Law librarian Jim Milles of Check This Out! podcasts an update on blogging and the New York lawyer advertising rules with New York legal bloggers Bill Altreuter of Outside Counsel, Nicole Black of Sui Generis and Matt Lerner of New York Civil Law Blog.
Here is a direct link to Jim's podcast Episode 58.
WASHINGTON, D.C. – New rules governing lawyer advertising set to go into effect in New York violate free speech and would impose anti-consumer restrictions on lawyers’ advertising and Internet communications, according to a lawsuit filed today by Public Citizen and a New York law firm.
The lawsuit seeks to prevent enforcement of New York's attorney advertising rules that are scheduled to take effect on Feb. 1. The new guidelines are part of a revision of the rules contained in New York's Code of Professional Responsibility for lawyers, which is designed to protect consumers by prohibiting false and misleading lawyer advertisements. The rules were released on Jan. 4 by the presiding justices of the four divisions of New York's appellate courts.
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To view the lawsuit, click here.
To read more about this issue, visit the Consumer Law & Policy Blog, co-sponsored by Public Citizen’s Consumer Justice Project.
Law.com - Judicial Watchdog Resigns Over ABA Panel's Change to Ethics Rules
Accusing an American Bar Association panel of secretly watering down judicial ethics rules, the administrator of the New York Commission on Judicial Conduct has resigned in protest from an ABA advisory council.
In a resignation letter released Monday, Robert H. Tembeckjian objected strenuously to what he said is a plan to diminish the thrust of an ethics precept that says judges should "avoid impropriety and the appearance of impropriety." Tembeckjian said the ABA would make a "monumental mistake" if, as proposed, it relegates the "impropriety and appearance of impropriety" provision to an unenforceable guideline.
Currently, under the Model Code of Judicial Conduct, which many states use as a template for their own rules, judges who violate the provision are subject to disciplinary action. But a revision inserted into a updated code and slated for consideration by the ABA next week would change that so the "impropriety and appearance of impropriety" admonition would no longer constitute a rule. Rather, it would simply be a guideline.
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Read full text of article by John Caher via NY Law Journal.
This presentation will be held in the Great Hall of the New York City Bar on the evening of February 22, 2007. The event runs from 6 p.m. to 8 p.m., is free and will provide CLE ethics credits for attendees.
The presentation will be the public introduction of the newly adopted Rules of Conduct and is open to the legal community, but is specifically aimed at providing information to the City’s administrative law judges and hearing officers now covered by the Rules effective February 13, 2007.
The program is co-sponsored by the Office of the Administrative Justice Coordinator, the Administrative Judicial Institute at OATH, and the New York City Bar's Committees on Administrative Law, Government and Ethics, and Litigation. The presentation will provide a basic overview of the Rules and their purpose, highlight key provisions and important obligations, and allow time for questions and answers.
To register, please contact Frank Ng at 212-442-4941 or by email: fng@oath.nyc.gov
For Full Text of Rules of Conduct, see extended entry:
Respondent (attorney) charged with neglect of legal matters and failure to communicate with clients. Respondent moved to stay disciplinary proceeding to permit him to enter the alcohol and substance abuse program of the New York State Bar Association’s Lawyer Assistance Program (LAP), to which petitioner consented. LAP is a recognized diversion program under 22 NYCRR 806.4(g). Stay granted until such time as respondent either successfully completes rehabilitation or commits additional misconduct.
Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 'Dirty Dozen' Tax Scams
Fraudulent Telephone Tax Refunds, Abusive Roth IRAs Top Off 2007 "Dirty Dozen" Tax Scams IR-2007-37, Feb. 20, 2007
WASHINGTON-- The Internal Revenue Service today identified 12 of the most blatant scams affecting American taxpayers and warned people not to fall for schemes peddled by scamsters.
This year the 'Dirty Dozen' highlights five new scams that IRS auditors and criminal investigators have uncovered. Topping off the list are fraudulent refunds being claimed in connection with the special Telephone Excise Tax Refund available to most taxpayers this filing season. The IRS is actively investigating instances of this scam involving tax preparers who are preparing inflated refund requests.
Also new to the Dirty Dozen this year are abuses pertaining to Roth IRAs, the American Indian Employment Credit, domestic shell corporations and structured entities.
"Taxpayers shouldn't let their guard down," IRS Commissioner Mark W. Everson said. "Don't get taken by scam artists making outrageous promises. If you use a tax professional, pick someone who is reputable. Taxpayers should remember they are ultimately responsible for what is on their tax return even if some unscrupulous preparers have steered them in the wrong direction."
Involvement in tax schemes leads to problems for scam artists and taxpayers. Tax return preparers and promoters risk significant penalties, interest and possible criminal prosecution.
The IRS urges taxpayers to avoid these common schemes:
Updated: 03/09/07 6:51 AM
By Stephen R. Lamantia
Nearly a decade ago, New York State Chief Judge Judith S. Kaye stated: "A justice system that allows disparities in justice based on the ability to pay is inconsistent with a fundamental principle of our free democratic society ' equal justice for all.'" Sadly, New York State, which prides itself as the birthplace of legal services for the poor, now ranks among the worst states in the nation when it comes to funding civil legal services for its low-income population. More than 80 percent of the most basic civil legal needs of New York's low-income population are not being met. These are in such critical areas as elder care, child care assistance, health care services, domestic violence and housing and human rights. The primary reason is lack of adequate state funding.
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Stephen R. Lamantia is president of the Bar Association of Erie County.
NYSBA | Lawyer Assistance Program (LAP)
The New York State Bar Association Lawyer Assistance Program (LAP) provides education and confidential assistance to lawyers, judges, law school students, and immediate family members who are affected by the problem of substance abuse, stress, or depression. Its goal is to assist in the prevention, early identification and intervention of problems that can affect professional conduct and quality of life.
Law.com: 2nd Circuit Forms Committee to Address Grievances Against Attorneys
Mark HamblettNew York Law Journal03-13-2007
The 2nd Circuit has formed a new committee to handle grievances against attorneys, a move officials said signals a more proactive role in evaluating ethics issues.
Chief Judge Dennis Jacobs announced Monday a seven-person committee that will be charged with what he called the "vital" function of investigating and filing recommendations on disciplinary matters that are referred to it by the court.
Here below are links to the full text of proposed rules to be presented at the June House of Delegates meeting:
The deadline for comments is May 25, 2007. Seth Rosner is the contact person for comments. His telephone number is 518-587-4802 and his e-mail is sethrosner@nycap.rr.com.
The New York State Unified Court System has new attorney advertising regulations, which went into effect February 1, 2007. As a service to its members, NYSBA has compiled a brief summary of the most significant changes, as well as a redlined version of the regulations, indicating how the amendments have changed the Code of Responsibility. A summary of Frequently Asked Questions also is available. Click the links below to review the changes:
Synopsis of Changes to Code of Professional Responsibility (PDF)
Redlined Version of Advertising Regulations(PDF)
Press Release Announcing Changes
Frequently Asked Questions About Changes to Lawyer Advertising Rules(PDF)
Convictions and sentences on charges arising from a mortgage fraud scheme are vacated as the district judge's handling of, and reaction to, his prior dealings with the government's main cooperating witness concerning a mortgage application for the judge created an appearance of partiality and recusal was required.
Blogger unmasked, court case upended - The Boston Globe
By Jonathan Saltzman, Globe Staff | May 31, 2007
It was a Perry Mason moment updated for the Internet age.
As Ivy League-educated pediatrician Robert P. Lindeman sat on the stand in Suffolk Superior Court this month, defending himself in a malpractice suit involving the death of a 12-year-old patient, the opposing counsel startled him with a question. Was Lindeman Flea?
Flea, jurors in the case didn't know, was the screen name for a blogger who had written often and at length about a trial remarkably similar to the one that was going on in the courtroom that day.In his blog, Flea had ridiculed the plaintiff's case and the plaintiff's lawyer. He had revealed the defense strategy. He had accused members of the jury of dozing.With the jury looking on in puzzlement, Lindeman admitted that he was, in fact, Flea.
The next morning, on May 15, he agreed to pay what members of Boston's tight-knit legal community describe as a substantial settlement -- case closed.
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Law.com - Lawyer's Interest Charges on Unpaid Legal Fees Found to Be Excessive
Daniel Wise
New York Law Journal
June 7, 2007
A requirement in a retainer agreement compelling a client to pay 16 percent interest on unpaid fees is excessive and unenforceable, a Nassau County, N.Y., judge has ruled.
Instead, the client must pay interest on the unpaid fees at a rate of 9 percent, the amount of interest allowed by statute to be collected, both pre- and post-judgment, on amounts found collectible by courts, Nassau District Court Judge Gary F. Knobel ruled in Kutner v. Antonacci, 36363/06.
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N.Y. Federal Judge Strikes Down Many New Attorney Ad Rules
Finds state failed to prove that ban on certain content advanced goal of protecting public from misleading ads
Anthony Lin
New York Law Journal (Read entire article)
July 24, 2007
A federal judge has ruled unconstitutional most of the sweeping new restrictions on attorney advertising introduced earlier this year by the New York courts.
The restrictions, which went into effect Feb. 1, had barred lawyers from, among other practices, using nicknames that suggest an ability to obtain results or touting "characteristics clearly unrelated to legal competence."
Alexander & Catalano, the Syracuse, N.Y., personal injury firm that challenged the constitutionality of the advertising restrictions, had previously run ads calling its lawyers "heavy hitters" and showing them towering over downtown office buildings or sprinting at impossible speeds to help clients.
The four presiding justices of New York's Appellate Division, who are charged with overseeing attorney discipline, first unveiled proposed restrictions on attorney advertising last June to address concern that outrageous and aggressive lawyer ads were misleading the public as well as harming the image of the profession.
But Northern District of New York Judge Frederick J. Scullin ruled that the state had largely failed to show that its wholesale prohibitions of certain kinds of content had advanced its interest in protecting the public from misleading lawyer advertisements. Moreover, he said, the state had failed to show less onerous means could not achieve the same ends.
"Defendants have failed to produce any evidence that measures short of categorical bans would not have sufficed to remedy the perceived risks of such advertising being misleading," the judge wrote in Alexander & Catalano v. Cahill, 07 Civ. 117. "There is nothing in the record to suggest that a disclaimer would have been ineffective."
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Along with the bans on nicknames and nonlegal characteristics, prohibitions on active client testimonials, portrayals of judges and fictitious law firms and the use of Internet pop-up ads were also struck down as unconstitutional in Scullin's decision.
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New York's Attorney Advertising Rules Held Unconstitutional
The Northern District of New York ruled July 23rd, 2007 that New York's amended rules against attorney advertising are unconstitutional and permanently enjoined enforcement of most of the challenged provisions. The court agreed with Public Citizen's argument that the state had not shown that the rules were necessary to help consumers and were not narrowly tailored to the state's asserted purpose. In fact, the rules restricted truthful advertising that would benefit consumers.
"A client retaining an attorney on a contingent basis, in the absence of clear and express language to the contrary, contemplates that the percentage fixed is to constitute payment for whatever services may be necessary to obtain collection of any judgment which may be recovered, whether the services be in connection with an appeal taken from the judgment or in connection with efforts to collect the judgment, or both," the judge wrote in Siagha v. Katz & Associates, 603927/05.
She noted that there had only been one retainer agreement filed with the Office of Court Administration in the case, a standard form filed by Schwartz Gutstein. The judge also noted that none of the lawyers who actually represented Siagha had ever taken the step of obtaining a retainer agreement specific to the case. They also never wrote him a letter or e-mail describing or discussing their legal fees.
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Law.com - Closing Attorneys See Red Over HomeBanc Mortgage's Bad Checks
Real estate attorneys caught between covering bounced checks or risking bar violations after company files for bankruptcy
Andy Peters
Fulton County Daily Report
August 16, 2007
John K. Haley, a real estate closing attorney in Buford, Ga., left work July 31 thinking the HomeBanc mortgages he'd closed earlier that day had cleared.
That turned out not to be true. Haley was one of dozens of Atlanta-area real estate closing attorneys who received bounced checks last month from HomeBanc Mortgage Corp. Lawyers estimate HomeBanc may have issued $20 million or more in bounced checks July 30 and July 31. HomeBanc filed for Chapter 11 bankruptcy protection Aug. 9.
Because HomeBanc's primary lender, JPMorgan Chase, stopped financing the company around the end of July, HomeBanc could no longer provide funds on the mortgages it had sold. That caused a big problem for some lawyers: HomeBanc had already issued checks to these lawyers, who then disbursed the money to sellers, real estate agents, surveyors and others.
That left numerous lawyers high and dry.
"These lawyers are really scrambling right now," said C. Scott Logan, president of the Georgia Real Estate Closing Attorneys Association.
While the state's "good funds" law requires lawyers to wait until checks have cleared the bank before closing a mortgage, in practice most real estate closing attorneys close mortgages when they have the check in hand, without waiting for the money to clear, Logan said.
In addition to being stuck with thousands, if not millions of dollars in bounced checks, these lawyers also worry they may have violated State Bar of Georgia rules. That's because they could have disbursed money from an escrow account when the money really wasn't there, creating a negative balance. It's a violation of Bar rules for a lawyer to have a negative balance in an escrow account.
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Law.com - Lawyers Learn From HomeBanc's Demise
Closing attorneys vow to accept only wire transfers after dealing with lender's bounced checks
Andy Peters
Fulton County Daily Report (full text)
August 23, 2007
Even though a bankruptcy judge in Delaware this week saved them from financial ruin, real estate closing attorneys said they learned a powerful lesson from the collapse of HomeBanc Corp. -- never accept anything but a wire transfer at closing.
At least a dozen Atlanta-area law firms received bounced checks from HomeBanc last month, before the company filed for Chapter 11 bankruptcy protection Aug. 9. By HomeBanc's count, it bounced 134 checks worth at least $18 million, but the Georgia Real Estate Closing Attorneys Association estimates the figure was $28 million.
Assuming HomeBanc's checks were backed by sufficient funds, lawyers had disbursed the money at closings -- not only to the home's seller and the previous mortgage holder, but also to agents for their commissions and to surveyors, court clerks and others whose payments occur at closing.
When the checks bounced, lawyers had to scramble to find ways to cover their positions. Some took out home equity loans, others filed claims on their Errors & Omissions insurance policies.
On Tuesday, the bankruptcy judge handling HomeBanc transferred ownership of the loans to the closing attorneys. This move lets the lawyers recover their money by selling the loans to banks or other mortgage lenders.
The bounced checks occurred as a result of HomeBanc getting squeezed by broad turmoil in the U.S. housing market and the global credit market. As the market tanked, HomeBanc's primary source of funds, JPMorgan Chase, on Aug. 6 cut off money for the mortgages HomeBanc sold, according to HomeBanc's court filings.
Regardless of the problems in the market, attorneys said the rubber check problem could have been prevented simply by requiring HomeBanc to fund its loans with wire transfers.
As a result, "some law firms are requiring 100 percent wired funds from everybody -- lenders, buyers, even other attorneys," said closing attorney Jennifer L. Dickenson of Dickenson Gilroy. "There is a really high sensitivity right now to how we get the money into our accounts."
Why HomeBanc was allowed to fund mortgages with company checks, when the large majority of other mortgage lenders paid only by wire transfer, speaks to the clout HomeBanc carried in metro Atlanta -- if not its level of intimidation.
"They were big enough they could frankly bully everybody," said Jeffrey P. Ganek, managing partner of Ganek, Wright & Dobkin's Midtown office. "You had to follow their rules."
HomeBanc, or any mortgage lender, benefits by funding loans with checks as opposed to wire transfers, Ganek said. While wire transfers represent an immediate shift in money, checks take days to clear a bank, allowing HomeBanc to earn more interest on the money as it sat in escrow, Ganek said.
"Even if it's only a day or two extra it's sitting in an interest-bearing account, if you're doing enough loans, it's a lot of money," he said.
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Law.com - N.Y. Appellate Panel Finds Dead Man's Law Applies in Disciplinary Matter
In a 4-1 decision, the appellate panel ruled that the Dead Man's Statute did apply to a disciplinary proceeding, noting that the very language of the statute said it applied to "the hearing upon the merits of a special proceeding."
The majority of Justices David B. Saxe, Luis A. Gonzalez and James M. Catterson said the situation In the Matter of Zalk, M-6672, clearly fit the elements of the statute and thus prevented Zalk from arguing that Gellman made an oral pledge to him. The court said it was therefore compelled to find that Zalk improperly converted client escrow funds.
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Joel Stashenko
New York Law Journal (read Entire Article)
November 7, 2007
Attorneys in New York state are a step closer to becoming the last Bar in the United States to have rules of ethical behavior based in form and substance on the American Bar Association's Model Rules of Professional Conduct.
The New York State Bar Association's House of Delegates last Saturday unanimously approved revisions that are designed to transform New York's current Code of Professional Responsibility into new state Model Rules of Professional Conduct.
It took the State Bar's Committee on Standards of Attorney Conduct nearly five years to produce the almost 500 pages of proposed rules, which will now be sent to the appellate division's presiding justices for review and possible final adoption.
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Law.com - N.Y. State Brief Defends Restrictions on Attorney Advertisements
N.Y. State Brief Defends Restrictions on Attorney Advertisements
Argues commercial speech can be limited
Joel Stashenko
New York Law Journal
December 4, 2007
A Northern District of New York federal judge failed to recognize the limits the U.S. Supreme Court has placed on commercial free speech when he ruled that most of New York state's new restrictions on attorney advertisements are unconstitutional, the state is arguing on appeal.
Promotional activities that the guidelines seek to prohibit are not protected by the First Amendment and U.S. Judge Frederick J. Scullin "erred" when he found them unconstitutional, the attorney general's office contends in its brief to the 2nd U.S. Circuit Court of Appeals.
The ad restrictions were challenged by a Syracuse, N.Y., lawyer, his firm Alexander & Catalano, and a public advocacy group. The 2nd Circuit has tentatively scheduled oral arguments for March to hear an appeal of Scullin's determination.
The ad guidelines imposed starting Feb. 1, 2007, seek to bar flamboyant promotional techniques such as lawyers referring to themselves as "heavy hitters" or other monikers that suggest an ability to deliver special results. Other prohibitions struck down by Scullin barred active clients from giving testimonials, portrayals of judges and the use of Internet pop-up ads on Web sites other than the firm's own site.
The brief before the 2nd Circuit defending the ad guidelines, written by Assistant Solicitor General Owen Demuth, also asks that a permanent injunction issued by Scullin in July prohibiting enforcement of the allegedly constitutionally infirm sections be lifted.
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Read entire article
The Committee on Professional Ethics of the New York State Bar Association on November 2, 2007, issued Opinion 817. According to the "Digest" of the Opinion, the Committee has taken the position that "participation in [a] residential real estate transaction that includes a 'seller's concession' and [a] 'grossed up' sale price is prohibited unless the transaction is entirely lawful, the gross-up is disclosed in the transaction documents and no parties are misled to their detriment".
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Thanks to Mike Berry at the Real Property Section Blog, which is well worth your attention.
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Aside from your jurisdiction's ethical rules, the single most important document that defines your relationship with your client is your retainer agreement or engagement letter. When was the last time you reviewed your agreement?
Here are some essential elements to include in your retainer agreement:
1. Scope of work: Does your agreement accurately and specifically reflect the work you will perform for the client (and the work you won't perform under the agreement?) If you're retained for a litigation matter, does your retainer agreement include working on an appeal? Does preparation of a will for a client include a health care proxy, living will and durable power of attorney, or are will those services require a separate agreement (and a separate fee)?
2. A time limitation. Don't leave yourself open for problems with clients that fail to return your retainer agreement. Your agreement should state specifically that the provisions contained within it (including the fee) are only valid if the agreement iss signed within a specific period of time (i.e. 2 weeks. one month, etc.) Make it clear that if the agreement (and retainer fee) are not received within that period of time, you are not obligated to represent the client.
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Read the rest of this retainer review at Legal Ease Blog and for help reviewing your retainer agreement and/or other forms or procedures in your office, feel free to contact Allison Shields, the author.
Dear NDNY Member:
You are cordially invited to attend an admissions ceremony and free CLE program at the U.S. District Courthouse in Syracuse on Thursday, April 10th from 10:00 a.m. to 12:00 p.m. The CLE topic is "Removal Jurisdiction - Making it a Federal Case" (1.5 hrs. CLE credit).
A complimentary luncheon at Pascale's Restaurant with members of the Federal Judiciary will follow the CLE program.
Please see the invitation for additional details:
http://www.ndnyfcba.com/p/FCBA%20CLE%20Invitation%20(4.10.08).pdf
For CLE registration and lunch reservations, please RSVP by April 7th by e-mailing tmoyo@bsk.com.
Board of Directors
NDNY Federal Court Bar Association, Inc.
Albany Times Union (Jay Jochnowitz): Pay raise suit no excuse for judges
New York's judges can't refuse to hear cases involving state lawmakers or legislators' law firms because Chief Judge Judith Kaye and the Unified Court System are suing the Legislature for a judicial pay hike, the Commission on Judicial Conduct said Monday. Moreover, the panel warned, it wouldn't help the judiciary's image if the commission has to look into instances of judges bowing out of cases involving lawmakers or their firms. A commission spokesman would not say whether any judges are under investigation for refusing to hear such cases. The issue came to the fore in recent weeks after various judges around the state started citing conflicts of interest because of Kaye's battle with the Legislature.
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Full Text of Advisory Committee on Judicial Ethics Opinion
Albany Times Union (Rick Karlin): Class-action lawsuit in state pension cases?
An Albany lawyer is preparing a class-action lawsuit to try to stop Attorney General Andrew Cuomo and Comptroller Thomas DiNapoli from stripping pension credits from lawyers who state officials say don't deserve them. The lawsuit will likely be filed later this week in state Supreme Court in Albany County and will seek restraining orders against Cuomo and DiNapoli, said lawyer James Roemer, who specializes in public sector employment issues. While he wouldn't immediately divulge details of his legal strategy or name the initial plaintiffs, Roemer said he's representing four individuals from Long Island who have lost pension credits during the past few weeks.
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UPDATE: Roemer has a web site for the class action suit Save New York State Retirement Benefits.
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Albany Times Union (Fred LeBrun Column): Cuomo pension probe tinged with a certain lack of fair play
On the best of days, elevating the reputation of lawyers in general is too heavy a lift for one mere columnist. And these are certainly not the best of days for the image of the legal profession, thanks in great measure to state Attorney General Andrew Cuomo and his zealous rooting out of lawyers who may have gotten public retirement benefits for which they were not eligible. That Cuomo is himself a lawyer, and the First Lawyer of the state to boot, must be disconcerting at the least to the lawyer community. Particularly because the brush with which he's tarring a wide range of attorneys who don't deserve it is usually the stuff of spiteful lawyer-bashing. Hasn't Andrew heard all those professional courtesy jokes?
Operation Pushback has begun.
This class action suit was filed May 15, 2008. It will include all current members of the New York State and Local Employees’ Retirement System (ERS) and all current retirees from the ERS in all Tiers 1, 2, 3 and 4, who have rendered part-time annually salaried service, whether elected or by appointment, to any participating employer in the ERS.
Swergold, et.al. v. Andrew F. Cuomo, et.al., Index No. 3897-08 NYS Supreme Court- Albany County
Pleadings and Briefs
Documents filed on Thursday, May 15, 2008:
As a public service, the NYS Unified Court System is making available the public information included in its Part 36 databases on the internet.
This availability also fulfills the obligation of the Chief Administrator to publish the names of all persons and entities appointed by each appointing judge, and the compensation approved for each appointee pursuant to Section 36.5 of the Rules of the Chief Judge.
Searchable by eligible lists, notices of appointment, and approved compensation.
Save New York State Retirement
New documents have now been added to the Swergold v. Cuomo portion of the Pleadings and Briefs section. In addition, they are now providing the motion and other information for the new action Hill v. Cuomo.
Astrada v Archer (2008 NY Slip Op 51675(U))
In this matter, resulting from a real estate transaction that never closed, the Court, pursuant to 22 NYCRR ｧ 130-1.1 (a), awards costs of $40,600.50 to plaintiff Faith Astrada and imposes the maximum sanction of $10,000.00 upon defendant Regina Felton, Esq., for her "frivolous conduct" that "is completely without merit in law," in violation of 22 NYCRR ｧ 130-1:1 (c).
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Click on link above to read entire decision.
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Hat Tip to NY Law Journal
Ethics Opinion 08-451, dated Aug. 5 but announced by the ABA yesterday, states that sending legal work overseas is ethically permissible as long as the lawyer doing the outsourcing takes steps to ensure the protection of client confidences and preservation of attorney-client privilege. The advisory also states that attorneys should check to make sure that foreign lawyers are suitably trained and competent and that bills for outsourced work be reasonable.
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Read entire analysis at NY Law Journal
Matter of Hancock (2008 NY Slip Op 06991)
....the record reveals that the respondent afforded so little regard to his law license as to allow a disbarred felon to use his name freely on court papers and to advertise himself as his paralegal. In addition, the respondent knowingly made a misrepresentation to this Court during the course of oral argument. Under the circumstances, the respondent is disbarred.
Read entire article from NY Law Journal (Free registration)
McCORD v. THE STATE OF NEW YORK, 106136 (full text)
McCORD v. THE STATE OF NEW YORK, #2008-029-038, Claim No. 106136, Motion No. M-75505
Synopsis
Attorney’s motion to be relieved as counsel denied. His desire to avoid advancing the costs of trial, specifically $20,000.00 in expert witness fees, was not sufficient grounds to be relieved since the retainer agreement did not require claimants to advance such costs.
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Read NYLJ article.
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.
By Daniel Wise
January 23, 2009
Questioning from a panel of federal appeals judges yesterday swamped the state's primary argument for reinstating a series of restrictions on lawyer advertising that were enjoined in July.
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Read the full article here.
Find out how the new rules affect your practice
CLE Teleconference
2.0 MCLE Credits in Ethics*
Presented by the Committee on Law Practice Management and the General Practice Section
Tuesday, February 24, 2009
12:00 - 2:00 p.m.
(Eastern Time)
www.nysba.org/PracticeManagementCLE
$85.00 for NYSBA Members $125.00 for non-members.
Tuesday, February 24, 2009
Sponsored by the Committee on Law Practice Management and the General Practice Section
Practice Management and the New Rules of Professional Conduct
CLE Teleconference
Find out how the new rules affect your practice
Tuesday, February 24, 2009
12:00 p.m. - 2:00 p.m.
(Eastern Time)
Moderator:
Professor Gary Munneke
Speakers:
Marian Rice, Esq.
Thomas Rice, Esq.
On April 1, 2009, the New York Rules of Professional Conduct will replace the existing Disciplinary Rules. In addition to adoption of ABA Model Rules Format, the new rules bring changes that affect the manner in which you manage your law firm or practice on your own. Learn the overall format of the newly enacted Rules and how the Rules:
Significantly change the manner in which a conflict of interest should be analyzed and resolved;
Alter the existing rules on the relationship between attorney and client and the allocation of authority in the attorney client relationship;
Impact upon the current letters of engagement rules and the circumstances under which attorneys may agree to a division of fees;
Set forth the attorney's responsibilities and duties to prospective clients who have not engaged the attorney;
Affect the current definitions of attorney-client communications;
Delineate the role of an attorney when dealing with a client of diminished capacity;
Permit, under certain circumstances,evaluations to one other than the client;
Define the role of the lawyer as a third party neutral;
Specify an attorney's obligations before a tribunal;
Expand an attorney's obligation in speaking with unrepresented parties;
Include direction on the inadvertent receipt of documents and respect for the rights of third persons; and
Set forth aspirational goals for pro bono service.
register at www.nysba.org/practicemanagementcle
Law.com - Lawyer May Collect Fee Despite Billing Slip-Up
Vesselin Mitev
New York Law Journal
March 18, 2009
A divorce attorney who failed to bill his client at statutory 60-day intervals can still collect a fee for his services, a New York state judge has ruled.
"Although an attorney's failure to provide itemized bills at least every 60 days will preclude collection of a fee for services rendered ... where there has been 'substantial compliance' with the rules, recovery of fees has been allowed," Brooklyn Supreme Court Justice Mark I. Partnow held in Edelstein v. Greisman, 18848/08.
Effective April 1, 2009
The new Rules of Professional Conduct for attorneys go into effect today. These rules replace New York's Code of Professional Responsibility with the model rule format that is currently used throughout the nation. The new rules are designed to assist attorneys in understanding their ethical responsibilities to clients, courts and the legal profession.
For more information on these rule changes, and how they will impact practicing attorneys, please visit www.nysba.org/professionalstandards. Visitors can view a complete listing of the new rules and a chart that displays how the new rules compare with the previous Code of Professional Responsibility.
The State Bar Association also will host several CLE programs statewide to help attorneys become more familiar with the new Rules of Professional Conduct. Additional information on these programs can be found at www.nysba.org/newrulesCLEofferings.
The New York Law Journal - Court Papers Went Undelivered; Process Server Faces Charges
A company hired to serve debt collection lawsuits to thousands of cash-strapped New Yorkers did not bother to deliver the papers much of the time, leaving many people unaware they had been sued until the case was over and their bank accounts were frozen, authorities said yesterday.
Attorney General Andrew Cuomo filed criminal fraud charges against the firm, American Legal Process, of Lynbrook, and its owner and president, William Singler.
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Read entire article here.
VELVETREVOLUTION.US : The DisbarTortureLawyers Campaign
On Monday, May 18, 2009, a broad coalition of organizations (Velvet Revolution.US), filed disciplinary complaints with state bar licensing boards against John Yoo, Jay Bybee, Stephen Bradbury, Alberto Gonzales, John Ashcroft, Michael Chertoff, Alice Fisher, William Haynes II, Douglas Feith, Michael Mukasey, Timothy Flanigan, and David Addington for advocating the torture of detainees during the Bush Administration.
These detailed complaints, with over 500 pages of supporting exhibits, have been filed with the state bars in the District of Columbia, New York, California, Texas and Pennsylvania, and they seek disciplinary action and disbarment. Copies of the complaints and exhibits are available here, together with links to the released torture memos:
The Released Torture Memos
http://www.fas.org/irp/agency/doj/olc/index.html
http://www.aclu.org/safefree/torture/torturefoia.html
http://www.propublica.org/special/missing-memos.
Wednesday, June 10, 2009
- Location -
Teleconference
Find out how the new rules affect your practice
12:00- 2:00 p.m.
2.0 MCLE Credits in Ethics
Presented by the Committee on Law Practice Management and the General Practice Section
Moderator:
Professor Gary Munneke
Speakers:
Marian Rice, Esq.
Thomas Rice, Esq.
On April 1, 2009 the New Rules of Professional Conduct replaced the existing Disciplinary Rules. In addition to adoption of ABA Model Rules Format, the new rules bring changes that affect the manner in which you manage your law firm or practice on your own.
Please note that newly admitted attorneys cannot receive credit for participation in CLE teleconferences or webinars.
To view the 2009 CLE live program schedule, go to www.nysba.org/CLE
The last day to pre-register online is June 9, 2009. Register online now
Continue reading "Practice Mang. & the New Rules of Prof. Conduct--6/10/09" »
Law.com - ABA Plans for Litigation Over FTC Rules on Identity Theft
The president of the American Bar Association said Wednesday that the group is preparing to go to court if it cannot persuade the Federal Trade Commission to exempt lawyers from new regulations to protect against identity theft.
H. Thomas Wells Jr. said in an interview that the New York-based firm Proskauer Rose has signed up to represent the ABA pro bono. The trade commission is scheduled to begin enforcing the regulations Aug. 1, and Wells said the bar association would file a lawsuit by the end of next week if necessary to head off enforcement.
"If they stay with the Aug. 1 date and we don't get some kind of sign, we'll be filing before Aug. 1," said Wells, a partner at Maynard Cooper & Gale in Birmingham, Ala.
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Office of Minnesota Attorney General Lori Swanson
Swanson Also Wants Congress to Ban "Fine Print" Forced Arbitration Clauses
Minnesota Attorney General Lori Swanson and the National Arbitration Forum, the country's largest administrator of credit card and consumer collections arbitrations, have reached an agreement that the company would get out of the business of arbitrating credit card and other consumer collection disputes.
" I am very pleased with the settlement. To consumers, the company said it was impartial, but behind the scenes, it worked alongside credit card companies to get them to put unfair arbitration clauses in the fine print of their contracts and to appoint the Forum as the arbitrator. Now the company is out of this business," said Swanson.
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Read entire Press Release from Minnesota AG
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Hat tip to Bob Ambrogi, who looks at the implications of this move and the connections to collections industry giant Mann-Bracken..
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.
The Federal Trade Commission cannot force practicing lawyers to comply with new regulations aimed at curbing identity theft, a federal judge ruled Thursday at the U.S. District Court for the District of Columbia.
Facebook Friendship? It’s Complicated for Judges and Lawyers - NYTimes.com
By JOHN SCHWARTZ
Published: December 10, 2009
Judges and lawyers in Florida can no longer be Facebook friends.
In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”
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Two Chief Justices Have One Word of Advice for Solos: Unbundling - News - ABA Journal
Unbundled legal services are one way to close a justice gap that is growing as more people find themselves unable to afford a lawyer, according to the chief justices of the California and New Hampshire supreme courts.
However, solo practice lawyers do not agree, if one takes the comments which follow this article as any indication. These comments are well worth reading for a real sense of the discussion on this current practice issue.
Law Firms Swindled Out of $500K in E-Mail Scam - News - ABA Journal
Two law firms in Honolulu were scammed out of $500,000 in an e-mail scheme that's apparently targeting the legal community.
During the past six weeks, six different law firms have been targeted, according to the FBI, which issued a warning today (PDF). Two of the six fell for the scheme and lost a total of $500,000.
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Hat Tip to ABA Journal--click here to see related coverage.
;Free Breaking News:</font> Paterson Charged With Ethics Violation Over World Series Tickets
The state Commission on Public Integrity said today that there is reasonable cause to believe that the governor had accepted five $425 tickets from the New York Yankees as a gift in violation of Public Officers Law Ё73(5)(a)(b).
Read the commission's Notice of Reasonble Cause.
Second Circuit Rejects Most Of Attorney Advertising Rules
"The speech that Defendants' content-based restrictions seeks to regulate—that which is irrelevant, unverifiable, and non-informational—is not inherently false, deceptive, or misleading. Defendants' own press release described its proposed rules as protecting consumers against 'potentially misleading ads,'" the panel wrote in Alexander v. Cahill, 07-3677-cv, 07-3900- cv.
The Second Circuit decision appears on page 17 of the print edition of today's Law Journal
The ruling primarily affirms the July 2007 decision by Northern District Judge Frederick J. Scullin.
Courtesy of NYLJ--Noeleen G. Walder--Read full NYLJ article/breaking news.
Thursday, March 25, 2010
6:00 p.m. – 8:00 p.m. (registration at 5:30 p.m.)
LaTourelle Resort and Spa
1150 Danby Road, Ithaca, NY
The program is FREE to all attorneys, but pre-registration is required. Dinner is included.
This program has been approved for 2.0 MCLE credits in Ethics for all attorneys, including both newly admitted and experienced attorneys.
Co-sponsored by
The Tompkins County and Broome County Bar Associations; Lawyers Helping Lawyers Committees of Broome, Tompkins, Cortland, Chemung and Tioga Counties; and the New York State Bar Association Lawyer Assistance Program. This program is funded through a grant from the New York State Lawyer Assistance Trust.
Program Description
Presenters will share their perspectives on practicing law in a manner that enhances and integrates mental, emotional and spiritual health and development of community.
Agenda
5:30 – 6:00 p.m. Registration
6:00 – 6:15 p.m. Introduction
Mariette Geldenhuys, Esq., Mariette Geldenhuys Attorney at Law
6:15 – 6:40 p.m. A Lawyer’s Family Story of Depression
Hon. Michael J. Miller (Ret.)
Hinda Miller
6:40 – 7:05 p.m. A Lawyer’s Story of Alcoholism
Lenore Le Fevre, Esq.
7:05 – 7:30 p.m. Lawyers Helping Lawyers (panel discussion)
Hon. John C. Rowley, Tompkins County Court Judge
Charles Oliver Wolff, Esq., Law Office of Charles Oliver Wolff
Richard M. Wallace, Esq., Guttman & Wallace
7:30 – 7:55 p.m.
Lawyers Assistance Program
Paul Curtin, Outreach Coordinator, 4th Department New York State Bar Association’s Lawyer Assistance Program
7:55 – 8:00 p.m. Questions and Answers
For registration or additional Information please contact Sindy Garey, Director of the Broome County Bar Association bcbaexdir@stny.rr.com.
*** The meeting location includes a Spa and is offering a 15% discount on Spa services for attendees and a special $99.00/night room rate as well. For information on Spa services and reservations, go to www.augustmoonspa.com.
Wednesday, April 14, 2010
By Adam Leitman Bailey and Dov Treiman
Adam Leitman Bailey, founding partner of Adam Leitman Bailey, P.C., and Dov Treiman, a partner at the firm, write:
Currently before the State Legislature are two bills that would inject the state in the business of title insurance, damaging New York's standing as the capital of real estate transactions. One would broaden the power of the State Insurance Fund to provide a State alternative to the current private system of title insurance. The other would create a new state title authority for the same purpose. Many real estate attorneys see these bills as a threat, both to the heart of the safe transfer of real estate and to the capitalist system itself.
Tuesday, April 27, 2010, 9:30 a.m.
Attorney Admission Ceremony & CLE
“Take it to the Limit?: Effective Advocacy & the Ethical Boundaries of
Witness Preparation”
(1.5 Hours, 1.0 Ethics & Professionalism; 0.5 Skills)
James Hanley Federal Building & Courthouse
3rd Floor Ceremonial Courtroom, 100 S. Clinton St., Syracuse, New York
Registration begins at 9:00 a.m.
Complimentary luncheon following the program at Kitty Hoynes Restaurant.
Admission Application Deadline April 22, 2010.
Pre-registration for CLE & luncheon required by April 23, 2010.
Please visit the NDNY FCBA website for details at www.ndnyfcba.org
Trista F. O'Hara, Esq.
Pro Se Coordinator
NDNY Federal Court Bar Association, Inc.
P.O. Box 1306
Syracuse, New York 13201
Office #: (315) 422-2711
Toll Free #: 1-877-422-1011
Fax #: (315) 422-2778
tohara@ndnyfcba.org
Justice with Michael Sandel - Home
Justice is one of the most popular courses in Harvard’s history. Now it’s your turn to take the same journey in moral reflection that has captivated more than 14,000 students, as Harvard opens its classroom to the world.
In this twelve part series, Sandel challenges us with difficult moral dilemmas and asks our opinion about the right thing to do. He then asks us to examine our answers in the light of new scenarios. The results are often surprising, revealing that important moral questions are never black and white.
This course also addresses the hot topics of our day—affirmative action, same-sex marriage, patriotism and rights—and Sandel shows us that we can revisit familiar controversies with a fresh perspective.
Dissent breaks out over ABA charges for ethics opinions
Leigh Jones
September 29, 2010
The American Bar Association is under fire from attorneys who argue that the organization should stop charging fees for access to its ethics opinions.
An outcry erupted this week among practitioners who said that the ABA has a responsibility to the profession and the public to make all ethics opinions available for free online.
"Let the ABA sell something else," said Carolyn Elefant, a solo practitioner in Washington.
Patricia Salkin
Albany Law School
Patricia E. Salkin is the Raymond and Ella Smith Distinguished Professor of Law, Associate Dean and Director of the Government Law Center of Albany Law School.
Pace Law Review, Forthcoming
Abstract:
This article explores how social networking sites have been used or might be used in the land use context. Part I focuses on the use of social networking for land use planning and zoning. It includes a discussion of the pros and cons of the use of social networking sites to present public information and to gather public input and invite general participation in the process, as well as to provide notice to the public of forthcoming government decision-making. This section offers concrete examples of how this technology is currently being used in the land use context. Part II focuses on the professional ethical considerations of the various players in the land use game as it specifically relates to the use of social networking sites. For lawyers, the applicable Rules of Professional Conduct are examined and for Planners, the Code of Ethics of the American Institute of Certified Planners (AICP) is explored for guidance. The article concludes with a warning that that although there are benefits to the use of social networking tools for land use planning and zoning initiatives, attorneys, government agencies, planners and others should use caution when employing these tools, being certain to weigh ethics and professionalism implications, social justice goals and public participation mandates and aspirations against the advantages of these tools, and the uncertainty of how courts might apply myriad legal mandates in cyberspace.
In depositions both old and new, employees at servicers, foreclosure-mill law firms, and other players describe how they processed foreclosures. Read it in their words.
Read entire article with multiple links to deposition transcripts.
The NDNY FCBA will be holding their annual Federal Criminal Law Update CLE on Thursday, November 18, 2010. The program will take place at the Crowne Plaza Hotel in Albany, New York.
Pre-registration is required.
Please see their website (www.ndnyfcba.org) for additional information and well as registration information.
Thank you.
Trista F. O'Hara, Esq.
Pro Se Coordinator
NDNY Federal Court Bar Association, Inc.
P.O. Box 1306
Syracuse, New York 13201
Office #: (315) 422-2711
Toll Free #: 1-877-422-1011
Fax #: (315) 422-2778
tohara@ndnyfcba.org
Websites have become a common means by which lawyers communicate with the public. Lawyers must not include misleading information on websites, must be mindful of the expectations created by the website, and must carefully manage inquiries invited through the website. Websites that invite inquiries may create a prospective client-lawyer relationship under Rule 1.18. Lawyers who respond to website-initiated inquiries about legal services should consider the possibility that Rule 1.18 may apply.
Some lawyers are trading formal offices for virtual offices run from their own home, but not all states are happy about the idea. New Jersey recently ruled that virtual offices violate the state's rules of conduct for lawyers. Pennsylvania regulators took the opposite approach and explicitly gave lawyers permission to set up virtual offices with no fixed physical address. AboveTheLaw.com
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The Administrative Judicial Institute is pleased to invite you and your fellow administrative law judges to attend a program entitled " Implicit Bias in Judicial Decision Making: Striving for Fairness from the Bench"," on Wednesday evening, March 23, 2011, from 6:00 p.m. to 8:00 p.m. The program will be presented by Columbia Professor Dana Carney and New York University Law School Professor Sarah Burns and will focus on helping judges understand how unintended biases develop and can impact judicial decision making, and how they might be avoided or addressed.
The program will be held at the Institute's 14th Floor Lecture Room at 40 Rector Street and will provide 2 CLE credits in ethics. A description of the program is posted on the Institute's website. Please share this announcement with your fellow judges and tribunal attorneys.
To register, go to the Upcoming Programs link on the Institute website: http://www.nyc.gov/html/oath/html/aji/programs.shtml . The registration link will be active after 4 p.m. today.
Hope to see you there,
Ray Kramer
Raymond E. Kramer
Administrative Law Judge
Administrative Judicial institute at the
Office of Administrative Trials and Hearings
40 Rector Street, 6th Floor
New York, New York 10006
Phone: 212-442-4928; - 4929
Fax: 212-442-8910
Friday, June 17, 2011
Staying Ahead of the Curve: What Every Criminal Defense Lawyer Needs to Know
Free Criminal Law CLE Program for Public Defenders, Conflict Defenders and Assigned Counsel
7 MCLE Credits (6.0 Professional Practice and or Skills; 1.0 Ethics)
Cortland County Supreme Court Justice Philip R. Rumsey, the president of the Association of Justices of the Supreme Court of the State of New York, said the courts are being ill-used by the governor and the Legislature.
"The other two branches are requiring the courts to establish 'worthy programs,' such as the mandatory settlement conferences in foreclosure cases," Justice Rumsey said. "But then they are not providing the resources to do what they have required."
 NDNY Federal Court Bar Association, Inc. Proudly Announces
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A New York State Federal Judicial Council - Advisory Group Complimentary Second Circuit CLE Program
Ethics Update: "Perspectives from the Federal & State Judiciary" (2.0 hrs. CLE Ethics Credits)
REGISTER AT http://ww2.ca2.uscourts.gov/cle/Login.aspx Program Chair: Doreen A. Simmons, Esq., Hancock Estabrook, LLP
Moderators will present differences in the interpretation and application of ethical standards, disciplinary proceedings, and sanctions in Federal and State Courts. Program topics will address issues in both criminal and civil practice including counsel withdrawal, discipline and sanctions, the no-contact rule, attorney disqualification, and ethics surrounding social media.
This program is complimentary to any attorneys admitted to practice in the State of New York. Following each program, there will be a light refreshment gathering which will include the Judicial Panel. THERE IS NO FEE FOR THIS CLE OR THE RECEPTION.
Space will be limited. You may now register for any of these programs through the Second Circuit registration program.
Eastern District: May 11 (5:30-7:30 p.m.)
Chair: Marjorie J. Peerce, Esq., Stillman, Friedman & Shechtman, P.C.
Location: EDNY Courthouse / Ceremonial Courtroom Program will be video-conferenced to Central Islip Courthouse
Moderator: Bruce A. Green, Esq., Fordham University School of Law
Judicial Panel:
Hon. Brian M. Cogan, District Judge, EDNY Hon. Barry Kamins, Admin. Judge for Criminal Matters, 2d Jud. Dist. Hon. Sylvia Hinds-Radix, Admin. Judge for Civil Matters, 2d Jud. Dist.
Southern District: May 10 (5:30-7:30 p.m.)
Chair: Bernice K. Leber, Esq., Arent Fox PLLC
Location: DPM Courthouse/Ceremonial Courtroom Program will be video-conferenced to White Plains Courthouse
Moderator: Bruce A. Green, Esq., Fordham University School of Law
Judicial Panel:
Hon. Loretta A. Preska, Chief Judge, SDNY Hon. Angela M. Mazzarelli, Assoc. Justice of Appellate Div., 1st Dept. Hon. Bernard J. Fried, Supreme Court Justice, Commercial Division
Northern District (Albany): May 10 (3:00-5:00 p.m.)
Chair: Linda J. Clark, Esq., Hiscock & Barclay, LLP
Location: U.S. Courthouse/Ceremonial Courtroom
Moderator: Patrick M. Connors, Esq., Albany Law School
Judicial Panel:
Hon. Gary L. Sharpe, District Judge, NDNY Hon. Randolph F. Treece, Magistrate Judge, NDNY Hon. E. Michael Kavanagh, Justice of the Appellate Div., 3rd Dept. Hon. Kimberly O'Connor, Supreme Court Justice, N.Y. Court of Claims
Northern District (Syracuse): May 11 (3:00-5:00 p.m.)
Co-Chairs: Doreen A. Simmons, Esq., Hancock Estabrook, LLP Edward R. Conan, Esq., Bond, Schoeneck & King, PLLC
Location: U.S. Courthouse/Ceremonial Courtroom
Moderator: Patrick M. Connors, Esq., Albany Law School
Judicial Panel:
Hon. Norman A. Mordue, Chief Judge, NDNY Hon. George H. Lowe, Magistrate Judge, NDNY Hon. John V. Centra, Assoc. Justice of the Appellate Div., 4th Dept. Hon. Deborah H. Karalunas, Supreme Court Justice, Onondaga Co.
Western District (Buffalo): May 9 (2:30-4:30 p.m.)
Co-Chairs: Jeffrey A. Wadsworth, Esq., Harter Secrest & Emery, LLP Sharon M. Porcellio, Esq., Ward Greenberg Heller & Reidy
Location: U.S. Courthouse/Ceremonial Courtroom
Moderator: Jeremy R. Feinberg, Esq., Special Counsel for Ethics
Judicial Panel:
Hon. Richard C. Wesley, U.S. Ct. of Appeals, Second Circuit Hon. Hugh B. Scott, Magistrate Judge, Western District of New York Hon. Eugene M. Fahey, Assoc. Justice of the Appellate Div., 4th Dept. Hon. John M. Curran, State Supreme Court Justice, Erie County
REGISTER AT http://ww2.ca2.uscourts.gov/cle/Login.aspx
"The New York State-Federal Judicial Council is composed of Federal and State Judges appointed by the Chief Judges of the State of New York and the United States Court of Appeals for the Second Circuit, assisted by an Advisory Group of judges and practitioners. The mission of the Council is to foster improved communication and cooperation among Federal and State court systems throughout New York by developing and sponsoring joint projects. This has included Continuing Legal Education presentations relating to mortgage foreclosure, electronic discovery, and dispute resolution, as well as evaluations of various parallel State and Federal programs and the effective sharing of knowledge and resources." |
The site for Wagner Elliot apparently is intended to help lull actual attorneys into a sense of security as they deposit a certified check from the "law firm," purportedly paid on behalf of a foreign client closing a local real estate transaction.
Read details of this scam on lawyers in full article here.
"...Following the suggestions of proposed changes to the Model Rules and comments to the Rules, the Committee provided an explanatory report that outlined the basis for its proposed revisions. In that report, the Committee described the rationale behind the proposed changes to the Comment regarding Rule 5.3:
"The last sentence of Comment [3] emphasizes that lawyers have an obligation to give appropriate instructions to nonlawyers outside the firm when retaining or directing those nonlawyers. For example, a lawyer who instructs an investigative service may not be in a position to directly supervise how a particular investigator completes a particular assignment, but the lawyer's instructions must be reasonable under the circumstances..." (Emphasis added).
Given my previously expressed concerns, I was happy to note that the Commission limited the scope of an attorney's duty to oversee the activities of non-lawyers retained to provide services on behalf of the firm. The italicized section is particularly important since it acknowledges that lawyers may not always have the necessary expertise to supervise non-lawyers, depending on the services provided..."
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The Northern District of New York Federal Court Bar Association cordially invites all attorneys to attend a CLE program in Albany on Monday, June 20, 2011. The Program will be immediately followed by a Welcome Reception for District Court Judge Mae D'Agostino, co-sponsored by the NDNY-FCBA and Capital District Women's Bar Association (CDWBA).
UPDATE ON E-DISCOVERY & ETHICS OF ONLINE ACTIVITY
Monday, June 20, 2011, 2:00 - 5:00 p.m. (Registration at 1:30 p.m.) James T. Foley - U.S. Courthouse, Albany, New York
Part 1: 2:00 - 2:50 p.m. "Zubulake Revisited": The Decision in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC
Part 2: 3:00 - 3:50 p.m. Attorney-Client & Work Product Privilege in the Digital Age
Part 3: 4:00 - 4:50 p.m. Legal Ethics of Social Networking and Online Activity
Panel Members: Robert Heverly, Esq., Professor of Law, Albany Law School Margaret J. Gillis, Esq., Whiteman Osterman & Hanna, LLP Joann Sternheimer, Esq., Deily, Mooney & Glastetter, LLP
The CLE is free of charge to current NDNY-FCBA members. Non-FCBA-Members: $75.00. See below for membership details.
RSVP for CLE by June 13, 2011
The Northern District of New York Federal Court Bar Association has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of continuing legal education in the State of New York (February 16, 2010 through February 15, 2013).
This CLE has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for 2.0 credits toward the Professional Practice requirement and 1.0 credit toward the Ethics and Professionalism requirement.*
* This course or program is appropriate for newly admitted and experienced attorneys.
RECEPTION: AN EVENING WITH JUDGE MAE D'AGOSTINO (Co-Sponsored by NDNY-FCBA and CDWBA) Monday, June 20, 2011, 5:00 - 7:00 p.m. James T. Foley - U.S. Courthouse, Albany, New York Grand Foyer, First Floor
All NDNY-FCBA members are invited and encouraged to attend and welcome our newest District Court Judge to the Northern District of New York.
Light refreshments, hors d'oeuvres and cash bar.
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We look forward to seeing you at these great events!
Sincerely,
CLE Committee NDNY Federal Court Bar Association, Inc. |
Where: U.S. Courthouse, 445 Broadway, Albany, NY 12207 When: Monday, June 20, 2011, 2:00 - 7:00 p.m.
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NDNY-FCBA Membership Information: Non-members may join online at www.ndnyfcba.org/join. Annual dues for membership in the NDNY-FCBA are waived for attorneys in their first year of practice, and $75 for all other members. Membership includes, among other things, free CLE Programs, advance invitations to lectures and events, and access to members-only information on the NDNY-FCBA web site (including Practitioner's Tips, Decision of Interest, CLE Materials, and Links & Resources). |
ALBANY - Nearly 1,000 elected state judges will no longer receive assignments to cases where lawyers, their firms or their clients have contributed $2,500 or more to the judge's campaigns in the previous two years, or have collectively contributed $3,500 or more, under a new rule adopted by the court system.
Section 151.1 of the Rules of the Chief Administrative Judge, whose approval was announced yesterday, will take effect on July 15 and apply to any political contributions received after that date.
"This rule promotes public confidence in the independence, fairness and impartiality of the Judiciary," said Chief Judge Jonathan Lippman.
He said the new rule establishes "simple" guidelines to alleviate public suspicion of big-money influence on the administration of justice. It replaces a subjective approach that has depended on individual judges to determine when they should recuse themselves from cases.
"It is not a recusal rule," he said. "It is an assignment rule."
Read entire article in NYLJ (Requires free registration)
The disclosure requirement takes effect in mid-2013, covering matters occurring during the 2012 calendar year. It kicks in when the legal fee exceeds $10,000 and the state contract is worth more than $50,000 or the grant is worth more than $25,000. The law affects only new clients or new matters for existing clients and attorney-legislators will not have to identify clients who are being represented in connection with an investigation or prosecution, involved in a domestic relations matter or a bankruptcy or "where disclosure of a client's identity is likely to cause harm."
Read entire NYLJ article here.
Forbes magazine carried the news this month that Google Ventures is part of a group pouring $18.5 million into Rocket Lawyer, which is claiming to be the "fastest growing online legal service." This news was followed up by a Forbes column titled"Google Backing of DIY Legal Forms Will Force Lawyers To Lower Fees."
Certainly Rocket Lawyer is not the only business seeking to profit from providing preparation of legal documents online. When the economic outlook for the legal profession is certainly not projected to be one of increasing profits, why are venture capitalists apparently so interested in the legal profession? To answer that question, I turned to Richard Granat. Granat is the lawyer behind DirectLaw, a firm that provides lawyers with the tools to set up virtual practices that deliver documents and legal services online. He is also a long-time member and current Co-Chair of the eLawyering Task Force of the ABA Law Practice Management Section.
Read the interview interview by Jim Calloway with Richard Granat here.
Parties to a legal matter have the right to communicate directly with each other. A lawyer may advise a client of that right and may assist the client regarding the substance of any proposed communication. The lawyer's assistance need not be prompted by a request from the client. Such assistance may not, however, result in overreaching by the lawyer.
This opinion is based on the ABA Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2011. The laws, court rules, regulations, rules of professional conduct, and opinions promulgated in individual jurisdictions are controlling.
In a settlement agreement announced today, the firm, Steven J. Baum, P.C. of Amherst, will implement a series of internal controls that include a pledge not to bring foreclosure actions without reviewing the original promissory notes or reviewing a copy of the note from its client or custodian of the document.
The 12-page agreement also prohibits the firm's employees from executing mortgage assignments as officials or representatives of MERS, an electronic mortgage registry system.
Read the entire NYLJ article here (Free Registration may be required).
The memo, written last year, followed months of extensive interagency deliberations and offers a glimpse into the legal debate that led to one of the most significant decisions made byPresident Obama -- to move ahead with the killing of an American citizen without a trial.
The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki's case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.
Read entire NYTIMES Report here. (May require free registration)
Topic: Lawyer's participation in residential real estate transaction that includes both a "seller's concession" and an equivalent "gross-up" in the sales
price
Digest: If the sales price in a residential real estate transaction has been "grossed-up" in exchange for a "seller's concession," all transaction documents containing the grossed- up sales price must disclose that the sales price has been increased by a sum equal to the seller's concession. Rules: 8.4(c).
"...in a residential real estate transaction where the sales contract, the HUD-1 Settlement Statement, the transfer tax return and any other documents that contain the sales price [shall] each contain the following statement (or a substantially similar statement): "The sales price has been increased by a sum equal to the seller's concession."
In this New York Times op-ed entitled "What the Costumes Reveal," Joe Nocera describes the conduct of employees of the New York law firm Steven J. Baum, P.C., at last year's firm Halloween bash. Nocera writes that Baum employees wore costumes making fun of people who have lost their homes to foreclosure. In the image below, for instance, a dirty "foreclosure victim" is holding a wine bottle wrapped in a brown paper bag.
New York's largest foreclosure law firm is fighting to overturn a state court requirement that it and other firms submit an affirmation vouching for the accuracy of documents they file for lenders.
Supreme Court Justice Timothy J. Walker in Erie County (See Profile) held a hearing on Nov. 7 on a motion of Steven J. Baum P.C. in a foreclosure case arguing that the year-old rule announced by Chief Judge Jonathan Lippman and implemented by Chief Administrative Judge Ann Pfau (NYLJ, Oct. 21, 2010) violates the state Constitution.
The Baum firm's motion is not the first to challenge the requirement. In LaSalle Bank v. Pace, 15822-2008, Supreme Court Justice Thomas F. Whelan (See Profile) in Suffolk County ruled the affirmation requirement was invalid (NYLJ, March 9). That decision is being appealed to the Appellate Division, Second Department.
The Baum firm acknowledged that its motion in Foster "closely follows the reasoning of Justice Whelan's decision" in LaSalle.
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Read entire Andrew Keshner NYLJ article and analysis here (may require registration).
If you have any decently modern Android phone, everything you do is being recorded by hidden software lurking inside. It even circumvents web encryption and grabs everything--including your passwords and Google queries.
Worse: it's the handset manufacturers and the carriers who--in the name of "making your user experience better"--install this software without any way for you to opt-out. This video, recorded by 25-year-old Android developer Trevor Eckhart, shows how it works. This is bad. Really bad.
Update 1: Nokia claims they don't use Carrier IQ's spyware.
Update 2: Hackers have found Carrier IQ in Apple iPhone, but only works in diagnostic mode--which is off by default--and only logs technical data.
Budget-minded lawyers who think they can hire law students for their free access to Lexis and Westlaw should think again, according to a Utah ethics opinion.
A lawyer who uses law students to access free online research violates ethical rules, according to the Nov. 15 opinion by the Utah State Bar Ethics Opinion Advisory Committee. The Legal Skills Prof Blog has the story.
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As is often the case with these ABA reports, the comments from other lawyers are more interesting than the report.
Searchable database of ethics opinions from the New York State Bar Association Committee on Professional Ethics. Available for search by keyword, category or opinion number. Search more than 850 opinions on topics including various conflicts of interest, attorney advertising, standards for social media and social networking and more. Opinions are keyed to the New York Rules of Model Conduct and are available for sharing via social networks or email. Ethics opinions are available to all and are of particular interest to attorneys in New York State.
Employees of DocX, a unit of Lender Processing Services of Jacksonville, Fla., executed and notarized millions of mortgage documents for big banks and loan servicers over the years. Lender Processing closed the company in April 2010, after evidence emerged of apparent forgeries in these documents, a practice now called robo-signing.
Be among the first to try the new NYSBA Mobile Ethics App - featuring the full database of NYSBA's nearly 900 ethics opinions - ranging from 1964 to today. The app allows you to search the database of opinions by keyword, by category or by opinion number. When the list of results appears you will see a brief digest of the opinion. When you click on the opinion you select you will see the full text of the opinion - exactly as it was issued by the Committee on Professional Ethics. Once you install the app, all of NYSBA's opinions will be available to you on your device - regardless of whether you are connected to the Internet or not. When new Ethics Opinions are issued they will be pushed out to your device as an update and you will see a notification on the app screen indicating how many new opinions are available.
The NYSBA Mobile Ethics App is free and will be available in 2012, to anyone who wants to download it. The NYSBA Mobile Ethics App is available for iPhones through the App Store, for Android devices through the Android Marketplace and for Blackberry through the Blackberry App Market.
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Parts of a New York rule requiring that attorneys who claim to be certified specialists make prescribed disclosure statements violates the First Amendment, the U.S. Court of Appeals for the Second Circuit ruled yesterday.
Buffalo personal injury lawyer J. Michael Hayes convinced the Second Circuit that there was a lack of clear standards for enforcing Rule 7.4 of the New York Rules of Professional Conduct on attorney specializations.
Mr. Hayes had drawn the attention of the Attorney Grievance Committee in the Eighth Judicial District for inadequate disclosures on his letterhead and on one of two billboards advertising his services in 1999.
Although he was never formally disciplined for running afoul of Rule 7.4, "Identification of Practice and Specialty," Mr. Hayes was facing potential discipline for his letterhead when he filed an action in the Western District seeking a declaration that the rule was unconstitutional both on its face and as applied.
On March 5, the Second Circuit agreed in Hayes v. State of New York Attorney Grievance Committee of the Eighth Judicial District, 10-1587-cv, reversing Western District Judge John T. Elfvin's grant of summary judgment to the grievance committee and the decision of Magistrate Judge H. Kenneth Schroeder, who rejected Mr. Hayes' void-for-vagueness claim following a bench trial in 2010.
A challenge by Jacoby & Meyers to New York state's ban on law firms accepting equity investments from non-lawyers has been dismissed by a federal judge.
Southern District Judge Lewis A. Kaplan (See Profile) on March 8 said the personal injury firm's lawsuit challenging Rule 5.4 of New York's Rules of Professional Conductmust fail because the rule is not the only one in New York that "forecloses plaintiffs from receiving non-lawyer equity investment," but it was the only one challenged by the firm.
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New York Assistant Attorneys General Daniel A. Schulze and Michael J. Siudzinski represented the state in Jacoby & Meyers, LLP v. The Presiding Justices of the First, Second Third and Fourth Departments, Appellate Division of the Supreme Court of the State of New York, 11 Civ. 3387.
Steven J. Baum, who led what was once New York's largest foreclosure firm before it closed its doors last year, has agreed not to handle foreclosure cases for lenders and servicers for two years under a settlement agreement with the New York Attorney General's Office.
Mr. Baum, his managing partner Brian Kumiega, the Baum firm and Pillar Processing will also pay $4 million under the deal.
According to the attorney general's office, between 2007 and 2010, the Baum Firm filed over 100,000 foreclosure proceedings and represented many of the largest servicers of residential mortgage loans. Pillar was formed by the firm to handle the bulk of the foreclosure processing.
The attorney general's office claimed that the Baum firm "repeatedly" filed legal papers in foreclosure and bankruptcy proceedings "without taking appropriate steps to verify the accuracy of" allegations, the lender's right to foreclose or to file a bankruptcy proof of claim.
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Mr. Galasso argues in court papers that the Second Department wrongly used a strict liability standard that required attorneys "to be insurers of all escrow deposits" and "unfairly results in a lawyer's law license being posted as additional collateral for his costly designation on an attorney escrow account."
"[A]side from imposing an unattainable level of managerial and investigative skills upon lawyers, the Appellate Division has declared that attorneys in operating escrow accounts, beyond any financial exposure they may face, must now post their licenses as some sort of additional collateral to their exposure in damages," Mr. Galasso argued. He later added, "With this holding, the prospects of finding attorneys willing to hold client escrow will be bleak. In the end, the public will suffer as well."
The New York State Trial Lawyers Association, the Nassau County Bar Association, Matrimonial and Family Law Bar Association of Suffolk County and the Bronx County Bar Association all plan to file amicus briefs urging the Court of Appeals to grant Mr. Galasso's motion for leave to appeal.
ALBANY - Starting next year, prospective lawyers must show that they have performed at least 50 hours of law-related pro bono service before being admitted to the New York state bar, Chief Judge Jonathan Lippman announced yesterday.
Chief Judge Jonathan Lippman's Law Day 2012 Remarks
Office of the President
(Text of Lippman's speech:http://www.courts.state.ny.us/whatsnew/Transcript-of-LawDay-Speech-May1-2012.pdf)
The New York State Bar Association has not yet seen any written version of this new requirement, but will follow the matter closely. In the meantime, we are interested in our members' reactions and comments. Email us at probonocomments@nysba.org.
Sincerely,
Vincent E. Doyle III, President
...Formal Opinion No. 743, issued by the New York County Lawyers' Association Committee on Professional Ethics, which addressed the issue of how lawyers can ethically use social media for juror research during trials. The committee concluded that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow jurors' social media interactions only if the jurors are unaware of the monitoring.
More recently, the New York City Bar Association's Committee on Professional Ethics addressed a similar issue in Formal Opinion 2012. The specific issue addressed was: "What ethical restrictions, if any, apply to an attorney's use of social media websites to research potential or sitting jurors?"
The committee reached the same conclusion as the New York County Ethics Committee and concluded that lawyers can use social media to research jurors, so long as the jurors remain unaware that the research is occurring.
The committee explained that it was important to ensure that a juror did not learn of of the attorney's actions, whether in the form of a notification from the social media site or otherwise. If the attorney knew a juror would be aware of the monitoring, then it would be unethical to conduct the research on that particular site. Furthermore, even if the attorney was unaware that a notification would be sent, if the juror subsequently learned of the monitoring, then it could still qualify as a prohibited communication in violation of RPE 3.5.
A referee has found that Bronx Surrogate Lee Holzman (See Profile) should have fired Michael Lippman, the former chief counsel to the Bronx public administrator, and reported him to the First Department Disciplinary Committee in 2006 when he discovered that Lippman had collected excessive legal fees from estates. But the referee has rejected the rest of the charges brought against Holzman last year by the Commission on Judicial Conduct.
We are a collection agency/debt buyer. What we are looking for is a part time attorney to work for us as our corporate counsel, on our payroll, about 5 to 6 hours a week. This is a short term employment arrangement, no longer than 90 to 120 days.
Your job will be to sign pleadings, praecipe for entry of appearances, praecipe for writ of execution, and garnishment orders. Our paralegal will prepare all paperwork for your signature. This is very standard stuff for us.
If you are an attorney looking for challenging legal work, this is not for you. WE DO NOT NEED F LEE BAILEY- we are fee shopping. If you passed your boards with a D+, and you can sign your name, you possess all the credentials required for this job. If this opportunity interests you, please feel free to reply to this email with a brief description of who you are, when you got your law license, and what you will be needing from us in the way of compensation.
"I would say that roughly 90 percent of the credit card lawsuits are flawed and can't prove the person owes the debt," said Noach Dear, a civil court judge in Brooklyn, who said he presided over as many as 100 such cases a day.
Judges whose license plates identify the office they hold may, in effect, be trading on their positions to avoid the consequences of being stopped for traffic infractions, the state Commission on Judicial Conduct has suggested.
Prompted by a recent disciplinary decision, the commission is seeking input for a public report to address the issue of whether the special vehicle plates violate the code of judicial conduct. It sent letters earlier this month to more than 200 judicial and legal organizations seeking input.
The commission initially disclosed in Matter of Schilling that it planned to conduct the study. In that case, the commission recommended the removal of former town justice Diane Schilling of East Greenbush, Rensselaer County, for arranging to fix one traffic ticket issued to herself and another to the wife of a fellow justice (NYLJ, May 11).
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In his letter seeking input, commission administrator Robert Tembeckjian said the agency's staff is studying how many judicial plates are issued in New York, who holds them and if the plates carry any special privileges for the bearers. The staff is also researching the policies of other states on issuing plates identifying a vehicle as being owned by a judge.
Details of the new 50-hour pro bono requirement for applicants to the New York bar were unveiled yesterday by Chief Judge Jonathan Lippman.
Specifics of the program announced in May were eagerly awaited by law schools, public interest groups, bar associations and other members of the bar. They were announced by Lippman at a press conference at New York University School of Law.
The first-in-the-nation requirement will take effect immediately for first- and second-year law students, who will have up to 34 months to fulfill the mandate. Current third-years are exempt.
Read the new rule on pro bono practice.
A judicial ethics panel has concluded that there is nothing illegal or unethical about judges displaying license plates identifying their office, but whether use of the plates are appropriate or advisable is a matter still under study by the Commission on Judicial Conduct.
The Advisory Committee on Judicial Ethics last week issued Opinion 12-141 in response to an inquiry on whether it is ethically acceptable for a judge to have a specialty license plate that identifies his or her occupation. It noted that in a prior opinion (see 07-213) the committee advised that judges can display a license plate that identifies him or her as a member of a judge's association.
For more information, thanks to Nicole, take a look at this handy from the ABA which summarizes the various decisions from the different jurisdictions on this issue.
TOPIC: Duties to Prospective Clients
DIGEST: Rule 1.18 codifies the established principle that New York lawyers owe duties to prospective clients even when no lawyer-client relationship ensues. These duties are determined by the nature of the information received from the prospective client and may restrict the lawyer‟s ability to use or reveal the information or to represent adverse parties in the same or a substantially related matter. While these duties may be significant, they are less restrictive than the comparable duties owed to former and current clients and permit the use of ethical screens to take on adverse representations.
Judges who participate in social networking sites must heed the ABA Model Code of Judicial Conduct, cautions Formal Opinion 462 (PDF). That means the judges should avoid contacts that would undermine their independence, integrity, or impartiality, or that would create an appearance of impropriety.
SHARON D. NELSON & JOHN W. SIMEK
The age of the pocket computer is upon us. Smartphones are no more than small computers that happen to make phone calls. According to a Nielsen report, more than 50 percent of mobile phone subscribers in the United States now own a smartphone. Lawyers are at the forefront of this technology wave, with 89 percent of them owning smartphones. Smartphones are extremely powerful devices, capable of storing contacts, calendar entries, email communications, electronic files, voice messages, and a host of additional confidential client information. As an attorney, you have an ethical obligation to protect the client data that is stored on your smartphone. Here are some security tips for protecting the data and some easy measures to take to avoid compromising data.
ALBANY - Beginning today, New York lawyers must disclose on their biennial registration forms how many pro bono hours they provided and how much they made in financial donations to pro bono programs during the previous two years.
The new reporting requirements of Part 118 and Rule 6.1 of the Rules of Professional Conduct were approved by Chief Judge Jonathan Lippman and the presiding justices of the Appellate Division's four departments on April 23.
Lippman's "Task Force to Expand Access to Civil Legal Services" recommended increasing the voluntary pro bono goal for lawyers in the state to 50 hours a year from 20 (NYLJ, Dec. 7, 2012). That proposal is also being implemented today.
The New York State Bar Association is proud to provide an innovative Pro Bono Appeals Program that offers free representation to individuals of modest means in selected appeals to the Appellate Division in both the Third and Fourth Departments.
The Program, which began in the Third Department three years ago, was recently expanded to the Fourth Department. Family law appeals have proven to be the area of greatest need. The Program also offers appellate representation in cases involving education, health, housing, unemployment insurance, and worker's compensation. The Association's Committee on Courts of Appellate Jurisdiction selects cases based on several factors, including the merits of the issues raised and the potential impact of the case.
If you have clients of modest means who could benefit from this Program, please tell them about it and help them complete an application, available at www.nysba.org/probonoappeals, along with other details about the Program. Applicants with income up to 250% of Federal Poverty Guidelines are eligible for representation. Also, if you have appellate experience and would like to participate in the program, please contact the Program at info@probonoappealsny.org.
Sincerely,
Seymour W. James, Jr., President
This page contains an archive of all entries posted to General Practice Section in the Ethics & Professional Regulation category. They are listed from oldest to newest.
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