Around the Bar
Michelle Bachelet on “The Future of UN Women”
The Under-Secretary-General of the United Nations, and former President of Chile, Michelle Bachelet reported on the progress of gender equality and empowerment of women on June 21st at the City Bar.
Herman Goldman Memorial Lecture 2011
On June 22nd, Kevin M. Downing, Senior Trial Attorney for the Justice Department’s Tax Division, and Mark E. Matthews, of Morgan Lewis and Bockius, LLP and a former senior IRS official, described the historic agreement with the Swiss government that led to perhaps the most successful tax compliance initiative in history, resulting in voluntary disclosures by over 18,000 taxpayers of their secret offshore bank accounts.
Recent Committee Activity
Invading Trust Principal
In a joint report, the Committees on Trusts, Estates and Surrogate’s Courts and Estate and Gift Taxation expressed support for A.8297-A/S.5801; state legislation that would expand existing law that permits a trustee who has authority to invade trust principal, to exercise that power by appointing the principal to a new trust even if the trustee does not have absolute or unlimited discretion to invade the trust principal, while adding a number of provisions, including measures to preserve the settlor’s intent and protect the rights of beneficiaries.
Teachers with a Felony Conviction
The Committee on Corrections Law wrote to the New York City Schools Chancellor expressing concern that his statement suggesting automatic removal of teachers who have been convicted of a felony seemed to be at odds with the due process rights afforded teachers under the existing regulations. Currently, if a certified teacher is found to have been convicted of a crime, Part 83 of the Regulations of the Commissioner of Education prescribes the steps that must be taken before any teacher is subject to revocation or suspension of his or her teaching certificate.
Office of the Taxpayer Advocate
The Committee on State and Local Taxation issued a report in support of A.6429/S.1072, state legislation that would establish by law the Office of the Taxpayer Advocate as an independent office within the Executive Branch. The Office, created by Executive action, currently assists taxpayers in resolving disputes with the Tax Department, identifies problems and legislative solutions, and works with the Tax Department to improve processes. The Office has been viewed as a success by taxpayers and practitioners, and the proposed legislation would ensure the continuance of the ombudsman position within New York, and make it independent of the Tax Department.
Alternative Sentences for Survivors of Domestic Violence
The Domestic Violence Committee issued a report expressing support for A.7874-A/S.5436, state legislation that would allow judges greater discretion when sentencing defendants who are survivors of domestic violence. In particular, the legislation would allow judges to impose an alternative sentence if he or she finds that: 1) the defendant, at the time of the offence, was a domestic violence victim subjected to substantial physical, sexual, or psychological abuse inflicted by a member of the same family or household; 2) the abuse was a significant contributing factor to the criminal behavior; and 3) a sentence under the general sentencing provisions would be “unduly harsh.”
Debt Management Companies
In a joint report, the Committees on Civil Court and Consumer Affairs expressed opposition for A.8212-A/S.5215-B, state legislation that would expand the definition of budget planning to include debt management and debt settlement and would permit for-profit debt management and debt settlement companies to conduct business in New York subject to licensure, fee limitations, and consumer disclosures. While further regulation of these industries would appear to benefit New York consumers, the report notes the bill’s provisions would have the opposite effect. The debt settlement model is inherently abusive and, by its very nature, is never an effective option for consumers, especially those who are low income and financially distressed. While the report argues that the best policy to combat the widespread abuses of for-profit debt settlement and debt management is to ban such entities, as several states have done, the report makes a series of recommendations that are necessary to improve the proposed legislation should the State choose to adopt a regulatory scheme for this industry.
Regulation of Process Servers
The Consumer Affairs Committee and Civil Courts Committee jointly expressed support for A.491, state legislation that would protect litigants from illegal service of process and maintain a high level of integrity and professionalism in the third-party process server industry by mandating, among other requirements, that process servers be licensed by the Department of State. The report recommends some amendments to the legislation, which would help ameliorate systemic problems with illegal service of process by increasing regulation and oversight of the process server industry by DOS and the Attorney General.
Foster Care Placement
A change in placement is one of the most significant decisions that can be made in affecting a child in foster care, and the right to effective assistance of counsel is significantly undermined when a placement is changed without providing the child’s attorney and the parents’ attorneys with notice of a planned change and an opportunity to be heard regarding the plan. The Council on Children issued a report expressing support for A.7598/S.5456, which would provide for electronic notification to all parties at least 10 days in advance of a planned transfer.
All Crimes DNA Act
The Committee on Criminal Advocacy expressed support for S.5560, “All Crimes DNA Act,” which would require the collection of a DNA sample from every person convicted of a felony or misdemeanor as defined under the Penal Law. Though mindful of concerns relating to the potential impact of this legislation upon civil liberties, the report concludes that the benefits of the proposed legislation, with regard to exoneration of the innocent and the effective and efficient enforcement of the criminal law, outweigh these concerns.
Committees Seeking Members
The European Affairs Committee invites members interested in European affairs to apply for membership for the term beginning this September and ending June 2014. The Committee holds monthly dinner meetings with speakers on various issues and sponsors a variety of events. In the past year, the Committee heard presentations concerning EU, European, and U.S. legal and policy issues over a broad field. It also organized a program on “The Egyptian Revolution and its Implications for an Awakened Middle East.” Next term, the Committee hopes to discuss various contemporary issues to be decided at the first organizational meeting in September, possibly including the following: European/U.S. approaches to health care/benefits; the Greek debt crisis; immigration in Europe; the implications of the Tunisian revolution; Mladic and international justice; issues facing the former Soviet republics; and European and US approaches to international humanitarian law/the laws of war. To apply, please submit a letter of interest and resume to Larry D. Johnson, Chair, at firstname.lastname@example.org.
The Committee on Juvenile Justice addresses issues related to the processing, adjudication, placement and incarceration of juveniles in the criminal justice system. Last year, one of the focuses of the Committee pertained to the Youthful Offender sentencing guidelines. This year, State issues pertaining to raising the age of infancy will be one of the topics. To apply, please contact Lynn Leopold at email@example.com.
The Public Service Network fosters public service within the legal community by placing lawyers at nonprofit organizations in various volunteer capacities. The Staff Coordinator works with nonprofit organizations to determine their needs and works with volunteer attorneys to evaluate their interests and skills in order to match attorneys with the right organizations. The Network’s database of organizations includes more than 400 nonprofit organizations. The Network has placed over 1,000 lawyers in varied legal and non-legal roles, including service as a Board member, assisting with policy, legal research, representation of both the organization and the organization’s clients, program development, public relations, and many others. The Committee serves as an advisory board working with the Coordinator on program evaluation and growth, event planning, and developing relationships to increase volunteer and nonprofit partner participation. To apply to serve on the Committee, please contact Tom Schoenherr at firstname.lastname@example.org.
City Bar in the News
New York Law Journal, June 24, 2011
New York Lawyers Celebrate Historic Passage of Marriage Equality Act
Samuel W. Seymour, president of the New York City Bar Association, said in a statement, “same sex couples will now have the legal status that all married couples enjoy and that is clearly recognized by institutions, governments, employers and children, and which inseparably carries with it enumerable rights, duties, benefits, and obligations under the law. As lawyers practicing in trusts and estates, health care and family law, we look forward to seeing the end of the discrimination faced by our clients who are same-sex couples. The City Bar commends the steadfast advocacy of all those who have contributed to this achievement.”
Reuters, June 22, 2011
Budget Cuts Begin to Take a Toll on Court Proceedings
In New York, lawyers, not judges, conduct jury selection in civil trials. Until the spring budget cuts, disagreements over voir dire and other jury-related issues were often settled by judicial hearing officers, or JHOs. In some courts, some JHOs even sat adjacent to jury selection rooms. But in the wake of the March budget cuts, those hearing officers - typically retired judges who worked for $300 a day - have disappeared. Earlier this year, there were about ten hearing officers who presided over jury selection in New York City. When the budget cuts kicked in on April 1, there were none. While some JHOs remain, especially in family court, cutting the hearing officers around the state saved close to $5 million.…The impact of the court cuts still hasn't been fully felt, many lawyers caution. The New York City Bar Association’s Council on Judicial Administration is studying the consequences and plans to release its findings by the fall.
TrustLaw, June 22, 2011
The Word on Women - Michelle Bachelet Makes the Rounds
What once was a quartet of entities dealing with womenˇ¦s issues is now one and the pressure is on Michelle Bachelet, former president of Chile and newly minted United Nations Under-Secretary General and Executive Director of the new UN Women to make the case for “The Future of UN Women.” That was her subject Tuesday night as she appeared before an audience at the wood-paneled Manhattan headquarters of the New York City Bar Association. It was just the latest stop in her recent international travels to clarify the aims of the new organization and elicit support from governments, NGOs and civilians alike. The very fact that the organization was created, she said, signals the fact that gender equality has risen in importance at the United Nations—on a par with “other broad imperatives” such as poverty. “Now, we need to show that we can live up to these expectations.” Her top priority overall: “One big word: empowerment.” Specifically, empowerment in three spheres – economic, social and political participation – are key, she said.
New York Law Journal, June 21, 2011
Ex-A.G. Candidate Coffey Launches Venture to Invest in Litigations
Sean Coffey, the former securities class action heavyweight, has found a new calling in the wake of his unsuccessful campaign to become New York’s attorney general: funding other people’s litigation. Coffey, who left Bernstein Litowitz Berger & Grossmann in October 2009 to run for office, has co-founded BlackRobe Capital, a New York-based investment management firm that invests in litigation.…Coffey said BlackRobe wouldn’t run afoul of ethics rules, adding that the “most important thing is informed consent by the client.” Ethical guidelines issued by the New York City Bar Association on Wednesday stated that lawyers may take cues from third-party funders as long as they’ve obtained their clients’ consent.
Reuters, June 20, 2011
New York City Bar Gives Thumbs Up to Litigation-Funding
An opinion by the New York City Bar Association has blessed the practice of third-party funding for litigation, but cautioned that the practice can pose thorny ethical issues. The practice of seeking funding for cases from outside investors has been on the rise in the past 20 years, the association said.…In its June 15 opinion, the city bar association raised issues surrounding a lawyer’s obligation to protect confidential information, conflicts of interest with a lawyer and funder, and the role of the outside funder in controlling a case. “From the legal ethics perspective, perhaps the greatest concern stems from a financing company’s involvement in the details of a case,” the opinion said.
Tax Notes Today, June 16, 2011
IRS Continuing Work on Deferred Compensation Regs.
During a program on retirement plans and tax-exempt organizations that was sponsored by the New York City Bar Association, Cheryl Press, branch 2 senior attorney (qualified plans), IRS Tax-Exempt and Government Entities Division, was asked about the chances of the regulations being published in September. She said that might be “wishful thinking,” adding that a lot depends on what happens with healthcare. “We’re very slim staffed and our higher-ups are at an even slimmer level,” Press said. “And once we clear [the proposed regulations] through our building and work through everything, we have to get it through Treasury, and they’re pretty slimly staffed too.” The proposed regulations remain on the IRS’s guidance plan, however, and are no less of a priority, Press said. Still, a New York City practitioner said, the delays are a problem for exempt organizations. “It leaves us hanging a little bit, quite frankly,” Richard Schwartz, a partner with Seyfarth Shaw LLP, told Tax Analysts.