 In Matter of Brown, the Departmental Disciplinary Committee for the First Judicial Department (DDC) sought to prevent Louise Brown from practicing law in New York State.
Brown, together with others, had reportedly stolen more than $1.35 million from a mortgage company and eventually pled guilty to a series of felonies: grand larceny in the first degree, grand larceny in the second degree, and falsifying business records in the first degree. To compound matters a bit further, Brown didn’t report her conviction to the DDC, as required by state law. Apparently, the DDC learned of Brown’s guilty plea from the Kings County District Attorney’s Office. The DDC contended that Brown had been “automatically disbarred” upon her conviction of a felony. (That position was unopposed by Brown.) Upon review, the Appellate Division, First Department, concluded that “a conviction for any criminal offense classified as a felony under the Laws of this State results in automatic disbarment by operation of law.” As a result, the AD1 granted the DDC’s request. The appellate court further noted that while Brown hadn’t been sentenced, the outcome was still appropriate, since “the date of entry of a guilty plea is the date of conviction that triggers automatic disbarment.” Unfortunately, we’re barred from any further analysis of this case. To download a copy of the Appellate Division’s decision, please use this link: Matter of Brown
 In Pellegrino v. Oppenheimer & Co, Inc., Christine Pellegrino, Andrea Bertoline and Irina Alter filed a sexual harassment and discrimination lawsuit against their employer -- Oppenheimer & Co., Inc. -- after their complaints regarding a fellow attorney and coworker, Mr. Shames, went unaddressed.
When Alter approached Evelyn Bukchin, another Oppenheimer attorney, to complain about Shames’ conduct, Alter asked that the conversation be held in confidence (pursuant to the attorney-client privilege). Later, because Oppenheimer was failing to respond to the complaints, Bukchin accompanied Alter to the office of outside counsel, Storch Amini & Munves. At that appointment, Alter sought advice how to handle the situation without compromising her employment, while Bukchin asked about the actions required of her as an Oppenheimer attorney. When Alter was fired shortly after that meeting, Bukchin contacted Alter to apologize for the termination and relayed the substance of conversations she had with Shames. Apparently, Shames was quite concerned about Alter’s sexual harassment claim and was of the opinion that, out of three pending against him, Alter’s was the most meritorious. When a lawsuit was eventually filed, Oppenheimer moved to disqualify Storch as counsel. (You'd think that'd be a no brainer, right? ... Read on!) Under New York’s ethics codes, lawyers are prohibited from “representing another person in the same or substantially related matter in which that person’s interests are materially adverse to the interests of the former client” or from “using any confidences or secrets of the former client” (DR 5-108). The law provides three factors that, if satisfied, raise a presumption of disqualification against an attorney or firm. They include: the existence of a prior attorney-client relationship between the movant party and opposing counsel; the involvement of substantially related matters in both representations; and that the interests of the present client and former client be "materially adverse."
Here the New York County Supreme Court denied Oppenheimer’s motion, holding that because Bukchin consulted Storch on her own behalf, and never retained the firm, Storch didn't gain any “improper advantage from its interaction with Bukchin.” The court also found that “Bukchin neither represented Shames nor received privileged information from him.” The AD1 affirmed, holding that Oppenheimer couldn't “demonstrate the existence of an attorney-client relationship between itself and Storch Amini.” We’re thinking the AD1 got this one wrong. When a lawyer works as in-house counsel, doesn’t that individual represent the company, rather than the company’s employees? During the course of Bukchin's consult with Storch, she disclosed confidential or “proprietary” information about misconduct at her company. The AD1 negated the impact of that meeting, by noting as follows: Although the attorney-client relationship can encompass a preliminary consultation even where the prospective client does not ultimately retain the attorney, the present case is distinguishable because Bukchin did not undertake the preliminary consultation with a view toward retention of [Storch].
The problem here is that Storch provided legal advice to the plaintiff (Alter), and to Bukchin, (Oppenheimer’s counsel). Bukchin’s intent -- relating to Storch's retention -- should have had little impact on whether that meeting triggered a “conflict of interest” or confidentiality responsibilities. Frankly, this entire scenario just doesn’t sit well with us. Even the AD1 acknowledged that similar situations should “set alarm bells ringing and be assiduously avoided for the good of all concerned." And while the AD1 did its best to sidestep it, we believe the focus should have been on the “appearance of impropriety,” and -- on that basis alone -- Oppenheimer should have been delivered a victory. To download a copy of the Appellate Division’s decision, please use this link: Pellegrino v. Oppenheimer & Co, Inc
 In Matter of Stewart, Zelda Stewart’s client was injured while crossing the street, and retained Stewart to file a personal injury lawsuit against the City of New York and another party. When those defendants asked the court to dismiss the case, Stewart failed to respond to the motion and the New York County Supreme Court granted that request on default.
After that occurred, the client filed a complaint against Stewart with the Departmental Disciplinary Committee (DDC), and also sued Stewart for malpractice. While Stewart initially cooperated with the DDC, she failed to appear in the malpractice case and a default judgment of $50,000 was entered against her. After neglecting to answer several letters, phone calls, and even a subpoena requiring her to appear at a deposition, the DDC recommended that Stewart be suspended from the practice of law. As a result of her misconduct, the Appellate Division, First Department, “immediately” suspended Stewart while the DDC’s investigation continued. De-faults lie with this lawyer. To download a copy of the Appellate Division’s decision, please use this link: Matter of Stewart
 Wouldn't you want to work for someone who pays for all of your expenses AND also allows you to pocket all the income you generate from your personal activities?
That's the "deal" attorney Stanley Schlein had with the City of New York until September 13, 2006, but there was a slight problem .... Apparently the City never agreed to that arrangement. While Chairman of the New York City Civil Service Commission (CCSC), Schlein would have the CCSC Office Manager perform "non-City tasks" on "City time." And, to that end, the Office Manager would use the CCSC's "computer, telephone, photocopy machine, and facsimile machine" to assist Schlein with matters exclusively related to his private law practice. In addition to assisting him with preparing litigation documents, the CCSC's Office Manager helped him with client correspondence and invoices. Yet another CCSC employee delivered packages, sent and retrieved faxes, greeted visitors and secured materials from Schlein's car. And, finally, Schlein admitted using a CCSC telephone to make some 2,000 "personal" or "law-practice related" telephone calls from January 2004 to September 2006. At some point, the Conflicts of Interest Board (COIB) learned of the abuses and commenced an investigation into Schlein's conduct. By a "Stipulation and Disposition," finalized last month, Schlein conceded that he had violated the City Charter and the Rules of the City of New York which preclude, among other things, use of a public servant's position to "obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect." Yet, despite all of his indiscretions, Schlein was fined a lowly $15,000. (Of course, the settlement documents are conspicuously silent as to the value of the services allegedly misappropriated or the income Schlein generated during the time that he purportedly abused his position with the CCSC.) $15,000? That doesn't cover a secretary's salary! What kind of penalty is that? Click these links to download copies of the COIB's Press Release (dated January 23, 2008) and the Stipulation and Disposition.
 Nicholas Dermigny, served as Executive Vice President and Chief Operating Officer for Muriel Siebert & Co., Inc., (Siebert), which was involved in a dispute with Intuit, Inc., a financial software maker.
It was Siebert's contention that its brokerage services had not been adequately promoted to Intuit's customers as required by a "strategic alliance" agreement, and a lawsuit in the New York County Supreme Court ensued. While that litigation was pending, Dermigny ended his association with Siebert and was contacted by Intuit's attorneys for questioning about the underlying dispute. During the course of that meeting, Dermigny was advised by Intuit's counsel to not disclose any privileged or confidential information (such as any communications involving legal strategy or other discussions had with Intuit's legal team). When Siebert later learned of that meeting, it asked a New York County Supreme Court judge to have Intuit's attorneys disqualified -- or thrown off the case -- and that Intuit be barred from using any information secured from Dermigny during the course of that meeting. Finding an "appearance of impropriety," based on the "possibility" that confidential information had been imparted during the course of the interview, the New York County Supreme Court granted Siebert's request. On appeal, the Appellate Division, First Department, reversed. Based upon its review of the law, the AD1 concluded there is no legal or ethical bar against interviewing an adversary's former employee. And, since Intuit's attorneys had advised Dermigny to refrain from releasing any confidential information (a request which he honored), no impropriety or prejudice could be discerned. On appeal to our state's highest court, the Court of Appeals affirmed the AD1's decision. As long as counsel ensures that confidential information is not solicited from, or imparted by, the former employee, the state's highest court could identify no ethical breach or irregularity triggered by the exchange. Seems almost intuitive, doesn't it? For a copy of the Court of Appeals's decision, please use this link: Muriel Siebert & Co., Inc. v. Intuit Inc.
 Cleary Gottlieb Steen & Hamilton LLP is a highly regarded law fim with some 950 lawyers in twelve offices worldwide.
On its website, Cleary boasts: Cleary Gottlieb Steen & Hamilton LLP was founded by prominent lawyers committed to excellence in the practice of law, while maintaining the highest ethical standards and diversity and individuality in its lawyers.
United States District Judge Loretta A. Preska questioned the firm's commitment to that standard in a 32-page Decision and Order dated August 23, 2007. Kensington International Ltd., a financial institution which invests in debt and equity instruments issued by foreign governments, had secured a $56,911.991.47 money judgment against the Republic of Congo, and, in furtherance of executing that judgment, was seeking the testimony of Medard Mbemba, a citizen of France and Congo. Because of his dealings with the Congolese government, Mbemba was believed to be familiar with the location of the Republic's assets and had been subpoenaed by Kensington's attorneys to testify as a non-party witness. When partners at Cleary -- which served as counsel to the Republic -- learned that Mbemba had agreed to testify without being accompanied by a lawyer, he was contacted by Jean-Pierre Vignaud (a member of Cleary's worldwide executive committee), who allegedly attempted to dissuade Mbemba from cooperating by appealing to the latter's sense of patriotism and warning him that his testimony could "hurt the Congo," and prove "dangerous." Finding this conduct to be highly irregular and inappropriate, Judge Preska concluded that Cleary's "incivility" warranted formal rebuke and reproach. The Judge noted, in pertinent part, as follows: Sanctions serve three purposes: (1) to prevent a party from benefiting from its own improper conduct, (2) to provide specific deterrents, and (3) to provide general deterrence ... Here, Cleary did not benefit from its own improper conduct. But Cleary is an ideal candidate for specific deterrence. It has shown a willingness to operate in the murky area between zealous advocacy and improper conduct, and here it crossed the line. Cleary, through two of its attorneys, sought to interfere with the legitimate post-judgment discovery process in this case by attempting in bad faith in furtherance of its own interests to dissuade Mbemba from attending the properly noticed deposition. This conduct is inconsistent with counsel's obligations under the Federal Rules of Civil Procedure and recognized ethical strictures .... This case is far from over, and sanctions are necessary to remind Cleary that it has obligations beyond representing its client. Accordingly, Cleary is hereby sanctioned pursuant to the Court's inherent authority. Cleary is directed to pay Kensington the reasonable costs and attorney's fees incurred by Kensington in connection with this motion. This sanction is imposed as a formal reprimand and should be circulated to all attorneys at Cleary. Sanctions here will also serve as a general deterrent to other law firms and perhaps as an entreaty as well: civil litigation can be high stakes, zealously litigation, aggressively fought, and civil.
Enough of incivility! Let's CONGA!
 As we reported yesterday, a federal court judge struck a large chunk of the attorney-advertising restrictions that had been promulgated by the Presiding Justices of New York State's four Appellate Divisions.
Many of our readers may be unaware that prior to their implementation, those very same regulations were vetted (and voted on) by local bar associations and eventually reached the House of Delegates of the New York State Bar Association (NYSBA), where they ultimately met with NYSBA's approval. In my humble opinion, the federal court's decision should be viewed as an embarrassment to all those who played a part in the promulgation of those draconian restrictions. And, how is it that 267 members of NYSBA's House of Delegates -- many of whom are respected Bar leaders, seasoned trial attorneys, and, practitioners with major white-shoe firms -- failed to recognize the fundamental constitutional infirmities of the restrictions they were embracing? In an interesting revisionist move, earlier today I received the following e-mail from Kathryn Madigan, NYSBA's President: NEW YORK STATE BAR ASSOCIATION NOTICE |
 Office of the President |  Dear Lucas A. Ferrara, Esq.:
I wanted to update you on a recent court decision relating to the rules on lawyer advertising recently adopted by the Appellate Divisions. In Alexander v. Cahill, the U.S. District Court for the Northern District of New York analyzed the lawyer advertising and solicitation rules adopted by the Appellate Division of Supreme Court effective February 1, 2007. The Court upheld many of the rules, but did find some portions unconstitutional as protected free speech under the First Amendment. The decision is available online at www.nysba.org/AttyAdvCourtDecision. Our Association’s Task Force on Lawyer Advertising began its work two years ago to address the dual concerns of protecting the public from false or misleading advertising or solicitation by attorneys while recognizing the legitimate interests of lawyers in informing the public about legal services. We are gratified that the Court has recognized this balance of interests and we are in agreement with the Court's decision, which in many areas referenced the analysis provided by our Task Force. Going forward, we welcome the opportunity to work with the Appellate Divisions to review and develop rules that strike an appropriate balance within the constitutional framework. 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. It is our understanding that the court system will appeal the decision to the U.S Court of Appeals for the Second Circuit and seek relief from the injunction. Please check my blog for updates: http://nysbar.com/blogs/president. Best regards.
Kathryn Grant Madigan
President, New York State Bar Assocaition |
 | 1 Elk Street, Albany, NY 12207 • P 518.463.3200 • F 518.487.5517 • www.nysba.org |
|
Did you catch it? The State Bar was "gratified" that most of the rules they approved were found to be unconstitutional. How's that for "spin?" -------------------------- For our other blog posts on the this topic, please use this link: Attorney Advertising
"VICTORY IS OURS!" On July 20, 2007, in a 30-page decision, Judge Frederick J. Scullin, Jr., Senior United States District Court Judge of the Northern District of New York, enjoined and restrained the four Presiding Justices of the New York State Appellate Divisions from enforcing large chunks of the attorney-advertising restrictions that had been recently promulgated. While Judge Scullin found that the Justices had a "substantial interest to ensure that attorney advertisements are not misleading," they failed to show how their restrictions "materially advanced" that goal. Ironically, our state court judges did not support their position with the requisite evidence, such as "statistical or anecdotal evidence of consumer problems with or complaints about misleading attorney advertising." In fact, the federal court described the record in that regard as "notably lacking." In addition, the state court judges were unable to show that the restrictions were "narrowly tailored." In other words, Judge Scullin was of the belief that most of the restrictions were "broader than reasonably necessary." As a result, the following provisions were stricken as unconstitutional: DR 2-101(C)(1) - endorsements/testimonials from current clients; DR 2-101(C)(3) - portrayals of judges, fictitious law firms, fictitious names, etc. (the court thought a disclaimer would be sufficient); 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; and DR 2-102(G)(1) - use of pop-up/pop-under advertisements.
Only the following provisions were upheld: DR 2-102(E) - domain name limitations; DR 2-103(G) - 30-day moratorium on contacting victims; and DR 7-111 - communications after personal injury/wrongful death.
Our congratulations to Public Citizen Litigation Group for its outstanding work and our thanks for its ardent advocacy on behalf of all New Yorkers. For a copy of the federal court decision, please use this link: Alexander v. Cahill -------------------------- For our other blog posts on this topic, please use this link: Attorney Advertising
 With former DA Michael Nifong's ethical lapses and eventual disbarment receiving national headlines over the past year or so, we found the case of People v. Marks to be particularly intriguing.
In that case, the defendant requested a hearing to stop or suppress certain evidence from being used against him at his criminal trial. Claiming that the two police officers were unavailable to testify in opposition to the request, the government sought to adjourn the case. Rather than postpone the matter, the Justice Court of the Town of Newburg granted relief in the defendant's favor. (The Justice Court apparently did not find the prosecutor's excuse to be credible in the absence of "further proof.") On appeal, the Appellate Term, 9th and 10th Judicial Districts, reversed. Since prosecutors are "officers of the court," held to an "'unqualified duty of scrupulous candor,'" the AT did not believe the representations needed to be verified, particularly in light of the stated efforts to obtain the officers' presence. And, even if the prosecutor could have been more diligent in securing the witnesses, since they were unavailable, the appellate court believed the trial judge erred by denying the postponement. Huh? Just because witnesses are supposedly "unavailable" means a criminal case should be adjourned as a matter of course? How do unsubstantiated representations made by any officer of the court rise to the level of "facts" or unequivocally evidence "diligence and good faith?" If the police officers were truly unavailable -- one was supposedly having "knee surgery" while the other was attending "mandatory K-9 training" -- why weren't those "facts" independently verifiable? When liberty is at issue and a citizen faces the possibility of incarceration, how is it not in the interests of justice to ensure that "facts" are truly "facts," and that some "checks" against possible prosecutorial misconduct are in place? We're of the opinion that, as far as this case is concerned, the AT's decision missed the mark. For a copy of the Appellate Term's decision, please use this link: People v. Marks
It's not that we take pleasure in another's pain or travails, but we anticipated that things didn't look too rosy for former District Attorney Michael B. Nifong -- the prosecutor in the Duke lacrosse "rape" case -- when the North Carolina State Bar filed a 17-page complaint (back in December of 2006) accusing him of an array of ethical improprieties. So, it came as no surprise to us when it was announced just yesterday that Nifong was disbarred -- that is, his license to act as an attorney was rescinded or revoked. In a statement released Saturday, June 16, 2007, Steven D. Michael, president of the North Carolina State Bar, commented as follows: I am satisfied that justice was done in the Nifong case and am proud to say that our system of self-regulation worked well. Mr. Nifong received a fair trial. All interested parties -- but especially the citizens of North Carolina -- were finally able to see all the evidence relating to this extremely unfortunate case of professional misconduct. * * * In my experience, misconduct of the sort Mr. Nifong engaged in is very rare and not at all typical of prosecutors in our state. We deeply regret the serious harm caused to these young men and their families. We hope the decision today will lessen the likelihood that anything like this will happen again. The Bar’s strong response to this situation made clear that the ethical rules restricting pretrial public comment and requiring prosecutors to turn over exculpatory evidence will be strictly enforced. Those rules are important because they ensure the fundamental right to a fair trial that every citizen is guaranteed in our constitution.
We can only hope the outcome of this most unfortunate disciplinary proceeding will serve as a "wake up call" to prosecutors throughout the country that it is their duty to uphold the law and ensure that justice is done (and the truth revealed) in each and every case. Any breach of that public trust should be not only meet with formal rebuke and reproach but lead to the loss of all prosecutorial responsibilities and a forfeiture of the privilege to practice law. Onward! To review our original post on this topic, please use this link: December 29, 2006
Lynne F. Stewart was embroiled in a maelstrom when she was accused by the United States government of an array of wrongdoings committed during the course of her representation of a convicted terrorist, Sheik Omar Abdel Rahman. Stewart had agreed (under oath) to abide with certain security protocols that had been implemented by the United States Bureau of Prisons. She represented that she would only use translators to communicate with her client regarding legal matters and that she would refrain from relaying messages to or from others (including the media). After a jury trial, on February 10, 2005, Stewart was convicted of "conspiracy to defraud the United States, conspiracy to provide and conceal material support to terrorist activity, providing and concealing material support to terrorist activity and two counts of making false statements" and sentenced to 28 months in prison. Since these were felony convictions, the First Department's Departmental Disciplinary Committee concluded that "automatic disbarment" was required. The Appellate Division, First Department, concurred and "struck" Stewart's "name from the roll of attorneys and counselors-at-law" retroactively to February 10, 2005 -- her date of conviction. 
For a copy of the Appellate Division's decision, please use this link: In re Stewart
As we have previously reported, York's new attorney advertising regulations are the subject of a federal lawsuit filed by Public Citizen, Inc., a nonprofit consumer advocacy group. The litigation seeks to stay the enforcement of these overly broad and restrictive rules and to have them declared unconstitutional. To that end, Public Citizen recently filed a memorandum of law in support of its request for a preliminary injunction. In a 25-page brief, which challenges the constitutionality of the new regulations in their entirety, Public Citizen argues, in part, as follows: None of the applications of the rules relates in any way to the state’s interest in protecting consumers of legal services from false advertising. Moreover, far from being narrowly tailored, the rules would apply to a wide range of speech that the state has no interest in regulating. The rules would thus unconstitutionally burden the public’s interest in receiving important noncommercial communications.
We agree. To download a copy of the plaintiffs' brief, please use the following link: http://www.nyrealestatelawblog.com/blog%20~%20%20attorney%20advertising%20brief.pdf To view our other posts on this topic, please use the following link: http://www.nyrealestatelawblog.com/search/mt-search.cgi?IncludeBlogs=4&search=attorney+advertising
As we anticipated, the first federal lawsuit has been filed challenging the constitutionality of New York's new attorney advertising regulations (which took effect yesterday, February 1, 2007). The litigation, brought by the nonprofit consumer advocacy group, Public Citizen, Inc., against the Chief Counsels of the various Departmental Disciplinary Committees, seeks to stay the enforcement of these overly broad and restrictive rules and to have them declared unconstitutional. To that end, the complaint alleges, in part, as follows: The ethics rules, as amended ... allow for arbitrary and discriminatory enforcement and impose onerous restrictions on both commercial and noncommercial speech that the state has no legitimate interest in regulating. The amended rules are therefore unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution.
With 100,000 members nationwide, Public Citizen, Inc.'s mission is to "fight for openness and democratic accountability in government, for the right of consumers to seek redress in the courts; for clean, safe and sustainable energy sources; for social and economic justice in trade policies; for strong health, safety and environmental protections; and for safe, effective and affordable prescription drugs and health care." As Greg Beck, the organization's attorney, correctly noted in a press release, "While other states have debated limits on lawyers’ advertising, the New York rules go further than any other state in imposing burdensome restrictions on legal free speech ... New York has also taken the lead in interfering with and regulating legal Internet communications." We wholeheartedly support Public Citizen's efforts and wish the organization much success. Onward! To retrieve a copy of Public Citizen's press release dated February 1, 2007, please click on the following link: http://www.citizen.org/pressroom/release.cfm?ID=2373 To retrieve a copy of the federal court pleadings filed by Public Citizen, please click on the following link: http://www.citizen.org/documents/alexandercomplaint.pdf ------------------------- To review our other posts on attorney advertising and solicitations, please click the following link: http://www.nyrealestatelawblog.com/search/mt-search.cgi?IncludeBlogs=4&search=attorney advertising
Judge Gerald Lebovits has a monthly column called "The Legal Writer" featured in the Journal, a publication of the New York State Bar Association. In this month's issue (Vol. 79, No. 1), Judge Lebovits addresses "Ethical Judicial Writing" and examines a bankruptcy court decision we've scrutinized in a prior blog post. [See, "This Is Incomprehensible," by clicking on the following link: http://www.nyrealestatelawblog.com/2006/11/this_is_incomprehensible_1.html#000375] Interestingly, Judge Lebovits echoed many of the sentiments expressed in our piece and we thought you might find his analysis of that twisted decision of interest. Here are his observations: One bankruptcy judge from Texas used humor to deny a defendant's motion as incomprehensible. The judge compared the defendant and his motion "to Adam Sandler's title character in the movie 'Billy Madison,' after Billy Madison had responded to a question with answer that sounded superficially reasonable lacked any substance." Billy Madison, like the defendant in this case, was berated for his stupidity:
[W]hat you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.
Judges are different from everyone else in a courtroom. They should decipher rambling, irrational, incoherent thoughts. They should unearth the buried argument, comprehend the incomprehensible, clarify the opaque. They shouldn't give up easily on a litigant who sounds like Billy Madison. Judges who act disrespectfully to lawyers and litigants will in turn be treated disrespectfully.
Kudos to Judge Lebovits for getting it right! (Unfortunately, a few too many of his colleagues neither strive to achieve these fundamental goals nor accord litigants--or their counsel--the "respect" and "dignity" they rightfully deserve.) To download a copy of Judge Lebovits's article, please click on the following link: http://www.nyrealestatelawblog.com/blog~legal%20writer.pdf
Well, folks, the Presiding Justices of the Appellate Divisions have spoken and a new wave of restrictions relating to lawyer "advertising" and "solicitations" is slated to become effective as of February 1, 2007. We haven't had a chance to review the final version of these regulations, and will likely be posting our analysis of them in the weeks and months to come, but as a service to our readers, we are providing a link to the New York State Bar Association's website, which provides all the pertinent information. Read 'em and weep! (But fear not. It's likely these new regulations will be the subject of federal suits, and all--or substantial portions--will ultimately be deemed unconstitutional.)* To be directed to the State Bar's website, please click the following link: http://www.nysba.org/Content/ContentGroups/Announcements/lawyer_advertising.htm --------------------------- *By way of example, under the regulations "advertising" is defined as follows: (k) "Advertisement” means any public or private communication made by or on behalf of a lawyer or law firm about that lawyer or law firm's services, the primary purpose of which is for the retention of the lawyer or law firm. It does not include communications to existing clients or other lawyers.
What does "primary purpose" mean and how is that determined? Is it all a matter of "intention?" This blog and our firm's monthly newsletters are publicly disseminated with the intention of educating and informing our readers of the latest developments in the law. We also address other items that we believe to be of general interest or that may be "newsworthy." Thus, based on our preliminary reading of the regulations, we do not believe our written or electronic communications would be encompassed by the regulations. But, to say the least, the lack of clarity is certainly disconcerting.
Those of you following the news are aware of the "prosecutorial abuse" charges being hurled against District Attorney Michael B. Nifong of North Carolina. Nifong is the lead prosecutor of a criminal case involving members of Duke University's lacrosse team. (On March 14, 2006, three of the University's students allegedly raped a "stripper" who had performed at a team party.) Although the rape charges were recently dropped, the criminal case is still pending. (Apparently, the students remain charged with kidnapping and sexual offense counts.) In an interesting twist, on December 28, 2006, the North Carolina State Bar commenced a disciplinary proceeding against District Attorney Nifong charging him with a series of ethical breaches in the Duke University matter that could lead to his disbarment. In a scathing 17-page complaint, Nifong is accused of making "extrajudicial statements he knew or reasonably should have known would be disseminated by means of public communication and would have a substantial likelihood of materially prejudicing an adjudicative proceeding, " and that he allegedly "engaged in conduct involving dishonesty, fraud, deceit or misrepresentation." In e-mails we have received throughout the day, attorneys have come down on all sides of this controversy. Some have congratulated the North Carolina Bar for taking such aggressive action against someone widely perceived as a "grossly irresponsible" prosecutor, while others have suggested that we not jump to conclusions (based, among other things, on unreliable news reports) and that Nifong be afforded a "presumption of innocence." Where do you stand? To download a copy of the North Carolina State Bar's disclipinary complaint, please click on the following link: Nifong
If you've ever considered becoming a judge, you may want to think twice. The campaign process is highly regulated and riddled with technicalities. It's so convoluted and complex that all judicial candidates--except those for town or village justice--are required to attend a "judicial ethics education program." The many issues addressed by the program include: pre-candidacy activities;
endorsements by political parties, caucuses and PACS;
attendance at gatherings;
fundraising;
proper use of campaign funds;
campaign advertising; and
campaign speech. We were recently able to secure a copy of the "Judicial Campaign Ethics Handbook," which was distributed at one of the training events.
You might be surprised by some of the content. For example, did you know that once a judge is elected, any unexpended campaign funds may be used to purchase "office equipment or furniture" (like "computers, word processors, microphones, telephone answering machines, judicial robes, carpeting, office equipment or office furniture for chambers, video equipment, etc."), and, that these items become the property of the New York State Unified Court System?
According to the Handbook, "Any items so purchased must be specified and donated [by the Judge] in writing to the local District Administrative Judge."
Anyone in the market for a used pink leather couch?
For a copy of the Judicial Campaign Ethics Handbook, please click on the following link:
Judicial Campaign Ethics Handbook
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By the way, the New York City Bar--formerly known as the "Association of the Bar of the City of New York"--is conducting a special program on Saturday, December 2, 2006, entitled "How to Become a Judge." According to promotional materials that have been distributed by the Association, more than 30 state and federal judges will be speaking about: Supreme and Civil Courts, Family and Criminal Courts, Federal Court, Housing Court, Judicial Screening Committees and Judicial Campaign Ethics. The Honorable Philip S. Straniere (Supervising Judge, Richmond County) is program chair, the Honorable Judith Kaye (Chief Judge, New York State Court of Appeals) is the scheduled keynote speaker. The cost for the entire 6 1/2 hour program (which includes lunch) is only $25 for members, $35 for non-members.
For additional information about this special event, please click on the following links: How to Become a Judge or Event Flyer
Michael Miller, a noted Trusts and Estates lawyer, and past President of New York County Lawyers' Association, has lent his voice to the growing chorus of concerned advocates who have expressed dissatisfaction with the proposed regulations relating to attorney advertising and solicitations.
In particular, Mr. Miller has questioned the propriety of the proposed "30 day blackout period" found at section 1200.41-a [DR 7-111], which would apply to the families of wrongful death victims.
In its current form, the regulation reads as follows: In the event of an incident involving potential claims for personal injury or wrongful death, no unsolicited communication shall be made to an individual injured in the incident or to a family member or legal representative of such an individual, by a lawyer or law firm, or by any associate, agent, employee or other representative of a lawyer or law firm, representing or seeking to represent a party to any pending or potential litigation or proceeding arising out of the incident before the 30th day after the date of the incident, unless a filing must be made within 30 days of the incident as a legal prerequisite to the particular claim, in which case no unsolicited communication shall be made before the 15th day after the date of the incident. In a letter to Michael Colodner, Counsel to the Office of Court Administration--dated yesterday, November 15, 2006--Mr. Miller noted as follows: I respectfully submit that this proposed rule as written would be counter-productive to the timely probate and administration of estates of persons who died in serious accidents and would result in certain attorneys being exposed to unwarranted exposure to disciplinary proceedings. While I would hope that disciplinary committees would find that there was no unethical conduct for promptly informing a wrongful death victim's family of the existence of a will or trust, should the committees' resources be required in such matters? I submit that the provision should be revised and clarified. He further proposed a carve-out which reads as follows: This provision shall not apply to communications pertaining to the existence of testamentary instruments, trust agreements or other testamentary substitutes executed by the decedent. If these regulations must exist (and ultimately survive constitutional muster), then Mr. Miller's suggested modification strikes us as completely appropriate under the circumstances.
To download a copy of Mr. Miller's letter, please click on the following link:
Miller Letter
For a copy of the proposed amendments and latest deadline information, please click on the following link:
Advertising & Solicitation Amendments
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To view our prior blog posts on this topic, see How Unethical Is This? and FTC Objects to Attorney-Advertising Rule (Go Figure!)
With some limited exceptions, New York State attorneys are required by law to file a registration statement every two years and pay a $350 filing fee.* Believe it or not, the failure to complete the one-page form or to otherwise comply with this registration requirement can result in an attorney's suspension from the practice of law. (Not a good thing, that's for sure.)
Why would people subject themselves to the time and expense of three or more years of law school, submit to a rigorous bar examination, an exhaustive application and interview process, only to be suspended from the profession for non-compliance with such a relatively ministerial requirement? You'll have to ask the 815 people who were recently the subject of the Appellate Division, First Department's ire.
In a decision dated October 12, 2006, the appellate court suspended attorneys whose last names began with the letters "A" through "D" and announced that this was only the first in a "series" of decisions to come. In other words, those whose last names start with "E" through "Z" will be disciplined in the near future.
Surprisingly, the group consists of a broad range of practitioners including (but not limited to) those who are--or were--associated with some of the City's leading lawfirms: Davis Polk (6); Skadden Arps (6); Weil Gotshal (6); Shearman & Sterling (4); Sullivan & Cromwell (4); Kelley Drye (3); Milbank Tweed (3); Cleary Gottlieb (2); Clifford Chance (2); and Wachtell, Lipton (2).
By the way, if you are a regular reader of our posts, have you noticed that the AD will cut (alleged) gun-toting students [That Wasn't A Pistol in His Pants!] and (alleged) marijuana growers [Pot Luck?] a lot more slack than attorneys who haven't filled out a form?
Something's awry here.
For a copy of the Chief Administrator's rules governing attorney registration, please click on the following link:
http://www.courts.state.ny.us/attorneys/registration/part118.pdf
For a copy of the Appellate Division's decision in Matter of Attorneys Who Are in Violation of Judiciary Law Section 468-a, please click on the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_07268.htm
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* See Section 468-a of the Judiciary Law and 22 NYCRR Part 118 of the Rules of the Chief Administrator of the Courts.
A few months ago, we took issue with the Office of Court Administration's proposed stance on "attorney advertising." Since there already are an extensive array of rules and regulations that govern attorney conduct, we do not believe there is any justification for overly broad restrictions that muzzle constitutional rights to free speech and expression.
If regulators have their way, this website (in its current form), and others like it, will violate newly proposed professional standards that are slated to become effective on or about January 15, 2007. These changes, currently open for public comment until November 15, 2006, seek to overhaul the manner in which attorneys communicate with their clients and members of the general public.*
Under these new rules, an "advertisement" will be defined as "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's service." If this definition is taken to its logical extreme, any time we speak publicly or privately to a group of individuals--including friends or family--about our professional qualifications or experiences, we may be engaged in "advertising." And, if that's the case, disclaimers and filing requirements will be triggered.
Should I send you an e-mail that could be construed as an "advertisement" or a "solicitation," (as those overly broad terms are currently defined by regulators), I will be required to include in the subject line of my communication the words, "ATTORNEY ADVERTISING."
Now you know things are pretty bad--or good, depending on how you look at it--when even the United States Federal Trade Commission (FTC) takes issue with these changes. By law, the FTC is charged with monitoring and enjoining "unfair methods of competition and unfair or deceptive acts or practices" which affect commerce including, but not limited to, "deceptive and misleading advertising practices."
In a seven-page letter addressed to the New York State Office of Court Administration (OCA), the FTC expressed concern for the adverse impact the proposed changes would have on attorneys and the public-at-large: The FTC Staff believes that while deceptive advertising by lawyers should be prohibited, restrictions on advertising and solicitation should be specifically tailored to prevent deceptive claims and should not unnecessarily restrict the dissemination of truthful and non-misleading information. As to the proposed amendments, the FTC Staff is concerned that several provisions are overly broad, may restrict truthful advertising, and may adversely affect prices paid and services received by consumers. Moreover, the FTC Staff believes that New York can adequately protect consumers from false and misleading advertising by using less restrictive means.... We couldn't believe it.
Even the FTC is suggesting that court officials should consider "less restrictive" regulations. (Does anyone see the irony in that? It's usually the other way around!)
Historically, the FTC has been not been a friend to lawyers. Just a few years ago, that agency required attorneys--much like banks and lending institutions--to comply with the provisions of the Gramm-Leach-Bliley Act (GLBA). Under that particular statute, lawyers engaged in providing certain types of services--including, but not limited to, real-estate settlement, tax-planning or tax-preparation services--were directed to provide clients with initial and annual notices of the attorneys' practices regarding the release and distribution of clients' nonpublic personal information to third parties, despite existing ethical restrictions which prohibit the dissemination of client confidences and secrets.
Although bar associations throughout the country objected to GLBA's applicability and voiced concern for the confusion that would be engendered by compliance with the law, it took federal litigation to quash the government's unwarranted interference with the most fundamental parameter of the attorney-client relationship.** Unless OCA relents, it has been widely reported that the same fate awaits the current set of "attorney advertising" amendments now under consideration.
Join us in objecting to these new rule changes while there is still time. Address your comments and concerns (prior to November 15, 2006) to: Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
For a copy of the proposed amendments and latest deadline information, please click on the following link:
Advertising Amendments
For a copy of the FTC's letter, please click on the following link:
FTC Letter
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*Note: Due to the public outcry and criticism, the original comment period was extended from September 15, 2006, to November 15, 2006, and the effective date of the amendments was postponed from November 1, 2006, to January 15, 2007.
** See, e.g., New York State Bar Association v. Federal Trade Commission, 2004 WL 964173 (D.D.C.). For a copy of the District Court's decision, please click on the following link:
http://www.dcd.uscourts.gov/02-810a.pdf
Lawyers are already governed by an overwhelming array of regulations and restrictions. By way of example, we've already got rules which dictate: how we should behave [see, e.g., DR1-102(A)(2) (lawyer may not engage in "conduct that adversely reflects on the lawyer's...fitness as a lawyer"); DR7-106(C)(6) (lawyers may not engage "in undignified or discourteous conduct which is degrading to a tribunal")];
what we must do when we are being hired or "retained" by a client [see, e.g., 22 NYCRR section 603.7 (written agreements required for contingency fee, personal-injury cases); 22 NYCRR section 1400 et seq. (written retainer required for domestic-relations matters); 22 NYCRR 1215 (written retainer required when services are expected to exceed $3,000 or more)]; and
how we collect our fees in the event of a dispute [see, e.g., 22 NYCRR Part 137 (fee arbitration and notice requirements)]. The last thing we need are restrictions that are fundamentally violative of our constitutional entitlement to freedom of speech and expression.
If regulators have their way, the website you are currently viewing, and others like it, may violate newly proposed standards of conduct that are slated to become effective on or about November 1, 2006. The proposed changes, which have been released for public comment until September 15, 2006, seek to overhaul the manner in which attorneys communicate with their clients and members of the general public.
Under these new rules, an "advertisement" will be defined as "any public communication made by or on behalf of a lawyer or law firm about a lawyer or law firm, or about a lawyer's or law firm's services." If we take this definition to its logical extreme, any time I am invited to speak at a public event, I may be engaged in "advertising." And, if that's the case, I may be required to begin or end my remarks with certain "disclaimers," like: "Prior results cannot and do not guarantee or predict a similar outcome with respect to any future matter, including yours, in which a lawyer or law firm may be retained." Unfortunately, the absurdity does not end there. Should I be so bold as to send you an e-mail that could be construed as an "advertisement" or a "solicitation," (as those terms are currently defined by regulators), I will be required to include in the subject line of my communication the words, "ATTORNEY ADVERTISING."
These and other restrictions now under consideration are so intrusive and overly broad, that a number of respected advocates have openly expressed their criticisms and concerns. For some incisive comments authored by noted real-estate attorney, Joshua Stein (in his personal capacity and not on behalf of his firm or other organization), we commend you to his website (www.real-estate-law.com) where he has posted his paper entitled, "Tangling Up the Web for Lawyers."
In that document, Mr. Stein aptly notes, in part, as follows: I can understand having warning labels for poisons, airbags, flammable clothing, dangerous intersections, or hazardous waste. But I cannot see why attorney advertising falls in a similar category. Are even the worst members of our profession that evil or dangerous? Really? (And if they are, don't we already have ways to deal with them, without imposing a Warning Requirement on millions of routine email communications in the practice of law?)
As its main practical effect, any Warning Requirement will simply increase the likelihood that people who receive communications from lawyers will discard or delete them without reading them. The phrase "Attorney Advertising" is much like saying: "Please Delete Me as Soon as Possible." Why should lawyers bear that burden when they try to communicate?
By encouraging recipients to delete without reading any e-mail messages they receive from lawyers, the Warning Requirement interferes with educating the public about the law....
We wholeheartedly agree with Mr. Stein and encourage you to join us in objecting to these new rule changes. Address your comments (prior to September 15, 2006) to: Michael Colodner, Esq.
Office of Court Administration
25 Beaver Street
New York, New York 10004
For a copy of the proposed amendments, please click on the following link:
http://www.nycourts.gov/rules/proposedamendments.shtml
For a copy of "Tangling Up the Web for Lawyers," by Joshua Stein, Esq., please click on the following link:
"Tangling Up the Web for Lawyers" or you can visit Mr. Stein's website at: www.real-estate-law.com (search for the link that reads, "This Website May Become Unethical on November 1.")
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NOTE: After this piece was originally posted, the deadlines delineated herein were extended by OCA. To view this updated information, please click the first link provided above.
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