November 2016 Archives

Warning: Email Phishing Scam

The New York State Bar Association is aware of an email phishing scam that is targeted at attorneys. 
The current email subject line says:  "The Office of The State Attorney Complaint."  No such office exists in New York. 
If you received the email, please delete it immediately. Do not follow any links or open any attachments. If you do, your computer or cell phone could be exposed to a virus. 
The Office of the New York State Attorney General has issued a press release about the scam.  Link:
For more information about how the AG's office handles complaints against businesses, go to:

By Christy A. Coe

Christy A. Coe, M.S., J.D., is a Principal Attorney on the staff of the Mental Hygiene Legal Service for the Third Judicial Department. the Mental Hygiene Legal Service, Third Judicial Department.


In his New York Times bestselling book Being Mortal: Medicine and What Matters in the End,1 Atul Gawande, M.D., explains that at the end of life, medicine often fails the people it is supposed to help. He laments that the "waning days of our lives are given over to treatments that addle our brains and sap our bodies for a sliver's chance of benefit."2 Commentators observed that Being Mortal demonstrates the harm we do as a society by turning aging and death into a medical problem rather than a human one.3 The author himself states that his book is "[a]bout the struggle to cope with the constraints of our biology, with the limits set by genes and cells and flesh and bones."4

The complexity of the issues surrounding death and dying as artfully captured by Dr. Gawande in his book were presaged in New York State by the case of Sheila Pouliot, a person with a profound intellectual disability who never had the ability to make her own health care decisions. She could never consider the questions Dr. Gawande suggests are essential when a person is confronted with a life-threatening illness or terminal process: "What is your understanding of the situation and its potential outcomes? What are your fears and what are your hopes? What are the tradeoffs you are willing to make and not willing to make? And what is the course of action that best serves this understanding?"5 In Sheila Pouliot's case, substituted decisions by involved family members who recognized the limits of medicine to reverse the course of an incurable disease process could not be implemented because of the constraints of the New York common law. At that time, the law did not permit a third party to decide that a patient's quality of life had declined to a point where treatment could be withheld absent a prior competent choice.6 

Seemingly little known among the legal and medical professions, and largely as a result of the courageous legacy of Sheila Pouliot, is that since 2003, there has been a law in place to address decisions regarding end-of-life care for people with developmental disabilities who never had the capacity to make known their wishes and preferences. The Health Care Decisions Act for Persons with Mental Retardation (HCDA)7 is codified at Surrogate's Court Procedure Act (SCPA) 1750-b and applies to the approximately 180,000 people in New York State with developmental disabilities. The statute protects the right of people with developmental disabilities to receive efficacious treatment when medically indicated while promoting dignity at the end of life by permitting excessively burdensome treatments to be withheld or withdrawn upon the consent of legally authorized surrogates and pursuant to statutory standards. 

Codified seven years before the 2010 Family Health Care Decisions Act (FHCDA),8 SCPA 1750-b remains a discrete health care decision-making statute for people with developmental disabilities.9 By design, the FHCDA yields to preexisting surrogate decision-making statutes and regulations that apply to people with developmental disabilities and mental illness.10 Thus, an understanding of SCPA 1750-b by lawyers and clinicians remains a timely and compelling exercise in New York State. This article provides historical context for the enactment of the HCDA and explains its essential provisions using two case studies to illustrate application of the law. The article closes with a discussion of legal and ethical principles demonstrating that HCDA has promoted fairness, justice and dignity for people with developmental disabilities.


Reprinted with permission from: New York State Bar Association Journal, October 2016, Vol. 88, No. 8, published by the New York State Bar Association, One Elk Street, Albany, NY 12207. 

Read entire article...

New Basic Income Project Set to Launch in January

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Universal Basic Income (UBI) has been gaining a lot of traction as of late with various industry expertsgovernment officials, and financial experts expressing the need to explore the possibilities of implementing a basic income program.

UBI is a lump sum of money given periodically to individuals unconditionally. There are no tests or work requirements that bar an individual from getting the money. In addition to this, the income that they will receive is a supplement to their total income which means that under this system, individuals have an option to work or not.

At the heart of the proposals for UBI is the prevention of poverty in certain countries which is why it is highly suited in regions like Africa where poverty is rampant.


This pilot study is one of many that are being planned out around the world. Finland has already started to give out basic income to its residents with the same goal of reducing poverty. Ontario, Canada and Oakland, California are also starting to plan out their own programs.

Read entire report...

What Clients Want v. What Lawyers Sell

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By Sam Glover

There is a disconnect between what clients want and what lawyers sell. Clients, as many commentators have pointed out, just want their legal problem solved.

Consumers don't want drill bits, they want holes. They don't want a scanner, they want a digital copy of a paper document. They don't want a taxi, they want to get home. In each case, the product or service is just a means to an end. But not the only means. There are other ways to get holes, digital documents, and transportation. Sometimes better ways.


Can a New Administration Undo a Previous Administration's Regulations?

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Maeve P. Carey 


Following the election of Donald J. Trump on November 8, 2016, questions have been raised as to whether and how a new President's administration can amend or repeal regulations issued by the previous administration. In short, once a rule has been finalized, a new administration would be required to undergo the rulemaking process to change or repeal all or part of the rule. If a rule has not yet been finalized, however, a new President may be able, immediately upon taking office, to prevent the rule from being issued. In addition to these administrative actions, Congress can also take legislative action to overturn rules. 


Read entire article...

Copyright © 2016 beSpacific, All rights reserved


The tides turned with an EEOC ruling in 2015, in which the agency concluded that alleged discrimination against a gay man--because he was gay--constituted a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964, a federal law banning employment discrimination on the basis of certain protected characteristics such as sex, race, ethnicity, and religion.  The EEOC sparked a second look at this question, decades after several courts had dismissively, and with little reasoning, concluded that the law's prohibition of sex discrimination is not broad enough to encompass sexual orientation discrimination. The new case from a federal district court in Pennsylvania, EEOC v. Scott Medical Health Center, builds on a more recent trend, in which courts (and the EEOC) draw on more contemporary thinking about the nature of sexual orientation discrimination and its relationship to gender.

GP Improvisational Acting in the Court House-Correction

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Correction - the date for the first "Improvisational Acting in the Court House" workshop with Robert Galinsky is November 22 (next Tuesday) in NYC: We hope you can make it!


Details and registration:

GP Improvisational Acting in the Court House

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The GP Section is sponsoring Acting for Lawyers as a two-part program on the following dates:

Links to register for Acting for Lawyers:

November 11:

January 10:


Please register for this great program. Bargain pricing: $20 for GP members, $10 for attorneys admitted 5 years or less ($45 all others).

(Editor's Note:  We received notice of the November 11, 2016 program on that day; i.e., too late to post or publish.  Enjoy the January 10th, 2017 program)

Beyond Citation - Critical Thinking About Digital Research

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Researchers, students, and instructors use academic databases to find scholarship on topics of interest. Yet it is difficult to get information about how these databases work and what materials are included in - or left out of - them. In response to this challenge, a group of students in a Digital Praxis Seminar at the City University of New York (CUNY) created Beyond Citation, a website dedicated to providing the public with information and analysis about major academic search engines. As of this writing, Beyond Citation features explorations of thirteen major databases, including Google Books, Project MUSE, HathiTrust Digital Library, JSTOR, and ProQuest Historical Newspapers. Each database record includes an Overview outlining what the database contains, available Reviews of each database, and information about Access. In addition, readers will also find a useful Conversations feature, which offers links to outside analysis and criticism about the selected database. Beyond Citation not only helps researchers critically evaluate databases, but also teaches researchers how to use these databases most effectively. [MMB]

Copyright © 2016 Internet Scout Research Group -



Jones Day is hosting programs at 18 of its offices on Friday to introduce lawyers and executives to a referral program being developed with the ABA that will link veterans to pro bono and low-cost lawyers.

The program, expected to launch in the spring, is called VetLex, report Bloomberg Big Law Business, the Cleveland Plain Dealer and the Daily Business Review (sub. req.). Working with the ABA, local bar associations and law schools, the firm hopes to recruit, train and certify lawyers to participate.

Legal advice offered through the network will extend beyond benefits disputes, according to a Jones Day press release. Help will be provided in areas such as landlord-tenant relations, family law, employment matters and business start-ups. The program will also link veterans to needed social services.


In a world of change and transition: Which way forward? | Stephen P. Gallagher

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Stephen P. Gallagher has a master of science degree in organizational development and is a lawyer transition coach at his consulting firm, Previously, he was director of law office economics and management--one of the first bar association PMA positions--at the New York State Bar Association. He also maintains a Facebook page on the topic of lawyers in transition. Gallagher wishes to thank solo lawyer and friend Leonard E. Sienko Jr. for reading a draft of this article and sharing his own insights.


Editor's Note:  I was honored to be asked to read and comment on Steve Gallagher's latest article on change and transition for lawyers as published in "ABA Bar Leader".

Steve Gallagher:

With so many long-time executive directors retiring, I thought this might be a good time to talk about life's transitions--letting go of the way things used to be and then taking hold of the way they subsequently become.

The emotions involved in winding down one's life work and transferring responsibilities to a new generation can be an intense mixture of pride, anxiety, and even loss. In my experience, people are increasingly embracing the idea of living longer, living better, and maintaining a balanced, vital lifestyle. People of all ages are seeking much greater meaning in everything we do.


Read entire article here...

Report Phishing and Online Scams

The IRS does not initiate contact with taxpayers by email, text message or social media to request personal or financial information. This includes requests for PIN numbers, passwords or similar access information for credit cards, banks or other financial accounts.

Report all unsolicited email claiming to be from the IRS to If you or a client has experienced a monetary loss because of an IRS-related incident, report it to the Treasury Inspector General Administration (TIGTA) and file a complaint with the Federal Trade Commission (FTC).

Report form for U.S. Treasury Inspector General...

Taco Bell Sued for Drive-Through Discrimination - Common Law

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Over the summer, a New Jersey woman, who happens to be deaf, filed a lawsuit against Taco Bell for discriminating against her at their drive-through window. The woman attempted to order by providing the employee at the drive-through window with a note that had her order on it, but she was refused service. On a previous occasion, she was allowed to order via note, but was told that the employee was making an exception just that one time.

When she was denied service, she entered the Taco Bell to find out what was going on and order food, but, as her court complaint alleges, not a single employee would even acknowledge her. She left without being served food and justifiably felt humiliated and frustrated.

Gina Cirrincione Complaint by LawNewz on Scribd

2016 Smartphone Comparison

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Dropbox Adds Split View Support - MacStories

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Dropbox received a major update a little over two weeks ago. At that time, Dropbox promised Split View support for the iPad in 'the coming weeks.' With no indication in the release notes, Dropbox's most recent update adds Split View support, a feature which will make the app far more useful to many iPad users.

IRS Warns Tax Professionals of New e-Services Email Scam

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The Internal Revenue Service today issued an urgent alert to tax professionals who use IRS e-services to beware of an email asking them to update their accounts and directing them to a fake website.

The subject line for the fraudulent email is "Security Awareness for Tax Professionals." The "From" line is "Your e-Services Team." It has both an IRS logo and an e-services logo that hyperlinks to a URL verified as a phishing site. The spoofing site poses as an e-services registration page.

Tax professionals should always go directly to to access e-services, never click on any links provided in emails. Tax professionals who receive a suspicious email should send it as an attachment to and then delete it. Recipients should not click on any links.

Read more here...

How AI Will Change the Practice of Law - Law Technology Today

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Nikki Black is out on the bleeding edge of legal technology, thinking about Artificial Intelligence in the practice of law.  She notes several AI programs already in use in law offices.


A lot has been written in recent months about "robot lawyers" and their potential to replace attorneys at all levels of the profession, decimating the demand for flesh and blood lawyers in the process. What's the truth behind the hype? Will artificial intelligence (AI) have a profound affect on the legal industry and in what ways?

Certainly, all signs point to AI being the next big legal technology trend, but what remains to be seen is where automation and analytics software will have the most impact on the practice of law and how fast the rate of adoption will be. AI software will undoubtedly supplement some aspects of lawyering, but most likely it will do so by allowing machines to do much of the tedious drudgery so common in some aspects of the practice of law, allowing lawyers to focus on higher level analytical work.


Read entire article...

The state's highest court will not intervene to restore the law license of Joel Brandes, an ex-attorney found to have engaged in the unauthorized practice of law in defiance of a disbarment order.

In a brief, unsigned ruling Tuesday, the Court of Appeals said that just as the Appellate Division, Second Department, disbarred Brandes in 2002, his reinstatement is primarily at the discretion of the appellate court.

"Because 'the Appellate Division is the fact finder on issues of character and fitness and its discretion is inclusive,' our standard of review is limited to whether the Second Department abused its discretion," the court said, quoting Matter of Anonymous, 79 NY2d 782 (1991), "Here, because there was record support for the court's decision, there was no abuse of discretion in denying the reinstatement application."

Chief Judge Janet DiFiore and Judges Eugene Pigott Jr., Sheila Abdus-Salaam, Eugene Fahey and Michael Garcia joined in the ruling in Matter of Brandes, 162. Judges Jenny Rivera and Leslie Stein did not take part.

Read entire report...

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