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New York Versus London As the Place of Arbitration: A Transatlantic Debate
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Securities Arbitration & Mediation Hot Topics 2010
Committees Seeking Members
The 65+-voice City Bar Chorus is conducting its next auditions (brief, private, and low-pressure) in July and August 2010. Basses, baritones, and tenors are particularly welcome. We rehearse two or three Tuesday evenings per month, from 6:45 to 8:15 PM, in midtown Manhattan (Radio City/Rock Center area) to produce what our audiences describe as a pro-quality sound. We perform frequently, serving our community through concerts for audiences most in need of musical cheer and also singing for luminaries of the bench and bar. Music-reading or sight-reading ability is helpful but not required if you have a "good ear." While many of our members have prior choral experience, some of our best performers got their start singing karaoke—or in the shower. In interested, please e-mail us at firstname.lastname@example.org. For more info, please visit our website at www.citybarchorus.org
The Housing Court Committee addresses all issues related to landlord/tenant litigation, including ethical duties of practitioners, current trends within the practice, the impact of self represented litigants upon practitioners and the court, as well as selection and efficacy of guardians ad litem. Additionally, the Committee conducts community outreach. To apply please contact the Chair, Joel Kullas, at email@example.com.
The newly formed International Business Transactions Committee is seeking members. The Committee's focus is on business transactions in the international arena. It will cover such issues as: global corporate governance, cross-border financing and regulatory challenges, sovereign wealth funds, foreign investing, developments in other nations impacting business in the U.S., as well as many other international transactional issues. To apply, please contact Stephanie Glazer at 212.382.6664 or firstname.lastname@example.org
The International Trade Committee is currently accepting applications for membership. The Committee includes both practitioners and students of international trade. Recent topics the Committee has considered include U.S. bilateral investment treaties, export control, intellectual property infringement actions in front of the International Trade Commission, and business in China. For more information on the Committee's activities, please contact the Chair, Helena Sullivan, at email@example.com. To become a member of the Committee, please contact Stephanie Glazer of Membership Services at firstname.lastname@example.org
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 Committee anticipates that its agenda for 2010-2011 will include the issues of paid family leave, reproductive rights in New York State, and civil rights for LGBT individuals. To apply please send your resume to the Chair, Rachel Braunstein, at email@example.com
The Women in the Courts Task Force in recent years worked to address issues impacting women as litigants, with a special emphasis on language access in the courts. In the coming year, the Task Force looks to broaden its focus to cover issues related to women's role as courtroom advocates and judges, potentially exploring issues such as potential bias against female litigators and the dearth of women judges in certain parts of New York. To apply please contact the Chair, Reema Abdelhamid, at 212.336.4198 or firstname.lastname@example.org
2010 Diversity Champion Award Winners
The New York City Bar’s Enhance Diversity in the Profession Committee has announced the winners of the Fifth Annual Diversity Champion Awards. The award recognizes the critical role individual attorneys have played in initiating and sustaining change within their organizations and the overall New York legal community.
George Cheeks and Andra Shapiro
Andra Shapiro joined MTV Networks as Counsel in 1988, and during her 20+ year tenure at the company has managed the business and legal affairs for the Nickelodeon children's television network. She is currently Executive Vice President/General Counsel for the Nickelodeon Kids and Family Group and Co-General Counsel of MTV Networks along with George Cheeks. Prior to joining MTV Networks, Andra was an associate attorney with the intellectual property firm Cowan, Liebowitz and Latman. Andra graduated magna cum laude from Barnard College. She holds a MA in Art History from NYU's Institute of Fine Arts and a JD from NYU's School of Law.
George Cheeks began his career as an entertainment associate at Loeb & Loeb. In addition, he served as Vice-President, Business Affairs for Castle Rock Entertainment and worked as an entertainment attorney at the boutique entertainment firm of Hansen, Jacobson, et al. In 1998, Andra hired George as a junior lawyer for MTV Networks in the Business and Legal Affairs (BALA) Department for Nickelodeon. George’s current title is Executive Vice President, Business Affairs, Co-General Counsel, MTV Networks and General Counsel, Music Group & Entertainment Group. George graduated from Yale University (Phi Beta Kappa) and received his JD cum laude from Harvard Law School.
George and Andra have made a lasting impact on the diversity of the MTV Networks community. As Executive Vice Presidents, Co-General Counsels of MTV Networks (MTVN), they have built a law department that is more than one-third persons of racial/ethnic minorities and diverse in every way – by race, gender, sexual orientation, age, religious affiliation, personality, work style, and family life. Their success is evident in their retention of diverse lawyers, where the average length of service exceeds eight years.
Their innovation in instilling diversity into the fabric of BALA’s culture cannot be overstated. Together, they have built a law department that is both diverse and supportive—fostering their employees’ professional and personal needs.
Duane L. Hughes
Duane L. Hughes is currently an Executive Director in the Legal and Compliance Division at Morgan Stanley, where he advises on structured debt capital market transactions. Fluent in Spanish and Portuguese, Duane’s career has focused on Latin American capital markets at both Shearman & Sterling and Simpson Thacher & Bartlett, with an in-between stint at Lucent Technologies, prior to joining Morgan Stanley nearly a decade ago. Duane holds JD, MBA and MA degrees from the University of Pennsylvania and a BA degree summa cum laude in Economics from Howard University.
Duane Hughes reflects his passion for diversity and inclusion in a variety of ways within Morgan Stanley and the greater legal profession. His comprehensive and strategic approach to diversity at Morgan Stanley has led to a Legal and Compliance Division diversity committee with over 40 members worldwide and a host of initiatives including: unique diversity awareness and training sessions; an annual outside counsel survey and reception on diversity matters; a summer internship for first year law students and market leading partnerships with the City Bar’s South African Visiting Lawyer Program, and the Legal Outreach Program.
As a member of the Committee to Enhance Diversity in the Profession of the New York City Bar Association, he played a key role in drafting the City Bar’s Statement of Diversity Principles and the creation of the City Bar’s Office for Diversity. Last year, Duane spearheaded fundraising for Pathways to Achievement and Community Transformation (PACT), a high school initiative for 25 young African American and Latino males interested in future law careers, and addressed hundreds of professionals through his diversity presentations at conferences, law firms, and law departments around the country. Duane bases his efforts on the fundamental principle that people with different perspectives working together achieve better results. His contagious enthusiasm for diversity matters has contributed tremendously to the greater legal community.
Marissa C. Wesely
Marissa C. Wesely is a partner at Simpson Thacher & Bartlett LLP where she has practiced law since 1980. Marissa, a member of the firm’s Corporate Department, specializes in domestic and international bank finance transactions, with an emphasis on leveraged acquisition finance, recapitalization, and debt restructuring transactions, principally advising equity sponsors and corporate borrowers. Marissa graduated magna cum laude from Williams College in 1976 and received her JD, cum laude, from Harvard Law School in 1980.
Marissa is a tireless advocate concerning the need for, and the importance of, diversity within her firm and in the legal profession. Through her continued advocacy, Simpson Thacher recently elected two women partners to the firm’s Executive Committee, which marked the first time in the firm’s 125-year history that women partners became members of the Executive Committee. In addition, in the past three years, 50% (2008), 40% (2009) and 33% (2010) of the firm’s newly elected partners were women. Marissa is not just satisfied with their elevation; she continues to work to ensure their success through mentorship. Through her work as Co-Chair of the Diversity Task Force, Marissa was instrumental in the creation of Women’s and Diversity Advisory Councils to solicit feedback on the firm’s women’s and diversity initiatives and the appointment of Diversity Partners to monitor the professional development of women and minorities.
Marissa has also been very active in advancing women’s issues outside of Simpson Thacher. One of Marissa’s recent achievements is the establishment of the Kate Stoneman Project, a leadership organization for the women partners of 10 leading New York-based firms. The Kate Stoneman Project is committed to advancing women in the profession and using the group’s collective strength to promote their leadership in civic, educational, and charitable endeavors.
In addition, as a member of the New York City Bar Association’s Committee on Women in the Profession, Marissa has helped to promote the New York City Bar Report on “Best Practices for the Hiring, Training, Retention and Advancement of Women Attorneys.” In addition to her leadership at the New York City Bar, Marissa is an active member of the Boards of Directors of Legal Momentum and The Global Fund for Women, and is on the Executive Committee (and Co-Chair of the Development Committee) of DirectWomen, a project of the American Bar Association and Catalyst to improve corporate board diversity.
Michael Oshima Diversity Essay Competition Winners
The Michael Oshima Diversity Essay Competition was established this year by the Committee on Minorities in the Profession. Mr. Oshima, who was Chair of the committee until his untimely passing in 2008, dedicated much of his legal career to ensuring that the legal profession remains diverse and open to all people no matter their race, ethnic or national origin, sex or sexual orientation. The Competition was open to second year law students from minority or socioeconomically disadvantaged backgrounds who are attending New York City area law schools.
The Committee has announced that the winners of the Competition are: Abraham S. Cho, Columbia University School of Law, first place; Evelyn M. Perez, Benjamin N. Cardozo School of Law, second place, and Jonathan E. Barbee, New York University School of Law (Michael's alma mater) and Atinuke O. Awoyomi, Columbia University School of Law, tied for third place. The applicants wrote about whether diversity will or should impact their approach to the practice of law and about how to promote civility among lawyers.
Samuel W. Seymour Installed as President of the New York City Bar
Samuel W. Seymour was installed as president of the New York City Bar at the Association’s annual meeting on May 18th. He succeeds Patricia M. Hynes.
Seymour is a partner at Sullivan & Cromwell LLP, where he concentrates on white-collar criminal defense, regulatory enforcement matters and internal investigations. He has been an active member of the City Bar for over 25 years, having served as both a member and Chair of the Executive Committee, Vice President of the Association, and Chair of the City Bar Fund, which includes the City Bar Justice Center.
In his address at the annual meeting, Seymour said the legal profession “has a special obligation to speak out and to take action on the very same issues that led to the formation of this Association 140 years ago: improving our system of justice, making that system equally accessible to all, and ensuring an independent and adequately funded judiciary. It falls uniquely on our shoulders as lawyers to make certain that the firmest pillar of good government – that is, the true administration of justice – stands strong. For an individual lawyer, that is asking too much, but we are 23,000 members strong. Our collective voice is heard in the places where law and policy are made, and this Association has frequently taken a stand and made a difference. I will do my utmost to uphold those great traditions of the Association during my tenure as president.”
[Read Sam Seymour’s Annual Meeting address here.]
Seymour also spoke of the need for the Association to keep pace with the rapid changes in the legal profession in areas like technology and globalization, and with the next generation of lawyers. “This generation inherits a world with entirely new paradigms about job security, social networking, the speed and nature of communications. They are the future of the profession for certain; I want to make sure they are also the future of this Association,” Seymour said. “I have every confidence that we will be a home for the profession in the 21st Century.”
Seymour served as an Assistant U.S. Attorney and Deputy Chief Appellate Attorney in the Southern District of New York from 1988 through 1991, and has held leadership positions in many organizations serving the legal and educational communities, including Trustee of the Practising Law Institute, Director of the Fund for Modern Courts, and Director of the First Department Assigned Counsel Corporation. He is also a member of the Board of Visitors of Columbia Law School and has been a Lecturer-in-Law teaching trial practice at Columbia.
In addition to Seymour’s installation, the rest of the Association’s leadership positions were filled as follows:
Zachary W. Carter, of Dorsey & Whitney LLP; Mei Lin Kwan-Gett, of Willkie Farr & Gallagher LLP; and Robert C. Sheehan, of Skadden, Arps, Slate, Meagher & Flom LLP were elected City Bar Vice Presidents.
Donald S. Bernstein of Davis Polk & Wardwell LLP returns as Treasurer and Sheila S. Boston of Kaye Scholer LLP returns as Secretary.
The Executive Committee class of 2014 is: Carrie H. Cohen, of the U.S. Attorney’s Office (SDNY); Prof. Bruce A. Green, of Fordham University School of Law; Hon. Debra A. James, of the New York State Supreme Court and Peter J.W. Sherwin, of Proskauer Rose LLP.
Returning Audit Committee members are: Robert J. Anello, of Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer P.C.; Daniel F. Kolb, of Davis Polk & Wardwell LLP and Christopher L. Mann, of Sullivan & Cromwell LLP. Newly nominated candidates for the Audit Committee are Richard Cashman, of Gibson, Dunn & Crutcher LLP and Hon. Elizabeth S. Stong, of the United States Bankruptcy Court (EDNY).
The candidates were nominated by the City Bar’s Nominating Committee, which is comprised of Bettina B. Plevan (Chair), Hon. Rolando T. Acosta, David M. Brodsky, Hon. George B. Daniels, John S. Kiernan, Susan J. Kohlmann and Victor A. Kovner.
Courts & Practice
Save the Date: U.S. Supreme Court Event on July 7
The 2009 U.S. Supreme Court Term, Justice Stevens' Departure, and the Court's Future
Wednesday, July 7, 6:30 PM
Please join us for a evening with some of New York's leading Supreme Court experts at the close of this historic Term. The panel will discuss this Term's biggest cases, the impact of Justice Stevens' retirement, the nomination process to replace him, and the major issues facing the new Court next Term.
Click here to register.
KATHLEEN SULLIVAN, Quinn Emanuel, head of the firm's national appellate practice
JAMAL GREENE, Associate Professor of Law, Columbia Law School
SUSAN HERMAN, President, American Civil Liberties Union; Centennial Professor of Law, Brooklyn Law School
SAMUEL ESTREICHER, Dwight D. Opperman Professor of Law, NYU Law School
SHAYANA KADIDAL, Senior Managing Attorney, Guantánamo Global Justice Initiative, Center for Constitutional Rights in New York City
Co-sponsored by The New York Lawyer Chapter of the American Constitution Society
Motion for Senate Committee Consideration
While Albany finds itself embroiled in a deadlock over the State budget, a number of Senators were able to quietly advance pieces of legislation by taking advantage of a new procedural rule that allows sponsors to move their bills onto a committee agenda on their own initiative. Facing a May 1st deadline to utilize the new procedure, starting on Friday, April 30th, Senators advanced 190 bills by filing motions for committee consideration. Committee chairs now have 45 days from the date of filing to place those bills on their respective committee agendas.
Among other procedural changes that took effect this year, the motion for committee consideration is meant to empower individual Senators and combat the old adage of “three men in a room” controlling the fate of all legislation in Albany. These rules give sponsors new procedural tools to advance their legislation without necessarily having the support of committee chairs or Senate leadership.
As illustrated in the City Bar and Brennan Center's "Legislative Roadmap," once a motion for committee consideration is filed, a committee chair must place the bill on the agenda within 45 days. Once on a committee agenda, the bill will be debated and either voted on or put aside. Other new tools at the sponsor’s disposal are (1) a petition for consideration whereby a sponsor can move a bill directly to the floor for a vote by the entire Senate as long as the petition is signed by 35 of the 62 Senators (which is no small feat), and (2) a motion for chamber consideration whereby a sponsor can move a bill from 3rd calendar reading to a floor vote as long as the motion is approved by a majority of members.
These rules may seem superficial and unhelpful at first glance, particularly given the virtual deadlock in the Senate right now on most issues. However, the new rules should at least permit an opportunity for a public airing of issues that did not exist in the past. Take, for instance, the Dignity for All Students Act (“DASA”). This bill would amend the Education Law to authorize the Commissioner of Education to establish policies and procedures to afford all students in public schools an environment free of bullying in the form of harassment and discrimination that substantially interferes with a student’s ability to participate in school.
Sponsored by Senator Thomas Duane, DASA was first introduced in 2000 with a companion bill in the Assembly sponsored by Assembly Member Daniel O’Donnell. The legislation has been introduced every year since and has consistently passed by wide margins in the Assembly (most recently on May 17 by a vote of 138 to 4 in favor). However, it has never been able to make it out of the Senate Education Committee. Senator Duane filed a notice for committee consideration on April 30th.
The reasons DASA, or any other bill for that matter, finds itself stalled in a committee vary. There may be opposition from committee members, constituents, interested organizations, or public agencies. The opposition may be substantive, political, fiscally related, or none of the above, but it almost certainly will lead to the bill being sidelined or amended. For some bills it is a matter of timing – a chair or sponsor might choose to hold up a bill so it has a better chance at passage. Other bills simply get lost in the shuffle, never having gained the interest needed to get noticed. Whatever the reason, a sponsor had very little power to force the committee chair to place the bill on an agenda. The new rules may change that dynamic and force debate on issues that were previously not publicly discussed.
The long-term impact of these new rules remains to be seen. In the short-term, however, there are 190 bills that may see a little more sunlight. The motion for committee consideration appears to have worked (at least in the short-term) for DASA – the bill was put on the Education Committee agenda 19 days after the motion was filed and was reported out of the Education Committee. The economic implications of DASA are now being analyzed by the Senate Finance Committee.
Putting a controversial bill on a committee agenda opens it to debate and scrutiny, helping to weed out the bad bills and make the good ones better. Senators will be given a chance to publicly voice their opinions in committee meetings that are now taped and webcast to the public. This leads to less speculation as to where a Senator stands on an issue or why a bill does not move. Bill sponsors will have a harder time explaining why they are not advancing legislation. These rules increase the flow of information, debate and accountability in Albany – and that is a necessary first step on a long road to reform.
With June—the last and most active month of the legislative session in Albany—fast approaching, the Legislative Affairs Department continues to advocate on behalf of the City Bar’s committees. While budget negotiations continue to loom large, we expect a push in the upcoming weeks as legislators try to steer their bills to passage.
With many legislative issues still to be resolved, the hard work of the City Bar’s committees has already had an impact this session. For example, the Council on Children wrote a report in support of A.8524/S.3868-A, which would authorize the Family Court, in certain situations, to restore a birth parent's parental rights after they have been terminated. This bill passed both houses of the legislature and will soon be sent to the Governor for his signature. Other bills that the Governor has acted on are:
• A.7729-D (AM Gottfried) / S.3164-B (Sen. Duane) – The Family Health Care Decisions Act has long been supported by the Committee on Health Law and the Committee on Bioethical Issues. After a 17-year effort to achieve this legislation, the Family Health Care Decisions Act was signed by the Governor on March 16. The new law will establish procedures for selecting and empowering a surrogate to make medical decisions for a patient who is incapacitated.
• A.5985-A (AM Glick) / S.3070-A (Sen. Krueger) – This legislation eliminates a 21-year limit that was placed on pet trusts. The new law removes any coverage limit and gives pet owners the option of having a trust last for the duration of their pet’s life. First proposed by the Committee on Legal Issues Pertaining to Animals in November 2008, this legislation was signed by Governor Paterson on May 5.
• A.7805-B (AM Weinstein) / S.58461-B (Sen. Schneiderman) – Signed by the Governor on April 14, this new law will replace the term “law guardian” with the term “attorney for the child” to more accurately reflect the attorney’s role as an advocate for the child. This bill was supported by the Council on Children.
• A.2873 (AM Weinstein) / S.2971 (Sen. Sampson) – This bill would require prior disclosure of income, assets, and financial obligations of decedent to enforce surviving spouse's waiver of right of election. The Committee on Trusts, Estates and Surrogate’s Courts opposed this legislation for a number of reasons, arguing that the statue would replace a well-established standard with language that was far too subjective and could invite vexatious litigation. The Governor was persuaded by these arguments and vetoed the legislation.
These bills represent only a sampling of the many pieces of legislation that City Bar committees have weighed in on. To learn more about the legislative agenda of the City Bar, please visit the newly launched Legislative Affairs page on the City Bar’s website. This portion of the website is designed to serve as an information source for members, legislators, and the public regarding the City Bar’s legislative activity in the New York State Legislature and New York City Council.
It’s the most prevalent crime you may never have heard of or thought much about, tied with illegal arms trading as the second largest criminal industry in the world, after drug dealing. It’s human trafficking, and it’s the world's fastest growing criminal enterprise.
Some 600,000 to 800,000 victims are trafficked across international borders and forced into sex-related work or other forced labor, according to U.S. government statistics. Most come from Asia, Central and South America, and Eastern Europe.
Not surprisingly, a large number of trafficking victims end up in New York City, which is why the Mayor’s office has launched a human trafficking Web site in cooperation with the Somaly Mam Foundation and the NYC Anti-Human Trafficking Task Force.
One of many consultants on the Web site’s content is Suzanne Tomatore, who directs the City Bar Justice Center’s Immigrant Women & Children Project, which, since 2002, has been helping victims of trafficking get out from under their oppressors and start a new life.
The basis for relief for many victims is the 2000 Trafficking Victims Protection Act (TVPA), an amendment to the 1996 Violence Against Women Act (VAWA). The TVPA allows a multi-prong approach, including the apprehension, prosecution, and increased sentencing for traffickers, and the potential for victims to legalize their immigration status.
The Justice Center’s clients come from all over the world, including India, Indonesia, China, Peru, and Mexico. Their traffickers are often friends, neighbors, lovers or spouses, or family members. Others meet their trafficker by answering advertisements for employment or through friends or family members who work for the trafficker.
Over half of the Justice Center’s cases involve labor trafficking, which is more difficult to identify than sex trafficking because so many industries are involved, and the line between labor violations and human rights abuses can be difficult to discern.
A representative case taken on by the Justice Center involved Yesenia M., a 17-year-old girl who was brought from Mexico to the U.S. to work as a babysitter for her trafficker’s two small children. For nine months, she was unpaid while required also to cook, clean and do laundry and yard work. She was not allowed to speak with anyone outside the family or travel by herself. And she endured three incidents of rape and sexual abuse by her trafficker. In short, she was enslaved. Finally, she befriended a woman at church who helped her escape. Once free, Yesenia contacted law enforcement and cooperated in the investigation and prosecution of her trafficker, who received a prison sentence, forfeited property, and will be deported. Yesenia received a “T Visa,” was reunited with her family, and is starting a business with the compensation she received from her trafficker. Eve Gutman and former-associate Beatrix Bong of Paul, Weiss, Rifkind, Wharton & Garrison LLP handled the family’s successful residency application.
“Despite the prevalence of human trafficking, there are many obstacles that prevent victims from coming forward,” said Tomatore. “Fear, shame, lack of resources, and not knowing where to go for assistance all make survivors reluctant to report their traffickers,” she said. “Many victims do not speak English. Some come from countries where law enforcement is not trustworthy or in fact contribute to and profit from human trafficking themselves.”
Awareness may be the best antidote, says Tomatore, since most victims do not self-identify and seek services as trafficking victims. “Outreach and public awareness initiatives are critical to identifying victims and are lacking throughout the United States. A national public service campaign that includes television, radio, and print advertisements in the mainstream media as well as ethnic news markets should be implemented. Coverage on the many different scenarios of human trafficking is necessary, especially for labor trafficking, as these are the most difficult to identify,” she said.
New York City appears to be stepping up with its new Web site, along with a public awareness advertising campaign from Grey with the theme: "See it. Know it. Report it."
The need for awareness extends to law enforcement and government officials, and Tomatore has done her part over the years by meeting with Immigration and Customs Enforcement and the DOJ in Washington, providing training at DA’s offices, and co-authoring the NY Anti-Trafficking Network’s “Identification and Legal Advocacy for Trafficking Victims” manual. She has also traveled from Venezuela to the Philippines to meet with judges, government officials, students, and NGOs. She’s off to Mongolia in a couple of weeks.
Tomatore notes that this year marks the 10th anniversary of the TVPA, and she’s pleased that the U.S. State Department’s annual Trafficking in Persons Report, due in June, will not only evaluate foreign governments’ efforts to eliminate human trafficking, but will for the first time include self-examination on stateside efforts.
“Human trafficking is a complex, worldwide, and localized organized criminal endeavor,” said Tomatore. “There are a multitude of profiles for victims as well as traffickers. Without training for professionals and public-awareness campaigns, it will be impossible to target and address the problem.”
Pro Bono en España
Although many Spanish lawyers contribute their counsel to indigent clients free of charge on an individual basis, there has been no formalization of pro bono practice within Spanish firms. This may soon change.
Two years ago, Javier Carvajal, a partner at Spain’s largest independent law firm, Cuatrecasas Gonçalves, Pereira SLP, attended a series of meetings in New York organized by the City Bar’s Vance Center for International Justice that exposed him to the practice of pro bono as it is institutionalized in U.S. law firms. “We owe a huge debt to the Vance Center in this regard,” said Carvajal. We are absolute believers in pro bono because we had the chance to go to New York and meet with the Vance Center and become educated. Others who have not had this same exposure are a little more reluctant to accept the concept.”
Now law firms in Spain, particularly the major firms in Madrid, are recognizing the need to set up formal pro bono programs. Seven major Madrid law firms are leading this development, and they hope that smaller firms will follow their lead. “At the initiative of the Vance Center, the main law firms of Spain sat together to decide how to develop internal pro bono programs,” said Carvajal, who emphasized that this is “not a marketing tool,” but rather a sincere attempt to “do the right thing for the right reasons.” The Madrid Bar Association has supported these efforts by starting a Center for Social Responsibility to support pro bono work, according to Andres Gil, former Vance Center Committee Member and Partner at Davis, Polk & Wardwell LLP.
Developing within the firms a common understanding of the need to provide pro bono services, as well as systems for doing so, is only the first step, according to Carvajal and Gil. “In the longer term, creating and sponsoring clearinghouses that seek out, screen and feed pro bono work to the law firms and lawyers is an important goal,” said Gil. Added Carvajal, “This is a crucial issue. Currently we are obliged to set up the structure ourselves to filter the potential cases.” He said that any such organization should “not be under the umbrella of a particular firm.”
On a May 20th videoconference, Vance Center executives and Committee members in New York drilled down on these issues with their counterparts in Madrid. Joining the meeting from Sao Paulo, Todd Crider of Simpson Thacher & Bartlett LLP set the tone by quoting the old saying that “justice is open to everyone in the same way as the Ritz Hotel.” Christine Spillane of Sullivan & Cromwell LLP discussed developing an organized infrastructure to support attorney involvement. Harlene Katzman of Simpson Thacher focused on management of pro bono programs. Saralyn Cohen of Shearman & Sterling LLP discussed strategies to build attorney involvement and commitment, and Barbara Mendelson of Morrison & Foerster LLP offered advice on choosing appropriate volunteer opportunities and working with provider organizations. Joan Vermuelen, Executive Director of the Vance Center, described how pro bono in the U.S. became institutionalized in the 70s with the incubation of organizations like New York Lawyers for the Public Interest (where she was executive director) and Volunteers of Legal Service at the New York City Bar. Elise Colomer, Associate Director of the Vance Center, discussed her involvement in helping to establish clearinghouses throughout Latin America and emphasized the effectiveness of this model.
The seven law firms participating from Spain were Garrigues LLC, Uría Menéndez Abogados SLP, Cuatrecasas, Gómez-Acebo & Pombo SLP, Ramón y Cajal, CMS Albiñana & Suárez de Lezo, and Pérez-Llorca.
My City Bar: Small Law Firm Center
44th Street Notes caught up with members using the City Bar’s Small Law Firm Center, a mix of resources including free meeting space, monthly luncheons, an annual symposium, e-newsletter, LinkedIn and Facebook groups, our Small Law Firms Committee, and one-on-one meetings with Alla Roytberg, the Director of the Center. We asked members why they use the Small Law Firm Center and how it has helped their practice:
Small Law Firm Meeting Rooms/Library
“It gives me a satellite office right in the middle of Midtown, where I don’t have to pay any rent,” said Gary Elias, a solo practitioner in the areas of elderlaw, probate, trusts and estates. “I can access email, copy, print, fax – do anything I need to communicate with the outside world. Not only can you use it as an office, but you can also use it as a conference room to meet with clients. And if you need to do any legal research, there is a phenomenal library right upstairs.”
David Jacobson, a solo practitioner in the areas of estate planning, taxation, and tax-exempt organizations, said, “I wish there were more rooms like it. You should see the number of people who walk by wanting to use these rooms. I can use the research databases to find a form, fax it to my client, and then call to confirm that he received it all in the same place.” David also finds that the City Bar library houses “great resources,” including court forms and information on areas of law outside his practice area to which he normally would not have easy access.
Practice Management Luncheons
At a recent event titled “The Necessities of Opening and Expanding Your Own Practice” the Small Law Firm Center hosted more than 50 attendees, many of whom were attending their first Small Law Firm Luncheon as they considered starting out on their own. One attendee commented on her previous experience working with panelist and Small Law Firm Center Director, Alla Roytberg: “Alla offered so many suggestions and resources on everything from office space, to health insurance, to bank accounts. She brought up issues I had not thought about as well as answers to my questions. She was great.” Teresa LaBosco, a more seasoned user of Small Law Firm Center resources said, “No matter how experienced you are, when you go out on your own you’re responsible for so much more.” She appreciates the practical advice that luncheon panelists provide and their generosity in sharing their experiences and time with those new to small firms.
One-on-One Practice Management Meetings
After practicing in healthcare and insurance law for 30 years, Mira Weiss has begun her first venture in operating her own practice. Of her experiences meeting one-on-one with Small Law Firm Center Director, Alla Roytberg, she said, “What Alla was able to do was to help me understand some of the differences and challenges that are faced by a fellow solo practitioner as opposed to someone who is working in a large law firm or a corporate practice, and to jumpstart me with introductions to people who could be resources for information about practice management, networking, and fields other than my own. If it wasn’t for the good fortune of running into them, it would have been exponentially more difficult to get off the ground. The camaraderie helps build a sense of confidence you’re not the only one out there.”
Small Law Firms Committee
Both Mira and Gary are members of the Small Law Firms Committee. Myra said, “It’s been wonderful. It’s really been an opportunity to have a network of resources and access to people who are in the trenches, so to speak.” Gary adds, “It’s great networking. It’s a place to ask questions in areas of law other than those you practice, make referrals, and start friendships.”
Law Students and Recent Graduates - Save These Dates!
Hot Practice Areas for 2010
City Bar Summer Series
August 3, 4, and 5, 6:30 - 8:45 pm
The New York City Bar will be hosting a series for law students and recent law graduates highlighting practice areas that may offer the most opportunity in the coming years, including technology, immigration, and healthcare law.
Boot Camp 2010: Basic Training for Lawyers
September 14 and 16, 12:45 - 5:30 pm
This program will provide law students and recent law graduates with career planning information particularly relevant in a troubled economy, as well as practical and substantive insights into the practice of law. Topics will include how to perform an effective job search, communication skills, how to draft corporate documents, analyzing a court decision, and drafting research memos.
Both the Summer Series and Boot Camp are free to students and alumni of sponsoring law schools.
Member Profile: Daniel J. Kornstein
The Legal Zone
“I think conducting a hostile cross-examination and a jury speech, particularly a summation, are two of the most exhilarating experiences you can have as a human being,” says Dan Kornstein. “How do you cross-examine someone to bring out the lie or the inconsistency or something else? There’s no recipe that tells you how to do that. Some of that is instinct, some of that is knowledge of people, but a lot of it is the creative approach. You’re not going to do it by having a tight script of questions in a loose-leaf. There’s got to be some play in the joints for how you relate to that witness. But the same thing happens when you’re writing a brief, when you’ve put together something that really hasn’t been thought of before. You finally get it.”
Thinking about creativity and the law is Kornstein’s avocation. He writes books about it. His interest began in the mid-80s, when he became aware that a number of great creative artists in different fields had some background in the law.
“I’d go to an exhibit at the Metropolitan and I’d see a Matisse and they’d have a little squib that Matisse went to law school,” says Kornstein. “And the first oil painting that Matisse ever did is called 'Books and Candle.' If you look at it, they look like law books. He was recuperating from some illness at the time and his parents got him some paints.”
Schumann. Cezanne. Jules Verne. Victor Hugo. Fermat, of Last Theorem fame. All had gone to law school, and that fascinated Kornstein: "Would anyone think that Proust went to law school? It's not something that occurs to anybody, and you wonder what a legal brief by Marcel Proust would look like. Would it be interminable? Would it be a sentence that goes on for five pages?"
Kornstein concedes that the explanation for why so many artists had legal training may be simply that law has been seen by parents as a practical and stable career into which to steer their kids. But the connection between law and creativity goes deeper than that, Kornstein thinks, to the extent that law can act as an “Unlikely Muse,” the title of his book on the topic.
“One interesting one, as painters go, is Kandinsky,” Kornstein says. “Looking at Kandinsky’s artwork, one would never think that this was a man who went to law school. You just wouldn’t associate abstract art with that kind of training. Well, Kandinsky was a law professor in Russia while he was interested in art but before his period where he broke out and did only artwork. And he wrote a lot about his journey, and how he came to be what he was. And he credited law school with discipline, the ability to think through things as helping him in his artwork. You look at his artwork, and you would not confuse Kandinsky with Jackson Pollock. Kandinsky seems to be more geometrical, more controlled, more disciplined in many ways.”
Kornstein is convinced that creative pursuits can make you a better lawyer, “because there’s a playfulness in creative pursuits, where you are switching around things in different ways, juxtaposing things that weren’t thought of before, and sometimes you just see the problem differently, you see the world differently, and you get an insight that helps. We have this experience where you’re sort of going along at normal speed, and we come to some sort of stumbling block. But then, whether it’s subconsciously or whether it’s just drilling deeper into whatever it is we’re doing, you go into hyper-speed, you get into that higher level of consciousness, and all of a sudden the pieces fit in a way they didn’t fit before. That’s creativity. That’s something new that didn’t exist. It may not be Nobel Prize winning, it may not be earth-shattering, but it is new and original for the particular thing you’re working on.”
Creativity, Kornstein believes, is what separates history’s great judges, because the solutions they found were not automatically obvious. “Go back to the beginning with John Marshall,” he says. “Was Marbury vs. Madison foreordained that it would come out that way? No, there was a creative streak in the way he balanced things. On the one hand, he said, the Judiciary Act of 1789 was unconstitutional; on the other hand, he denied the relief to the office seeker. The analysis could have pulled you either way. He had to have some idea—the concept of judicial review—that’s not expressly found in the Constitution. It was something he created, and it’s something that we have grown accustomed to and live with.”
Kornstein believes that litigators don’t get enough credit for shaping some of America’s great judicial decisions, because law is taught primarily from appellate decisions. “One almost is imbued with the idea that to become an appellate judge is the highest and greatest thing one could ever hope to be in our legal system,” he says. His book “Thinking Under Fire” was an attempt to demonstrate that great lawyers can have as much to do with great decisions as great judges.
“You know, the way the NAACP devised the litigation strategy over decades in order to get to civil rights decisions from the Supreme Court and other courts, is an extraordinarily creative thing that didn’t have to go that way, says Kornstein. “Thurgood Marshall prevailed in terms of the strategy. Others wanted to challenge segregated schooling much earlier. But no, chip away until finally it will have to fall. That’s creative, that’s strategic. And not everybody’s going to agree about that. Is that different than writing a symphony? Well, in some ways yes. Is it different than coming up with a new scientific breakthrough or formula? Yes, in some ways. On the other hand, it has many similarities.”
Kornstein’s interest in the connection between creativity and the law inevitably led him to Shakespeare. For his 1994 book “Kill All the Lawyers?” Kornstein scoured 15 of the Bard’s plays for legal themes and explored how they applied to modern times. One of the questions he posed—Was Hamlet temporarily insane when he had all those people murdered?—inspired the City Bar’s Committee on Lectures and Continuing Education, chaired by Norman Greene, to retry the late king of Denmark before a three-judge panel and a standing-room-only house in the Meeting Hall. The assumption was that, contrary to the play, Hamlet survives, but he’s prosecuted by the state of Denmark for murder, using the play as the record. Steven Gillers was the prosecutor. Kornstein represented Hamlet on appeal. The panel of judges included a Shakespeare scholar, Professor Jeanne Roberts from American University; former U.S. District Court Judge Marvin Frankel; and U.S. District Court Judge for the Southern District of New York Kevin Duffy. The transcript, along with the full text of the play, is available in “The Elsinore Appeal: People v. Hamlet,” which was published by the City Bar.
Kornstein had joined the City Bar as a young lawyer in 1974, and, based on his remarkable army experience, the first committee he joined was Military Affairs and Justice. “After my first year of law school, I was drafted,” he says. It was 1969 and I was a private, but I got assigned to a JAG office as a legal clerk. I wasn’t sent overseas but to a more dangerous place: Texas. Ft. Hood. And we had the first My Lai Massacre court martial. So I was assigned to help the prosecutor. Imagine how fortunate I was. Here I was, I had a year of law school under my belt, and I was writing briefs in the prosecution of one of Calley’s platoon sergeants.”
A decade later, as a member of the Federal Legislation Committee, the City Bar asked Kornstein to testify before a congressional subcommittee on whether men reaching 18 should have to register for the draft. “And it was tremendous fun. What was very special was they assumed that whatever I said, I was speaking for the entire organized bar in New York, and it was an interesting feeling,” says Kornstein.
Kornstein values his committee experiences for these opportunities and for putting him in touch with so many people. “I started out in a big firm, but pretty early on started a small firm, so you look for contacts in the profession outside your own little shop. The bar association and committees are an extraordinarily effective way to do that. Especially when you’re young,” says Kornstein.
Kornstein, 62, sounds like he’s just getting started, saying, “There are an infinite number of things to do, many more books to write and cases to try.” He remains as obsessed as ever with exploring the link between law and creativity, and with getting back in the “zone.”
“I think what happens is it becomes a peak experience,” Kornstein says. “A lot of the writing on the subject of creativity talks about peak experiences. But also in terms of athletes, theatrical performers, musical performers, that they get into a ‘zone.’ You read about Ted Williams batting, where he could actually see the spin of the pitched baseball and look at the markings on the ball as it’s coming in. We think of that as impossible, but we all have lived through certain experiences where time slows down in some sense that’s psychological and you become more than you are ordinarily. And there’s an element of that in the courtroom when you’re doing it right.
“We hope everybody has those experiences. I feel sorry for those who don’t. And sure, we spend most of the time waiting in the wings to have those experiences, but it’s the attraction of getting to that level that makes everything worthwhile. Because when you’re doing that, you don’t care how much you’re being paid. You don’t care about any other obligation. You’re doing something that’s so special, you feel that you were born to do it.”
June 2010 Committee Reports
Communications and Media Law
Copyright and Literary Property
Report expressing opposition to S.6790, which would prohibit the use “for advertising purposes” or “for the purposes of trade” of the “persona” – defined as the “name, portrait, voice and/or picture” – of any person who died up to 70 years before the effective date of the legislation or who dies on or after the effective date without the written permission of such person’s heirs, estate, or licensees. The report notes that the bill’s retroactive application of rights creates concern. In applying to uses created years before enactment of the legislation, the bill would make previously permissible activities suddenly subject to liability and interfere with rights created under existing contracts.
Council on Children
Letter to Governor Paterson commenting on several provisions in the Article VII budget legislation which impact children and families, including: 1) amendments to subsidized kinship guardianships, 2) modifications to court-ordered investigations, 3) permission for electronic court appearance in family court proceedings, and 4) short-term crisis centers for young victims of sexual exploitation.
Report expressing opposition to A.9523-B/S.6361-B, which would permit a parent, social worker, or person with whom a child has a “close personal relationship” to go to court and allege that the child 1) has a drug abuse problem, 2) presents a risk to himself or herself or to another person, 3) needs drug “detoxification and stabilization,” and 4) should be examined by a credentialed alcoholism and substance abuse counselor to determine whether he or she should be admitted to a detoxification facility. The bill would further allow a judge, satisfied that the youth should be examined by a counselor, to issue a warrant for the youth’s apprehension and examination. The counselor may then seek a detoxification order from the court. The bill, the report argues, is vague and fails to provide due process protections for the youth or the parents of the youth.
Report expressing support for A.8524/S.3868-A, which would amend the New York State Family Court Act and Social Services Law to permit the restoration of parental rights in certain limited circumstances after a termination of parental rights (TPR) has previously been ordered by the Family Court. The bill, the report argues, would provide a mechanism for restoration of parental rights by the Family Court after a determination that it is in the child’s best interests for parental rights to be restored. The report offers one suggested modification: that the bill apply to children over the age of 14 and their siblings who are under the age of 14. In its current form the bill only allows for restoration of parental rights when a child is over the age of 14.
Employee Benefits and Executive Compensation
Letter to the IRS commenting on Notice 2010-6, which gives taxpayers the opportunity to correct documentary failures regarding Section 409A of the Internal Revenue Code of 1986. While the letter supports the decision to give taxpayers this opportunity, it notes that there are elements to the proposed change that are unnecessarily punitive or restrictive that should be eliminated or revised.
Estate and Gift Taxation
Trusts, Estates, and Surrogate’s Courts
Report supporting with modifications A.9857-C, which would modify the Estates, Powers and Trusts Law in relation to credit shelters and similar formula provisions in wills and trusts and provisions in wills and trusts relating to the unused generation-skipping transfer (“GST”) tax exemption since the repeal of the federal estate and GST tax in 2010. The report argues that the legislation is necessary to remedy unintended and potentially severe consequences that may result from formula bequests or other dispositions under documents executed prior to the repeal, but that any remedial legislation must be tailored narrowly to the specific circumstance of a GST bequest that is a direct skip to a natural person.
Proposed amendment Section 10-6.6(b) of the Estates, Powers and Trusts Law and Restatement of the Statute as Section 10-6.6-A. The proposed amendments would make a number of notable clarifications and changes to the existing statute as well as add several important new concepts, including 1) clarifying that no trustee shall be liable for failing to use the statute, and 2) clarifying that the exercise of the power to invade principal is not prohibited by the fact that the invaded trust includes a spendthrift clause or a provision that prohibits amendment or revocation of the trust.
Proposals for the 2010 Duke Conference Regarding the Federal Rules of Civil Procedure. The report sets forth a number of recommendations to amend the Federal Rules of Civil Procedure and improve the federal civil litigation system in the following areas: pleadings and dispositive motions, discovery, electronic discovery, judicial management of process, and settlements. The recommendations are based on a six-month study and endeavor to balance changes designed to improve the exchange of information for resolving disputes in a more cost-effective manner with the realities associated with practicing in an adversarial system.
Proposed Revision to the UNCITRAL Arbitration Rules. The report approves of the proposed revisions to the Rules subject to some suggested changes to individual provisions.
Legal Issues Pertaining to Animals
Report expressing support for A.6077-A/S.5144, which would expand the existing definition of aggravated cruelty to animals so that the killing of any animals in New York with the intent to cause extreme physical pain, or through means that are especially depraved or sadistic, would be prosecuted as a felony.
Report expressing opposition to A.9449-D/S.6412-D, which would require public shelters or pounds, authorized humane societies, and societies for the prevention of cruelty to animals to release animals to any non-profit (as defined in section 501(c)(3) of the internal revenue code), animal rescue, or adoption organization that requests possession of them. The bill, the report argues, requires release of animals to any 501(c)(3) animal rescue or adoption organization that requests them without requiring the non-profits to demonstrate they can provide even minimal responsible, humane care and treatment or to establish they are “responsible” or “reputable" organizations.
Reports and testimony on New York City Council Intro. 35 and Intro. 86, both of which concern the laws regarding horse drawn carriages in New York City. The reports oppose Intro. 35, which seeks to improve some conditions under which New York City carriage horses live and work but fails to address the most critical concerns relating to the carriage horse industry. The reports express support for Intro. 86, which would amend the New York City Administrative Code to gradually reduce the number of licenses issued for horse drawn carriages so that all licenses will be eliminated or expired by May 31, 2012, and urges that an outright ban of carriage horses is necessary due to the dangerous and harsh conditions inherent in operating carriages on New York City streets.
Report expressing support for H.B.1411/S.B.843, which would amend the Pennsylvania Consolidated Statutes to prohibit the use of live animals, including wild birds, for targets at trap shoots and block shoots. This bill, the report argues, is of concern to New York because many of the wild birds used for the Pennsylvania trap shoots are illegally captured in New York and transported across state lines.
Alternative Dispute Resolution
Report expressing support for A.8697, which would allow attorneys to attach a charging lien to awards and settlement proceeds that clients receive through alternative dispute resolutions and settlement negotiations. This, the report argues, would encourage both out-of-court settlements and ADR by providing attorneys with the same fee protections that are available to attorneys in court-filed cases.
Taxation of Business Entities
Report Offering Proposed Guidance on the Federal Income Tax Treatment of Post-Closing Contingent Consideration in Reorganizations. There is great uncertainty about how to treat for income tax purposes contingent arrangements when the acquisition is intended to take the form of a reorganization pursuant to Section 368(a). The report therefore proposes certain guidance in this area.