August 2009 Archives

ABA Files Suit Against FTC Over Applying Red Flags Rule to Lawyers

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The BLT: The Blog of Legal Times : ABA Files Suit Against FTC Over Applying Red Flags Rule to Lawyers

(Updated 1:51 p.m.)

The American Bar Association filed suit today in the U.S. District Court for the District of Columbia against the Federal Trade Commission, seeking an injunction to block the application of the so-called Red Flags Rule to practicing lawyers.

The ABA’s 20-page complaint (.pdf), was filed by a team from Proskauer Rose.

FDCPA: Second Circuit Certifies Questions to NY Court of Appeals

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Kuhne v. Cohen & Slamowitz, LLP, No. 08-1669

In an action under the Fair Debt Collection Practices Act claiming that defendants illegally attempted to collect a debt because they were not licensed to do so in New York, the Court of Appeals certifies the following questions to the New York Court of Appeals: 1) whether defendant was a "debt collection agency" under the pre-amendment version of New York City Administrative Code section 20-489(a); and 2) if so, whether defendant violated New York Gen. Bus. Law section 349.

Revocation of Lawyer's Pension Violated Due Process, Judge Says

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The New York Law Journal - ; Revocation of Lawyer's Pension Violated Due Process, Judge Says

Revocation of Lawyer's Pension Violated Due Process, Judge Says

By Vesselin Mitev
August 27, 2009

State Comptroller Thomas P. DiNapoli improperly revoked the $106,000 annual pension of a Long Island lawyer, an Albany judge has ruled in ordering the state to restore the benefit.

The state violated Albert D'Agostino's due process rights by "depriving him of continuing retirement benefits prior to granting him a hearing and by failing to provide adequate notice" of the case against him, Acting Supreme Court Justice Gerald W. Connolly ruled in D'Agostino v. DiNapoli, 8134-08.

NDNY: Statement on RECAP

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The court would like to make CM/ECF filers aware of certain security concerns
relating to a software application or "plug-in" called RECAP, which was designed by a group from Princeton University to enable the sharing of court documents on the Internet. This plug-in is currently only available for the latest release of the Firefox web browser.

Once a user loads RECAP, documents that he or she subsequently accesses via PACER are automatically sent to a public Internet repository. Other RECAP/PACER users are then able to see whether documents are available from the Internet repository. RECAP captures District and Bankruptcy Court documents, but has not yet incorporated Appellate Court functionality. At this time, RECAP does not appear to provide users with access to restricted or sealed documents, nor does it function while logged into your CM/ECF account (the plug-in only activates when logged into your PACER account). Please be aware that RECAP is "open-source" software, which can be
freely obtained by anyone with Internet access and modified for benign or malicious purposes, such as facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security practices to ensure that documents are not inadvertently shared or compromised.

The court and the Administrative Office of the U.S. Courts will continue to analyze the implications of RECAP or related-software and advise you of any ongoing or further concerns.

Thank you for your attention to this matter.

Lawrence K. Baerman, Clerk


Editor's Note: for more about the RECAP plugin click here.

Primary Source Documents: CIA interrogation report

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JURIST - Paper Chase: Obama administration releases highly anticipated CIA interrogation report

On Monday the DOJ released a much anticipated 2004 Central Intelligence Agency inspector general report [text, PDF] detailing controversial interrogation techniques used on terror detainees.

IRS on YouTube

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YouTube - irsvideos's Channel

Welcome to the official YouTube channel of the Internal Revenue Service. This channel will feature videos produced by the IRS on various tax administration topics.

JURIST - Paper Chase: NY appeals court rules governor lacks authority to appoint lieutenant governor

A New York state appeals court ruled [opinion text] Thursday that Governor David Paterson acted beyond the scope of his constitutional authority when he appointed Richard Ravitch lieutenant governor. The Second Judicial Department Appellate Division affirmed a lower court ruling that blocked Ravitch's appointment.

TWEET IDEAS: 13 Things to Do on Twitter Besides Tweet

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TWEET IDEAS: 13 Things to Do on Twitter Besides Tweet

Tired of delivering the typical stream of status updates on Twitter?

Thanks to an open API and a philosophy of interconnectivity, Twitter’s vast array of third-party services has you covered on a number of alternative uses for the famed microblogging tool.

Click here to take a look at a few of them.

NYSBA Prexy Sends New POA Form for FREE!

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Office of the President

Dear NYSBA Member:

In continuing my theme of "Lawyers Helping Lawyers," I am pleased to announce that a new form updating and replacing the old Power of Attorney form is available free of charge to State Bar members in an easily downloadable format on our Web site. Also available on our Web site is the Statutory Major Gifts Rider form that must be completed to grant an agent the authority to make major gifts. For more information and to access these free forms, please visit

The new Statutory Durable Power of Attorney is scheduled to go into effect in New York State on September 1, 2009. To assist attorneys in understanding this new law, the State Bar's Trusts and Estates Law Section and Committee on Continuing Legal Education will present a 2-credit MCLE webcast on Thursday, August 27, 2009 from 1:00 p.m.- 3:00 p.m. This program also will be broadcast live from the State Bar Center in Albany for those who would like to attend in person. For further details, including registration information for this webcast, please visit

We are pleased to provide not only an educational program on the new law, but also a free Power of Attorney form. We hope that this package of resources will guide you through this important change in the law. Note that although the specific language of the statutory forms cannot be changed, modifications can be made in subsection (g) of the Power of Attorney form and under paragraphs (b) and (c) of the Major Gifts Rider Authorization. A review committee developed suggested clauses that can be included as modifications in these forms. You are strongly encouraged to insert the clause regarding the revocation of prior powers of attorney in paragraph (g) of the Power of Attorney form. Please note that some of these clauses are mutually exclusive and should be inserted in accordance with the direction/best interests of the Principal.

I am extremely grateful for the assistance and expertise of the many dedicated State Bar members who worked tirelessly in the development of these new forms. Their efforts also were instrumental in delaying the effective date to September 1st, so as to give attorneys additional time to educate the public on what these changes would mean for their clients.

I hope you take advantage of this important member benefit that will greatly assist attorneys in their efforts to provide the best service possible to meet their clients' needs.

Best regards,

Michael E. Getnick
President, New York State Bar Association
Getnick Livingston Atkinson & Priore, LLP

Internet Materials in Opinions: Citations and Hyperlinking

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U.S. Courts | TTB | July 2009 | Internet Materials in Opinions: Citations and Hyperlinking

The Judicial Conference has issued a series of “suggested practices” to assist courts in the use of Internet materials in opinions. The recommendations follow a pilot project conducted by circuit librarians who captured and preserved webpages cited in opinions over a six-month period.

Full Article Here.

Criminal Practice

Physiological Conduct of Refusing to Submit to Chemical Test May be Used as Circumstantial Evidence of Guilt.

People v. Krivak (full text)


Shomo v. City of New York, No. 07-1208
In an action claiming medical indifference in violation of the Eighth Amendment, district court judgment is affirmed in part and vacated in part where: 1) the continuing violation doctrine can apply to Eighth Amendment claims of medical indifference brought under 42 U.S.C. sec. 1983 when the plaintiff shows an ongoing policy of deliberate indifference to his or her serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period; 2) the court properly granted plaintiff leave to amend his complaint in order to state timely Eighth Amendment claims based on the continuing violation doctrine; 3) the court properly dismissed plaintiff's claims with prejudice as to certain defendants; 4) plaintiff is granted leave to replead his claims against named and unnamed supervisors and replead his municipal liability claim against the City; and 5) plaintiff's ADA and Rehabilitation Act claims are remanded as the court did not address whether the continuing violation doctrine applied to plaintiff's disability discrimination claims.


Brown v. Greene, No. 07-5383
District court judgment denying petition for habeas corpus in a robbery case is affirmed where the state court's rejection of plaintiff's ineffective assistance of counsel argument was not contrary to or an unreasonable application of federal law.

EIPA Amended

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NYSBD: Industry Letters - Amendments Regarding Exempt Funds

The Exempt Income Protection Act (“EIPA”), which was effective January 1, 2009, amended Article 52 of the New York Civil Practice Law and Rules (“CPLR”) and limits the ability of judgment creditors and others to restrain Social Security and other exempt funds.  Click here for full text of the law.

Under recent amendments, the provisions of EIPA do not apply when the state of New York, or any of its agencies or municipal corporations is the judgment creditor, or if the debt enforced is for child support, spousal support, maintenance or alimony. In these instances, the restraining notice or levy must contain a legend at the top, above the caption, in 16-point bold type stating:

“The judgment creditor is the state of New York, or any of its agencies or municipal corporations, AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”

See Empire Justice Center update on the municipal amendment and compliance issues and, a very useful EIPA Flow Chart.


Local 917, International Brotherhood of Teamsters v. NLRB, No. 07-2424
Petition for review of a decision of the NLRB is denied where the Board properly ruled that plaintiff's effort to enforce the work preservation clause of the collective bargaining agreement amounted to a boycott in violation of the National Labor Relations Act sec. 8(e). The Board's award of attorneys fees to the employer is reversed where the employer withheld a document from the union in defiance of a discovery order and thus prolonged the proceedings.


ReAmerica, S.A. v. Wells Fargo Bank Int'l, No. 08-1927
In a dispute involving fraudulent wire transfers, district court grant of summary judgment for defendant is affirmed where: 1) plaintiff's action is governed by the Uniform Commercial Code and thus its claim that defendant wrongfully debited its account is time-barred by the UCC's one-year statute of repose; and 2) plaintiff's common law negligence claim is precluded by U.C.C. Article 4A.


County of Nassau, NY v., LP, No. 07-3919
In a dispute involving hotel taxes, district court judgment is vacated and remanded for a further jurisidictional determination as there are substantial questions as to whether the complaint meets the requirements for class certification under Fed. R. Civ. P. 23.


Finkel v. Romanowicz, No. 07-2558
In a breach of fiduciary duty action brought under ERISA, district court judgment is affirmed in part and reversed in part where: 1) plaintiff failed to establish defendant's status as an ERISA fiduciary as he did not allege or introduce evidence demonstrating that defendant exercised authority or control over the management of ERISA plan assets; 2) plaintiff was not entitled to a hearing prior to the dismissal of its breach of fiduciary duty claim against defendant, as the record demonstrates that no hearing was necessary and plaintiff did not request one; and 3) the court erred in holding that defendant was not personally liable for certain dishonored checks under New York’s Uniform Commercial Code, as plaintiff established that the checks did not indicate that defendant signed them in a representative capacity and defendant presented no evidence of an understanding between the parties that he had signed them in a representative capacity.


Dean v. Blumenthal, No. 07-1986
In a First Amendment challenge to a prohibition on contributions by certain law-firm employees to candidates for Connecticut Attorney General, district court judgment is affirmed where: 1) the challenged contractual bar on campaign contributions has not been enforced in over six years and cannot reasonably be expected to be reimplemented, and thus plaintiff's requested relief of a declaratory judgment, injunctive relief, and a cease-and-desist order are moot; and 2) defendant is entitled to qualified immunity from plaintiff's claim for damages as there was no clearly established right under the First Amendment to receive campaign contributions during the relevant period.


Browne v. Green, No. 07-5383
District court judgment denying a petition for habeas corpus relief is affirmed where the state court's rejection of plaintiff's ineffective assistance of counsel argument was not contrary to or an unreasonable application of federal law.


Jacobs v. New York Foundling Hospital, No. 07-4354
In a dispute involving the denial of overtime pay, district court grant of summary judgment for defendant is affirmed where defendant is not obligated to pay overtime under the Fair Labor Standards Act as the Act's definition of "enterprise" refers to the activities performed by a public agency and does not extend to a private, non-profit, independent contractor associated by regulation and contract with a public agency. .


(9th Cir. U.S. Court of Appeals, Aug. 10, 2009) - A federal appeals court reversed a lower court ruling in a case involving parents' ability to make decisions about their child's healthcare, and a state's interest in protecting the child's welfare.


Green Island Power Authority v. FERC, No. 07-1737
Petition for review of several orders and notices issued by the Federal Energy Regulatory Commission during the proceedings to relicense the School Street Hydroelectric Project is denied in part and granted in part where: 1) co-petitioner Adirondack Hydro Development Corporation lacks standing to challenge any of the orders or notices issued in the administrative proceedings, as none of the injuries identified by Adirondack are sufficient to satisfy the injury-in-fact requirement of the standing analysis; and 2) the FERC abused its discretion and acted acted arbitrarily and capriciously when it denied petitioner Green Island's motion to intervene without first considering whether the settlement offer materially amended the School Street license application.


Henry v. Ricks, No. 07-4178
District court judgment denying a petition for habeas relief is affirmed where: 1) recent decisions by the New York Court of Appeals announcing a change in New York's law of depraved indifference murder are not applicable to plaintiff's conviction; and 2) the due process clause of the Fourteenth Amendment does not require the retroactive application of a new interpretation of a criminal statute in the collateral review of plaintiff's conviction.


US v. Freeman, No. 08-1886
Sentence for receipt of child pornography is affirmed where the district court did not err in imposing a four-level enhancement for the possession of images containing sadistic or masochistic conduct, as the court made an objective determination that the image depicted sexual activity involving a minor and the depicted activity would have caused pain to the minor, and thus established an adequate basis for the application of the enhancement.

Boston Globe: Etiquette at Work

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Take off the Bluetooth, turn off the PDA, during client meetings - The Boston Globe

Take off the Bluetooth, turn off the PDA, during client meetings--Read Entire Article.

Don't Stick that Bluetooth in Your Ear!

The Paralegal Voice: The Virtual Paralegal

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On this edition of The Paralegal Voice, co-hosts Lynne DeVenny and Vicki Voisin get an inside look at the virtual legal practice. Lynne and Vicki welcome Stephanie Kimbro, an attorney who operates a virtual law firm called Kimbro Legal Services and Denise Annunciata, who provides outsourced paralegal services at Virtual Paralegal Services, Inc. They both share their experiences in the field of a virtual legal practice and what it takes to work as a virtual paralegal or legal assistant.

Play in new window. Download (24MB).

Bundled Mortgages Pose Problems for Housing Program

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Bundled Mortgages Pose Problems for Housing Program - ProPublica

by Karen Weise, ProPublica - August 6, 2009 4:18 pm EDT


This article provides an explanation in plain language of the problems involved with modifying securitized mortgages, despite federal program efforts.

Thursday, August 13, 2009
12:00 p.m. – 2:00 p.m. EDT
Free Live Webcast

Session Six of the Committee on Lawyers in Transition 2009 Career Development series will cover social media basics for networking attorneys and how to use

Panelists: Barbara Beauchamp, NYSBA Web Site Editor, Brenda Estrada, Operations Manager,, and Joseph Alesci, Help Desk Coordinator, Register Online -


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About PrimoPDF - PrimoPDF by Nitro PDF Software

PrimoPDF is a free tool for high-quality PDF creation, comprising a user-friendly interface that enables printing to PDF from virtually any Windows application.

Carolyn Elefant: Coffee Shop Etiquette for the Home Office Shingler

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Coffee Shop Etiquette for the Home Office Shingler : My Shingle

Even where coffee shops don't impose any restrictions on laptop use, if you're a home office lawyer who uses a cafe to work or to meet clients, you should be sensitive to the needs of coffee shop owners, who like you, are also in business to turn a profit. Thus, you should abide by certain rules of etiquette when you use a coffee shop as an extension of your office. Here, is a link to Carolyn's suggestions:

Viral Video for Divorce Lawyers

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You may have seen Jill and Kevin's wedding dance video:

Now you can enjoy the JK Divorce Entrance Dance:

Hat tip (as always) to Bob Ambrogi, who has way too much time on his hands up there in Massachusetts.


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