Recently in Ethics & Professional Regulation Category

BY LYLE MORAN

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The two women announced they were seeking a $150,000 investment in exchange for a 10% stake in the company they co-founded called HelloPrenup. The digital platform helps couples create prenuptial agreements by filling out in-depth questionnaires and comprehensive financial disclosures instead of having to go to a lawyer.

"Young couples are getting prenups more and more. But the traditional process of getting a prenup is expensive, time-consuming and a bit taboo," Jaffe said on the Shark Tank episode that aired Nov. 12. "But with HelloPrenup, the process is as easy as 1,2,3."

She also shared that a prenup on helloprenup.com costs $599, while the average cost when attorneys are involved is typically $5,000. Rodgers added that the addressable prenup market is valued at more than $500 million.

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A new blueprint for solo and small firm lawyers to best navigate times of crisis has been issued by the New York State Bar Association's Emergency Task Force for Solo and Small Firm Practitioners.

The task force's review of the impact of COVID-19 on solo and small-firm practitioners found that the pandemic exponentially increased day-to-day stresses on the operations of law firms, especially solo and small firm practices.

"No part of society escaped COVID's reach, including New York's legal system. Lasting changes will occur," said NYSBA President T. Andrew Brown, of Rochester (Brown Hutchinson). "This timely report expertly details how solo and small firm practitioners can navigate a crisis and continue to serve clients."

Created in March 2020 by Past President Hank Greenberg (Greenberg Traurig), the task force's mandate was to comprehensively examine the effects of the COVID-19 crisis on all aspects of solo and small firm practices, and to make meaningful recommendations as to how solo and small firm practitioners can maintain their practices in times of crisis.

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Read more...recommendations...




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For Gov. Andrew M. Cuomo, the setting and even the circumstances were familiar. He sat at a conference room table at his 39th-floor office in Midtown Manhattan, facing a former federal prosecutor with whom he had tangled before.

The videotaped interview lasted about 11 hours, and Mr. Cuomo faced a barrage of questions under oath about his treatment of women, posed by the two lead investigators hired by the state attorney general's office: Joon H. Kim, the former prosecutor, and Anne L. Clark, an employment lawyer.

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Read long, investigative article...


 

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A new federal lawsuit (click on link for complaint and exhibits) alleges former New York state trial judge Matthew Rosenbaum subjected his secretary to forced sex acts and other harassment between March 2005 and June 2009. Plaintiff Rebecca Klymn alleges the judge demanded she perform fellatio on him, saying it was part of her job to relieve his stress. According to the complaint, Rosenbaum also vaginally raped Klymn in her home in 2006.

As reported by Bloomberg Law, the complaint, filed in the Western District of New York, also contains other allegations of harassment:

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BY AMANDA ROBERT

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"In a complex regulatory system where cultivation, distribution, possession, sale and use of a product are tightly regulated, legal advice and guidance has immense value," the opinion said. "Without the aid of lawyers, the recreational marijuana regulatory system would, in our view, likely break down or grind to a halt."

For many of the same reasons the New York State Bar Association said lawyers may provide legal services to recreational marijuana businesses, it concluded that lawyers may accept an equity stake in a client's cannabis business in exchange for legal services, grow lawful quantities of marijuana for personal use at home and use cannabis products recreationally.

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Read full text of ethics opinion...

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States generally follow the American Bar Association's "model code of judicial conduct," which does not specifically mention social media norms. The association also offers nonbinding guidance from 2013 that says if judges use "proper care" when they opine online, they can avoid compromising their integrity. On the federal level, a planning resource for judicial employees' social media use was devised in 2010 and warned that "nothing is 'private' on the Internet."

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Read more, especially multiple case examples of judges who improperly used social media...



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A New York court on Thursday suspended Rudy Giuliani from practicing law in the state, citing his "false and misleading statements" about the election loss of former President Donald Trump.

The suspension, which takes effect immediately, is a stunning blow to the 77-year-old Giuliani, a former New York mayor who was once a top Justice Department official and U.S. attorney in Manhattan.

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Read full text of decision.

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Ethics Opinion 1224 - New York State Bar Association

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When a lawyer is jointly representing two clients as purchasers in a transaction and one of them no longer wishes to proceed, the lawyer cannot continue to represent both clients jointly without violating Rule 1.7. That one of the clients has diminished capacity does not alter this conclusion.

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BY DEBRA CASSENS WEISS

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The largest number of claims stem from three practice areas: trusts and estates, business transactions, and corporate securities.

Claims for trusts and estates work are increasing as the baby boomer generation ages, and court decisions allow third parties to sue law firms for work on behalf of a client, according to Ames & Gough.

Ames & Gough recommends using an engagement letter that spells out whom the firm represents and what services will be performed, documenting communications, ensuring that the client has testamentary capacity, and maintaining a familiarity with fast-changing statutes and tax laws.


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BY DEBRA CASSENS WEISS

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There is no comprehensive information about how often ethics officials and lawyer assistance programs deal with lawyer dementia, according to Bloomberg Law. But the percentage of lawyers older than age 65--about 14%--is higher than the 7% of workers generally in that age group, suggesting that the problem could be worse in the legal profession.

And the numbers are growing. Over the last decade, the number of practicing lawyers older than age 65 has increased more than 50%.


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A disbarred American lawyer who spent more than two decades battling Chevron Corp (CVX.N) over pollution in the Ecuadorian rainforest attempted on Monday to fend off criminal contempt charges stemming from a lawsuit against him by the energy company.

Steven Donziger is on trial in Manhattan federal court for failing to turn over his computer, phones and other electronic devices and refusing court orders to surrender his passport in the civil case brought by Chevron.

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BY DEBRA CASSENS WEISS--ABA JOURNAL

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Lawyers at the law firm say they haven't heard from Kossoff since April 1, and they are not receiving paychecks, Law360 reports. An involuntary bankruptcy petition filed against the Kossoff firm alleges more than $8 million in misappropriated escrow funds, while the Manhattan district attorney has opened an investigation, according to Law360 and the Real Deal.

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Walter Mack, a lawyer for Kossoff, told Law360 that his client has not fled and is not seeking to evade prosecutors. He said he is representing Kossoff "solely should there be any criminal law consequences of his conduct."

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NYC Real Estate Attorney Mitchell Kossoff Vanishes--The Real Deal

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By Rich Bockmann

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An attorney who handles funds for some of New York's biggest multifamily landlords seems to have disappeared, leaving his clients worried that millions of dollars placed in escrow accounts have as well, sources with knowledge of the scandal told The Real Deal.

Mitchell Kossoff, managing partner of Kossoff PLLC, has been unreachable for several days by his partners at the downtown Manhattan law firm and the landlords for whom he holds millions of dollars in escrow accounts, according to clients who have attempted to contact the firm.

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Virtual Proceedings - Appropriate Decorum

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Two top state court officials have issued a memorandum emphasizing appropriate decorum and etiquette for all virtual court proceedings.

 

The memorandum was sent to all administrative judges statewide by Hon. Vito C. Caruso, deputy chief administrative judge for the courts outside New York City, and Hon. George J. Silver, deputy chief administrative judge for the New York City Courts.


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All court proceeding participants shall recognize that this is a formal appearance and should ensure the following:

Dress in appropriate attire, as if you were appearing in-person in court Display an appropriate and professional background
No consumption offood or drink during the proceeding
Remain professional and dignified

As in ln-Person proceedings, only one person should be speaking at time

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First law firm owned entirely by nonlawyers opens in Utah--ABA Journal

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BY DEBRA CASSENS WEISS

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Law on Call--touted as the first entirely nonlawyer owned law firm in the United States--is open for business in Utah.

Law on Call is operating as a result of legal reforms approved by the Utah Supreme Court in August 2020, according to a March 15 press release.

The two-year pilot project allows law firms with nonlawyer owners and nontraditional legal service providers to operate in a "regulatory sandbox" in the state.

Law.com and Reuters Legal have coverage.

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The ABA Model Rules of Professional Conduct permit virtual practice, which is technologically enabled law practice beyond the traditional brick-and-mortar law firm.When practicing virtually, lawyers must particularly consider ethical duties regarding competence, diligence, and communication, especially when using technology. In compliance with the duty of confidentiality, lawyers must make reasonable efforts to prevent inadvertent or unauthorized disclosures of information relating to the representation and take reasonable precautions when transmitting such information. Additionally, the duty of supervision requires that lawyers make reasonable efforts to ensure compliance by subordinate lawyers and nonlawyer assistants with the Rules of Professional Conduct, specifically regarding virtual practice policies.

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The ABA Model Rules of Professional Conduct permit lawyers to conduct practice virtually, but those doing so must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision.

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What happened to decorum? Clients and some lawyers are appearing in Zoom hearings doing things that wouldn't happen in court, the Louisville Courier Journal reports. Dress becomes more informal. Lawyers or litigants have a drink. The setting is a bed or even a hair salon. The background gives too much away. The mute button isn't on.

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New York may license social workers to handle some legal tasks-ABA Journal

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By Lyle Moran

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... the New York state courts' Working Group on Regulatory Innovation has unanimously recommended the state create a program to train and license social workers to provide limited legal services for clients. The permitted legal tasks should include court representation and advocacy, according to the panel's report released in December.

The working group, which is part of the broader Commission to Reimagine the Future of New York's Courts, suggested its recommendation about social workers could serve "as a potential forerunner of other possibilities" for using nonlawyers to close the access-to-justice gap.

The panel also recommended expanding New York's Court Navigator Program, which permits nonlawyers to provide a variety of services to eligible unrepresented litigants that do not constitute the practice of law. The proposed expansion would include training and permitting navigators to conduct some legal work.

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RESOLUTION
OF THE
EXECUTIVE COMMITTEE
OF THE
REAL PROPERTY LAW SECTION OF THE
NEW YORK STATE BAR ASSOCIATION CONCERNING
REAL ESTATE CLOSINGS DURING COVID 19

At a meeting of the Executive Committee of the Real Property Law Section of the New York State Bar Association, held on January 13, 2021, upon due notice at which a quorum was present and acted throughout, the following Resolution was adopted:

WHEREAS, the Section recognizes that the conduct of real property closings during the COVID 19 Emergency has created misunderstanding, confusion, and conditions that are potentially dangerous to clients, practitioners and others;

WHEREAS, the Section is authorized by Article I, Section 2 of its By- Laws to draw attention to problems, abuses and issues in real property law and recommend improvements in procedures and practices;

WHEREAS, the Title and Transfer Committee of the Section proposes that the Section adopt and recommend the following suggested closing practices during the COVID 19 emergency;

WHEREAS, the Officers of the Section reviewed the suggested closing practices; and recommend that the Executive Committee adopt the practices on behalf of the Section;

WHEREAS, the Section directs its Officers and administrator to notify its members, and other interested parties, of the following recommended practices;

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NOW THEREFORE, the Section RESOLVES that during the COVID 19 emergency that real property closings should be conducted in accordance with the following:

  1. New York State has designated Real Estate as an essential business and Executive Order 202.6 (14) directs that all real estate
    transactions should be conducted "as remotely as possible" and any in person interaction "should be limited to the extent necessary."

  2. In an effort to comply with the Executive Order, the Real Property Law Section of the New York State Bar Association recommends that while continuing our practices and representing our clients, when possible, conduct a real property closing by mail and/ or in escrow.

  3. However, if closing in escrow is not possible, the following closing practices are recommended:

1. Limit the number of people in attendance. Among other things, Real Estate Brokers should not attend.

2. Be organized and prepared in advance of closing.

  1. To the extent possible, minimize time spent in the closing and the number of persons attending the closing by having seller documents signed and acknowledged prior to the closing, along with any other documents that can be signed (and acknowledged) in advance. However, bear in mind that not all title companies will accept (a) remote notarizations or (b) pre-signed documents delivered by an attorney if the attorney is not given a power of attorney or is not holding the documents in escrow. Accordingly, confirm the title company's requirements prior to closing.

  2. All parties should be screened prior to entering the closing room, including temperature checks and completion a of COVID questionnaire.

  3. The office where the closing is being held should keep a record of all who attend the closing for contact tracing purposes, including contact information for each person attending the closing.

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  1. Limit the number of people in any room. Separate those in attendance to the extent possible, including separating the Purchasers and their attorney from the Bank's attorney and title closer, if possible.

  2. All parties must bring their own pens. For those who forget, make pens available for their use and then give the pens to the users or dispose of them.

  3. All parties must adhere to appropriate social distancing and wear a properly fitted mask at all times.

  4. Ventilate the room(s) in use as best as possible, including by opening windows if possible.

10. Handshaking and other personal contact should be avoided. In this the attorney should set the example by welcoming people without handshaking or other personal contact.

11. Consider having bottled water available for attendees. Do not permit attendees to use the kitchen, use coffee makers or other shared appliances, or obtain food from shared containers.

  1. Have hand sanitizers readily available.

  2. Do not use rooms for back-to-back closings and thoroughly ventilate

room if possible (including by opening windows).

14. Be respectful and courteous to the individual personal and/or medical needs and comfort levels of each party.

15. Remember that patience is a virtue. All parties should be aware that title companies and county clerk's offices are subject
to COVID guidelines and COVID related closures; therefore, obtaining documents and title reports will most likely take longer than anticipated.

D. In general, during this difficult time, as attorneys we are tasked with not only the professional obligation of protecting our clients' interests,

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but also with the civil responsibility of ensuring the safety and well- being of each other. Please be sure to employ common sense to meet all of the necessary health, safety and legal requirements that are presented in each transaction.

RESOLUTION SO ADOPTED: As certified by:

Gilbert M. Hoffman

Gilbert Hoffman, Secretary Real Property Law Section

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