IN THIS ISSUE: MONDAY, JUNE 24, 2013
This Week at the City Bar
Around the Bar
Watching Over New York's Estates, Powers and Trusts Law
Volunteers Sought for Monday Night Law
Recent Committee Activity
City Bar in the News
   

This Week at the City Bar
TUESDAY, JUNE 25
6 PM – 8 PM,
Event
Annual Reception & Party Celebrating LGBT Pride Month 2013



WEDNESDAY, JUNE 26
6:30 PM
,
Event
Women In International Law: Transforming The Legal Landscape


6:30 PM – 8 PM
,
Event
Impact of Kiobel V. Royal Dutch Petroleum on the Alien Tort



THURSDAY, JUNE 27
6:00 PM,
Event
The Regulation of Cross-Border Trading


6:30 PM – 8:30 PM, Event
Careers in Technology Law: The Practice Demystified

Around the Bar


As the United States Congress debates the most far-reaching immigration legislation in decades, the City Bar's Immigration and Nationality Law Committee sponsored a panel discussion on June 20th called "Forging A New Consensus On Immigration Reform." From left: Jacki Esposito, Director of Immigration Advocacy, New York Immigration Coalition; Diana Furchtgott-Roth, Senior Fellow, Manhattan Institute; Angie Kim, a member of Korean Americans Organized for Reform and Equality (KORE) and a "DREAMer" who met with President Obama to share her story; and Grace Meng, U.S. Researcher, Human Rights Watch, and moderator for the evening. You can listen to a podcast of the panel here.

* * *


At a reception on June 20th, City Bar President Carey R. Dunne welcomed Summer Associates working at New York firms, and made the case to them for bar association membership. "Whatever you're doing in your years immediately after law school, however hard you're working or not, there will come a time when each of you should pick your head up and look around and see what's going on in the broader legal community; meet people beyond the four corners of your office; and begin to see yourself as a player on a broader professional stage. I promise good things will come of it," he said.

Watching Over New York's Estates, Powers and Trusts
The City Bar's Trusts, Estates and Surrogate's Courts Committee, chaired by Sharon L. Klein, continues to work with the State Legislature to ensure that laws pertaining to New York trusts and estates remain up-to-date and effective. The Committee has issued a number of reports in recent years, often in collaboration with other City Bar committees, supporting or proposing legislation that would clarify or expand the law, and has worked closely with the Office of Court Administration and the New York State Bar Association in these efforts.

The 2013 legislative session, which ended on June 21, was a particularly busy one, as the Committee issued seven reports on pending or proposed legislation, and served as an important resource for legislative staff members. An overview of those reports follow.

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Volunteers Sought for Monday Night Law
The NYC Bar Association's Committee for Legal Services for Persons of Moderate Means in conjunction with the City Bar Justice Center is seeking volunteer attorneys to staff the Monday Night Law clinic, which begins its 23rd year in September. MNL is designed to address the public's need for affordable and accessible legal assistance by providing clinics every Monday evening at the Association in which volunteers meet with clients who have been screened by the Association's Legal Referral Service, which coordinates MNL's scheduling. Volunteers must attend two training sessions in September and commit to attend the clinic one Monday evening per month from October 2013 through August 2014.

For more information about the program and how to apply, click here.

Recent Committee Activity
Non-Lawyer Practitioners
Millions of low-income New Yorkers face the complexities of the State's civil justice system without access to even minimal professional assistance. In a report entitled Narrowing the "Justice Gap": Roles for Non-lawyer Practitioners, the Committee on Professional Responsibility recommends expanding the role of non-lawyers in limited respects. Though the line between providing information or administrative assistance on the one hand, and legal advice or advocacy on the other, may not always be clear, the report expresses an urgent need to examine the issue in various settings and to develop frameworks that would substantially increase the assistance available to unrepresented New Yorkers at a cost they can afford. The report's specific recommendations include: 1) permitting "courtroom aides" to participate in judicial and administrative hearings beyond those in which they are authorized to participate now; (2) permitting "legal technicians" to provide specified forms of assistance outside judicial and administrative hearings; and (3) considering additional roles beyond that of Courtroom Aides and Legal Technicians for nonlawyers, in order to significantly close the justice gap. The Committee acknowledges that a number of concerns must be addressed, and that there is need for detailed specifications of the additional tasks that nonlawyers may perform in particular settings, and the types of training and oversight necessary to ensure that those tasks are performed competently.

Women's Equality Act
The Committee on Sex and Law expressed general support for the Women's Equality Act proposed by Governor Cuomo. In the report, the Committee noted that the Act promotes the ability of New York women to participate fully and equally in society, and would serve as a model for other states to follow at a time when sex discrimination is prevalent throughout the U.S. Specifically, the Act would: allow women to achieve pay equality; strengthen sexual harassment laws in the workplace; allow for the recovery of attorneys' fees in employment or credit discrimination cases; end family status discrimination; prevent housing discrimination for victims of domestic violence; protect victims of domestic violence by strengthening order-of-protection laws; ease the process of obtaining orders of protection; strengthen sex trafficking laws; provide reasonable accommodations for pregnant women; and codify Roe v. Wade in protecting a woman's freedom of choice. The Committee recommended amendments to several of the provisions.

Rule of Law in Turkey
The Committees on International Human Rights and European Affairs, in a letter to the Prime Minister of the Republic of Turkey, expressed concern regarding the maintenance of the rule of law and the targeting and detention of lawyers in Turkey. Recent targeting and unlawful detention of lawyers in response to their peaceful protest violates the most basic protections provided in the Turkish Constitution, including the right to hold peaceful meetings and marches, the right to personal liberty and security, and the right to a fair trial. The letter urges the Turkish government to investigate and end the attacks on lawyers, which have been committed through intimidation, violence and other unlawful means. Such steps, the letter argues, are required under both domestic and international law to maintain the legitimacy of Turkey's democratic institutions, and to demonstrate commitment to the rule of law.

Immigration Detainers
The Committee on Immigration and Nationality Law issued a report expressing opposition to H.R. 2278, the Strengthen and Fortify Enforcement Act (SAFE Act), which would expand immigration detention and further limit due process. The report specifically notes that it opposes the legislation because it: 1) provides for indefinite mandatory detention of immigrants without counsel; 2) requires Federal mandatory detention of immigrants at state request; 3) increases funding for detention, regardless of risk, rather than repealing the "bed quota" at immigration detention facilities; and 4) expands criminal penalties for illegal entry and reentry offenses, resulting in disproportional punishment that will increase the costs of immigration reform.

Impact of Immigration Detainers on Criminal Justice Resources
In a joint letter, the Committees on Immigration and Nationality Law and Criminal Courts expressed opposition to provisions in the SAFE Act that would restrict local efforts to limit the impact of immigration detainers on criminal justice resources. Immigration detainers harm New York City residents by separating them from their families and legal resources in the city and impose significant practical and fiscal costs on the city's criminal justice system. In addition, the SAFE Act would severely and unnecessarily restrict localities' authority to make appropriate decisions regarding the use of such detainers and about their law enforcement resources.

Child Soldiers
In a joint letter to Congress, the Committees on African Affairs, International Human Rights and Immigration and Nationality Law urged that the proposed Immigration and Modernization Act (SB 744) be amended so that child soldiers are no longer barred from gaining lawful status in the United States. Notwithstanding the United States' strong condemnation of those who recruit and employ child soldiers around the world, there are, ironically, two provisions in the Immigration and Nationality Act that, unforeseen by the original drafters, are now being used to bar former child soldiers themselves from gaining any status in the United States. The unexpected consequence of these provisions affects a large number of alien applicants who would otherwise be permitted to apply for admission or lawful status. Under the current provisions, child soldiers and their families come to the United States as refugees, but rather than gaining refugee status, discover that they are subject to permanent inadmissibility.

Claim Construction in Patent Cases
The Committee on Patents filed an amicus brief in Lighting Ballast Control LLC v. Philips Electronics with the U.S. Court of Appeals for the Federal Circuit. The brief notes that since the Cybor Corp. case it has become increasingly clear that the current system of claim construction procedure does not create the desired uniformity, predictability and certainty, and that the true meaning of claim terms is not adequately defined. According to studies, claim construction, the crux of a patent litigation, is reversed in whole or in part on appeal in approximately 40% of cases. This high reversal rate has had a negative effect, including: 1) raising the cost of litigation; 2) contributing to the perception of patent litigation as dysfunctional; and 3) engendering skepticism about the entire patent system. The brief urges the court to overrule Cybor Corp. to the extent that findings of fact respecting extrinsic evidence incident to claim construction should be reviewed by the appellate court under a clearly erroneous standard. Giving additional deference, the brief notes, would encourage district courts to expend greater effort on claim construction and to issue well-reasoned, more transparent and detailed decisions identifying the factual and legal bases for their construction.

Force Feeding of Birds
The Animal Law Committee issued a report in support of S.456, which would make it unlawful to force feed a bird, by hand or machine, for the purpose of fatty enlargement of such bird's liver. If enacted, the bill would take effect November 1, 2013. The practice of force-feeding as currently practiced in the production of pate de fois gras has been recognized as cruel and detrimental to the welfare of the birds. In addition, personnel who perform these functions in New York have been documented to be abusive towards the birds.

Pre-emption of Laws Governing Pet Dealers
In both a report and subsequent testimony before the New York City Council, the Animal Law Committee expressed support for A.740-A/S.3753-A, which would authorize municipalities to enact local laws, ordinances, and regulations governing pet dealers and concerning public health, safety, and consumer protection relating to the sale of dogs and cats by pet dealers so long as the laws, ordinances and regulations are consistent with and more stringent than Ag & Mkts Law Article 35-D and Gen Bus Law Article 35-D. The bill would also repeal provisions preempting municipalities from enacting laws relating to pet dealers. If enacted, the Committee argued, the proposed legislation would prevent inconsistencies in regulation of pet stores and permit local municipalities to enact laws that best suit the needs of their local communities.

Puppy Uniform Protection and Safety Act
Dogs at commercial breeding facilities, known as "puppy mills," are often kept 24-hours a day in small outdoor cages open to the elements with wire floors; get little to no exercise or socialization; may never leave their cages for their entire lives; and are constantly bred until the point of exhaustion. Although existing federal law provides some minimum standards of care for dogs maintained by dealers, these standards are lacking in a number of respects. In a report, the Animal Law Committee expressed support for H.R. 847/S.395, which would amend the federal Animal Welfare Act to: 1) expand the definition of the term "dealer" to include "high volume retail breeder"; 2) improve exercise standards for animals maintained by dealers; and 3) add new licensing provisions with respect to dealers. The report offers a few recommended changes to the proposed legislation, including requiring a specific length of daily exercise in an outdoor space taking into consideration the individual characteristics of each animal, including breed, size, age or health.

Tattooing of Companion Animals
The Animal Law Committee issued a report expressing support for A.739-A, which would prohibit piercing and tattooing companion animals except in certain specified cases. Specifically, piercing a companion animal would be prohibited except: 1) when it provides a medical benefit to the animal and is performed by a licensed veterinarian (or under the supervision of a licensed veterinarian); 2) provides a medical benefit to the animal or is done in conjunction with a medical procedure for the animal, and is performed by a licensed veterinarian (or under the supervision of a licensed veterinarian); or 3) is done for identification, not design, purposes and includes only numbers and letters allotted by a corporation that in the regular course of business maintains an animal tattoo identification registry. In its report, the Committee recommends that the second exception be removed from the proposed bill as it arguably allows tattooing—even purely decorative tattooing harmful to the animal—as long as it is done in conjunction with a medical procedure.

Care of Animals by a Pet Dealer
The Animal Law Committee issued a report expressing support for A.1655-A/S.4799, which would expand the definition of the term "pet dealer" to include wholesale pet breeders, define the term "retail pet store," improve humane housing and care standards for animals maintained by pet dealers, and add new recordkeeping, licensing and inspection provisions with respect to pet dealers. The report notes, however, that the proposed legislation does not incorporate a uniform standard under which mandatory suspension, revocation or refusal to grant pet dealer license is required, and recommends that the legislation be amended to provide a minimum and maximum time duration for the revocation or suspension of a pet dealer's license, as well as a provision specifying that a license shall not be reissued after two revocations based on a conviction of animal cruelty or neglect.

City Bar in the News
New York Law Journal, June 19, 2013

Courts Broaden What Counts as 'Pro Bono' for Reporting Rule
“Responding to concerns from several bar groups, state court officials have expanded their definition of legal services under a new pro bono disclosure mandate....because it appeared to exclude free legal services to nonprofit groups....In addition to the Association of Pro Bono Counsel, letters to Lippman came from the New York City Bar's Pro Bono and Legal Services Committee and Lawyers Alliance for New York. The city bar committee and the pro bono counsel association said they strongly supported the new reporting rule but requested that the court adopt the broader definition of pro bono under Rule 6.1. The city bar committee, in a May 24 letter written by chair Brenna DeVaney, said allowing lawyers to report less than is included under Rule 6.1 is "confusing and communicates to many lawyers that some pro bono contributions are not as valuable as others. The committee...is concerned that the current narrow understanding of what is reportable will ultimately discourage some lawyers, transactional lawyers in particular, from undertaking pro bono work that is truly needed."

C-SPAN.org, June 16, 2013
James Weldon Johnson & the History of Harlem
“Author and professor Jonathan Gill talks about his book "Harlem: The Four Hundred Year History from Dutch Village to Capital of Black America." To illustrate the scope of the Harlem Renaissance, Professor Gill discusses James Weldon Johnson -- a poet, songwriter, author, educator, diplomat and civil rights activist. This event was hosted by the New York City Bar Association.

Law360.com, June 13, 2013 (subscription required)
Thelen Can't Claw Back Hourly Fees, NYC Bar Tells 2nd Circ.
“A New York bar association told the Second Circuit on Wednesday that dissolved law firm Thelen LLP's pending hourly fee matters aren't recoverable assets under state law and that reviving a clawback suit over partners poached by Seyfarth Shaw LLP could decimate client-attorney relationships. The 23,000-member Association of the Bar of the City of New York urged the appellate court to affirm the dismissal of the suit in which Thelen LLP's bankruptcy trustee wants to recoup hourly fees collected by 11 ex-partners who later joined Seyfarth...”

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