|This Week at the City Bar
MONDAY, JUNE 4
6 PM – 8:15 PM, CLE
Ethics in the Electronic Age: Be Careful When Using that Smart Phone, Tablet, Blog, Social Network…
6 PM – 8:30 PM, Event
The Essentials of Addiction: A New Understanding for Family Law Practitioners, Forensic Experts and the Court
7 PM – 8:30 PM, Event
A Presentation by President Vagn Joensen of the International Criminal Tribunal for Rwanda (ICTR)
TUESDAY, JUNE 5
8:30 AM – 10:30 AM, CLE
Current Governance Issues in Co-ops & Condos
12:15 PM – 2:15 PM, Event
2012 Diversity & Inclusion Champion Award Luncheon
6 PM – 8 PM, Event
Henry L. Stimson Medal Presentation
6 PM – 8 PM, CLE
“Don’t Break the Rules”: Uniform Rules of State Trial Courts
WEDNESDAY, JUNE 6
9 AM – 5:30 PM, CLE
The Second Annual Law Firm CFO/CIO/COO Forum: Achieving Your Business Goals Through Effective Collaboration
6:30 PM – 8 PM, Event
Narrowing Options for the City’s Homeless: Exploring Homeless Policy Under Bloomberg
THURSDAY, JUNE 7
8:30 AM – 12:30 PM, CLE
Current Issues in D&O Liability & Insurance 2012
6:30 PM – 8:30 PM, Event
Canned Shoots: Ethical Hunting or Senseless Slaughter?
FRIDAY, JUNE 8
9 AM – 12 PM, CLE
Patent vs. Antitrust Law in the 21st Century
6 PM – 8 PM, Event
Friday Evening Chamber Music
Around the Bar
City Bar Chorus Concert
(Click on photo to view larger image in web browser)
On Friday, June 1st, the City Bar Chorus returned for its first performance at the Association since 2009, to benefit the City Bar Justice Center and the Chorus.
New Ethics Opinion Issued
Jury Research and Social Media
Ex parte attorney communication with prospective jurors and members of a sitting jury has long been prohibited by state rules of professional conduct, and attorneys have long sought ways to gather information about potential jurors within these proscribed bounds. Now, with the advent of the Internet, pressure is increasing on attorneys to conduct research on potential and sitting jurors. With this issue in mind, the Committee on Professional Ethics issued Formal Opinion 2012-02, which considers what ethical restrictions, if any, apply to an attorney’s use of social media websites to research potential or sitting jurors. The opinion concludes that an attorney may research potential or sitting jurors using social media services or websites, provided that a communication with the juror does not occur. “Communication,” the opinion notes, should be understood broadly, and includes not only sending a specific message, but also any notification to the person being researched that she or he has been the subject of an attorney’s research efforts. Even if the attorney does not intend for or know that a communication will occur, the resulting inadvertent communication may still violate the Rules. The Opinion notes that in the context of using social media services for juror research, an attorney must understand and analyze the relevant technology, privacy settings and policies of each social media service used for jury research. The attorney must also avoid engaging in deception or misrepresentation in conducting such research, and may not use third parties to do that which the lawyer cannot. Although the Committee concludes that an attorney may conduct jury research on social media websites as long as “communication” is avoided, if an attorney learns of juror misconduct through such research, he or she must promptly notify the court.
Recent Committee Activity
SEC Regulatory Initiatives Under the JOBS Act
The Committee on Securities Regulation sent a letter to the SEC commenting on Title 1: Reopening American Capital Markets to Emerging Growth Companies of the Jumpstart Our Business Startups Act of 2012 (JOBS Act). In its letter the Committee offered a number of suggestions that would both enhance the practical utility of the emerging growth company provisions and promote the policy objectives underlying Title 1. The suggestions include urging the SEC to: 1) incorporate a reasonable belief standard in Section 105(c); 2) provide smoother transition out of emerging growth company status; and 3) reconsider the position that foreign private issuers must choose between the previously available confidential submission procedures and emerging growth company status.
Service of Papers
The Committee on State Courts of Superior Jurisdiction expressed support for A.6835/S.4578, which would amend CPLR 2103 to permit service upon an attorney from outside the state by regular mail. Currently CPLR 2103(b)(6) permits service upon an attorney by overnight delivery and the Committee notes that it does not perceive any legal or practical distinction between service by overnight mail and service by regular delivery, and therefore service by overnight delivery should be permissible. The Committee also supports the proposed legislation as it would require a stipulation signed by the party to be served before fax service can be utilized. Noting that there is currently no provision for service by e-mail, the Committee suggests that the Legislature develop procedures for service by e-mail, as service by fax is rare, and agreements on e-mail service are more common.
In a joint report, the Committees on Criminal Courts and Corrections and Community Reentry expressed support for A.8089/S.6880, which would amend the penal law to change mandatory terms of probation to discretionary terms and also amend the criminal procedure law to authorize the court to increase the term of probation to the maximum in the event of a violation. Such amendments, the report notes, will give courts the discretion to make individualized sentencing determinations; will result in sentences tailored to particular offenses and offenders; and result in a more efficient allocation of the limited resources of our criminal justice system.
Victims of Domestic Violence
The Committee on Domestic Violence gave testimony before the New York State Democratic Conference Public Forum urging the Legislature to support various bills which concern victims of domestic violence, including legislation that would address the issue of housing discrimination against victims of domestic violence, as well as legislation addressing the sentencing of victims who are convicted of committing crimes where abuse was a significant contributing factor to the criminal behavior.
The Committee on State Courts of Superior Jurisdiction issued a report in support of S.6656-A, which would amend Section 3113 of the CPLR to provide that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. The proposed amendment, the report argues, would not only afford non-party deponents protection during depositions but would make the law consistent with what is already the common practice at depositions of non-parties.
Harmonization of Compliance Obligations
In a letter to the Commodity Futures Trading Commission (CFTC), the Committee on Investment Management Regulation set forth comments on the CFTC’s proposed amendments to regulations applicable to investment companies registered under the Investment Company Act of 1940, whose advisers would be subject to registration as commodity pool operators due to changes to Regulation 4.5 recently adopted by the CFTC. The Committee offers a number of suggestions on proposed amendments and urges the CFTC to work together with the SEC to harmonize the two regulatory frameworks. Harmonization rules are necessary in order to meet the shared SEC and CFTC objectives of investor protection and to avoid any unintended disruption of Regulated Investment Company operations that may occur in the commodities market and as a consequence of the new CFTC registration requirements.
New Member Benefit
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