Monday, November 8, 2010
This Week at the City Bar
Around the Bar
Recent Committee Activity
Potential New Committee
Legislative Update
City Bar in the News
This Week at the City Bar
6 PM – 8 PM, Event
National Adoption Awareness Month: Adopting Close to Home

6 PM – 8:30 PM, CLE
Matrimonial Practice in the Digital Age: What You Need to Know About Electronic Evidence & Why

Executive Pay: Kenneth Feinberg & Leading Practitioners Address Lessons Learned From the Past & Best Practice For the Future

6:30 PM, Event
How to Run An Effective Job Search

6:30 PM – 8:30 PM, Event
Staying Clean When Going Green - An Update on the FTC's Green Guides and Policy Considerations and Strategies for Companies and their Counsel

6 PM, Event
Race Against the Machine: Privacy, Security and Regulatory Concerns in the Face of Rapid Advances in Technology

6 PM – 9 PM, CLE
Litigation 102: TROs, Settlement Agreements & Other Issues

9 AM – 12 PM, CLE
Planning For Same-Sex and Unmarried Couples: Estate Planning, The New York Executive Order & Other Updates In The Law (Video Replay)

6:30 PM, Event
My First Real Estate Contract: A Program for Law Students

6:30 PM – 8:30 PM, Event
"Happy Cows Come from California" - Puffery or Consumer Fraud?

9 AM – 4:30 PM, CLE
Writing To Persuade (Co-sponsored with ALI-ABA)

Around the Bar
7th Annual Law Practice Management Symposium

On November 4th, nearly 200 attorneys attended the City Bar's 7th Annual Law Practice Management Symposium, produced by the City Bar's Small Law Firm Center. Participants attended workshops for start-up practices and growing firms, covering topics including cost-effective marketing, attorney advertising, billing practice, malpractice insurance, and internet client development.

Recent Committee Activity
Settlement Agreements Requiring the Financial Assistance of Counsel

Formal Opinion 2010-3 issued by the Professional Ethics Committee addresses the question of whether the New York Rules of Professional Conduct permit defendant's counsel to request plaintiff's counsel in a settlement agreement, to hold defendant harmless from claims arising out of defendant's payment of settlement consideration and whether the plaintiffs' counsel may agree to be bound by it. The Opinion concludes that counsel to a settling plaintiff may not enter into a hold harmless/indemnity agreement for the benefit of settling defendants because such an agreement would both violate the prohibition against financial assistance under Rule 1.8(e) and create an impermissible conflict of interest in violation of Rule 1.7(a). The opinion goes on to state that in light of the above conclusion it necessarily follows that defendants' counsel may not request such indemnification without violating Rule 8.4(a).

Authorizing the Incorporation of Benefit Corporations
The Committee on Corporation Law issued a report on A.11498B/S.7855B, New York State legislation which would authorize the creation of benefit corporations in New York State. The report supports the authorization by law of benefit corporations which are business corporations that elect in their certificate of incorporation to pursue one or more public purposes. However, the Committee notes that in order to ensure that the proposed statute creates a viable and attractive framework for creating benefit corporations in New York, a number of issues must be addressed including: issues of director liability, the concern that a third-party standard should not be the sole mandated standard to measure a benefit corporation's performance, and use of the Minimum Status Vote requirement.

Potential New Committee Addressing Fashion Industry
The Association is considering establishing a committee that would address issues involving the fashion industry, and we are attempting to gauge whether there would be interest in such a committee. If you might consider applying to be on a fashion industry committee, please send an email to Martha Harris, the Director of Committee Services, at

Legislative Update
Corporation Law Committee Provides Guidance on “Benefit Corporation” Legislation

The end of the legislative session in Albany typically brings a flurry of fast-paced activity and negotiations. In fact, 77% of all two-house bills that passed the legislature last session passed in June, the last month of session. With impending deadlines and a crushing number of bills being introduced and advanced, the opportunity for public input can be diminished. This was the backdrop to the introduction of A.11498-B/S.7855-B, which allows for the incorporation of “benefit corporations” in New York that would be authorized to promote a “general public benefit.” Under this legislation, directors of a corporation designating itself as a benefit corporation would be required to consider the impact of their decision-making on stockholders, employees, customers, the environment and the community at large. When asked by one of the sponsors of the bill whether the City Bar could provide comments on the bill, the Legislative Affairs Department turned to the Corporation Law Committee. The Committee responded in full, participating in discussions with the sponsor’s office and following up with a letter recommending changes to the bill. Speaking about the Committee’s involvement, Nancy Sanborn, Chair of the Corporation Law Committee, said, “We were happy to get involved and make our voices heard. Our main goal was to point out some deficiencies of the bill and provide guidance as to how to improve it and avoid unintended consequences. We are hopeful that our comments will be taken into account if the bill is reintroduced in 2011.”

City Bar in the News
New York Times, Letter to the Editor, November 6, 2010
Judges Were Independent. Then They Were Defeated.
To the Editor:

We were pleased to see your front-page coverage of Tuesday’s electoral removal of three Iowa Supreme Court justices because they had ruled in 2009 that the State Constitution protected same-sex marriage (“Ouster of Iowa Judges Sends Signal to Bench,” Nov. 4).

When a judge suffers an electoral defeat because he or she exercised judicial independence, we all suffer. Despite that, in a post-election statement, the three justices - Marsha K. Ternus, the chief justice; David L. Baker; and Michael J. Streit - wisely reminded us that we must continue to create and support an independent, merit-selected judiciary.

While it is regrettable that the justices were defeated in a retention election not for judicial incompetence but for ruling in a way they believed was required under the State Constitution, we should not be deterred in our efforts to achieve a truly independent judiciary in New York. This means replacing the current election of judges with the adoption of a commission-based, merit-selected appointment system.

We are confident that this is the best way to select New York’s judiciary. Apparently, three departing judges from Iowa agree with us.

Samuel W. Seymour
New York City Bar Association
New York, Nov. 4, 2010

New York Law Journal, November 2, 2010
The Ethics of Social Networking Discovery
“Two recent ethical opinions issued by the New York State Bar Association and the New York City Bar address issues relating to counsel accessing social networking sites and they, as well as ethical opinions from other jurisdictions discussing this emerging area of electronic discovery, need to be reviewed before conducting social networking due diligence or an investigation….In the city bar's Ethical Opinion 2010-2, the question asked was ‘[m]ay a lawyer, either directly or through an agent, contact an unrepresented person through a social networking website and request permission to access her web page to obtain information for use in litigation?’”

The Village Voice, October 29, 2010
Almost Half of Judge Candidates Unqualified to Run, Says NY Bar
“Nearly half the candidates running for city judgeships in this year's general election on November 2 are unqualified to run, the New York City Bar Association said yesterday. Of the 34 candidates running in the Bronx, Manhattan, Brooklyn, and Queens, 15 are unqualified by the Bar's reckoning (There are no vacancies in Staten Island)….The Bar Association's annual list of ratings for local judicial candidates is serious business. After the candidates fill out a detailed questionnaire and submit it to a panel of 50 lawyers, the panel investigates the candidate through telephone interviews with ‘references, adversaries, and other appropriate contacts.’ The Bar also ‘reviews writing samples and researches any past disciplinary actions.’”

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