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THE RECORD
44TH Street Notes

Access to Justice Begins with Legal Services
PATRICIA M. HYNES, President

Providing access to justice has been a fundamental part of the New York City Bar’s mission, and it’s a priority I fervently share. In these economic times, the difficulties of ensuring that low income New Yorkers have access to justice have been compounded. The economic fallout is particularly apparent in New York City’s Civil Court, which has had around 300,000 consumer debt-related filings in the past year alone, representing a huge increase and a growing trend. Clearly, more people are falling through the safety net and into poverty.

As we have described in previous issues of 44th Street Notes, the Association has expanded its efforts to deal with the growing need for assistance. The City Bar Justice Center has established a program with the Federal Reserve Bank of New York to help people facing foreclosure. The Justice Center’s Consumer Bankruptcy Project has expanded to help meet the need. Our Civil Court Committee, in concert with other bar associations and organizations around the City, is providing counseling and assistance to consumer debtors in Civil Court. And our Monday Night Law program, run by the Committee on Legal Services for Persons of Moderate Means, is looking to expand its weekly legal assistance clinics at the Association.

Of course, our programs and other pro bono efforts meet only a portion of the need. It is essential that legal services organizations be adequately funded and able to use their resources fully in order to handle the enormous number of issues faced by the City’s poor. In areas like consumer debt, housing, and family law, the risks of proceeding without assistance are too great.

The Association has been working to see that City, State, and federal funding for legal services be maintained and enhanced even in this budgetary climate, as the consequences of not providing the legal services will likely pose a greater cost to government than providing those in need with legal services
.
In addition to supplying funding, the federal government, without spending a dime, can substantially improve the capacity and effectiveness of organizations that receive funds from the LegalServices Corporation (LSC). In 1996, Congress established, and has maintained, a series of restrictions limiting how LSC funds can be used and the types of cases these organizations can handle. Among other restrictions, these organizations cannot handle class actions. They cannot represent any undocumented immigrants, certain documented immigrants, or prison inmates in civil proceedings. Nor can they seek attorney’s fees even where otherwise permitted by statute. Exacerbating these and other limitations is that the restrictions apply to the organizations’ use of funds from all sources, not just the LSC.

Therefore, a legal services office cannot make use of a state grant to represent immigrants, or use any of its funds to bring a class action against a predatory lender or pursue attorney fees to curb abusive litigants preying on low-income families, so long as one dollar of its funding comes from the LSC. Some organizations have set up separate organizations to operate with non-LSC funds, incurring the burdensome administrative expense and procedural difficulties that come with such a bifurcation. Many others cannot afford to go this route.

Fortunately, there is hope that the weight of these restrictions will start to lift. President Obama recommended to Congress that it end the restrictions on bringing class actions and seeking attorney’s fees, and to lift restrictions on the use of non-LSC funds. The House of Representatives, in its appropriations bill for the 2009-10 fiscal year, lifted the restriction on LSC-funded organizations seeking attorney’s fees. The Senate Appropriations Committee has voted to lift most restrictions on the use of non-LSC funds. As this column is being written, we are awaiting action by the full Senate.

Progress is being made. We will continue to work to undo these harmful and counterproductive restrictions, so organizations that represent the poor can do so without one hand tied behind their back, and can give their clients the full range of services and representation that they deserve.

City Bar Trains Deferred Associates

The New York City Bar and City Bar Justice Center are pleased to announce the launch of the Deferred Associate Law Extern Support Project, a response to the growing pool of law school graduates who have been deferred for up to a year from private law firms and have chosen to work in public interest law in New York City. The main goal of the project is to provide a series of training sessions that will help the law firm externs get up to speed on the hard and soft skills needed to succeed at their externships and when they return to their law firms. On September 14, the Project will kick off with a WelcomeBreakfast and a week long training program held in conjunction with The Legal Aid Society and Legal Services NYC. The event is free for law firm externs and CLE credit will be provided. Additional programming will continue throughout the fall and early winter.

For full programming details, please visit www.nycbar.org/Deffered Associate/index.htm or contact Zakiyyah Salim-Williams, Project Director at zswilliams@nycbar.org or 212.382.6689. The City Bar gratefully acknowledges the support of the New York Community Trust for this Project.

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Committees Seeking New Members

The Administrative Law Committee is
interdisciplinary, and members include sitting Administrative Law Judges, employees at city and state agencies, attorneys in private practice, and in-house counsel. The committee’s plans for the coming year include hosting informal talks by experts, sponsorship of a CLE, and commenting on proposals relating to the practice of administrative law. To apply, please contact the Chair, Adrienne Ward, at adriennemarieward@yahoo.com or 347.723.8557.

The Aeronautics Committee consists of plaintiff and defense attorneys, in-house counsel for large commercial aviation carriers, aviation-related transactional lawyers, pilot lawyers, governmental lawyers, and aviation-related insurance adjusters. The interests of the group are equally broad and include discussions/lectures with members of the FAA, NTSB, private pilots, aeronautical engineers, and more. To apply, please contact the Secretary, Orla Brady, at obrady@kreindler.com or 212.973.3431.

This year the AIDS Committee anticipates working on issues including changes in immigration regulations affecting people living with HIV, criminalization of conduct based on HIV status, the impact of changes in the Americans with Disabilities Act on people living with HIV, and discrimination and confidentiality issues. To apply, please contact the Chair, Bebe Anderson, at banderson@lambdalegal.org or 212.809.8585 x218.

The Bioethical Issues Committee studies and discusses the ethical, moral, and legal implications of advances and issues in the biomedical field, including but not limited to assisted suicide, genetic testing, human subject research, and transplantation. This past year the Committee focused its attention on stem cell research legislation in New York, organ donation, and allocation of medical equipment. To apply, please contact the Chair, Beverly Jones, at 212.788.4344 or bjones1@health.nyc.gov.

The Drugs and the Law Committee is currently focusing on projects dealing with the Federal Controlled Substances Act, and the related issues of pain management and the government’s determinations regarding the legalization, dispensing, and use of pharmaceuticals and non-pharmaceutical drugs. To apply, please contact the Chair, Susan Guercio, at susan.guercio@nychhc.org.

The Federal Legislation Committee is addressing current issues facing the Obama administration, Congress, and the federal courts, including proposals for new financial regulation, felon disenfranchisement statutes, election reform, same-sex marriage, national security, and DNA testing in criminal cases. To apply, please contact the Chair, Sarah Cave, at 212.837.6559 or cave@hugheshubbard.com.

The Juvenile Justice Committee is currently working on a number of projects, including exploring issues of education and juvenile justice; assessing the PINS system in New York, five years after it was moved from probation to ACS; and developing a book for judges on the treatment of lesbian and gay youth in the juvenile justice system. To apply, please contact the Chair, Cynthia Godsoe, at cynthia.godsoe@brooklaw.edu.

The primary focus of the Committee on Legal Services for Persons of Moderate Means is managing the Monday Night Law program, which provides no-cost legal counseling for people of moderate means. It also considers other ways of serving the legal needs of this population. The Committee meets once per month on a weekday morning. Participation in Monday Night Law is not required. To apply, please contact the Chair, Patience Jones, at pjones@patiencejones.com.

The Committee on Military Affairs and Justice has a long record of involvement in issues that affect the services, including the interrogation of detainees, providing Congressional testimony, and providing observers to hearings in Guantanamo. Committee interests range from the appropriate standards for the treatment of prisoners to how best to ensure military personnel stationed abroad can vote in the presidential elections. The Committee frequently meets with members of the Executive, JAGs, key Congressional committees, DOD policy makers, and independent policy groups. To apply, please contact the Chair, Myles Bartley, at 212.696.6098 or mbartley@curtis.com.

The Personal Income Taxation Committee addresses current legal developments in personal income tax practice. This fall it will explore ethical topics and revisions needed in the handling of tax appeals in New York City, and will discuss the utility of Bank Secrecy Act data in determining the tax implications of business transactions. Committee members also participate in a Tax Clinic as part of the City Bar’s Monday Night Law program. To apply, please contact the Chair, Gilda Mariani, at marianig@dany.nyc.gov. or the Secretary, Andrew Cohen, at Andrew.Cohen@Marcumllp.com.

The Sex and Law Committee addresses issues pertaining to gender and the law in a variety of areas, such as violence against women, reproductive rights, gender discrimination, poverty, matrimonial and family law, employment law, and same-sex marriage. The upcoming agenda for the Committee will include the issues of paid family leave, reproductive rights in New York State, and civil rights for LGBT individuals. To apply, please contact the Chair, Rachel Braunstein, at rachelbraunstein@yahoo.com.

The United Nations Committee this year will engage in a year-long project to address climate change issues, in cooperation with other committees of the City Bar. It will also address the implementation of the principle of self-determination by the United Nations as well as issues related to the rights of women. To apply, please contact the Chair, Katlyn Thomas, at thomkatbus@aol.com.

Nominating Committee Request

The Nominating Committee of the City Bar solicits your suggestions for candidates for the following offices and committee members for terms commencing May 2010: President, three Vice Presidents, Secretary, Treasurer, four Members of the Executive Committee (Class of 2014), and five Members of the Audit Committee. Please submit your suggestions to any member of the Committee by September 22, 2009. The Nominating Committee members are:

Bettina B. Plevan, Chair
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Phone: 212.969.3065
Fax: 212.969.2900
bplevan@proskauer.com

Hon. Rolando T. Acosta
Appellate Division, First
Department
27 Madison Avenue
New York, NY 10010
Phone: 212.340.0564
Fax: 212.340.0582
racosta@courts.state.ny.us

David M. Brodsky
Latham & Watkins LLP
885 Third Avenue
New York, NY 10022
Phone: 212.906.1628
Fax: 212.751.4864
david.brodsky@lw.com

Hon. George Benjamin Daniels
US District Court (SDNY)
500 Pearl Street, Room 630
New York, NY 10007
Phone: 212.805.6735
Fax: 212.805.6737
george_daniels@nysd.uscourts.gov

John S. Kiernan
Debevoise & Plimpton LLP
919 Third Avenue
New York, NY 10022
Phone: 212.909.6692
Fax: 212.909.6836
jskiernan@debevoise.com

Susan Kohlmann
Jenner & Block LLP
919 Third Avenue, Fl. 37
New York, NY 10022
Phone: 212.891.1690
Fax: 212.891.1699
skohlmann@jenner.com

Victor A. Kovner
Davis Wright Tremaine LLP
1633 Broadway, Fl. 27
New York, NY 10023
Phone: 212.489.8230
Fax: 212.489.8340
victorkovner@dwt.com

New Executive Committee Members

Vice President
Barry A. Cozier is a member of the litigation and labor and employment practices at Epstein, Becker & Green, P.C. He represents individuals and institutions in business and commercial litigation, employment law litigation, and federal and state appeals. Previously, Judge Cozier was a member of the New York State judiciary and most recently served as an Associate Justice of the Appellate Division, Second Department. Currently, he serves as a member of the Mayor’s Advisory Committee on the Judiciary and the New York State Judicial Screening Committee for the First Department, and on the Board of Trustees of the Center for Employment Opportunities. Judge Cozier has served on the Executive Committee, chaired the Committee on Children and the Law, and served as a member of numerous other City Bar committees.

Class of 2013
Michael Byowitz is a partner at Wachtell, Lipton, Rosen & Katz and focuses on antitrust law and policy, principally advising major domestic and multinational corporations on mergers, acquisitions, joint ventures, and corporate takeovers. Previously, Mr. Byowitz was a Trial Attorney and Senior Trial Attorney at the Antitrust Division, U.S. Department of Justice. Mr. Byowitz represents the American Bar Association Section of International Law in the ABA House of Delegates and formerly served as Chair of the Section as well as Chair of the Section’s International Antitrust Law Committee. Mr. Byowitz just completed his term as Chair of the City Bar’s Council on International Affairs and also chaired the Antitrust and Trade Regulation Committee.

Elizabeth Donoghue is a partner at Himmelstein McConnell Gribben Donoghue & Joseph. She has an extensive background representing tenants, and also handles litigation matters relating to shareholders and unit owners. Ms. Donoghue has also worked at the Municipal Employees Legal Services Plan, Bronx Legal Services, and the Lower East Side Local Enforcement Unit of MFY Legal Services. A former Chair of the City Bar’s Housing Court Committee, Ms. Donoghue has also served on the Judiciary Committee, Committee on Cooperatives and Condominium Law, and the Task Force on Town and Village Courts.

David E. McCraw is a Vice President and Assistant General Counsel for The New York Times Company. Mr. McCraw deals primarily with litigation of commercial disputes, libel cases, and Freedom-of-Information and court access issues. He has chaired the City Bar’s Committee on Communications and Media Law, a joint City Bar – State Bar Task Force on the Revised Uniform Arbitration Act, and the Media Law Resource Center’s Committee on International Law.

Debra L. Raskin is a partner at Vladeck, Waldman, Elias & Engelhard. Previously, she served as law clerk to Hon. Lee P. Gagliardi of the United States District Court, Southern District of New York and as a New York State Assistant Attorney General in the Civil Rights Bureau. Ms. Raskin is a Fellow of the American College of Trial Lawyers, has taught at Columbia and Fordham Law Schools, and has lectured and written on employment law matters for the New York State Bar Association and the American Law Institute/American Bar Association. She has served as Chair of the City Bar’s Labor and Employment Law Committee and as a member of the Civil Rights Committee and Federal Courts Committee.

The City Bar Goes Green
The City Bar has recently created a Green Team, a volunteer group of employees who meet monthly to discuss ways in which the organization can reduce its impact on the environment. Within its first few months, the group has already taken on several initiatives to reduce paper use and increase recycling at the House of the Association. Though mostly minor changes, these initiatives have helped the City Bar save money and greatly reduce waste. For more information about the Green Team, please contact Gabrielle Brown at gbrown@nycbar.org.

Volunteers Sought for Monday Night LAW
The New York City Bar Association’s Committee on Legal Services for Persons of Moderate Means is seeking volunteer attorneys to staff the Monday Night Legal Advisory Workshop, which begins its 19th year this fall. New volunteers are needed for the MNL year, which will run from October through August 2010. Volunteers are needed to staff MNL one Monday per month during that period. A two-part training will be held in September. For more information, or an application to participate, please provide full contact information including an E-mail address that accepts attachments to MondayNightLaw@gmail.com.

COMMITTEE REPORTS

Art Law
Letter to the NYS Legislature regarding A.6959 on deaccessioning by museums located in New York State, urging that the Legislature take the time to consult further with various stakeholders on the possible effects of the bill and consider elimination or clarification of certain provisions of the bill.

Children, Council on
Report in support of A.7805 that would revise statutory language by replacing the term “law guardian” with “attorney for the child” to reflect more accurately the role of attorneys who represent children. Letter to Governor Paterson urging that the number of Family Court judges in New York City and New York State be increased to address the long delays children face in the foster care system.

Civil court Consumer Affairs
Report supporting the Consumer Credit Fairness Act (A.7558/S.4398) with suggested modifications, which would amend the CPLR to ensure that persons who are sued in consumer credit transactions receive the benefit of fair procedures.

Civil Rights
Statement outlining a number of concerns about possible racial bias in the New York Police Department’s stop-and-frisk practices and the NYPD’s refusal to release data publicly so that a meaningful determination can be made about whether law enforcement is in fact discriminating on the basis of race. Statement in support of S.427 (State Secrets Protection Act) and H.R.984 (State Secrets Protection Act of 2009), which would establish procedures and legal standards to govern application of the state secrets privilege.

Commercial Law and Uniform State Laws
Report providing comments on the Permanent Editorial Board for the Uniform Commercial Code proposed commentary on sections 4A-502(d), which deals with creditor process served on a receiving bank, and 4A-503, which deals with injunctions or restraining orders with respect to funds transfers under the Uniform Commercial Code.

Construction Law
The report, “Modernizing the State’s Public Procurement Laws,” urges that New York State’s public construction laws be updated and that the current economic landscape warrants a productive public discussion about modernizing New York’s public construction procurement laws.

Corporation Law
Report recommending the adoption by New York State of the Revised Uniform Limited Liability Company Act (RULLCA) in substantially the same form approved by the National Conference of Commissioners on Uniform State Laws and the American Bar Association.

Corrections Law
Report expressing opposition to the New York City Department of Corrections’ proposals for variances that would reduce the schedule for inmate visits and inmates’ outdoor recreation schedule. These proposed variances, the report argues, could impede inmate access to legal counsel, deter family visits, and negatively affect the morale of the inmate population.

Corrections Law
Labor and Employment Law
Report supporting A.3131-A/S.4406-A (with suggested modifications), which would require changes to the Department of Correctional Services’ (DOCS) web-based Inmate Population Information Search (the “Look-Up”). The Look-Up creates enormous barriers to reentry into the workforce and vocational studies for people who have served a term in prison.

Criminal Courts
Criminal Justice Operations

Report on the Merger of the Bronx Supreme and Criminal Courts evaluates the effects of the 2004 merger of the Supreme and Criminal Courts in Bronx County after the first five years and draws conclusions concerning its effectiveness and potential expansion to other jurisdictions.

Domestic Violence
Report supporting A.456-C/S.3438-C, which would allow certain incarcerated survivors of family or household violence to apply for merit time and increased merit time allowances as long as the inmate was subjected to substantial physical, sexual, or psychological abuse; the abuse was inflicted by a member of their same family or household; and the abuse was a substantial factor in causing them to commit the crime.

Education and the Law
Report concerning what the New York State Legislature should consider as it debates the future of mayoral control of the New York City school system.

Estate and Gift Taxation
Letter to Congress urging that the state “death tax credit” be reinstituted at the federal level. Without the credit, the letter argues, states must either forego their estate tax revenues entirely or maintain those revenues at the cost of increased administrative burdens and taxpayers decamping to states with no state estate tax.

Financial Reporting
Letter to the SEC in response to Release No. 33-8982, Roadmap for the Potential Use of Financial Statements Prepared in Accordance with International Financial Reporting Standards by U.S. Issuers. Though supporting the basic proposition, the letter states that the proposed roadmap requires early use program participants to maintain parallel accounting standards until they are assured that the Commission will not mandate a return to U.S. GAAP and that the enormous expense associated with this change in accounting standards will deter meaningful participation in the early use program.

Futures and Derivatives Regulation
Letter to the Federal Trade Commission providing comments on the revised proposed Rule regarding prohibitions on market manipulation and false information in the wholesale petroleum markets. Letter to the Commodity Futures Trading Commission commenting on the Concept Release on Whether to Eliminate the Bona Fide Hedge Exemption for Certain Swap Dealers and Create a New Limited Risk Management Exemption for Speculative Position Limits. Though designed to improve market transparency and reduce systemic risk, the letter argues that the elimination of the bona fide hedge exemption for swap activity is a drastic step that should not be taken without conclusive proof of a problem that would be solved by such action.

Information Technology Law
Letter to the NYS Legislature urging that given the FTC’s active work on proposed nationwide standards for the online advertising industry relating to the collection of information online and addressing first party or intra-site collection and use of data and online contextual advertising, the Legislature should defer to the FTC and hold off action on A.1393, the Online Consumer Protection Act.

Legal Issues Pertaining to Animals
Report supporting with recommendations H.R.891/S.3610, which would amend the Dog and Cat Fur Prohibition Enforcement Act to require labeling of all fur products regardless of value. The report supports the legislation as it enables consumers to make informed choices, it is necessary to protect public health, and it provides protection to a species currently excluded from the protection of the existing regulatory network.

Report expressing support for A.8163, which would amend the Agriculture and Markets Law by adding a new Section 353-e to make it unlawful for any person to confine breeding sows, calves raised for veal, or egg-laying hens in a manner that prevents them from lying down, standing up, fully extending their limbs, or turning around freely.

Report opposing A.7285-B/S.5392-A, which provides that no person or business that buys, sells, or offers for sale dogs or cats to the public or at wholesale shall possess or own more than 50 dogs or cats with intact sexual organs over the age of four months.

Letter expressing concern with the ongoing efforts to dismantle the worldwide moratorium on commercial whaling at the International Whaling Commission. The letter argues that the moratorium, if implemented, could result in increased killing of whales and further diminishing already depleted stocks.

Report expressing support for A.4777/S.5423, which would amend section 11-1111 of the New York State Environmental Conservation Law to permit each county in the state to enact local laws or ordinances to restrict, limit, or prohibit trapping within its municipal limits.

Report in support of A.6158-A/S.4278, which would require the establishment of an animal population control program and fund in New York City. The proposed legislation would assure that the funds received for the program are used to expand the provision of low-cost or free spay and neuter services.

Lesbian, Gay, Bisexual and Transgender Rights
Report in support of the Marriage Equity Act (A.7732/S.4401), which would permit New Yorkers to marry regardless of a spouse’s sex. Report supporting the Uniting American Families Act of 2009 (H.R 1024/S.424), which would permit U.S. citizens and legal residents in same-sex relationships to sponsor their partners for immigration. The report notes that the Bill needs to be updated to recognize couples who have entered into marriage or equivalents, such as civil unions.

National Security and the Rule of Law, Task Force
Amicus Brief: Kiyemba v. Obama filed with the U.S. Supreme Court. The brief argues that the courts’ power to end unlawful detention is a critical and necessary component of the Court’s earlier ruling in Boumediene. If courts do not have the ability to order a meaningful remedy in the face of unlawful executive detention, then the Writ of Habeas Corpus and the Article III power of the courts is undermined.

Non-Profit Organizations
Report supporting, with suggested modifications, New York’s adoption of the Uniform Prudent Management of Institutional Funds Act (UPMIFA) as it would (1) provide modern articulation of the prudence standards for the management and investment of charitable funds and for endowment spending and (2) incorporate certain recent revisions with respect to charitable trusts.

Professional and Judicial Ethics
Formal Opinion 2009-4 considers under what circumstances a law firm or attorney may make a payment to a pro bono organization to obtain pro bono assignments, and under what circumstances a lawyer in such an organization may seek and accept such a payment. The Opinion concludes that payments to a pro bono organization to obtain pro bono assignments may be made without violating the Rules provided that (1) the fees or dues paid by the law firm or lawyer to the pro bono organization are “usual and reasonable” and (2) the pro bono organization charging such fees or dues is a “qualified legal assistance organization” as defined by Rule 7.2(b)(1)-(4).

Social Welfare Law
Report expressing support for A.1827, which would enhance the opportunity of public assistance recipients to participate in education and training by expanding the number of educational activities that would count toward meeting a public assistance recipient’s work requirements.

Trusts, Estates and Surrogates’ Court
Currently, in order to create a valid lifetime trust under EPTL 7-1.17, there must be a writing that is executed by the initial creator and at least one trustee, either in the presence of two witnesses or acknowledged before a notary public. The requirement of the signature of the initial creator can lead to unfavorable consequences and questions as to the validity, which would lead to more trusts being created outside New York State and have a negative fiscal impact on New York. The report proposes an amendment to the EPTL 7-1.17 that would resolve these issues.

September Career Development & Networking Events and CLE Courses

10 THURSDAY, 6:30 PM – 8 PM
Kick off reception: Young Lawyers Connect

10 THURSDAY, 6 PM – 9 PM
CLE Video Replay: Starting Your Own Firm: Is It Something You Should Be Thinking About & Preparing For?

16 WEDNESDAY, 6:30 PM
From Law Practice to Law & Order: Making the Leap to Television

17 THURSDAY, 7 PM
City Bar Contemplative Lawyers Group

22 TUESDAY, 6 PM
Back to School—Another Degree May Be the Key to Your Career

17 TUESDAY, 8:30 AM – 10:30 AM
How to Succeed and Excel as a Reduced or Flexible Hours Associate

23 WEDNESDAY, 6:30 PM
Putting ADR on Your RADAR

24 THURSDAY, 6:30 PM – 8:30 PM
Taking Control of Your Career: Strategic Planning for Women Starting the Profession

Save the Date: October 13 & 14
Bootcamp 2009 – Basic Training for Lawyers
What you need to know to be successful when you join a firm



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