Kathryn Grant Madigan's Blog

As you know, the New York State Bar Association is sponsoring a networking reception at the ABA meeting in San Francisco next week, as part of our continuing efforts to provide greater connectivity, and value, to our non-resident members. If this is the first you've heard about this, please let us know, as we want you to be aware of all the programs and services we have tailored to the needs and interests of our out-of-state and international members.

The details or our reception are as follows:

Date: Sunday, August 12, 2007
Time: 6:00 to 7:00pm
Place: Westin San Francisco Market Street
Cornell Room, 2nd Floor

RSVP ASAP: fciervo@nysba.org

If you are planning to attend the ABA meeting, or if you live or work in the Bay area, please join your colleagues and the NYSBA leadership. Enjoy some tasty edibles, libation and camaraderie. There is no cover charge, no formal program or speeches. You can expect an enthusiastic welcome and an ideal opportunity to meet and greet your State Bar colleagues from other states and countries.

Right now I'm in Vermont at the Elder Law Section meeting, enjoying superb programming in an exquisite setting. This afternoon I met a member who happens to reside in London; and at dinner -- a member from North Carolina. One of our speakers is a former Elder Law Section Chair and now resides in Florida. We have members from just about everywhere, so you are in good company.

And I hope to see you in San Francisco!

Want to impress your teen-age children on how techno-savvy you are? Whip out your iPod and crank up some good CLE programs on it.

CLE on MP3

Our CLE programs are being made available on an expanding number of high-tech formats, for your ease of use and ready access. This service is an alternate to sitting in class rooms and provides CLE programs delivered over the Internet, consisting of audio presentations and the full text of the accompanying printed materials. In addition, this format has some high-tech features that aren't possible in the traditional live program format. It is MCLE-accredited for all New York attorneys, other than those newly admitted * (in practice fewer than 24 months) and are available 24 hours per day, every day—at any place he/she has access to the Internet.

An important new feature of CLE Online for 2007 is the availability of audio files in the MP3 format, which can be downloaded to iPods or other MP3 players. There is no additional charge to our customers for this new service. This new service permits those who purchase our CLE Online programs to download the audio files to their MP3 players or iPods, thereby providing them with greater portability and convenience in their use of the programs.

CLE on CD

Another important recent development, introduced a couple of years ago, was the creation of an “unplugged” version of CLE Online—a version on compact disk, CLE on CD. The programs available in the CLE on CD format are exactly the same as those available on CLE Online. You just have to make sure you bring the disk with you to work on the computer you are using. At present, there are 58 programs available, on a wide range of topics, in any of the formats described above—CLE Online, CLE on CD, and iPOD/MP3 format.

Not Seminars…WEBINARS!!

We are making arrangements to present a Webinar this fall, on the topic of e-filing, including a live, online “walk through” of the e-filing process. It will offer two MCLE credits. Also this fall, we are presenting a two-hour program, Ethics Update, featuring Professor Patrick Connors of Albany Law School. This will also be a telephonically delivered seminar, scheduled from noon-1:40 p.m., so that you can earn your two ethics credits for the year during your lunch hour.

So whether you are listening to a program on your iPod, or cranking up a Webinar on your iPhone, or getting live CLE through your Bluetooth, we hope your teenagers will be impressed, even if they probably won’t admit it.

**For more information about online CLE and other CLE initiatives, please visit the CLE page on our web site. You can go there directly by copying the following URL into your web browser.

http://www.nysba.org/Template.cfm?Section=CLE

It has been a productive and exciting week in San Francisco at the ABA meeting. The first official function I attended upon my arrival was a panel presentation on the "Second Season of Service", an initiative introduced by then President Karen Mathis last August to help lawyers across the country transition from their full time practice into enhanced community and pro bono service.

Chief Judge Judith Kaye has been leading the "Second Season of Service" Commission during its inaugural year and moderated a panel on August 9th at the Moscone Center. Like our own Senior Lawyers Committee (chaired by past NYSBA President, Justin Vigdor), Committee on Age Discrimination in the Profession (now chaired by Jay Waks) and Committee on Lawyers in Transition (chaired by Lauren Wachtler), the Second Season of Service Commission has looked at law firm retirement policies, identified best practices for lawyers transitioning out of full time practice, as well as opportunities for pro bono and community service.

Check out the ABA's new second season of service website here. It offers many valuable resources including a link to the NYSBA report with regard to age-based retirement practices, discussion boards, frequently asked questions, as well as a database of pro bono and public service opportunities.

Judge Kaye led a superb panel presentation, closing with a poem by Marge Piercy called "To Be of Use", which you can view at this web site.

The following day we had an opportunity to honor one of our profession's most dedicated. Dennis Baldwin from Syracuse was honored by the ABA Senior Lawyers' Division (now chaired by our own Walter Burke) for their prestigious Pro Bono Award. All of "Denny's Girls", including his wife Gail, daughter in law Kathryn, Judge Kaye, former President Catherine Richardson, Bernice Leber, Pat Bucklin, Sharon Gerstman, myself and his many other fans and family members (let us not forget "the guys", like Tony Palermo, Seth Rosner and Bob Ostertag, were there to bask in Denny's reflected glory. Denny is a genuine inspiration to us all.

I'll have more on the ABA Annual meeting, so stay tuned.

President Elect Bernice Leber, immediate Past President Mark Alcott and Executive Director Pat Bucklin and I attended a variety of programs offered by the National Conference of Bar Presidents (NCPB) and National Conference of Bar Executives (NABE), followed by the 2-day House of Delegates meeting. And while I wish we had more time for sightseeing (I had 2 free afternoons over the course of a week), it was inspiring and motivating.

So what happened with regard to policy issues at the ABA Annual Meeting?

Mark Alcott successfully presented the Association's report urging the ABA to adopt a policy on mandatory retirement in the profession. Mark lobbied hard for this proposal before the House meeting and his remarks on the floor of the House were well received by the delegates.

We also dealt with an issue that has plagued our country for a number of years -- our government's treatment of detainees and the safety of captured US troops.

I am pleased to report that a resolution, co-sponsored by the New York State Bar Association and the New York City Bar Association, which calls on Congress to enact legislation to supersede President Bush's July 20 Executive Order that prohibited torture and inhumane treatment in Central Intelligence Agency interrogations but did not specify which methods would be allowed, was approved Monday afternoon.

Essentially, this recent Executive Order is inconsistent with United States’ obligations under Common Article 3 of the Geneva Conventions because it does not ensure that foreign persons captured, detained or interned are afforded the minimum protections required under national and international law.

Our position was clear -- that the rule of law applies to all branches and all actions of our government. Neither the ABA nor the New York State Bar Association should countenance the continued violations of international law, which has done incalculable damage to our nation, at home and abroad.

This Report and Recommendation was sponsored by the Association of the Bar of the City of New York and co-sponsored by the ABA Standing Committee on Law and National Security, the Section of Individual Rights and Responsibilities, the Center for Human Rights, the Task Force on Treatment of Enemy Combatants and NYSBA. We are indebted to Barry Kamins, Barbara Berger Opotowsky and Alan Rothstein from the City Bar, Michael Posner, Mark Agrast, Al Harvey, Neal Sonnett, Richard Macias and Jim Silkenat from the ABA. And I am proud of the role that our Association played in this critical issue.

I credit my son Jeb (a 2L at Cornell Law School) with helping me find the perfect quote from James Madison's Federalist Paper # 51 to sum up my remarks to the ABA House of Delegates:

"In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself."

That’s it for now. And while this was a remarkable experience in California, I’m looking forward to coming home and to getting back to business in New York State.

My sincere thanks to David Giacalone for taking the time to write about where NYSBA stands on lawyer advertising. Hearing from and responding substantively to our readers is, after all, what a presidential blog is all about (or any blog for that matter). But first, a few corrections are in order.

For openers, the State Bar's position on lawyer advertising has not wavered. Since issuance of the Task Force on Lawyer Advertising in October, 2005, the State Bar has undertaken its mission to provide guidance to the legal profession on this important issue that goes to the heart of the profession.

For the record, former NYSBA President, A. Vincent Buzard played no role in an earlier plan by the Monroe County Bar Association to create its own advertising commission, or, for that matter, in the issuance of its own set of MCBA Guidelines. Rather, in June 2005, after he was installed, then President Buzard appointed his own Task Force to study the issues from scratch and to take a fresh look at the subject, a subject that had not been reviewed by the Courts in 30 years. The Task Force reviewed, among other things, the MCBA plan, 50 other states' disciplinary rules, 300+ ads in New York that included both print and computer generated advertising as well as disciplinary and other relevant cases dealing with advertising nationwide.

The Task Force was mindful of the delicate balance that exists between non-deceptive, true and non-misleading ads and a lawyer's First Amendment right to advertise, a right first ensured by the United States Supreme Court decision in 1973 in Bates v. Arizona. At page 72 of the Report (which Mr. Giacalone generously linked in his blog comment), the Task Force openly opposed oversight and censorship by any private bar association and expressly did not accept the MCBA proposal whereby it created its own advertising commission (Task Force Report at p. 78), noting the potential problems with such a scheme due to parochialism and even standards statewide. Moreover, the Task Force pointed out that the MCBA Commission did not have the benefit of government sanction and invited antitrust scrutiny, citing the FTC opinion in American Medical Association 94 FTC 701 (1979). Rather, the Task Force (and the State Bar) urged the Presiding Justices to adopt and oversee an advertising commission, with pro bono attorney volunteers selected to enforce the disciplinary rules.

In achieving a fair balance, the Task Force specifically noted that the Guidelines for Lawyer Advertising adopted by the MCBA (and that the Task Force and our House of Delegates thereafter adopted) were nothing more than "a plain language, straightforward articulation of the existing Code of Professional Responsibility Rules concerning advertising" (Task Force Report p. 73). I invite all readers to review the Task Force Report for what it says and what our House of Delegates subsequently adopted as Association policy. 1

It is no wonder, then, that all of the parties to and subsequently, the Court, in the Alexander v. Cahill decision relied heavily upon the Task Force Report. Indeed, before the debate in the House of Delegates, that Report drew the consensus of virtually every county bar association across New York State represented in the House.

Which brings me to the last and final point of my blog on the subject and this response: by striking 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, the Court upheld the Task Force and the State Bar's proposed rules. Specifically, the Court recognized as stare decisis the United States Supreme Court decision in Florida v. Went-For-It, which held that the fifteen day ban on soliciting victims or their families after a personal injury or wrongful death case was constitutional. The Court thus rules in favor of the interpretation advanced by the Task Force in the Report. Further, the Court sided with the State Bar and the Task Force on the rule requiring certain information to appear in the advertisement (ie. name, address of law firm).

For all of these reasons, I did not and do not downplay the role of the State Bar. Indeed I applaud it.

Finally, let me reiterate what I stated in my initial blog post on this issue. Going forward, we welcome the opportunity to continue to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework.

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1. Without becoming overly pedantic, I need to correct another misrepresentation by reader David Giacalone: neither the Task Force nor the House of Delegates adopted the regulations aimed at "irrelevant, unverifiable and non-informational ads". Rather, the State Bar agreed that "to the extent that the MCBA guidelines were consistent with the proposed rules" they would be adopted, but otherwise, "they were to be amended and supplemented" depending upon the final version of all the disciplinary rules adopted as a whole and to track the final rules as adopted as a whole by the Committee on Attorney Standards (Task Force Report, p. 82). The State Bar is the drafter of the Ethical Considerations that accompany all of the disciplinary rules. For this reason, you should all watch for the final Official Commentary/Ethical Considerations to the rules that will be considered by the House of Delegates at its next meeting on November 3rd, which are being drafted by members of the Task Force and the Committee on Standards of Attorney Conduct.

As you know, the IOLA program requires attorneys to deposit funds received from clients either in interest bearing accounts for the benefit of clients or in interest bearing IOLA accounts. The interest is pooled and managed by the IOLA Board of Trustees to fund non-profit civil legal services. More specifically, the money is used to fund civil legal services for people who otherwise cannot afford access to the civil courts.

Access to civil justice should not be based upon the ability to pay for necessary legal services. The IOLA program, created in 1983 after significant input from the State Bar Association, is designed to provide such access, but funding in New York State has lagged behind what is required. The most prominent problem is that many of the banks that handle IOLA accounts pay a mere pittance (.57% on average) in interest compared to the interest paid on other, comparable accounts. That is, until now.

Effective August 15, New York banks will be required to pay an interest rate on IOLA accounts proportionate to the rates they pay their best customers with similar accounts. What that would mean, according to the Notice of Adoption of the new regulations, is that if 75% to 85% of the December 2006 total estimated balance of $3.1 billion in IOLA accounts were subject to an interest rate of 2.75% instead of the .57% average, the range of increased annual revenue would be between $45 million and $55 million, annually.

This significant increase in funding for civil legal services will enable New York lawyers to do what we do best -- provide justice for all of our citizens, regardless of one’s ability to pay. It means that the working single mother with a dispute over healthcare for her child will have someone to turn to help fight for her rights. It means that the family facing eviction from their home will have an advocate helping to make things right. It means that more often than not, justice will indeed be for all, and not just for all who can afford it.

The New York State Bar Association has been at the forefront of reforming this policy. Back in May, we were proud to weigh in on this matter in support of Governor Spitzer’s announcement of the proposed new regulations. I am prouder still that the “proposed” label can now be removed.

New York lawyers have a rich tradition of providing thousands of hours of pro bono services, but altruistic lawyers, in-and-of-themselves, are not enough. We needed this funding increase to help seal the justice gaps that pro bono services cannot. We applaud the actions of the IOLA Board of Trustees and Governor Spitzer for making access to civil legal services a priority. I am also proud of yet another example of the State Bar Association’s long-term commitment to making positive change happen