Page 5 - NYSBA Annual Meeting

NYLJ.COM |
MONDAY, JANUARY 27, 2014
| S5

Strategies for Continued Engagement in the Law
GP Section Unveils

Major Restructuring
section has created a variety of pro bono, program and CLE,
committees to examine and pro- vide creative suggestions about publications, technology, and planning, including for retire-
Susan B. Lindenauer
some of the major issues that lawyers confront in this stage of ment, as well as a committee on membership. To encourage
their professional careers. The membership in the section,
Lewis F. Tesser
Chair
issues include whether and how to continue paid employment, the section offers one year’s free membership to any State
Senior Lawyers Section
either full-time or part-time, in Bar member upon reaching
Chair
the law or otherwise; what type of opportunities are available their 55th birthday. I urge all eligible State Bar members to
General Practice Section
AsIcometotheendofmy two-year term as chair of the yers in the United States today are 65 years of age or older. for meaningful unpaid service, either in the profession as a pro join section, participate in our committees, read our Senior
Senior Lawyers Section, one of Looking at a recent NYSBA mem- T
bono lawyer or in some other Lawyers Section Newsletter
the newest sections of the New York State Bar Association, I will bership proile, the demograph- ics of the State Bar reveal that every other month beginning in January.
nonlawyer capacity, or entirely outside the profession; what and attend our excellent CLE programs.
he NYSBA General Prac-
tice Section is excited to
focus on my perspective on the role of the section in the NYSBA. fully 38 percent of the members of the State Bar are 56 years of announce its committee restruc- turing plan for the year 2014!
The Second Department chair is Emily Franchina of type of planning is needed, inancial, psychological and oth- Carole A. Burns, who is the incoming chair of the section,
The only criteria for member- age or older and that percent- Last year, the section voted Franchina & Giordano, P.C. Ms. erwise, whether or not actual and has served the section so
ship in the Senior Lawyers Sec- tion, aside from membership in age has been creeping up. The expectation of longer lives and to establish regional chapters within New York state based Franchina’s practice, based out of Garden City, N.Y., focuses on retirement is contemplated; how to keep up with develop- well as its innovative Chair of Programs and CLE, along with
the New York State Bar Associa- improved health suggest that on judicial departments. The elder law and estate planning. ments in the law and changes the other officers and com-
tion, is that the State Bar mem- ber be 55 years of age or older. this trend will continue. The Senior Lawyers Section seeks restructuring plan is designed to encourage greater local involve- Ms. Franchina is excited to help grow the General Practice Sec- in technology; how to go about selling or closing a practice; and mittee chairs, will continue to expand the reach of the section
The section was irst established as a Special Committee and, after to develop coherent strate- gies for the continued engage- ment in the section throughout the entire state. Each chapter tion within the Second Depart- ment.
the various types of part-time or selected time options in con- through innovative programs and committee work. Please
some deliberation and the result ment of this age cohort in the will be run by a chair, who will The Third Department co- tinued practice that might be join them in their worthwhile
of a survey of State Bar mem- bers, became a section approxi- bar and in some aspect of the profession.
be establishing sub-committees based on members’ interests chairs are Joel Pierre-Louis and J. Gerard McAuliffe. Mr. available.
Thus, the section has estab- endeavors.
mately six years ago to address The Senior Lawyers Section and concerns. Through these Pierre-Louis is based out of lished a wide range of com- Susan Lindenauer, the retired counsel
a variety of issues common to many senior members of the bar.
membership proile reveals that more than 80 percent of the new local chapters, meetings will be held in your area regard- Colonie, N.Y., and works for the Dormitory Authority of the mittees, including committees that focus on employment and to the president and attorney-in-chief of the Legal Aid Society, is a member of
Nationwide it is estimated that about 25 percent of the law-
members of the section are with- in the 55 to 65 age category. The
ing matters of importance to you, your practice and your State of New York. Mr. McAuliffe is a solo practitioner based in age discrimination, law prac- tice continuity, legislation,
the House of Delegates and co-chair of the Task Force on Family Court.
local area.
Johnstown,N.Y.,whohasserved
These local chapters will provide members with a vari- as the Fulton County Public Defender. The Third Department
ety of different opportunities, Chapter is looking forward to
including CLEs, speaking events, networking and social events, promoting the General Practice Section’s opportunities within Workplaces Are Currently at a Critical Juncture
and publications. These new chapters will also provide mem- the Third Department, and is considering organizing sub-
bers with an exciting chance to committees based on judicial
get involved with organizing a new part of the General Practice districts in order to encourage involvement throughout the struggles, the likelihood of social instability and political ness and the unavailability of another solution. Employers
Section, and will allow you to large geographical area covered extremism increases.
can reduce their risks of cost-
assume important leadership roles within the GP Section. by the Department.
The Fourth Department co- Jonathan Ben-Asher
Why does all this matter to us as labor and employment law- ly and distracting litigation by ensuring that they have well-
Regardless of subcommittee organization, members can chairs are Stephanie Calhoun and Steve Bengart. Ms. Calhoun yers? Whatever side we practice on, it’s in our clients’ interests functioning complaint proce- dures that employees view as
look forward to opportunities is an attorney with the New York Chair
that employers’ and employees’ unbiased and effective. They
for speaking engagements and publications concerning topics State Ofice of the Attorney Gen- eral in its Buffalo ofice, and Mr. Labor and Employment Section
goals are largely aligned—so that the work gets done, and can institute voluntary, in- house mediation programs that
of importance to your practice Bengart is a member of Bengart Temployees are well-treated move quickly and encourage an
and local area.
The chapter chairs for the & DeMarco, a Tonawanda, N.Y. firm. The Fourth Department his past year was a heady one in employment and share in management of the enterprise.
and motivated. While lawsuits brought by dissatisied employ- early and voluntary resolution of disputes.
First Department are Paige Zan- dri and Timothy Nolen. Ms. Zan- Chapter is excited to address local issues in the Fourth labor relations. Government workers were furloughed across We are at a critical juncture in how our workplaces work. ees may generate litigation that results in damage recoveries • When it comes to litigation, both plaintiff and defense law-
dri is a solo practitioner, whose Department and organize net- the country while Congress High unemployment and long- and legal fees for lawyers, an yers can take steps to improve
practice focuses on family law. Mr. Nolen is an associate at Tes- working activities.
The General Practice Sec- wrestled with the government shutdown. The Affordable Care term unemployment have per- sisted. Union membership is at unstable workplace isn’t good for anyone. Ironically, clients the process while still zealously representing their clients. Plain-
ser, Ryan & Rochman, whose practice focuses on business tion is excited about these new opportunities for its members, Act’s employee notice and insurance exchange provisions its lowest level in 97 years, at a little more than 11 percent. on both sides often conclude that employment laws and the tiffs lawyers can streamline their cases before they bring
and commercial litigation, and and we look forward to working went into effect, with major In 2012, it dropped by 400,000, judicial system are skewed to them; complaints with multiple
administrative law. The First Department Chapter held their with all of you in the months ahead!
tech issues for healthcare.gov. Same-sex marriages blossomed, even though employment grew by 2.4 million jobs. When it favor the opposition.
How can labor and employ- claims of discrimination that have little foundation only hurt
initial meeting in December and with support from the Supreme comes to income inequality— ment lawyers improve the cir- the credibility of the plaintiffs
will be having additional meet- ings on the third Tuesday of
Lewis F. Tesser is a senior partner at Tesser, Ryan & Rochman.
Court, raising signiicant issues for employee beneits. The New the gap between the super- wealthy, wealthy and the rest cumstances that drive work- place conlict, or at least make bar with the courts and defense attorneys. Defense lawyers can
York City Council enacted the Pregnant Workers Fairness Act, of the population—the United States gets a score comparable it easier for those conlicts to be fairly resolved?
seriously consider early reso- lution. Both sides can ratchet
expanding job protections for to Rwanda and Uganda. China Here are a few ideas:
down the level of electronic
Lippman
attorneys do not need supervi- pregnant employees. The State Assembly voted to enact the actually does better on this scale than we do. http://www. • The increasing dispari- ties in income between senior discovery, which threatens to make single-employee cases
sion by a New York attorney Women’s Equality Agenda, theatlantic.com/international/ executives, middle management cost-prohibitive.
« Continued from page S1
or an approved legal service provider, and they do not need but it did not become law because the Senate approved archive/2011/09/map-us-ranks- near-bottom-on-income-inequal- and lower ranking employees, and the prevalence of large We are a long way from the labor-management clashes of a
mitment to pro bono throughout the state in these dificult times. to seek pro hac vice admission when pro bono service requires only nine of the 10 points (the tenth would have codiied Roe ity/245315/. The eminently suc- cessful capitalist Warren Buffet reductions in force, create an atmosphere where employees century ago, in which labor law- yer Clarence Darrow was such a
What is evident from the Advi- appearance before a tribunal in v. Wade). The Supreme Court says that “the American popu- may believe they are merely potent force. But we have a long
sory Committee’s research and the period of public comment is New York. In-house lawyers will be required to provide notice to increased the burden of proof for plaintiffs in Title VII retalia- lace as a whole has not come back [from the 2008 recession]. a cost that can be cut at any time. If employers’ thinking is way to go to make our workplac- es fair and eficient ones where
that in-house lawyers are no less the tribunal where the attorney tion cases in University of Texas Inequality is getting wider . only short-term—how was our the term “team” is more than a
dedicated and interested in using their skills to represent and meet is appearing that the attorney is not admitted to practice in New Southwestern Medical Center v. Nassar.1 And there was a hint .” http://www.youtube.com/ watch?v=V4oJ_X_bPCo.
last quarter?—they will end up with a workforce with minimal feel-good buzz word.
•
the needs of pro bono clients compared with other lawyers York but is registered as in-house counsel. This simpliied process of possible structural changes to come: Management at a new You don’t have to be a dogged liberal to be concerned loyalty and little interest in col- laborating.
••••••••••••••••••••••••••••
employed in New York.
eliminates unnecessary restric- Volkswagen plant in Tennessee about these trends. Low wages • Individual employment 1. 133 S. Ct. 2517 (2013).
The goal in designing the parameters of the rule amend- tions on the practice of pro bono and eases the administration by sought to establish a “workers council” based on the Europe- may help employers make short-term proits, but histori- litigation is driven by some combination of legal wrongs Jonathan Ben-Asher is an attorney at
ment was to take away unnec- the courts. In-house counsel will an model in which employees
cally, when the middle class
(perhaps), perceived unfair-
Ritz Clark & Ben-Asher.
essary barriers to pro bono practice. New York is the com- still be held, however, to the same high standards of compe-
mercial center of the world and employs tremendously talented tency and zealous representa- tion that all lawyers must follow.
lawyers in in-house and corpo- In-house counsel admitted to Gonzalez
middle adolescence is a time (ACD), criminal courts are not “Adolescent Diversion Pilot
rate positions. Their expertise in tax exempt organizations, immi- practice in other jurisdictions must be in good standing in the when the brain systems impli- cated in response to rewards are required to assess a defendant’s risks or needs or to make refer- Parts”—which were tested, with what he saw as encourag-
gration matters, real estate, and state in which they are licensed « Continued from page S1
at their height of arousability, rals for services.
ing results throughout 2012.
other areas will be enormously helpful in addressing the legal and must register with the New York courts. Registered in-house present juvenile justice scheme runs counter to the documented but the neurological systems vital to self-regulation are still Moreover, studies indicate that older adolescents, the 16- The pilot programs combined age-appropriate services with
needs of low-income New York- ers. The rule change also allows attorneys will be subject to the rules of the jurisdiction in which neurological maturation process and its role in adolescent crimi- immature.5 He says: “It’s as if the brain’s accelerator is pressed to and 17-year-olds that we now prosecute and sentence in crimi- interventions and penalties tailored to non-violent 16- and
attorneys working in corporate they are admitted and subject nality.3 It also fails to consider, the loor before a good braking nal court, are not only more like- 17-year-old offenders. He also
law departments to expand their repertoire of legal expertise as to the New York Rules of Profes- sional Conduct.
from a rehabilitation standpoint, the problems created for adoles- system is in place”;6
• Roper also acknowledges ly to re-offend, but are also more likely to commit violent crimes recognized that real reform was only possible with the accompa-
they volunteer to help veterans, victims of domestic violence, There is a growing recognition around the nation that in-house cents by placing them in the adult criminal justice system.
that “juveniles are more vulner- able or susceptible to negative and serious property crimes than those young people whose niment of legislation decriminal- izing certain offenses commit-
and other clients. During the lawyers are qualiied and willing influences and outside pres- cases are adjudicated in Family ted by adolescents.
public comment period for the rule change, we received letters to contribute pro bono service and should be allowed to assist The Adolescent Brain
sures, including peer pressure” (id. at 569). Steinberg conirms Court.8 Thus, public safety is not improved when we prosecute Our youth is our future, and we need to tailor our criminal
of support from corporate coun- the poor with their legal skills Several U.S. Supreme Court this fact, with neurological evi- and punish 16- and 17-year-olds justice system to recognize the
sel that were enthusiastic and unabashed in their advocacy even though they are licensed out-of-state.2 In 2012, the Con- cases have considered the role of neurological maturation in dence of a correlation between age and increased ability to con- as adults. By introducing young people to the criminal justice role of maturation in the pros- ecution and punishment of ado-
for the proposed rule. The gen- eral counsels at Verizon, Pizer, ference of Chief Judges passed a resolution that supports allow- punishing adolescents convict- ed of crimes.4 For example, in trol impulses, plan ahead, and resist peer inluence;7
system, we decrease the prob- ability that they will mature lescent offenders. I am in full support of swift enactment of
Anheuser-Busch InBev, Cushman ing “non-locally licensed in-house Roper v. Simmons (543 U.S. 551 • Roper concludes that “the into productive, law-abiding a iscally sound legislation that
& Wakeield, JPMorgan Chase, MetLife, Viacom, and many counsel who are permitted to work for their employer to also [2005]), the court held that the Eighth and Fourteenth Amend- character of an adolescent is not as well formed as an adult. adults. Moreover, the stigma of a criminal record poses a will give our 16- and 17-year-olds a better chance at a good pro-
others were supportive of the provide pro bono legal services ments to the U.S. Constitution The personality traits of juve- permanent barrier to opportuni- ductive life.
change. Many corporate attor- neys expressed that this rule . .”3 We have some of the best legal talent in the country work- forbade the imposition of the death penalty on offenders who niles are more transitory, less ixed” (Roper, 543 U.S. at 570). ties for education, housing and employment.
•••••••••••••••••••••••••••••
change was long awaited, and a growing number of Fortune ing in-house in New York, and I could not be more delighted that were under the age of 18 when their crimes were committed. New York should recognize this fact, and adjust its juvenile jus- 1. Merril Sobie, “Pity the Child: The Age of Delinquency in New York,” 30 Pace
500 companies have already set they can now use their skills to While Roper involved a capital tice laws accordingly.
Juvenile Justice Reform
L. Rev. 1061, 1065 [2010].
2. “Court Reform For Teenage Offend-
up or are moving to establish formal pro bono programs for help those most in need of legal assistance. I urge all in-house crime (not at issue in the pres- ent juvenile justice reform dis- Practical Problems
Gov. Cuomo’s announcement that he was establishing a “Com- ers,” The New York Times, Oct. 11, 2011, http://www.nytimes.com/2011/10/12/
their in-house attorneys. The attorneys employed in New York cussion), three observations mission on Youth, Public Safety opinion/court-reform-for-teenage-offend- ers.html [accessed Jan. 14, 2014].
newly amended rule allows an estimated 5,000 to 10,000 out-of- to get registered and to start tak- ing advantage of this new rule made by the Supreme Court, relying on reports of neurolog- Gov. Cuomo, in the compan- ion book released with his State & Justice” with a mandate to “provide concrete, actionable 3. Lawrence Steinberg, “Should the Sci- ence of Adolescent Brain Development
state licensed in-house attorneys employed in New York to join change today—they and the liti- gants they serve will be all the ical studies, underscore why 16- and 17-year-olds should of the State address, stated that in 2012, nearly 40,000 16- and recommendations [by Decem- ber 2014] pertaining to youth in Inform Public Policy?,” Issues in Science and Technology, Spring 2012, available at http://www.issues.org/28.3/steinberg.
the ranks of those committed to better for it.
not be treated as adults within 17-year-olds had their cases New York’s criminal and juvenile html [accessed Jan. 12, 2014] [Steinberg Study].
doing pro bono work.
In response to the great need •••••••••••••••••••••••••••••
the criminal justice system. The points are as follows:
handled in adult or criminal court, and that they were less justice systems and ensure the State’s place as a national leader 4. Roper v. Simmons, 543 US 551 (2005); see also Graham v. Florida, 560
for increased pro bono contri- 1. 2013 Report—Task Force to Expand Access to Civil Legal Services in New • “[A]dolescents are over- likely to receive the services in youth justice” complements U.S. 48 (2010).
5. See Steinberg Study, supra note 3.
butions and the demand for change by the in-house counsel York, page 2.
2 . Colorado, Virginia, and Illinois also represented statistically in vir- tually every category of reck- they needed in that environment than they would have in Fam- initiatives that have been ongo- ing in the judiciary. In his 2013 6. Id.
7. Id.
community, we have crafted an extremely expansive rule for have expansive rules allowing out-of- state licensed in-house attorneys to do less behavior” (Roper, 543 U.S. at 569 [internal citation omit- ily Court. The Citizen’s Crime Commission of New York City “State of the Judiciary Address” Chief Judge Jonathan Lippman 8. Jeff Storey, “Lippman Vows Changes
to Confront Doubts about Youth Reform
in-house attorneys in order to pro bono work.
3. Conference of Chief Justices. Reso- lution 11. “In Support of Practice Rules ted]). Neurologist Lawrence has found that even in criminal discussed “long awaited juvenile Bill,” NYLJ, June 26, 2012 (citing New York State Division of Criminal Justice Services, Computerized Criminal History
maximize their potential contri- butions. Under the rule, in-house
Enabling In-House Counsel to Provide Pro Bono Legal Services,” (July 25, 2012).
Steinberg, whose research is cited in Roper, explains that
cases resolved by Adjournment in Contemplation of Dismissal
justice reform.” He devised and discussed a new approach—
System (as of 5-2012), “Dispositions of Ar- rests Involving 16- 17-Year-Olds”).