December 2008 Archives

Law.com: M-H to Keep Ratings

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Law.com reports "LexisNexis Group's Martindale-Hubbell has no
plans to abandon its lawyer ratings, the company insisted in
response to blog postings about its layoff of attorney rating
specialists." For the full story, see here.

NYSBACommittees: Committee on Lawyers in Transition

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The Special Committee on Lawyers in Transition has been approved by the Executive Committee of the State Bar as a Standing Committee. We are reaching out to you to ask if you would like to become a member of the Committee. As many of you know, the Committee has been actively involved in assisting lawyers who are returning to the profession after an absence- male and female. We have a website with links to many interesting articles, programs for returning lawyers and job opportunities. We have also provided programming for lawyers to help them brush up on dormant skills, write resumes, interview and network and we are working on providing more of these programs for returning lawyers as well as law students and potential employers.

Now that many lawyers have become lawyers in transition, not by choice, we are in the process of creating a "resource center" which will provide more services for Bar members, outreach, programs, and even assistance with job searches. We will be creating a blog, and we have already had volunteers from the private and public sector who are anxious to contribute.

There is a lot of work to be done and also a great opportunity to do your own networking — whether you need assistance or can offer it.

If you would like to become a member of the Committee on Lawyers in Transition and help us with these important and what we think will be "cutting edge" initiatives, please contact Kathy Suchocki at ksuchocki@nysba.org and provide her with your contact information. It is my plan to have a meeting right after the new year to start working on these exciting projects and we need your help!

Best regards,
Lauren Wachtler
Chair
Committee on Lawyers In Transition

Deep Web Research 2009

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Deep Web Research 2009 | LLRX.com

This Deep Web Research 2009 article By Marcus P. Zillman is divided into the following sections:

Articles, Papers, Forums, Audios and Videos
Cross Database Articles
Cross Database Search Services
Cross Database Search Tools
Peer to Peer, File Sharing, Grid/Matrix Search Engines
Presentations
Resources - Deep Web Research
Resources - Semantic Web Research
Bot Research Resources and Sites
Subject Tracer Information Blogs

This guide is designed to provide a wide range of resources to better understand the history of deep web research. It also includes various classified resources that allow you to search through the currently available web to find key sources of information located via an understanding of how to search the “deep web”.


Layoff Tracker

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Layoff Tracker - Law Shucks

As of December 22, there have been over 1,759 layoffs this year. Law Shucks has mashed the numbers and come up with a graph and chart. Scroll down for the chartwhich details the lawyer and staff layoffs by big firms.

The Complete Lawyer: Doing Business Internationally

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This edition of The Complete Lawyer: Doing Business Internationally offers invaluable insights from both American and foreign lawyers on the do’s and don’ts of legal and cultural issues and working with lawyers and clients in other countries. For example you will read about:

In China, You Play By Another Set Of Rules
Mexico: Working With The “Manaña” Culture
Notes From Nigeria: Nurture Your Soft Skills
The Middle East: Business Is Booming

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 12/18/08

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CONTRACTS, FAMILY LAW, INTERNATIONAL LAW

Kipnis v. Kipnis, No. 213
A prenuptial agreement executed under French law is enforceable in New York and prohibits wife from claiming portion of husband's separate property.


CRIMINAL LAW & PROCEDURE, SENTENCING

People v. Mills, No. 207, 208
In order to qualify for resentencing under the Drug Law Reform Act of 2005, class A-II felony drug offenders must not be eligible for parole within three years of their resentencing applications. Once a defendant has been released to parole supervision for a class A-II drug felony conviction, he no longer qualifies for resentencing for that particular conviction under the Act.



GAMING LAW, SPORTS LAW

In the Matter of Suffolk Reg'l Off-Track Betting Corp., No. 209
Off-Track Betting Corporations cannot credit commissions derived from daytime harness racing against mandated maintenance of effort payments. Racing Law section 1017-a requires that maintenance of effort payments be distributed on a track-by-track (not regional) basis. Racing Law section 1017 requires these Corporations to make dark day payments to their respective regional harness tracks.


INJURY AND TORT LAW

D'Onofrio v. City of New York, No. 169, 170
Under Pothole Law, City was not liable for injuries of plaintiffs who fell on city sidewalks because the injuries were not caused by sidewalk defects of which City had been given prior written notice. As to first plaintiff, although City had written notice of the sidewalk defect, plaintiff's injury was not caused by that defect. As to second plaintiff, symbol on pothole map was not sufficiently clear to constitute written notice of the sidewalk defect.

New Lawyer Conduct Rules Adopted; Standards Aligned With ABA Model

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The New York Law Journal - New Lawyer Conduct Rules Adopted; Standards Aligned With ABA Model

New Lawyer Conduct Rules Adopted; Standards Aligned With ABA Model

By Joel Stashenko
December 17, 2008


ALBANY - Chief Judge Judith S. Kaye and the four presiding Appellate Division justices have formally adopted a new set of attorney ethics rules that proponents say brings New York lawyers in line with their counterparts in most of the rest of the country.

The Rules of Professional Conduct (full text) align ethics standards in form and numbering sequence with the American Bar Association's Model Rules of Professional Conduct. That change will make it easier for New York attorneys to reference ethics rules and advisory and legal opinions nationwide when researching issues, supporters of the new rules say.

"It is a tremendous relief to now speak the same language as the rest of the country," said Steven C. Krane, chairman of the New York State Bar Association's Committee on Standards of Attorney Conduct, which proposed the revisions. "The code is dead. Long live the rules."

Starting April 1, 2009, the Rules of Professional Conduct will replace the New York Code of Professional Responsibility.

IRS to help homeowners refinance or sell homes - Yahoo! News

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IRS to help homeowners refinance or sell homes - Yahoo! News

***

The plan announced by IRS Commissioner Doug Shulman would speed up a process where financially distressed homeowners may request that a federal tax lien be made secondary to liens by the lending institution that is refinancing or restructuring a loan.

Taxpayers will also be able to ask the IRS to discharge, or remove, its claim to a property in certain circumstances where the property is being sold for less than the amount of the mortgage lien.

"We need to ensure that we balance our responsibility to enforce the law with the economic realities facing many American citizens today," Shulman said, stressing that "we don't want the IRS to be a barrier to people saving or selling their homes."


Google Books

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If you go to “Google Books” there are millions of books that can be searched and the search takes you right to the page in the book where your search words are located in context; i.e., you can search individuals, companies, products, cures, etc over 100,000’s of pages in seconds.

They now have magazines as well.

Courtesy of Mel Solomon on the General Practice listserv.

Australian court serves documents via Facebook

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Australian court serves documents via Facebook - web - Technology - smh.com.au

Hat tip to @BentleyTolk

Nick Abrahams
December 12, 2008

The big question about Facebook is does it have any valuable commercial application? Well it seems that the courts have found one.

Today in what appears to be a first in Australia and perhaps the world, Master Harper of the ACT Supreme Court ordered that a default judgement could be served on defendants by notification on Facebook.

Criminal Complaint Against Bernard Madof

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JD Supra: Legal Documents - Criminal COmplaint Against Bernard Madoff | Other

US v Madoff
Criminal COmplaint Against Bernard Madoff

SUMMARY: Federal Bureau of Investigation agent Theodore Cacioppi said Mr. Madoff's investment advisory business had "deceived investors by operating a securities business in which he traded and lost investor money, and then paid certain investors purported returns on investment with the principal received from other, different investors, which resulted in losses of approximately billions of dollars."

TwitSnip

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Twitter Grader | Score Your Profile

TwitSnip is a simple tool for easily posting to Twitter. It lets you "quote" text on any web page. It does nifty things like looking up the @user for the website and linking back to the source. It shortens the URL too. It even tries to shorten the length of the tweet (when needed) using a twitabulary of short words.

Google Chrome Browser Out of Beta

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Official Google Blog: Google Chrome

From Google:

We have removed the beta label as our goals for stability and performance have been met but our work is far from done. We are working to add some common browser features such as form autofill and RSS support in the near future. We are also developing an extensions platform along with support for Mac and Linux. If you are already using Google Chrome, the update system ensures that you get the latest bug fixes and security patches, so you will get the newest version automatically in the next few days. If you haven't used Google Chrome for a while, now might be a good time to give it another spin.

Download Google Chrome here.

Sorry...still no Mac or Linux versions.

NSBA: FERPA privacy regulations finalized

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From NSBA "Legal Clips" Free Subscription here.

The Department of Education (ED) has issued final regulations implementing provisions of the final Family Educational Rights and Privacy Act (FERPA). For background on the proposed regulations and NSBA comments to them, see the second link below. The final regulations clarify permissible disclosures to parents of eligible students and conditions that apply to disclosures in health and safety emergencies; clarify permissible disclosures of student identifiers as directory information; allow disclosures to contractors and other outside parties in connection with the outsourcing of institutional services and functions; revise the definitions of attendance, disclosure, education records, personally identifiable information, and other key terms; clarify permissible redisclosures by state and federal officials; and update investigation and enforcement provisions. Some amendments were adopted in response to concerns that confusion over FERPA’s requirements may have obstructed disclosures that could help prevent tragedies like the shootings at Virginia Tech. Others amendments reflect two U.S. Supreme Court decisions interpreting FERPA and implement a provision of the USA PATRIOT Act and the Campus Sex Crimes Prevention Act, which added new exceptions permitting the disclosure of personally identifiable information from education records without consent. The significant changes from the new regulations as initially proposed include (1) the removal of language relating to state auditors; (2) the addition of a requirement that an institution that makes a disclosure under FERPA’s health or safety emergency exception record the circumstances of the emergency; and (3) the addition of a requirement that an institution record a disclosure not made under that exception. The ED notice addresses comments submitted on the proposed regulations at length.

The regulations are effective January 8, 2009.

73 Fed. Reg. 74,806 (Dec. 9, 2008)

Final regulations
NSBA School Law pages on FERPA regulations

Vidal v Maldonado, 2008 NY Slip Op 52432(U)

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If you practice negligence or personal injury law in New York, this case has very good cites and summarizes the frustration of repetitive pleadings in the no fault arena and the exasperation of many jurists dealing with threshold issues of serious injury under no fault.

Vidal v Maldonado
2008 NY Slip Op 52432(U)
12-08-08
Supreme Court Bronx County

Courtesy of Jimmy Lathrop on the General Practice Listserv
www.ParkSlopeLawyer.com

STATE FIRE PREVENTION AND BUILDING CODE COUNCIL--WEBCAST

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will meet on Wednesday, DECEMBER 17, 2008 at 10:00 a.m.

Meeting Location
99 Washington Avenue
1 Commerce Plaza
Albany, New York 12231
DOS conference room - #505

via video teleconference at
123 William Street, New York, NY, 19th fl. conference room


MEETING WEBCAST
The December 17, 2008 meeting will be video teleconferenced from two locations, Albany and New York City. The meeting will also be webcast live. Below is the link to the DOS webpage for viewing the meeting.

On the day of the meeting, a link will be activated and when you click on the link, you will be taken to the live webcast.
http://www.dos.state.ny.us/programguide/webcast.jsp

Please consult the FAQ page for any technical issues that may be experienced.
http://www.dos.state.ny.us/webcastfaq.html

Cornell LII Lawyer Directory

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Our friends at Legal Information Institute (LII) announce a new service, currently in "pre-Beta"; i.e., still time to get in early and take advantage of their enormous audience.

The LII's Lawyer Directory service is a collaborative venture with Justia and other organizations that provides free access to legal information. We highlight lawyers who support our partners, or who make their own material freely available on the web via blogs.

Note: Badges and support levels only enhance the placement of a sponsoring lawyer's profile on the LII Lawyer Directory listing pages. Lawyers do not have to purchase a sponsorship to be included or to have a full profile in the LII Lawyer Directory itself (which is free).

NSBA:OSERS finalizes IDEA regulations

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From the National School Boards Association:

The Office of Special Education and Rehabilitative Services (OSERS) of the Department of Education (ED) has issued final regulations governing the Assistance to States for Education of Children with Disabilities Program and the Preschool Grants for Children with Disabilities Program. The new regulations clarify current regulations in 34 CFR Part 300 in the areas of parental consent for continued special education and related services; non-attorney representation in due process hearings; state monitoring, technical assistance, and enforcement; and allocation of funds. The regulations also incorporate a statutory requirement relating to positive efforts as to the employment of individuals with disabilities that was inadvertently omitted from the 2006 regulations.

The major changes in these final regulations from the regulations as proposed in May of 2008 include the following: (1) parental revocation of consent for the continued provision of special education and related services must be in writing, and when the parent revokes such consent, the school district still must provide the parent with the usual written notice of its intentions with respect to the child; and (2) the provision regarding the right to be represented in a hearing by non-attorneys has been revised to apply to any party to a hearing, not just parents. The regulations will be effective December 31, 2008. NSBA’s comments on the regulations as proposed, and the proposed regulations themselves, are at the second link below. The final rule responds to the comments submitted by more than 700 parties. All of the Part 300 regulations are available at the third link below.

73 Fed. Reg. 73,006 (Dec. 1, 2008)

ED Final Rule
NSBA School Law pages on comments to proposed regulations
ED IDEA website page on Part 300 regulations

Lawyer Assistance Program

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Q. What is LAP?
A. The Lawyer Assistance Program is a program of the New York State Bar Association established to help attorneys, judges, and law students in New York State (NYSBA members and non-members) who are affected by alcoholism, drug abuse, gambling, depression, other mental health issues, or debilitating stress.

Q. What services does LAP provide?
A. Services are free and include:
• Early identification of impairment
• Intervention and motivation to seek help
• Assessment, evaluation and development of an appropriate treatment plan
• Referral to community resources, self-help groups, inpatient treatment, outpatient counseling, and rehabilitation services
• Referral to a trained peer assistant – attorneys who have faced their own difficulties and volunteer to assist a struggling colleague by providing support, understanding, guidance, and good listening
• Information and consultation for those (family, firm, and judges) concerned about an attorney
• Training programs on recognizing, preventing, and dealing with addiction, stress, depression, and other mental health issues

Q. Are LAP services confidential?
A. Absolutely, this wouldn’t work any other way. In fact your confidentiality is guaranteed and protected under Section 499 of the Judiciary Law. Confidentiality is the hallmark of the program and the reason it has remained viable for almost 20 years.

Judiciary Law Section 499 Lawyer Assistance Committees Chapter 327 of the Laws of 1993 Confidential information privileged. The confidential relations and communications between a member or authorized agent of a lawyer assistance committee sponsored by a state or local bar association and any person, firm or corporation communicating with such a committee, its members or authorized agents shall be deemed to be privileged on the same basis as those provided by law between attorney and client. Such privileges may be waived only by the person, firm or corporation who has furnished information to the committee.
Q. How do I access LAP services? A. LAP services are accessed voluntarily by calling 800.255.0569 or connecting to our website www.nysba.org/lap

Q. What can I expect when I contact LAP?
A. You can expect to speak to a Lawyer Assistance professional who has extensive experience with the issues and with the lawyer population. You can expect the undivided attention you deserve to share what’s on your mind and to explore
options for addressing your concerns. You will receive referrals, suggestions, and support. The LAP professional will ask your permission to check in with you in the weeks following your initial call to the LAP office.

Q. Can I expect resolution of my problem?
A. The LAP instills hope through the peer assistant volunteers, many of whom have triumphed over their own significant personal problems. Also there is evidence that appropriate treatment and support is effective in most cases of mental health problems. For example, a combination of medication and therapy effectively treats depression in 85% of the cases.

1.800.255.0569

FINDLAW: Daily Opinion Summaries for New York Court of Appeals - 12/02/08

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ADMINISTRATIVE LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

Matter of P'ship 92 LP v. State of New York Div. of Hous. & Cmty. Renewal, No. 221 SSM 38
Order of appellate division is affirmed where: 1) by its terms, the Rent Regulation Reform Act of 1997 applied to any proceeding that was pending before the Division of Housing and Community Renewal at the time of its enactment, as this case was; and 2) there was ample basis on the record for the conclusion that, in arguing for a higher base rent, the owner had relied on an illusory tenancy.

ATTORNEY'S FEES, CONTRACTS, ETHICS & PROFESSIONAL RESPONSIBILITY, INJURY AND TORT LAW

Lawrence v. Graubard Miller, No. 76
In a suit arising from legal proceedings surrounding the administration of an estate, denial of a motion to dismiss a law firm's petition seeking to compel the payment of legal fees is affirmed where the question of whether the retainer agreement at issue was unenforceable on the basis of unconscionability, either at the time it was entered into or in retrospect, was a factual one that could not be answered at the pre-answer motion stage.



CRIMINAL LAW & PROCEDURE, EVIDENCE

People v. Giles, No. 181
Conviction for burglary and possession of stolen property is affirmed in part and reversed in part where evidence of defendant's commission of prior uncharged burglaries was prejudicial as to the burglary count and required a limiting instruction.

CRIMINAL LAW & PROCEDURE

Matter of Rivera v. Firetog, No. 178
In a CPLR article 78 proceeding seeking to bar a retrial for murder on double jeopardy grounds, petition is dismissed where the trial court appropriately declared a mistrial based on the jury's deadlock after exploring alternatives, and retrial of defendant would not implicate double jeopardy.

INJURY AND TORT LAW, LANDLORD TENANT LAW, PROPERTY LAW & REAL ESTATE

Kopsachilis v. 130 East 18 Owners Corp., No. 177
In a negligence action alleging that the owners of an apartment building failed to light a stairwell during a blackout, denial of defendants' motion for summary judgment is reversed where the statutory requirement that lights in fire-stairs be kept burning continuously was not a strict-liability offense, and defendants could assert a "knowledge and consent" defense contained within the statute.

FINDLAW: Daily Opinion Summaries for U.S. Supreme Court - 12/02/08

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CRIMINAL LAW & PROCEDURE, PER CURIAM

Hedgpeth v. Pulido, No. 07-544
Instructional error arising in the context of a jury instructed on multiple theories of guilt, one of which is improper, is not structural error. A reviewing court finding such error should ask whether the flaw in the instructions "had substantial and injurious effect or influence in determining the jury's verdict."

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