Welcome to the October 2020 Issue of Electronically in Touch

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We are pleased to submit the October 2020 issue of Electronically in Touch. This issue consists of articles that touch on COVID-19 and the law. Articles include a piece from our NYSBA President, Scott Karson, on the "new normal" and missing human interaction; long-term care planning with trusts by Deidre M. Baker; what young lawyers need to know about student loans by Adrianna Anderson; and what lawyers need to know about the adoption of Microsoft Teams by NY Courts by Brandon Vogel.

This issue also includes our regular column, Why I Belong, which features NYSBA member, Rebecca Lee Mei Chen, Esq. along with COVID-19 legal resources and several upcoming events.

Electronically In Touch is a member driven publication. 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 inquiries and articles to Julie T. Houth at jhouth@gmail.com. Our publications will be changing in the near future. Look out for a revamped version of our publications next year!

We hope you all stay healthy and safe during these unprecedented times.

Technology Is Great but I Miss Human Interaction

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By Scott Karson, Esq.

When I declared my intention to run for president elect of the New York State Bar Association in 2018, it never crossed my mind that I might - if successful - assume the presidency two years later in the midst of a deadly pandemic that would wreak havoc upon the entire world and change the way we all conduct our business and our lives. Lawyers understand this as well as anyone, as it has become the norm for members of our profession to engage in virtual judicial proceedings, virtual meetings with clients and adversaries and all manner of virtual activities that were formerly conducted live and in person.

What started as a mere trend in the legal profession toward a greater reliance on electronic devices, the internet and novelties such as virtual meetings, e-courts and e-filing, has expanded exponentially. We were forced out of the familiar confines of our law offices into the law offices and courts of the future before many of us felt ready to do so.

NYSBA, too, was forced into a new normal. While our headquarters at One Elk Street in Albany was closed in the spring of 2020 during the worst of the pandemic in New York, the leadership and staff of the Association continued to work hard at the business of the Association. We found ways in which to serve our members remotely - 24/7 - with our new state-of-the-art website, important virtual meetings and programs on Zoom, and webinars and webcasts providing continuing legal education, current information and training to lawyers around the world.

However, while I am so very thankful that we have this great technology - and I don't know where any of us would be without it - I have concluded that Zoom, Skype and similar programs may not be the panacea that some may think they are.

Simply put, I miss live face-to-face human interaction. I miss all of you.

We have always touted networking as one of the most valuable benefits of bar association membership, yet networking seems to have been lost - or at least significantly diminished - in this era of technology. When you attend a live NYSBA event, not only are you presented with a highly informative (and sometimes entertaining) program, but you are also afforded the opportunity to meet with colleagues to discuss a point of law - or life in general - face-to-face. That kind of communication is not available in our current virtual reality.

As president-elect and chair of our House of Delegates, I was proud to have presided over NYSBA's first-ever virtual House meeting back in April 2020. It was an amazing accomplishment and achievement for the Association. The meeting attracted the largest number of delegates in the history of our Association to that point; reports and recommendations were presented and debated; motions were made and decided; votes were taken; and NYSBA policies were established. In short, the business of the Association continued unabated. Nevertheless, now I yearn to get back to the old-fashioned face-to-face House of Delegates meetings.

Since the pandemic struck, our Association's schedule of events has changed drastically. Many events that were previously held routinely every year like clockwork have been canceled, postponed, or changed from live to virtual. The future of many events remains fraught with uncertainty, requiring new and creative approaches. As president, I was very much looking forward to the privilege of attending and speaking at NYSBA section and committee events and local bar association events across the state. Additionally, I was anxious to spread NYSBA's message far and wide when traveling to the American Bar Association's Bar Leadership Institute and Annual Meeting in Chicago and the Mid-Atlantic Bar Conference in New Jersey. In fact, since taking office more than four months ago, all of these events were converted from live to virtual. I have had little opportunity to attend and speak at a live event: no programs; no award ceremonies; no conferences; no luncheons, dinners or receptions; no trips or destination events; the list goes on.

Even my installation as president on June 1, 2020 was also a NYSBA first in that it was held as a virtual event. I had been very much looking forward to that planned in-person celebration, with the oath of office to be administered by Chief Judge Janet DiFiore, and with my family, friends and colleagues in attendance. Alas, a traditional live installation was not meant to be. Chief Judge DiFiore administered the oath remotely, via Zoom, while I was in my home in Stony Brook, with my wife Joleen at my side. Don't get me wrong: it was a great honor to have been sworn into office by our state's Chief Judge under any circumstances - live or virtual - and I will always be grateful to her for participating in such an important event in my life. However, it was simply not the same as the live ceremony I had contemplated.

Likewise, my second installation ceremony which, following tradition, should have been held 13 days later at the House of Delegates meeting in Cooperstown, became a virtual event as well, with Senior Associate Judge Jenny Rivera administering the oath of office remotely via Zoom. Once again, I was deeply honored by Judge Rivera's participation, as well as her flattering remarks, but wouldn't it have been even more special had she delivered those remarks in my presence?

In my opinion, there are just certain things that are not well-suited for Zoom. Both of my installation speeches were delivered from my house with only one person (my wife) present. Normally when you make a speech, you can interact with and gauge how your audience is reacting. You hope to hear applause when they agree with you and you feed off of that energy. But when you neither see nor hear the people to whom you are speaking, it's an entirely different - and somewhat unsettling - experience.

I was also excitedly looking forward to our 2021 Annual Meeting in New York City, including the NYSBA annual gala, which we had already booked to be held "beneath the whale" at the American Museum of Natural History - the venue for the 2020 gala - in late January 2021. It is fair to say that the Annual Meeting is the highlight of a NYSBA president's term. It is a one-week whirlwind of activity with the president involved morning, noon and night. Make no mistake, we will still make the absolute best of our virtual 2021 Annual Meeting, but from a president's perspective, I'd be less than candid if I said I wasn't disappointed to not be able to spend the week at the New York Hilton interacting with our membership in person.

Four months into my term, there have been far too few instances where I was actually involved in live face-to-face interaction with others.

First, in August 2020, NYSBA's officers, including President Elect T. Andrew Brown, Secretary Sherry Levin Wallach, Treasurer Domenick Napoletano and Immediate Past President Hank Greenberg, joined me, along with members of NYSBA's senior staff, for a socially distant strategic planning retreat in Cooperstown.

Second, on September 21, 2020, I had the privilege of appearing at Court of Appeals Hall in Albany in connection with the Chief Judge's 2020 Hearing on Civil Legal Services in New York. The hearing panel included Chief Judge Janet DiFiore, Chief Administrative Judge Lawrence K. Marks, Presiding Justice Rolando T. Acosta of the Appellate Division, First Department, Presiding Justice Alan D. Scheinkman of the Appellate Division, Second Department, Presiding Justice Elizabeth A. Garry of the Appellate Division, Third Department, Presiding Justice Gerald J. Whalen of the Appellate Division, Fourth Department and, of course, your President.

I am hopeful that these two events are just a start and that I can join our members at future live NYSBA events before my term as president is completed, but we are far from saying with any certainty when or where those live events might take place.

In the meantime, I want all of our members to rest assured knowing that even though you're not seeing me in person on a regular basis, my fellow NYSBA officers, our dedicated and talented staff and I have been hard at work advocating for the profession on your behalf and providing the high level of service you have come to expect from the Association. Our world has changed dramatically this year, but the leadership and service provided by NYSBA has not.

Of course, I continue to remain just an email, phone call or Zoom conference away. As always, be well and stay safe.

Scott M. Karson is the President of the New York State Bar Association. Scott is the fourth NYSBA President to have previously served as President of the Suffolk County Bar Association (the others being Bernard J. Reilly, John P. Bracken and Joshua M. Pruzansky). Scott served as President of the SCBA in 2004-05. He is a Partner at Lamb & Barnosky, LLP.

Long-Term Care Planning with Trusts

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By Deidre M. Baker, Esq.

As people continue to enjoy longer life expectancies, the financial burden of paying for long-term care has become enormous. In light of the potentially staggering cost of this type of care, irrevocable trusts have become an increasingly popular vehicle to protect assets. While the word "irrevocable" often makes clients leery, for many, the benefits of this estate planning tool far exceeds the downside.

When reviewing assets with a client concerned about the expense of long-term care, a client's most valuable asset is commonly his or her primary residence. Clients are often understandably anxious about what happens to his or her home in the event long-term care, such as nursing home care, is required in the future. Depending on the age and health of the client, an irrevocable trust may be a great vehicle for protecting the value of the property in the event the client requires community home care or nursing home care and wants to obtain Medicaid benefits to finance such care.

The Medicaid Program

The Deficit Reduction Act of 2005 ("DRA") 1, enacted in 2006, is a federal law implanted in the states, which made considerable changes to New York State's Medicaid program, specifically to the transfer penalty rules for nursing home coverage. The law increased the "look-back" period for nursing home Medicaid eligibility from three years to five years. 2 The DRA also changed how the penalty period itself is imposed. Prior to the law's enactment in 2006, the penalty period was calculated based on when the transfer was made, meaning the day a non-exempt transfer was made, the clock would begin to run. Under the DRA the penalty period for transfers made after 2006 does not begin to run until the applicant is in the nursing home, is otherwise eligible for Medicaid (below the asset limit), and has submitted an application for Medicaid.

Individuals seeking nursing home Medicaid coverage must work with the five year look-back imposed by the DRA for transfers of assets by the applicant or the applicant's spouse. 3 New York State's 2020 budget also made significant changes to the community or home care Medicaid program. Traditionally, the home care Medicaid program did not impose any look-back period or penalty for individuals seeking community-based services. The changes to the home care Medicaid program are expected to go into effect on October 1, 2020. Now more than ever it is important to speak with clients about the need to protect assets and plan for the future.

Unless the transfer of assets meets one of the Medicaid exemptions, the value of the uncompensated transfer or gift will be used to calculate a penalty period. A penalty period is a number of months where the applicant will be ineligible for Medicaid coverage and is responsible for privately paying for services. The penalty period is calculated by combining all of the non-exempt transfers that occurred within the applicable look-back period, and dividing the resulting total by the "regional rate" where services are sought. For example, a nursing home resident in Nassau County seeking services in 2020 would be $13,407 as the divisor when calculating a penalty period.4 While the new regulations have not yet gone into effect, it appears the same regional rates will be used when calculating penalty periods for transfers made within two and a half years of a community Medicaid application. 5

Even with the passage of the DRA, exemptions remain. When applicable, these exemptions allow for greater flexibility in shielding assets. The most commonly used exemption allows unlimited transfers to the applicant's spouse, or to another for the sole benefit of the individual's spouse. Although used less frequently, a transfer made exclusively for a purpose other than to qualify for Medicaid nursing home coverage is also exempt. This exemption is useful when an applicant is in need of care suddenly and had previously made non-exempt transfers.6

When utilizing the spousal transfer exemption, another important tool to consider is the spousal refusal. A spousal refusal is a legally valid Medicaid planning tool in New York. It is designed to ensure that the non-applying or community spouse is not impoverished as the result of his or her spouse's need for long-term care. A spousal refusal is completed by the community spouse and states he or she is refusing to make his or her income and assets available for the applicant spouse's care. At the time of the application, as long as the applicant spouse's countable resources are below the individual Medicaid asset level ($15,750 in 2020), he or she will be financially eligible for Medicaid. Any excess resources must be transferred to the community spouse during the month prior to the application.

Once the Medicaid recipient is approved and receiving care, some practitioners may believe the job is done. However, the final component to consider for a Medicaid recipient and his or her family is estate recovery. The federal government, the purse strings behind every state's Medicaid program, has a policy that requires the states to attempt to recover the costs paid on behalf of the Medicaid recipient. While estate recovery is deferred during the lifetime of the applicant's surviving spouse and minor or disabled children, it is important to plan to ensure assets remain protected.

As the New York Department of Health explains, the state can attempt to recover from the estate of a Medicaid recipient, up to the amount spent on care. The estate, for purposes of Medicaid estate recovery, includes real property and personal property. It includes assets passed via a will, assets passed under intestacy law, and all "other assets in which the decedent had any legal title or interest at the time of death." This includes assets which were conveyed to an heir through joint tenancy or through other forms of shared ownership.7

Medicaid Asset Protection Trusts

When meeting with a client who owns real property and has concerns about the cost of long-term care, an experienced elder law attorney will generally advise the client about the benefits of an irrevocable trustcalled the Medicaid Asset Protection Trust ("MAPT"). The MAPT is particularly useful in protecting a client's primary residence and other real property. It can also be used to protect other assets, making the MAPT an attractive option for clients whose home is their largest or most valuable asset.

A trust is a legal document between three main parties. The grantor is the person who establishes and funds the trust. The trustee is the person who is tasked with following the directives contained in the trust, managing the trust property, and administering the trust at its conclusion. The beneficiaries inherit the trust property at the death of the grantor or at some other pre-determined event outlined in the trust. In order for a MAPT to be effective in having the trust assets disregarded by Medicaid, some person other than the grantor must serve as trustee. This requirement, partly, ensures Medicaid cannot argue the grantor has control over or access to the trust assets.

It is important to note transfers to an irrevocable trust will result in a penalty period if made within five years of either spouse needing nursing home Medicaid and within two and a half years of either spouse needing community Medicaid. This is why irrevocable trusts are a planning tool most appropriate for clients who are healthy enough to have a reasonable belief that they will not require either skilled nursing care within five years or home care within two and a half years of creating and funding the trust.

For Medicaid purposes, the Department of Social Services is entitled to count any income or principal as available to the applicant-grantor that the trustee has the discretion to distribute to the grantor or use for his or her benefit. 8 Therefore, to ensure the principal of the trust is unavailable for Medicaid purposes, a properly drafted MAPT must include clear language that the principal of the trust shall not be distributed directly to the grantor or used for his or her benefit. If the trust requires the distribution of income to be payable to the grantor, the income can be treated as an available asset if not actually distributed to the Grantor for eligibility purposes.

Once the MAPT has been properly drafted and executed, it must be funded by re-titling assets. If this crucial step is ignored or performed incompletely, the trust will not achieve its intended goal of protecting assets from Medicaid. In order to re-title real property in the name of the trust, a new deed and recording documents must be signed by the grantor and the trustees. Once the transfers have been completed, the "clock" begins to run in the event the Grantor or the Grantor's spouse require long-term care. If the applicable amount of time passes (five years for nursing home Medicaid and two and a half years for home care Medicaid), the trust assets will be deemed unavailable by Medicaid.

Other Important Benefits to Irrevocable Trusts

While protecting assets from the potential cost of long-term care is an important benefit, it is not the only one enjoyed by clients when they utilize an irrevocable trust as part of an estate plan.

A properly drafted MAPT commonly includes a provision creating a right to reside in the property for the remainder of the grantor's life, also known as a right to use and occupy the premises. This protects the grantor's right to remain the property, collect any rental income, and have a veto power against the unwanted sale of the property. The grantor continues to benefit from any homestead property tax exemptions he or he is entitled to, such as veterans' or School Tax Relief ("STAR") 9 exemptions. When the grantor retains a power of appointment in the trust, the transfer into the trust is deemed to be "incomplete" for tax purposes. The incomplete trust means the trust property qualifies for a step-up in basis at the grantor's death. 10 The step-up basis can result in the trust beneficiaries avoiding significant capital gains tax liability when the trust assets are sold or distributed after the grantor's death.

Like most trusts, a MAPT not only provides for the management of assets during the lifetime of the grantor, it also distributes the trust assets to the named beneficiaries at the grantor's death, without the necessity for probate. Avoiding probate means the trust assets are administered based on the directions laid out in the trust, and not under a will, which requires the supervision of the Court. The trustee also has immediate access to the assets, rather than waiting for court approval to make distributions.

Irrevocable Trust Advantages in Comparison to Other Changes in Title

It is important to note there are other changes to the title of a piece of real property that can be made in order to achieve some of the benefits discussed above.

If a client's goal is avoiding probate shielding an asset from creditors, one option is an outright gift of the property to another person. The client could also add a second individual as a joint owner. An estate planning attorney frequently hears that a client wants to "give my house to my children". While this seems like a desirable option, it has several drawbacks. First, unlike property held in trust, an outright gift to an individual renders the property available to creditors through bankruptcy and foreclosure, as well as during divorce proceedings. Second, unlike property held in trust, if a primary residence is gifted outright, when the new owner or "donee" later sells the property, the appreciated value would be subject to capital gains tax. Third, the new owner can also attempt to sell the property over the objection of the original owner, despite not having to make any financial contribution to the property. These issues can be avoided by transferring the property into a MAPT, affording the grantor more control and protection.

Alternatively, probate is avoided by transferring property to individual while reserving a life estate for the grantor. A life estate is created when the grantor transferrs his or her ownership interest to another person by deed with language indicating lifetime ownership in the property. At the death of the grantor, his or her life estate extinguishes and the "remainderman" owns the property outright, avoiding probate and capital gains taxes. While this may be more attractive than an outright transfer, it can still present issues for the Medicaid applicant. First, if the property is sold during the life of the Medicaid recipient, his or her life estate has a numerical value, which will be treated as an available asset for Medicaid purposes. This will likely result in a period of ineligibility. In this scenario, the remainderman will likely be responsible for paying capital gains tax on his or her portion of the proceeds unless they qualify for the $250,000 exemption by residing in the property for 2 of the 5 years immediately preceding the sale. 11 Second, the remainderman can sell the property or mortgage it, over the objection of the grantor. Third, as discussed above, the life circumstances of the remainderman still render the property vulnerable in the event of a creditor or lawsuit.

While not an option for all families due to timing, cost, or other factors, irrevocable trusts remain an important tool for Medicaid qualification and asset protection. They allow clients to have the government pay for medical care, home health aides, and nursing homes. A Medicaid trust is a valuable tool that helps protect assets and allows clients to leave those assets for the next generation.

Deidre M. Baker is an associate attorney with Makofsky Law Group, P.C., located in Garden City, New York. The firm concentrates its practice on trusts, estates and Medicaid planning, Medicaid applications, guardianships, and estate administration. The attorneys can be reached at (516) 228-6522.

1. (Pub.L. 109-171, S. 1932, 120 Stat. 4, enacted February 8, 2006).

2. 06 OMM/ADM-5; Deficit Reduction Act of 2005 - Long-Term Care Medicaid Eligibility Changes.

3. 42 U.S.C. §1396(p); Social Services Law §366; 18 N.Y.C.R.R. 360-4.6; O6 OMM/ADM-5.

4. GIS 19 MA/01, GIS 19 MA/06, GIS 19 MA/12.

5. Social Services Law §366 subd. 5(e)(S).

6. 1996-ADM-08; OBRA '93 Provisions on Transfers and Trusts.

7. 02 OMM/ADM-3; Medicaid Liens and Recoveries.

8. 18 NYCRR § 360-4.5 (b)(1)(ii).

9. Real Property Tax Law § 425.

10. 26 U.S. Code § 1014(a).

11. See 26 U.S. Code § 121.

Student Loans: What Young Lawyers Need to Know

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By Adrianna Anderson, Esq.

A State of Crisis

New Yorkers owe more than $90 billion in student loan debt. Despite leaving school with higher starting salaries than most professions, lawyers have not been exempted from the student loan crisis. Today, law students graduate with an average of $145,500 in student loans, with interest rates often double those of mortgage rates. When it is more expensive to pay for your education than it is to buy a house, it is not surprising that many young lawyers are struggling to keep up with their student loan payments. The economic crisis caused by the pandemic has furthered the burden borrowers are facing, including many young lawyers.

This past January, a New York law graduate made national headlines for receiving a discharge of more than $220,000 of student loan debt in bankruptcy. Why was this decision in In re Rosenberg so surprising? Well, historically, student loans have been extremely difficult to discharge in bankruptcy. To discharge student loans in bankruptcy you have to show that repaying the debt will impose an "undue hardship" on you and your household. There are different tests for "undue hardship" depending on the jurisdiction where you file. New York bankruptcy courts follow the most common of these tests -- the Brunner test. Under the Brunner test, you have to show that 1) your income will not allow you to meet a "minimal" standard of living, 2) this situation is likely to continue for a significant portion of your loan repayment period, and 3) you have made good faith efforts to repay the loans. While this does not seem like such a high standard for most struggling borrowers to meet, many courts have interpreted this rule in such a way that makes it extremely complicated for the majority of borrowers to satisfy. Under these interpretations, if you are still working and eligible for income-based repayment plans, it could be very difficult to convince a judge to discharge your student loans.

The decision in In re Rosenberg may help reset the harsh interpretation of the Brunner test to allow for more borrowers to qualify for bankruptcy relief. It is encouraging to note that Chief Judge Morris, who in writing the decision declined to allow the Court to perpetuate the "myth" that student loans were not dischargeable in bankruptcy, has continued to show the Court's support for providing assistance to borrowers by announcing a new court-supervised mediation program to help borrowers resolve their student loan disputes. Unsurprisingly, the In re Rosenberg decision is currently being appealed by the student loan servicer. While we await the outcome of the appeal, it is important to go over ways young lawyers and law graduates can manage their student loan debt successfully, especially given that relief for borrowers under the CARES Act is about to sunset.

COVID-19 & Student Loans

The COVID-19 pandemic has been devastating for borrowers struggling with student loan debt. Borrowers with federal loans received some relief, but for the majority of private student loan borrowers, there was little to no relief offered. The relief under the federal CARES Act suspending repayment of most federal student loans has been extended through December 31, 2020. There is not any current plan to extend that relief beyond the end of the year. Although this may change, borrowers should take steps now to prepare for repayment in the new year.

New York Borrowers & Student Loan Rights

Figuring out where to start with repayment options can be daunting. In response to the growing student loan crisis, New York passed the Student Loan Servicing Act in 2019, which among other things, established the New York Student Loan Borrower Bill of Rights.

Under this law, every student loan borrower in New York has the right to:

1. Detailed financial aid award letters from schools in New York.
2. Clear, accurate, and complete information about your loan terms.
3. Information about any available loan repayment plans and options.
4. Information about any available discharge, forgiveness, and cancellation options.
5. Loan payments applied to your account in ways that most benefit you.
6. Knowledgeable customer service representatives who treat you respectfully and fairly.
7. Detailed loan account histories that are easily and securely accessible online.
8. Seamless transfers if your loan is serviced by a new company.
9. Accurate payment history reporting to credit agencies.
10. Responses to complaints you make to your servicer.

These rights may seem to be obvious, but the student loan servicing industry has not excelled at helping borrowers, despite being mandated to do so. Some loan servicers have even nefariously steered borrowers into higher-cost repayment plans to boost profits, ignoring what is best for the borrower. This new law gives authority to the New York State Department of Financial Services to take action against loan servicers who violate these rights. The Department of Financial Services is also taking steps to make sure borrowers know their student loan rights due to COVID-19. With strengthened State enforcement and education on student loan issues, New Yorkers are in an increasingly better position to take control of their loans.

Managing Repayment

If you are a recent graduate, take advantage of any exit-counseling your school may offer regarding your student loan liability. Many programs offer one-on-one counseling with professionals who can talk to you about your salary prospects and financial goals to help you make decisions about your repayment options. If you don't already know, find out what different loans you have, who your servicer is, and what your standard repayment is going to be once the grace period expires (usually 6 months after graduation for federal loans).

Your federal student loans will automatically be put into a standard repayment plan by your loan servicer. These payment amounts are based on paying your entire balance off in 10 years. If you cannot afford that payment amount, you may want to look into other repayment plans that allow you to pay off your balance over a longer period of time. If you are seeking Public Service Loan Forgiveness, you will need to be in an income-driven repayment plan to qualify.

Income-driven Repayment Options

There are several different income-driven repayment programs offered by the Department of Education for managing your federal loans. Each of these programs have different eligibility requirements and calculations for coming up with your monthly payment. Depending on your circumstances, you may pay more per month under the IBR (Income-Based Repayment) program than you would under the REPAYE (Revised Pay As You Earn) program. There are a number of factors to consider when deciding which repayment plan is right for you. For example, if you are married and your spouse does not have student loans, depending on your spouse's income, you may only be eligible for IBR, as this is the only program that does not count a spouse's income so long as you file your taxes separately. While it is true that all of these program requirements are complicated, even for lawyers, remember that your loan servicer is required by law to assist you. You can also find detailed information, including a tool to help you figure out which repayment option is best for you, on the Department of Education's website at www.studentaid.gov.

If you are currently in an income-driven repayment plan, it may be a good idea to recertify your plan now, especially if your income has dropped significantly since your last recertification. Generally, you recertify your income-driven repayment plan each year, but due to COVID-19, the recertification period has been extended through the end of 2021.

Public Service Loan Forgiveness

If you work full-time in the public interest field, you may be eligible to have your federal student loans forgiven after making 10 years of qualifying payments. These payments do not have to be made consecutively, so if you leave the public sector for a brief period, you may still be eligible to have your loans forgiven later. The Public Service Loan Forgiveness program has received an onslaught of criticism recently, as the first round of borrowers eligible for forgiveness last year were rejected at a rate of 99%. This is an extremely upsetting figure, which has cast a large shadow over a program many legal aid and government lawyers relied on to make their careers economically feasible. The Department of Education has attempted to brush off these horrific rejection numbers by claiming that many of the borrowers rejected for forgiveness just simply did not meet the basic requirements of the program. Despite the lack of assistance available to borrowers in the early days of the program and the troubling aspects of how servicers are handling Public Service Loan Forgiveness applications, there are steps you can take now to help ensure your application will be approved.

Step One: Make sure your employer qualifies for the program. This includes: Federal, State, local, and tribal governments; AmeriCorps; Peace Corps; (501)(c)(3) nonprofit organizations; and other nonprofit organizations that meet specific public service requirements.

Step Two: Make sure your loans are eligible for the program. Unfortunately, only Direct Loans are eligible for Public Service Loan Forgiveness. Perkins Loans and private loans are not eligible. If you don't have Direct Loans, you may be able to consolidate your loans into Direct Consolidation Loans to qualify. If you do this, your qualifying payment clock restarts and any payments you made previously will not count toward Public Service Loan Forgiveness.

Step Three: Make sure you are in an eligible repayment plan. In order to qualify for Public Service Loan Forgiveness you must be enrolled in a qualifying income-driven repayment plan, such as REPAYE, PAYE, IBR, or ICR. If you are not in an eligible repayment plan, contact your loan servicer to switch. You will need to recertify your repayment plan each year in order to continue to be eligible for the program. Due to COVID-19, the recertification period has been extended an additional year, but it still is a good idea to recertify this year.

Step Four: Make sure your payments qualify. Again, all payments must be made under a qualifying repayment plan while working full-time for an eligible employer. Each year when you recertify your repayment plan, it is a good idea to also complete an employment certification form available from your loan servicer. This form, filled out by you and your employer, is submitted along with copies of your pay stubs to show that you have been working full-time in an eligible position.

After you submit this form, you will receive a letter from your loan servicer letting you know how many of your payments qualify toward Public Service Loan Forgiveness and how many left you have to make to submit your application for Forgiveness. If you have any problems with what your loan servicer has counted, you can file a complaint with the Department of Financial Services. Payments must be made timely. Any payments made 15 days later than your monthly due date will not count toward Public Service Loan Forgiveness. Additionally, only payments on loans made after October 1, 2007 will count toward Public Service Loan Forgiveness. Payments do not have to be consecutive to count toward Public Service Loan Forgiveness. During the COVID-19 payment suspension, those months of suspended payments will still count toward Public Service Loan Forgiveness, so long as you meet the other requirements.

You must make 120 total eligible payments (10 years of payments) in order to get your loans forgiven. Once you have made your 120 eligible payments, you can submit your application for Public Service Loan Forgiveness. If you are rejected, you may also be eligible for Temporary Expanded Public Service Loan Forgiveness, a program created by the Department of Education to help a limited number of borrowers who were not in a qualifying repayment plan while they were making their 10 years of payments. Any amount that is forgiven is not considered taxable income.

Visit the Department of Education's website to use the PSLF Tool 1 and find out more information about your eligibility for the program.

Be Wary of Refinancing Student Loans & Other Debt Relief Options

Be wary of refinancing federal student loans with private lenders and debt relief companies. Nearly every article you will read today in business journals and news blogs will tell you that your best option for paying off your student loans and reducing your payments is to refinance. On its face, refinancing your loans to get a lower interest rate and reduce the amount you pay each month and overall, sounds like the dream; however, in refinancing your federal student loans with private lenders means you are actually giving up a lot of protections that could help you

Problems with Student Loans & Repayment

There is no way that one short article on student loans could cover all the problems that borrowers are facing today, but there are a number of free resources available to help you navigate these issues. If you are in default or have other problems managing your student loans, speak to a certified non-profit student loan counselor to determine your options for resolving your issues. You can also visit the Department of Financial Services website at www.dfs.ny.gov for more information on managing your student loans during COVID-19 and beyond.

If you need more advice about your specific loan situation, contact the EDCAP counselors and lawyers at the Community Service Society. EDCAP was created to help New Yorkers navigate the student loan repayment system and regain financial health. Assistance is free and confidential. Visit www.edcapny.org to request further review of your student loan situation.

Adrianna Anderson is a Supervising Attorney at LawNY, where she represents low-income individuals in consumer protection matters across 14 counties of Western New York. Through her work at LawNY, she advocates for borrowers dealing with a variety of student loan problems, including issues related to default and repayment, discharge and forgiveness applications, and private student loan collection.

1. https://studentaid.gov/articles/using-the-pslf-help-tool/

By Brandon Vogel

The New York State court system announced on Monday it will be switching to Microsoft Teams from Skype for Business. Using all of the functionality of Skype, Teams is a collaborative tool that combines chat functionality, video meetings and file sharing. Although familiar, there are some upgrades.

Teams launched in March 2017 and has been Microsoft's fastest-growing app with more than 75 million daily active users. The court system just announced it is transitioning to Teams over the next two months. Here's what you need to know to prepare.

Do I need a Teams account?

You can send a Teams invitation to any email address, even if it's not licensed to Microsoft Office 365. However, check your settings to ensure anonymous users can join your meeting.

What do I need to participate?

You will need a computer with internet access and either a webcam or a microphone (built-in or USB headset). You can also participate using your smartphone.

What if I have a Mac?

As long as you have downloaded the Microsoft Teams app, it doesn't matter if you are on a Mac and the other party is on Windows.

Can I really use my smartphone?

Yes. With the app, you can access all of your contacts, conversations, and meetings at anytime. To use the app continuously, you must have a paid Office 365 or Microsoft 365 commercial subscription.

Will it work on my virtual private network (VPN)?

Microsoft Teams will work through your virtual private network. However, Teams is a cloud-based application and performs best when not connected to a VPN.

Can I just phone in?

Yes, but it is better to have a video connection to see all the parties when possible.

Are my communications secure?

Communications in Teams are encrypted.

What about recording?

Users can record their Teams meetings and group calls to capture audio, video and screen shares. Most are automatically uploaded to Microsoft Teams. A1 users' meeting recordings will only be available for 21 days.

Can I invite other parties to a Teams meeting?

You can use the Invite people box when you schedule a meeting. You can also invite more participants if the meeting has already started.

Are there breakout rooms like in Zoom?

Per Microsoft, it should be unveiled in late 2020, although it is being previewed. Breakout rooms will allow a lawyer to confer privately with a client during a meeting. Only the meeting organizer will see the Breakout Room icon, once unveiled.

Breakout rooms are not a current feature in Skype for Business.

Resources for COVID-19

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American Bar Association COVID-19 Resources:

Continually updated tools and resources to help move your practice and the legal profession forward during COVID-19 and beyond

COVID-19 Response

The ABA Coronavirus (COVID-19) Task Force webpage is intended as a national source of information about the coronavirus (COVID-19) and the delivery of legal services. Click here to access specific resources: https://www.americanbar.org/advocacy/the-aba-task-force-on-legal-needs-arising-out-of-the-2020-pandem/

Practice Forward

Practical tools and resources to support and advance the practice of law and the judicial system amid potential long-term changes due to COVID-19. Click here to access specific resources: https://www.americanbar.org/initiatives/practice-forward/

New York State Bar Association Coronavirus (COVID-19) Information Center

For the latest news on COVID-19, New York State Executive Orders, COVID-19 Pro bono Network, quick links to courts, government resources, other legal resources, and small business resources, and more, click here: https://nysba.org/covid-19-information-updates/

Why I Belong

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If you'd like to be featured in our upcoming issues, please email our editor in chief, Julie T. Houth at jhouth@gmail.com.

Name: Rebecca Lee Mei Chen

Firm: Lee & Lee (Singapore), and then National Oilwell Varco (United States, Texas, Houston)

Education (undergrad and Law School): LLB in University of Durham, UK, and LLM in International Law

Areas of practice: Corporate Law (e.g. Mergers and Acquisitions, Private Equity, Debt and Capital Markets, etc), and International Law (Sanctions, Regulatory, International Contracts, etc)

Proudest career moment: When I was a first year in my law firm, I was part of a team that had to handle a very high profile Initial Public Offering under expedited timelines. As most of my seniors were tied up with other matters and there were a lot of moving pieces, I ended up having to run the project towards the end of the project. Even though it was extremely stressful, and I had many sleepless nights, I am proud to say that I handled it well enough to get noticed and complimented by my head of department subsequently.

Family: The most important thing to me in the world.

Birthplace: Singapore.

Current area of residence: Houston, Texas.

"If I weren't an attorney, I'd be..." ...an author.

"The best thing about being an attorney is..." ...knowing the law and how to protect myself and my loved ones."

Last vacation: Hawaii!

Favorite Web site: It changes all the time.

Hobbies: Dancing, Lagree, Singing, Sports.

Favorite book: TOO many! Recently, I have been reading up on stories of women and the holocaust. The last two books I read on these topics were "A woman is no man" and "We were the lucky ones" respectively.

Best concert you've ever been to: Taylor Swift's Red concert.

Favorite food: Authentic Fried Rice.

Most fun/memorable NYSBA moment or meeting: The NYBSA meeting in Austin in February this year pre Covid-19! I met so many interesting people and attended very informative talks.

Do you have a unique skill or special talent nobody knows about? Does being able to hold a plank for 4 minutes count?

What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Thoroughly analyzing situations. Take the time and make the effort to understand the situation and think through the possibilities. It may be tedious at first, but your diligence and persistence will be rewarded later.

Do you have a mentor? I have the privilege of having many mentors, who have all contributed in different ways in my journey as a lawyer.

What would you most like to be known for? For being an excellent, competent lawyer, and someone who makes a difference in people's lives.

What makes the New York State Bar Association so special/unique? It is made up of such a diverse group of lawyers who each bring different and unique perspectives to the table.

COVID-19 Questions:

Any new hobby or skill that you developed during the lockdown? I have definitely honed my cooking skills and gotten in touch with my gaming side (cue: Nintendo Switch).

What is one thing that you will take out of this lockdown and implement in your life? That no one can predict the future, and plans change all the time. This has taught me the importance of being adaptable and has reinforced the adage that "We can make our plans, but the Lord determines our steps."

Career advice for young lawyers? Your career is a marathon, not a race. Lay a good foundation, build good habits, find your strengths and leverage it. Be strict with yourself, but also be kind to yourself. Skills take time to develop, and every trait can be a skill, if you know how to use and develop it.

Evidence: Introduction Of Exhibits - NYSBA Trial Academy Virtual Conference (Webinar)

What are exhibits?

Exhibits are anything other than testimony that can be perceived by the senses and presented at the trial or hearing. Exhibits include:

• Real evidence -- items you can hold in your hand, such as clothing, weapons, broken shovels etc.

• Demonstrative evidence -- evidence that represents or illustrates the real thing such as photos, videos, diagrams, maps, charts

• Records -- government or business writings or records, business record exception, hospital records, police reports, payment records

• Writings -- evidence other than records that are in writing such as letters, receipts, contracts, promissory notes

What does "laying a proper foundation" mean?

Foundations: Before an exhibit can be offered into evidence in court, a proper foundation must be set forth. We will show the four types of exhibits and how to introduce each properly into evidence.

Start Date: November 6, 2020

Start Time: 2:00 PM

End Time: 4:00 PM

Areas Of Professional Practice Credit(s): 1.0

Total Credit(s): 1.0

Region: Virtual Participation

Registration and more information here: https://nysba.org/events/evidence-introduction-of-exhibits-nysba-trial-academy-virtual-conference-webinar/

Law School's Over: What's Next? A Conversation On Preparing For The Practice Of Law

NYSBA's Women in Law Section is hosting candid conversations for recent law school graduates on launching their careers and preparing to practice law in a pandemic.

The women and men of the Women in Law Section will facilitate a wide-ranging discussion about the various career paths available to law graduates, choosing an area of legal practice, best practice tips on networking, perspectives from interviewers on effective interviews, as well as what you can do now to prepare for your first post-grad job. Graduates with a wide range of interests - whether it be to work at a law firm, in the public sector, J.D. advantage, in-house or clerkships - are all encouraged to register. Feel free to submit questions in advance to redlisky@randrlegal.com for us to address.

This program is co-sponsored by the Young Lawyers Section. It's free!

Start Date: November 12, 2020

Start Time: 5:30 PM

End Time: 6:30 PM

Region: Virtual Participation

Registration and more information here: https://nysba.org/events/law-schools-over-whats-next-a-conversation-on-preparing-for-the-practice-of-law-2/

Critical Career Skills For Lawyers Series: Building Your Professional/Personal Brand

This program is free for NYSBA members!

Critical Career Skills for Lawyers Series
Topic One: Building your Professional/Personal Brand

This is an interactive program covering critical skills, practical tips and exercises to help you:

- sample topics

- expand your network

- build and promote your professional brand

- how to build a book of business

- use LinkedIn for business development

- beyond the old boys club: new ways of networking online, on social media,....

- networking is fun - seriously!

Start Date: November 18, 2020

Start Time: 6:00 PM

End Time: 7:00 PM

Region: Virtual Participation

NOTE: Free for members!

Registration and more information here: https://nysba.org/events/critical-career-skills-for-lawyers-series-building-your-professional-personal-brand/

American Bar Association Young Lawyers Division - Free CLE Library!

The ABA YLD has a vast CLE library and it's free for ABA YLD members! Get your CLEs completed during these unprecedented times.

Find the CLE library here: https://www.americanbar.org/groups/young_lawyers/resources/

2021 NYSBA Trial Academy - SAVE THE DATE!

Attend the revitalized 2021 NYSBA Trial Academy, a five-day trial techniques program, for a career changing experience:

-Work with your small group Team Leader to learn critical trial skills
-Attend daily lectures given by distinguished trial attorneys and judges
-Benefit from one-on-one critiques of your performance
-Gain mentors for your professional life, and become part of the invaluable Trial Academy community

In addition to this live program, you will receive access to all 13 webinars detailing virtual trial techniques that you won't find anywhere else. Attend them live or watch the recorded version before the live program in March, 2021.The virtual series includes topics from Expert Testimony to Handling a Virtual Hearing and everything in between.

This is a must-attend event for attorneys navigating the new virtual court system.

Start Date: March 13, 2021

End Date: March 17, 2021

Start Time: 9:00 AM

End Time: 5:00 PM

Areas Of Professional Practice Credit(s): 35.5

Ethics and Professionalism Credit(s): 2.00

Total Credit(s): 37.5

Region: Syracuse

Member Pricing: $1,195.00

Non-Member Pricing: $1,595.00

Registration and more information here: https://nysba.org/events/2021-nysba-trial-academy/


The Young Lawyers Section is proud to sponsor the 2021 admissions program to the United States Supreme Court. You do not need to be a member of the Young Lawyers Section to participate.

The ceremony for admission to the United States Supreme Court is scheduled for Monday, May 3, 2021. Our last Supreme Court admissions program was well-received and filled up very quickly. Save the date for this exciting event. More information will be available in spring 2020.

For more information please contact Tiffany Bardwell at tbardwell@nysba.org.

For a comprehensive list of all NYSBA YLS Events, go here: https://nysba.org/committees/young-lawyers-section/

Join the Young Lawyers Section

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Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.


Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at ajasiewicz@nysba.org and indicate the committees you wish to join. The Young Lawyers Section has the following committees:

  • Executive Committee
  • Communications Committee
  • Community Service and Pro Bono Committee
  • Diversity Committee
  • Law Student Development Committee
  • Long-Range Planning Committee
  • Membership Committee
  • Mentoring Committee
  • Nominating Committee
  • Perspective Editorial Board


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The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not necessarily represent the thoughts and opinions of the authors' employers or clients, the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

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