/september_poll_question.html Mon, 23 Aug 2010 10:52:33 -0500 I am the Director of the Mental Hygiene Legal Service (MHLS), Second Judicial Department. MHLS, Second Judicial Department represents individuals with mental disabilities residing in Long Island, the boroughs of New York City except Manhattan and the Bronx, and in the counties of Westchester, Putnam, Dutchess, Rockland and Orange. We represent many individuals who are, or will in the future be, subject to Assisted Outpatient Treatment under Mental Hygiene Law §9.60. I have read the article “Assisted Outpatient Treatment: May the Sun Continue to Shine on Kendra’s Law” and I am familiar with the Duke University study. What is missing from all studies on this subject and Associate Justice Schoenfeld's article is: it is much more likely that noted improvements do not result from court orders but rather from enhanced services. Further, the immense amount of resources, including financial, that are expended on the AOT process necessarily take away from those resources available for services, including case management and housing. Many AOT treatment plans are driven by what limited services are available in a particular county and not by the clinical needs of the AOT respondent. I agree with Judge Schoenfeld that “the vast majority of those with mental illness are not violent,” and therefore, voluntary participation in a greater quantity and array of available services would better serve all stakeholders and maximize the use of limited resources. For the few clients who would not voluntarily use these enhanced services, and who are believed likely to decompensate and become dangerous to self or others, treatment in the community on a continuing inpatient legal status, as once was the practice (conditional release, MHL §29.15), would provide these individuals all the due process protections which attach to Article 9 and still allow the State to exercise its legitimate state parens patriae and police powers, without the need for expensive and often unnecessary continuing court intervention. Sidney Hirschfeld, Director MHLS, Second Judicial Department http://nysbar.com/blogs/barjournal/2010/07/letter_to_the_editor_director.html http://nysbar.com/blogs/barjournal/2010/07/letter_to_the_editor_director.html Letters to the Editor Thu, 29 Jul 2010 14:34:29 -0500 Ooops! In the old days you might get in trouble if you misspoke to reporters on the courthouse steps. Now a seemingly innocuous comment about a professional matter posted on Facebook or a blog can have a huge ripple effect. Do you think the lines are clear? How much have you had to scrutinize your social networking activity? http://nysbar.com/blogs/barjournal/2010/07/julyaugust_poll_question_1.html http://nysbar.com/blogs/barjournal/2010/07/julyaugust_poll_question_1.html Fri, 16 Jul 2010 11:45:36 -0500 Time to Reform Judicial Reform (NYS Bar Journal-May ’10) concerning the state’s judiciary and the State Commission on Judicial Conduct is an eminently reasonable point of view, just as the late Judge Martin Erdman’s colorfully expressed viewpoint of the judiciary itself decades before was not entirely without foundation, albeit not quite appreciated in Justices of the Appellate Division First Department v. Erdman, 33 N.Y.2d 559 (1973). Truth, not consternation mixed with the suspension of disbelief, sets us free. Those who ascend to the bench bring with them all the weaknesses to which human flesh is heir. For a judiciary to deserve “appropriate respect and attention” (Cf. Matter of Maron v. Silver, 14 N.Y.3d 230, 264 (2010) (Smith, J. dissenting) there must be a credible mechanism for the adjudication and removal of weaknesses become misconduct within its ranks. The State Constitution commands it. Except for “milk-stool” judges, these two presuppositions are virtually nonexistent. Two examples from the public record follow. A judge during a murder trial received a letter from an inmate saying that two witnesses lied and another inmate identified a person hiding terrified in a closet as he watched the murder, and that the defendant in the dock did not do it. The judge sent the letter back to the inmate with a “cc” to the District Attorney. Months after a guilty verdict, one of the defense lawyers chanced upon it in the court clerk’s file in an envelope with “SEALED-UNREAD” typed on it. In another case, a lawyer, with no title search, quit claimed away a 95-year old nursing home patient’s home, filed the deed knowing that the grantor was not in the chain of title with the grantee being a friend of the grantor. It’s now a Supreme Court Justice. Both complaints dismissed. Much, but not all, responsibility for the Judicial Conduct Commission’s lack of accountability and transparency may be urged on the Court of Appeals. Article I, Section 6 of the State Constitution declares that “the power of grand juries to inquire into the willful misconduct in office of public officers and to find indictments… shall never be suspended or impaired by law.” A Manhattan grand jury was investigating bribery, bribe receiving and conspiracy involving two justices. Quashing its subpoena, Stern v. Morgenthau, 62 N.Y.2d 331, 336 (1984) held that Article I, Section 6 was only “intended to prohibit legislation that directly restricts a grand jury’s right to inquire or that… would have as its primary impact limiting investigations of public officers.” Other than a theoretical concept, where’s the line of demarcation? Stern ignored the axiom that one may not do indirectly what one may not do directly; it put the Commission beyond the reach of grand jury inquiry; it suspended the law’s right to everyone’s evidence; it blinked the fact that if there is an abuse of grand jury process courts are there to curb it, as I personally and Matter of Additional Grand Jury v. Doe, 50 N.Y.2d 14, 16 n.2, 22, 23 (1980) do attest. The State Constitution incorporated the grand jury “as-is”; it did not create it, like it did the Court of Appeals. “Shall” and “never” and “suspended” or “impaired” -- like “shall” before “never” -- mean exactly what they say. They are supposed to be a constitutional “no-spin zone.” Evidence subpoenaed by a grand jury is not broadcast to the world, as Grand Jury Proceedings (Doe), 56 N.Y.2d 348,353-354 (1982) tells us. Its subpoena would not compromise the internal proceedings of the Commission nor, absent indictment, confidence in a sitting judge. Stern smacks of a “protect-our-own” judicial power grab placing the Commission aside the constitution and thus insulating it from grand jury scrutiny. An oath of office and the felony of Unlawful Grand Jury Disclosure are supposed to go surety for grand jury secrecy. Not quite. Matter of Beach v. Shanley, 62 N.Y.2d 241, 254 (1984) gave de facto immunity to prosecutors turned felons and their accomplice press flacks from criminal prosecution by its construction of Civil Rights Law Sections 79-h. A grand jury subpoena for a reporter to disclose the name of the prosecutor who gave him grand jury minutes was quashed before he was asked the question, before his appearance, thus standing Cunningham v. Nadjari, 39 N.Y.2d 314, 318 (1983) on its head – Shanley actually mentioning and then deliberately ignoring it. Article I, Section 6, according to Shanley, was not intended to proscribe privileges “that have an incidental impact on investigation into willful misconduct by public officers.” Again, where’s the boundary line? That which is intended is no more and no less than the language used to intend it. If a judge’s misconduct is under investigation there is nothing to stop corrupt prosecutors in search of a headline from leaking grand jury secret matters to the press. How is this dirty pool fair to the judge, or the law itself? Witness the fact that I was a trial and appellate prosecutor for 30 years -- mostly public officials – now pro bono for anyone I believe innocent. As a line prosecutor over the years I read things in the press concerning grand jury matters I was working on and when I asked, “how’d that get in there?”, those in a position to fire me lied to my face. Shanley is another power-grab, this time on behalf of an irresponsible press whose coverage of the judiciary is often amateurish, misleading or “talk-show-pretty-face-half-baked” ignorant. How are lawyers and lay persons selected to sit on the Commission? How are judges – trial and appellate – selected? Judges are made, not born. When’s the last Hugo Black to sit on an appellate court? Where are the Breitels, Cardozos and Jasens? The constitutional bargain that was supposed to be an unelected Court of Appeals appointed on the basis of merit, not bean-counting racial-ethnic politics, concomitant with a State Commission on Judicial Conduct to ride herd on rogues in robes was broken by politicians before the ink was dry and the polls closed. The negative results are manifold. I see and read of judges street-demonstrating in their black robes for a pay hike or, years earlier, one protesting against a statute with which the judge disagreed. Now some want to join up with the United Federation of Teachers, even have their own lobbying firm. As the boy said to Shoeless Joe Jackson of the 1919 Chicago White Sox, “say it ain’t so, Joe.” I’m supposed to respect this? Judge Bellacosa told us from whence he comes. Me? I am a nobody, who is one of six whose father was one of thirteen who had to leave school when he was thirteen to help support the family. I came from St. John’s Law Review directly into a Bronx District Attorney’s Office that had publicly imploded when a Supreme Court Justice’s son’s drunken driving killed nine people on the Bronx River Parkway but who eventually walked away unscathed and unpunished on double jeopardy grounds because he was first acquitted by a three judge court of a traffic violation involving the same facts. A new District Attorney Burton B. Roberts went into the law schools instead of the clubhouse thus ameliorating some of the dysfunction then afflicting Bronx County’s portion of the justice system. On any day, a judiciary is no better and no worse than its composition. If we selected physicians the way we select judges and Judicial Conduct Commissioners we’d be pushing up daisies. Like the press, the judiciary judges the causes and prescribes the cures for its own much self-inflicted wounds. Bar leadership is too much cordial apologist not enough cordial critic. Not by this Irish kid. To whatever extent justified, the Commission’s reputation is judges and lawyers protecting judges. Physician, heal thyself. Yours truly, Lawrence N. Gray, Esq. ]]> http://nysbar.com/blogs/barjournal/2010/06/response_to_judge_bellacosas_p.html http://nysbar.com/blogs/barjournal/2010/06/response_to_judge_bellacosas_p.html Letters to the Editor Tue, 22 Jun 2010 17:20:38 -0500 Zubulake and Pension Committee?]]> http://nysbar.com/blogs/barjournal/2010/06/june_poll_question_1.html http://nysbar.com/blogs/barjournal/2010/06/june_poll_question_1.html Mon, 07 Jun 2010 16:42:00 -0500 Frank Gulino believes that the Court of Appeals is on the brink of recognizing out of state same-sex marriage. What impact will that have on New York’s marriage laws? http://nysbar.com/blogs/barjournal/2010/05/may_poll_question.html http://nysbar.com/blogs/barjournal/2010/05/may_poll_question.html Journal Polls Thu, 13 May 2010 16:48:11 -0500 situs sigilli. A sigillum, also sometimes rendered in the plural, sigilla, is Latin for a signet ring--the kind used to make a distinctive impression on a wax seal. Situs sigilli, sometimes situs sigillum, means the place where the seal was put onto the document; in other words, the venue where the affidavit was signed and notarized. Kitty Roth was correct. Vincent J. Zichello Zichello & McIntyre, LLP New York, NY ]]> http://nysbar.com/blogs/barjournal/2010/04/re_david_horowitzs_marchapril.html http://nysbar.com/blogs/barjournal/2010/04/re_david_horowitzs_marchapril.html Letters to the Editor Tue, 20 Apr 2010 13:27:04 -0500 Schneider v. Rusk, the U.S. Supreme Court upheld a statute that provided that although an American male did not suffer loss of citizenship during his marriage to a foreign citizen, an American woman did.” Having reviewed Schneider, it appears that Ms. DeCrow intended to cite the much older case of Mackenzie v. Hare, 239 U.S. 299 (1915), cited by the Schneider dissent. In Mackenzie, the Court upheld the Citizenship Act of March 2, 1907, which provided that an American woman who married a foreigner took the nationality of her husband. The statute at issue in Schneider, on the other hand, applied to both sexes and provided that “[a] person who has become a national by naturalization shall lose his nationality by – (1) having a continuous presence for three years in the territory of a foreign state of which he was formally a national or in which the place of his birth is situated . . . .” Based on the fact that Ms. Schneider, a German national by birth who had become a naturalized U.S. citizen, had lived continuously for three years in her native Germany, the United States refused to issue her a passport based on this statute, and the district court agreed that Ms. Schneider had lost her citizenship. While it is true that Ms. Schneider was married to a German citizen, it is equally clear that the district court’s ruling was not predicated upon her marriage to a foreigner. Moreover, the Supreme Court reversed the district court on Fifth Amendment due process grounds, explaining that the statute proceeded “on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance to this country then do the native born.” Although the Supreme Court’s ruling that it was permissible for Congress to strip a woman of her citizenship based upon her marriage to a foreign citizen is certainly troubling, it is somewhat less shocking given it was rendered in 1915 and not in 1964. Cheryl Dunn Soto, Esq. OSBORNE & NESBITT LLP 501 West Broadway, Suite 1760 San Diego, California 92101 Phone: 619.557.0343 Fax: 619.557.0107 Email: csoto@onlawllp.com URL: www.onlawllp.com ]]> http://nysbar.com/blogs/barjournal/2010/04/re_the_opportunity_to_be_part.html http://nysbar.com/blogs/barjournal/2010/04/re_the_opportunity_to_be_part.html Letters to the Editor Thu, 15 Apr 2010 17:01:22 -0500 Jody Erdfarb, Jeffrey Galler and Judith Shub discuss the use of peer review panels in dental malpractice claims, as a first line of action before litigation. Do you see any way this could be adapted for medical malpractice claims? http://nysbar.com/blogs/barjournal/2010/03/marchapril_poll_question.html http://nysbar.com/blogs/barjournal/2010/03/marchapril_poll_question.html Wed, 31 Mar 2010 17:13:48 -0500 In this issue, Klein, Varon and Greenberg write about the “murky waters” of employment law with respect to employee termination. Do you believe that the current patchwork of laws is unfair to employers? http://nysbar.com/blogs/barjournal/2010/02/february_2010_poll_question.html http://nysbar.com/blogs/barjournal/2010/02/february_2010_poll_question.html Tue, 23 Feb 2010 10:32:17 -0500 See, e.g., anything on the Internet, or consult anyone with a passing familiarity with baseball. Really. This is basic stuff. Please try to do better. Sincerely yours, Arnon D. Siegel New York City]]> http://nysbar.com/blogs/barjournal/2010/02/burden_of_proof_january_2010.html http://nysbar.com/blogs/barjournal/2010/02/burden_of_proof_january_2010.html Fri, 05 Feb 2010 09:37:00 -0500 To the Editor of the New York State Bar Association Journal: In Judge Lebovits’s November/December 2009 “The Legal Writer” column he advised, “[a]ll capitals are ineffective.” They should never be used “regardless of the context” (citation omitted). Sensible enough. His advice, although offered in an article dedicated the etiquette of e-mail, echoed that previously given in his July/August 2009 column: “The uniform size of capital letters makes them indistinct; the reader will have difficulty processing the document.” This advice, in turn, cited to his May 2003 column, in which he explained capitalizing entire passages “common in point headings in briefs, makes briefs hard to read.” So why is it then that in his January 2010 column, “Getting to the Point: Pointers About Point Headings,” we are told, “Point headings in the table of contents and in the argument section are written in capital letters”? True, this tired advice undoubtedly can be found in numerous law school textbooks, which sometimes almost apologize for this annoying convention by exhorting students to keep dominant point headings short, because as written entirely in capital letters, they make for difficult reading. If the whole point of point headings is to “play a powerful role in persuasion” as Judge Lebovits writes, then absent some court rule, shouldn’t advocates who would like to persuade the court actually write point headings that are easy to read? Of course they should. The use of all capitals in point headings, like the liberal use of Latin phrases and legalese, may prove to the court that you’ve gone to law school, but it will not help you prove your client’s case. Matthew J. Walko Boston, Massachusetts http://nysbar.com/blogs/barjournal/2010/02/letter_to_the_editor_re_the_le.html http://nysbar.com/blogs/barjournal/2010/02/letter_to_the_editor_re_the_le.html Letters to the Editor Thu, 04 Feb 2010 16:28:25 -0500 Are you a solo or small firm practitioner? Are you considering becoming one? What is your primary motivation for doing so? What are your greatest fears? http://nysbar.com/blogs/barjournal/2010/01/january2010pollquestion.html http://nysbar.com/blogs/barjournal/2010/01/january2010pollquestion.html Journal Polls Wed, 13 Jan 2010 15:08:11 -0500 We received the following note from Bentley Kassal, the author of “Update: Did the Appellate Odds Change in 2008?”, which appeared in the November/December 2009 Journal on page 35. I have received calls about the percentage of motions of leave to appeal at the Court of Appeals in 2008. Here are the statistics: For 2008, the official court statistics disclose that the Court of Appeals granted 6.8% of the motions for leave to appeal in civil cases, which is down from 7% granted in 2007. The average time from return date to disposition for such applications in 2008 was 60 days, while in 2007 it was 62 days. Thank you, Bentley Kassal]]> http://nysbar.com/blogs/barjournal/2010/01/did_the_odds_change.html http://nysbar.com/blogs/barjournal/2010/01/did_the_odds_change.html Letter From the Editor Wed, 06 Jan 2010 13:36:33 -0500