Kathryn Grant Madigan's Blog

The second week of my Presidency took me on the road again -- this time to the Big Apple. Thanks to an invitation from the new Network of Bar Leaders President, Dan Marotta, I had the privilege of not only attending their Annual Dinner but sharing brief remarks about their honoree, Honorable Juanita Bing Newton. Judge Newton is a true champion for access to justice. We share a passion for protecting our most vulnerable, for increased availability of legal assistance for the poor and securing permanent funding for civil legal services in New York.

We are grateful for partners like Judge Newton, the Unified Court System, as well as the member organzations of the Network of Bar Leaders in this challenging mission. And let us not forget Governor Spitzer, who for the first time, included civil legal services funding in his Executive Budget this year.

The following evening brought me to the LSNY (Legal Services for New York City) 2007 Pro Bono Recognition Awards Reception, hosted by Simpson Thacher & Bartlett, LLP, honoring both individuals and law firms for their extraordinary committment to pro bono. Kudos to Fern Schair, Chair of the LSNY Board as well as the LSNY Executive Director, Andrew Scherer, and his staff, for an outstanding event. The generosity of time and spirit exemplified by over 300 volunteers was truly inspiring. Just one example among many was a woman attorney I met from Hungary, who left her commerical litigation practice to come to the US for a master's degree, admission to the bar and a new career as a real estate practitioner. She learned an entire new area of law -- bankruptcy -- in order to help low-wage workers through the maze of the new Bankrupcy laws in order to help them stablize their lives and remain employed. One shining example among many.

I ended my week with an entire day devoted to increasing membership in our Association. We have a dedicated Committee on Membership, chaired by Claire Gutekunst, with 27 volunteers from across the state and beyond our borders, who are committed to making the case for membership in the State Bar for every lawyer in New York.

As I drove back home to Binghamton that Friday morning I basked in the warm, reassuring glow that our profession is in good hands and that there are many heroes among us, most of whom volunteer their time and talent with no expectation of reward or recognition. They are true champions and we salute you.

I will be out of the country for the next 2 weeks visiting my son Grant, who is on winter break from the University of Adelaide. As I will have limited access to email during that time, I may not be able to post any new items until after I get back. Rest assured that upon my return, we will be back in action. In the meantime, please feel free to post your comments about some of my more recent blog entries, including judicial salaries, the new IOLA regs or anything that strikes your fancy.

In particular, I hope to hear from members of our House of Delegates who, after attending our recent meeting in Cooperstown, should be able to access the blog and reply with ease!

Well, after a whirlwind trip to Australia and New Zealand to visit my youngest who is studying abroad, I am still a bit jet lagged but grateful to have had such an extraordinary opportunity to travel "down under". It is also good to be back home. Now it’s back to business and back to blogging.

I was pleased to hear, upon my return, that there has been some discussion in the legislature about judicial salaries. While we cannot declare victory just yet, there is reason to be cautiously optimistic. At least we know that the issue is indeed part of the discussion with the legislature and the governor. We will continue to make our position known and continue the fight for the much-deserved and long overdue salary enhancements.

Prior to my trip overseas I had the pleasure of joining with family, friends and colleagues at our House of Delegates meeting in Cooperstown the final week of June. Bernice Leber did an outstanding job as the Chair of the House, presiding over the collegial debate among the delegates. Hon. Thomas J. McAvoy from Binghamton swore me in as the 110th President of NYSBA and regaled those present with his wit and charm. It was quite the celebration.

I will plan to report on the actions taken by the House at that meeting in a subsequent post.

Today I am off to the Trial Lawyers Section meeting in Pennsylvania, so there is truly no rest for the weary.

You can expect a fresh blog post mid-week. In the meantime, please do weigh in on any of the issues outlined in my prior posts, or on any issue that is on your mind.

G'day!

As most of you now know, the U.S. District Court for the Northern District of New York has ruled on a handful of the rules concerning advertising that have been the subject of much debate in New York over the past two years. A Task Force of the State Bar chaired by Bernice Leber of Arent Fox LLP studied some 300 advertisements, provided a 50 state survey of the rules, the law and the literature in this area following which the House of Delegates of the State Bar approved of a set of proposed disciplinary rules. The Presiding Justices of the Appellate Division of Supreme Court subsequently considered and adopted the vast majority of the State Bar rules that became effective February 1, 2007. However, besides adopting the State Bar rules, the Presiding Justices also adopted rules that regulated the content of advertisements, five of which are the subject of the Alexander decision.

In Alexander v. Cahill, Judge Scullin validated the measured and sensible approach of the Task Force. Specifically, the Judge upheld three rules that the State Bar (and subsequently, the Court) adopted: (i) the rule requiring law firms to use the actual name of the law firm in domain names and websites, the actual name (as opposed to the domain name to practice law), the actual name of the law firm (as opposed to a domain name that implies an ability to obtain results) [NYCRR §1200.7(e)]; (ii) the rule providing for a 30 day moratorium on communications to victims and their families with respect to a personal injury or wrongful death [NYCRR § 1200.8(g), 1200.41-a]; and (iii) the desire to exclude non-profit legal organizations that do not charge clients from the ambit of the new advertising rules.

Significantly, the plaintiffs did not challenge the constitutionality of the vast majority of other rules that the Task Force suggested, the House of Delegates approved and the Courts adopted. For example, the rule defining “advertisement”, “computer-accessed communication”, the rule requiring “bona fide professional ratings” when used in advertising, and the rule permitting lawyers to advertise if the ad can be factually supported by the lawyer and contains the disclaimer “Prior results do not guarantee a similar outcome” were never challenged by the plaintiffs and remain inviolate. Similarly, the rule requiring retention and filing of certain advertisements and website advertisements including meaningful and extensive content changes was not the subject of this litigation. Finally, the rules governing solicitation that the State Bar proposed and the Courts adopted were not at issue and are not affected by the decision. In so ruling, the decision comports with the Task Force’s effort to strike a balance between an attorney’s right to advertise his or her services and protecting the public from advertising that is false and/or misleading.

I believe that most of us would agree that attorney advertising should be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation. Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster. And this recent decision reflects that trend.

In sum, Judge Scullin did determine that five of the rules adopted by the Courts were unconstitutional as protected free speech under the First Amendment. In so doing, the Court also granted a permanent injunction preventing the enforcement of these rules, which are listed below. The State will be appealing the decision to the U.S Court of Appeals for the Second Circuit and may be seeking interim relief to stay the injunction. We will keep you posted in that regard.

Notably, this decision referenced the expert analysis provided by our Task Force in a number of respects and we are indebted to the Task Force for their dedication and commitment to this important issue, particularly the Herculean efforts of Task Force Chair (and President Elect) Bernice Leber.

Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that will continue to strike an appropriate balance within the constitutional framework.

Below are additional details about the Court’s decision.

The following provisions of the Disciplinary Rules have been held unconstitutional, and the grievance committees are enjoined from enforcing them:

DR 2-101(C)(1) - endorsements/testimonials from current clients;

DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc.;

DR 2-101(C)(5) - techniques irrelevant to selection of counsel (e.g., a law firm appearing as baseball players);

DR 2-101(C)(7) - nicknames/monikers/mottos that imply an ability to achieve results;

DR 2-102(G)(1) - use of pop-up/pop-under advertisements.

The following provisions have been upheld:

DR 2-102(E) - domain name limitations;

DR 2-103(G) - 30-day rule re solicitation;

DR 7-111 - Communications after personal injury/wrongful death.

I welcome your thoughts on this decision.

Part I

Our annual House of Delegates meeting in Cooperstown is our most relaxed, family-friendly meeting for our leadership around the state. Typically held the 3rd weekend of June each year, it was held June 28 - July 1st this year. We had a hall-of-fame crowd with great energy. We had a lot of fun and we got a lot done.

My sons were toddlers when they first joined me at this meeting 20 years ago and it remains their favorite venue. Easy for us to say -- it’s a quick trip up Route 88 from Binghamton -- an hour and twenty minutes. As for NYC and the Island, well, “you can’t get there from here”. Actually, it’s a lovely drive through the Catskills and the “road less traveled” takes you through Delaware County and some of the prettiest countryside you’ll ever see. If the spirit moves, you can take a bit longer route around the Cannonsville Reservoir, the source of NYC’s award winning water.* (*for both purity and taste)

In addition to the draw of baseball and the Hall of Fame, Cooperstown is a lakeside hamlet of manicured lawns, profusion of flowers, rolling hills, great golf, boating, hiking, biking and even an old German Brewery - Ommegang. Oh, did I tell you about the Opera? Or the Farmer’s Museum where you can learn about one of the great hoaxes of the 20th century, the Cardiff Giant? The downtown, with a fabulous antiquarian bookstore, is like a Norman Rockwell painting. For those who missed all of these things in June, no worries – we’ll see you there next year!

Members of our Executive Committee arrived mid-day on Thursday June 28th for our meeting that afternoon. New members to what I’ve always referred to as the “Big Table” (if you’ve ever seen the table in the Peck Room at the Bar Center, you know what I’m talking about). They include recidivist or returning members, Claire Gutekunst (1st District Vice President), John Gross (10th District Vice President) and Steve Millon (12th District Vice President). First timers included 6th District Vice President David Tyler from Ithaca, as well as new At-Large Members, Michael Miller and Steve Younger from NYC, and Hermes Fernandez from Albany.

To mix things up a bit, I departed from tradition and decided to hold the reception and dinner at the Farmers Museum. Travel options included the trolley or hay wagon. It was a treat.

Lots of Work, Not all Play

In case you thought this was all fun and games, we were back at it at 7:30am, debating the issues of the day (collegially and respectfully - always!), helping to craft policy on behalf of our Association.

Here is a summary of what we discussed and the actions taken:

Children and the Law

A report containing revised “Standards for Attorneys Representing Clients in New York Protective, Foster Care, and Termination of Parental Rights Proceedings” was approved. These revised standards will provide more uniformity; emphasize the lawyer’s role as a counselor and the importance of lawyer/client privilege. We are indebted to the Committee on Children and the Law and its Chair Hon. Edward O. Spain.

Indigent Defense Service

We endorsed the Report of the Chief Judge’s Commission on the Future of Indigent Defense Services, which recommended the establishment of a statewide defender office.

The House of Delegates later modified the Resolution to require that current providers meeting quality standards and best serving the clients’ needs be retained (including 10-B panels), that local bar input be sought, as well as adequate funding for the new system.

Mass Disaster Response

Thanks to Bob Saltzman for his leadership at the helm of our Committee on Mass Disaster Response. We endorsed the Committee’s Report and are now asking the Court of Appeals to adopt a new court rule regarding the provision of legal services in the event of a disaster in NY or other jurisdiction. Out-of-state lawyers would be permitted to temporarily practice in another jurisdiction, in order to allow them to provide free legal services to those affected by the disaster.

Access to Justice

We applauded (and officially endorsed) the proposed amendments to the IOLA regulations (see my blog dated June 5, 2007) which would require banks to pay competitive interest rates on IOLA accounts and has the potential to increase funding for legal services for the poor by as much as $50 million each year.

Senior Lawyers

Former NYSBA President and Chair of our Committee on Senior Lawyers, Justin Vigdor, provided an oral report on the many and varied activities of this committee and we approved a new Senior Pro Bono Lawyer award in conjunction with our annual pro bono services awards. Incidentally, if interested, you can be added to our mailing list to receive the Pro Bono News, which outlines all of our Access to Justice initiatives.

We also endorsed report and resolution of the ABA Senior Lawyers Division on law practice continuity, which report included the NYSBA manual on the topic.

No rest for the weary. Today I am heading to NYC for a meeting with our ABA delegation and then to Vermont for the summer meeting of Elder Law Section and will continue with this update of actions taken by the Executive Committee and House of Delegates in the next couple of days.

Cheers!